CRI/APN/353/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

BOKANG
LETELE APPLICANT

VS

LEHLOHONOLO
NEPO RESPONDENT

RULING

Delivered
by the Honourable Acting Justice M. Mahase On the 28th April 2006

In this
application, the applicant filed a notice of motion in terms of Rule
30 (1) of the High Court Rules of 1980.

The
application was filed on the 7th November 2005 by the applicant's
attorney, Mr. Mahlakeng. The applicant is applying for the
following
prayers:-

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1. Setting
   aside Respondent's notice of set down dated the 2nd November 2005 as
   an irregular, improper proceedings, or improper step.

   
   

2. Awarding
   costs to the applicant.

   
   

3. Granting
   the applicant such further and/or alternative relief.

   
   

The
particulars of the alleged irregularity or impropriety involved and
which the applicant relies upon are set out as follows:-

i) The matter is not ripe for adjudication and the notice offends
against the preemptory requirements of Rule 8(13) in that the
date
specified in the notice has not been allocated by the Registrar.

ii) The matter is not ripe for adjudication in that in terms of Rule
8 (11) of the High Court Rules the period within which to
file the
replying affidavit has not expired.

iii) Respondent had not complied with the requirements of Rule 8 (10)
(a) of the High Court Rules 1980.

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iv) The
acting of Mr. E.H. Phoofolo as an attorney of record and/or the
instructing attorney in the matter is irregular in that
Mr. E.H.
Phoofolo is a witness in the matter and cannot properly act as an
attorney of record.

The
history of this case is a long one. Many applications have been filed
by the parties herein at different times and before different
Judges
of this court.

The
present application has been filed in terms of the Provisions of Rule
30 (1) of the Rules of this court. When on the 13/11/2005,
Messrs
Mahlakeng and Phoofolo appeared before this court, it was indicated
that there is yet another application for cancellation
of bail and
contempt of court against the present respondent and one other
person.

It was
pointed out however that the present application in terms of Rule 30
(!) of the Rules of this court has to be finalized before
that other
application is dealt with.

Mr.
Mahlakeng then outlined the reasons why it was said that the notice
of set down dated the 2nd November 2005 was an irregular,
improper
proceeding or improper step. He submitted that the said notice of set
down did not comply with

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the
Provisions of Rule 8 (13) because the said date had not been
allocated by the Registrar of this court.

Indeed
there is no notice filed by the respondent in terms of the Provisions
of Rule 8 (13 of this court informing the applicant
that he
(respondent) will so apply for a date of hearing. The Respondent has
therefore obtained the date of the 7th November 2005
unilaterally
without first having notified the other party that he would approach
the office of the Registrar for allocation of
a date of hearing of
that matter of cancellation of bail and contempt of court.

The
notice of set down against which the applicant complains had been
filed with the office of the Registrar of this court on the
2nd
November 2005. It had already been served upon the applicant's
attorney on the 1st November 2005.

It was
further argued that the matter (i.e. cancellation of bail and
contempt of court proceedings) was not ripe for adjudication
in that
in terms of the Provisions of Rule 8 (11) of this court, the period
within which to file the replying affidavit has not
expired.

Indeed,
when on the 1st November 2005, the applicant was served with a notice
of set down for hearing of the matter on the contested
motion roll on
the 7th November, 2005 the

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applicant
was within time to file a replying affidavit. In other words, the
said notice of set down was prematurely issued, file
and served upon
the applicant.

The time
stipulated in the Rules within which the applicant has to file a
replying affidavit had not expired. According to the Provisions
of
Rule 8 (11) the applicant had seven days within which to file a
replying affidavit. However, the respondent served that notice
of set
down of this matter some five days before the period prescribed by
the Rules for filing a replying affidavit had expired.
This was
clearly improper and or irregular.

The third
particularity of the irregularity complained about by the applicant
is that the respondent has not complied with the requirements
of Rule
8 (10) of the Rules of this court.

