CIV/APN/380/2001
IN THE HIGH COURT OF LESOTHO
In the matter between:-
THE COMMISSIONER OF LANDS 1st Applicant
URBAN LAND COMMITTEE - LERIBE 2nd Applicant
MINISTER OF LOCAL GOVERNMENT 3rd Applicant
THE ATTORNEY-GENERAL 4th Applicant
and
PETER MAPESHOANE
Respondent
RULING
15th April, 2005.
This was an Application for the substitution of an affidavit. Mr Mapetla for the Applicants in motivation of his Application indicated that he used the word substitution for want of a proper or better word. They were not going to substitute anything or amend anything. It was just a question of correcting an obvious mistake of having caused one deponent sign an affidavit belonging to the other.
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The Application was very strongly objected to by the Respondent showing that, that would amount to amending an affidavit which section 33 (1) of the Rules would not permit.
Citing the case of Semakaleng Khongoanyane & one v The Director of Prisons and 3 Others CIV/APN/229/93 (unreported) by Ramodibedi AJ (as he then was), the Respondent pointed out that an affidavit in terms of the Rules should never be substituted or amended. Quoting from the said judgment, counsel for Respondent showed that "since an affidavit constitutes evidence, it cannot therefore in terms of the Rules be amended. This being precisely because in Motion Proceedings an affidavit itself constitutes evidence and proof of what it contains."
The judgment further showed that "allowing an amendment of an affidavit would not only be improper but would literally amount to sanctioning of perjury." I entirely agree with what counsel for the Respondent said in argument, but what still remains is that each case is to be treated on its own merits.
What Applicants' counsel asked for was that a correction had to be made, where on the face of it one person has by mistake signed another person's affidavit. The affidavits at issue were the supporting
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affidavits to the answering affidavit.
The two deponents being Bernice Qacha and 'Mathabang Moloi. Bernice seemed to have signed on 'Mathabang's affidavit and vice versa. Could this be said to be amending an affidavit if a request is made just to correct that obvious exchange of signatures. This clearly was an obvious genuine mistake which should not be interpreted to mean amending the affidavits. This case is quite distinguishable from the Khongoanyane's case. Nothing new is going to be added except the signatures, and the Respondent would not suffer any prejudice. In fact he has not alleged any prejudice he was going to suffer or subjected to by correcting that obvious mistake.
The other point that was raised by the Respondent was that the Application was defective for non compliance with the mandatory provisions of Rule 8 (7) and (8) read together with form J of the High Court Rules.
As rightly pointed out by the Applicants, the Respondent's point is silent as they have not shown in what particular respect there has been non-compliance so as to allow the other party to respond issuably. But looking at the section referred to it refers to Applications other than one brought ex parte. This Application was brought ex parte and on urgent
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basis, and was addressed to the Registrar. This point also fails.
The points of law raised by the Respondent fail but the Applicants have indicated that they were offering costs for the day as it was through their negligence in confusing the pages that the other side would be requested to reply afresh and case had to be postponed. It would only be fair that though the Respondents have not been successful it was through their replying papers that the Applicants were able to spot their negligence. Wasted costs for the day are awarded to the Respondent. The Respondent is free to reply afresh after the change of signatures would have been rectified.
M. HLAJOANE
JUDGE
For Applicants: Mr Mapetla
For Respondent: Mr Shale
