CIV/APN/118/06

IN THE HIGH COURT OF LESOTHO

In the matter between:

AMANDLA MUSA LETETE APPLICANT

And

PRICE'N PRIDE (PTY) LTD RESPONDENT

JUDGEMENT

Delivered by the Honourable Madam Justice N. Majara on the 19th September 2006

Applicant approached this Court on notice to the other party for an order in the following terms:

1. Rescinding or varying the order erroneously sought and granted on the 27th March 2006 as an irregular and improper proceeding or step.

2. Awarding cost to the applicant.

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

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Facts which brought about this application are that on the 29th September 2005 at 15:02 hrs, respondent served applicant with notice in terms of Rule 8 (10) (c) dated 29th July 2005. The said notice was not heard by the Court and on the 19th September 2005 respondent served applicant with an opposing affidavit dated the same date.

It was the case of applicant that the said notice constitutes an irregular or improper proceeding or step because it was served when the 1st respondent had already delivered notice in terms of the rule which notice has not been heard or determined by the Court.

On the 4th September 2006 when the matter was argued before me, Mr Maimela for respondent raised a point of law from the bar that there is no application before the Court for the reason that applicant served improper papers which have not been signed and/or bear the Registrar's stamp in terms of High Court Rule 18 (6). It was counsel's submission that the application ought to be dismissed on this ground.

In response, Mr Mahlakeng for applicant submitted that the point raised by counsel for respondent should be dismissed because the papers have been duly signed by himself as can be found at page 18 of the Court's file and that they do bear the Registrar's stamp of the 3rd May 2006. It was his

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contention that papers are filed only after they have been served on the other party and that the registrar's stamp is not a requirement before service. Further that Rule 18 (6) deals with summons not applications on notice.

It was Mr Mahlakeng's further submission that applicant complied with Rule 8 (10)

(a) by giving notice to respondents to file their notice of intention to oppose which the latter duly delivered. He added that respondents were then enjoined by Rule 8 (10)

(b) to file their opposing affidavit failing which to file their point in limine as is required by Rule 8 (10) (c).

Mr Mahlakeng moved the Court to dismiss respondents' point in limine and to grant the application on account of respondent's failure to file their opposing papers per the provisions of the cited rules.

In his reply, Mr Maimela submitted that although the papers appear to have been signed per the Court's file, their own copy was blank and not signed and that they cautiously did not file opposing papers because they deemed applicant's papers not to be Court process. He reiterated that Rule 18 (6) includes both summons and application proceedings.

I now proceed to deal with the said point.

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High Court Rule 8 (10) (b) and (c) respectively provide as follows:

any person opposing the granting of an order sought in the notice of motion shall:(b) within fourteen days of notifying the applicant of his intention to oppose the application, deliver his answering affidavit, if any, together with any relevant documents; and (c) if he intends to raise any Question of law only shall deliver notice of his intention to do so, within the time stated in the preceding subparagraph, setting forth such question'. (my underline)

In casu, it is my view that respondents' case that applicant's papers have not been properly signed and stamped per the requirements of the rules is a point of law which ought to have been raised in terms of Rule 8 (10) (c) quoted above. I therefore cannot allow them to raise the point at this late stage; when they were aware all along of the alleged irregularity. They cannot unilaterally decide not to take any appropriate action without raising it and placing it before the Court according to the rules.

In addition, whether their contention that applicants' papers were defective was correct or not, respondents ought to have raised this point in accordance with the procedure and within the period prescribed by the sub-rule and not wait for the date of hearing only to raise it from the bar so as to have brought it

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to the attention of applicants to allow them to prepare and deliver their reply as well as to have timely placed it before the Court.

Even assuming that respondents could correctly raise this point at this late stage from the bar, upon perusal of the papers in question as contained in the Court's file I found them to bear the signature of Mr Mahlakeng counsel for applicant as it is found at page 18 of the Court's file. This in itself renders nugatory respondents' first leg of their point in limine.

On the issue of the papers not bearing the stamp of the Registrar, perusal of the papers reveals that they do in fact bear the said stamp which was ex facie appended on the 3rd May 2006. The next question is whether the fact that the stamp was affixed only after service on respondents renders the application fatally irregular or defective.

It was Mr Maimela's submission that this is so as it is in contravention of High Court Rule 18 (6). The said rule provides:

"The summons shall be signed by the Registrar and the plaintiff's attorney or plaintiff personally and must disclose the attorney's address or plaintiffs address which must be

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within five kilometers from the office of the Registrar at which he will accept service of all documents." (my underline)

It is my view that the above rule deals specifically with summons and not application proceedings as Mr Mahlakeng correctly pointed out and that Mr Maimela's submission that it is inclusive of both cannot be correct. This is especially so when one considers that the two types of proceedings are governed by different rules that apply specifically to each throughout all the stages i.e. from commencement to final disposal thereof. It is for this reason that this second leg of respondents' point also falls by the wayside.

Lastly, since respondents could not say with any amount of certainty what the Court's finding would be on their point in limine, they should have also filed their defence on the merits pending this Court's decision on the preliminary point. See Herbstein & Van Winsen; the Civil Practice of the Supreme Court of South Africa, 4th edition p355-356. Their failure to do so leaves this Court with no option but to decide the application on the basis of applicant's notice of motion alone.

For the above reasons, I accordingly dismiss respondents' point in limine and grant the application as prayed for with costs.

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JUDGE

For applicant : Mr Mahlakeng

For respondent: Mr Maimela

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