However
Mr. Mahlakeng mentioned that he was not so sure if the Registrar's
office had been served with the notice of intention to
oppose. He
argued also that his office had not been served with same.

It has
however been noticed and Mr. Mahlakeng conceded, that such a notice
has been issued, filed and served upon his office on
the 02/11/05 at
9:10 am. He therefore did not pursue this point any further.

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The
fourth particularity of the irregularity involves the respondent's
attorney of record. It was argued on behalf of the applicant
that
since the respondent's attorney, Mr. E. H. Phoofolo had filed a
supporting affidavit in favour of his client, he has turned
himself
into, or that he had assumed the status of a witness. It was argued
that in such circumstances, the attorney for the respondent
is bound
to take a witness stand and should not at all act as an attorney for
his client and is not permitted to assume both positions.

It was
submitted on behalf of the applicant that a proper reading of the
supporting affidavit of the respondent's attorney will
show that he
(respondent's attorney) is deposing to the matter which is subject
matter herein.

In
support of the above proposition, the court was referred to the book
of E. L. LEWIS LEGAL ETHICS, 1982 EDITION AT PAGE 73.

The
author has indicated that where it appears from the beginning that
the attorney must be a witness and that his credibility may
be in
issue, he ought not to represent any litigant in the case.

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It is on
the above stated reasons that the applicant has approached this
court. He has also applied for costs..

In
response, Mr. Phoofolo for the respondent dealt with the last point
raised. One may pause to observe that this particular point
has
nothing to do with Rule 30 (1) of the High Court Rules.

It is,
however a matter of common cause that Mr. Phoofolo has not raised any
objection to the raising of this point by the applicant's
attorney.
There is therefore no reason why this court cannot deal with it too.

Respondent's
attorney's argument on this point is that even if he is an attorney
of record for the respondent, he has a right to
confirm that a person
did approach him, consulted him and reported to him about the
occurrence of a certain incident.

He argued
further that this fact does not mean that he knows whether or not the
incident or the complaint reported to him by his
client did actually
occur. He submitted that what he has deposed to is only that a report
was made to him about the occurrence
of this incident and nothing
else.

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He
further argued that neither himself nor his client can be said to
have been aware from the beginning that such an alleged incident

would occur.

This
court is of the view that there is nothing on the said supporting
affidavit of the respondent's attorney indicating that he
had
conducted himself in such a way as to have compromised his
professional position as an advisor and an attorney to his client.

The filing of that supporting affidavit in fact tells this court
nothing other than the fact that his client did report to him
about
the occurrence of the alleged incident.

There is
also nothing suggesting that respondent's attorney was aware that
this alleged incident was likely to occur. There is no
iota of
evidence that the reporting of this incident by respondent to his
attorney would jeopardize the credibility of the respondent's

attorney.

Other
than filing a supporting affidavit to the effect that indeed his
client reported to him about the occurrence of the alleged
incident,
Mr. Phoofolo has not set out the conduct complained about. He could
not do so as he did not witness it happen.

This
point therefore has to be dismissed as being frivolous and
irrelevant. This I say with the greatest respect to the applicant

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and his
attorney. The said point which has not even been raised in the
founding papers of the applicant is dismissed.

I turn
now to the notice in terms of Rule 30(1) of the High Court Rules:-

The
respondent's attorney; Mr. Phoofolo has indicated that the points
with regard to the alleged irregularities as raised by the
applicant
from (i) to (iii) are in fact the same.

He denies
that he has taken any irregular or improper steps.

He argued
that contrary to what Mr. Mahlakeng said, the notice of intention to
oppose was actually served at Mr. Mahlakeng's office
and that someone
at that office received, signed for it and wrote down the date and
time when same was served thereat.

Mr.
Mahlakeng also conceded this fact; rightly so because in fact there
is a signature of someone who presumably received that notice.
He
also wrote down the date and time when that was served in that
office.

