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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Setting aside Respondent's notice of set down dated the 2nd November 2005 as an irregular, improper proceedings, or improper step.
Awarding costs to the applicant.
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 :-
Inside
Inside the range of;
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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