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URGENCY:-

There is
no dispute that the applicant approached the court on exparte basis
and that he subsequently obtained an interim court
order but that he
served the respondent his founding papers which were without the said
interim court order.

In doing
so, the applicant was aware that he had not given the respondent
notice of his intention to approach the court on exparte
basis. No
reasons have been advanced as to why the interim court order was not
served upon the respondent. This failure by the
applicant to serve
that interim court order upon the respondent was irregular and or
improper. How then was the respondent expected
to know what kind of
an order had been granted against him? Surely he would not even be
fully able to respond to the applicant's
founding papers in the
absence of that interim court order.

It had
further been argued on behalf of the respondent that there has been
no irregularity or impropriety involved because the respondent
filed
his answering affidavit some five days before the seventh day.
Respondent argues that actually this period was enough for
the
applicant to respond.

In fact
the Rule in question - Rule 8 (11) provides that an applicant may
deliver a replying affidavit within seven days of

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service
upon him of the answering affidavit. There is therefore no
irregularity and or impropriety if an answering affidavit is
served
upon the applicant before the expiry of the seven days herein
provided.

Actually
that gave the applicant enough time to respond. The respondent did
not have to wait until the expiry of the said seven
days to file an
answering affidavit. The Rule in question provides that a replying
affidavit should be filed by the applicant within
seven days of
service or delivery upon him of the answering affidavit.

It does
not necessarily follow that that the seven days period has to
actually expire before an answering affidavit is filed or
served.

The word
within is described in the Oxford English Dictionary, Tenth Edition
Revised to mean :-

1. Inside

   
   

2. Inside
   the range of;

   
   

3. Occurring
   inside (a particular period of time)

   
   

The
respondent has therefore correctly invoked the Provisions of Rule
8(1). This ground of irregularity or impropriety is therefore
without
merit and it is accordingly dismissed.

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For the
reasons stated above the said notice of set down dated the 2nd
November 2005 and filed by the respondent is set aside as
being an
irregular, improper proceeding or improper step.

The other
points of irregularity relied upon by the applicant, namely (ii),
(iii) and (iv) are dismissed. Each party is to bear
its own costs.
Neither party has been wholely successfully in all the points raised
herein.

A word of
caution needs be voiced at this juncture; namely that there is
absolutely no need why the applicant has approached this
court on ex
parte urgent basis without notice to the respondent. This is an abuse
of the court process.

This
court and the Court of Appeal have on numerous occasions warned legal
practitioners not to embark on this kind of applications
without
having filed a certificate of urgency stating reasons to support the
application.

Such
cases include, to mention but a few, HIGHLANDS WATER VENTURE V DNC
CONSTRUCTION (PTY) LTD -CIV/APN/123/1994; EASTER BROOK TRANSPORT

(PTY) LTD v THE COMMISSIONER OF POLICE AND ANOTHER, 1991-1996 LLR (1)
141 at 142. 'MAPUSELETSO MAHLAKENG AND OTHERS v SOUTHERN
SKY (PTY)
LTD AND OTHERS C OF A (CIV) 16 OF 2003; NATIONAL

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UNIVERSITY
OF LESOTHO AND ANOTHER v PUTSOA C OF A (CIV) 28 OF 2002.

I pause
to also observe that this particular case has been pending before
this court since the 4th July 2005.

Many
different applications have been filed and heard before different
Judges of this court. There seems to be no end to the number
of
applications filed at different times before different Judges but
using the same number and file. This is somewhat causing a
confusion
and a delay in the finalization of the real case which the present
applicant has complained about. This also constitutes
an abuse of the
court process.

It is
indeed in the best interest of all concerned that the said
contemplated private prosecution be finalized.

The
private prosecutor should strife towards that goal; otherwise the
grievances complained about will never be resolved.

M. MAHASE

ACTING
JUDGE

For
Applicant : Mr. E. H. Phoofolo

For
Respondent : Mr. Mahlakeng

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