CIV/APN/282/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

JOSHUA
NOSI LEHLOKA Applicant

And

THABO
LEHLOKA Respondent

JUDGMENT

Delivered
by the Hon. Mrs Justice A.M. Hlajoane on Monday 20th November, 2006.

The
Respondent in this case was the Applicant in the main Application
where he had moved Court on urgent basis for an order that
the
present Application share with him the proceeds from their deceased
parents' arable land. The land was purchased by the Lesotho
Housing
and Land Development Corporation for purposes of developing sites on
the land and selling them to the public.

2

The
present Application is for stay of execution and rescission of an
order that had been granted by default. The order was by default

after neither Applicant nor his counsel had appeared in Court on the
day the matter was placed on the roll The Respondent in his
answering
affidavit in the rescission application has raised some points of law
in limine.

Locus
standi

Counsel
for Respondent contended that it was wrong for Applicant's counsel to
have deposed to an affidavit in support of the application
for
rescission. The argument went further to show that counsel did not
even show by what authority he purported to act as applicant,
and
even more specifically why applicant was not in a position to make
the application himself.

Briefly
the arrangement of events in the order of their occurrence in this
case was that, the main application was filed on the
18^th
July, 2006 and the order that was granted was made returnable on the
14th August, 2006. The Respondents were served with the notice
of
motion and the interim order on the 21st July, 2006. Notice of
intention to oppose was served on the 2nd August, 2006.

3

I must at
this juncture point out that though the interim court order reflects
the 7th of August as the return date, the minute
in the file shows
the return date as the 14th of August.

On the
return date, the 14th August 2006 Respondents in the main had not
filed any answering affidavits, and neither their Counsel
nor
themselves were before Court hence the granting of judgment by
default by confirming the prayers in the notice of motion.

As
already shown above, Counsel for the Applicant in the rescission
application is the one who deposed to an affidavit in support
of
prayers in the notice of motion. The affidavit goes as follows:

I, the
undersigned,

Do hereby
make oath and say;

-1-

I am an
Advocate of the Honourable court, duly admitted and enrolled to
practice as such. I currently practice under the firm of
Mofolo,
TAU-THABANE & Co. The facts deposed to herein are within my
personal knowledge and recollection are true and correct.

4

-2-

On the
1st of August 2006 we received instructions from Applicant to act on
his behalf in CIV/APN/282/2006 and I immediately entered
Notice of
Intention to oppose and served it upon the Respondents.

In
Lesotho Human Rights Alert Group v Minister of Justice and Human
Rights & Others 1993-94 LLR &LB 264 the Court of Appeal

followed the decision in Wood and Others v Ondangwa Tribal Authority
and Another 1975 (2) S.A 294 at 306, that an applicant would
be
allowed to act on behalf of the detainee where he could satisfy the
Court that the detained person was not in a position to
make the
application himself. The Court would also have to be satisfied that
the detained person would have made the application
himself if it had
been in his power to do so. Must show authorization to bring the
application.

Such
Applicants on behalf of others must have a link or relationship with
the person concerned, which may be that of a relative
or personal
friend or arise by reason of as described by Rumpff CJ in Wood's case
above "an agreement express or implied,
relation to a common
interest." Such relationship

5

according
to the learned Chief Justice would be a partnership, or a society, or
a church or apolitical party.

Incidentally,
Counsel for the Respondent in this Application was Applicant's
Counsel in the Lesotho Human Rights Alert Group case
and must have
clearly understood the reasoning in that judgment. He had been denied
the opportunity of filing an application on
behalf of a client who
was in detention because though he was his legal representative that
would not qualify him to be said to
be having an interest in the
matter.

Counsel
for the Applicant in this case has alone deposed to an affidavit in
the rescission Application, supported by an affidavit
from a
messenger from his office. No authorization for rescission of
judgment. He has not shown any reasons why the Applicant himself
was
not in a position to make the Application. His response has only just
been that as Counsel for Applicant, he had an interest
in the matter
being interested in the outcome of the case. He further showed he
acted under client's instructions. Mind you Counsel
is an Advocate
not an Attorney and as such could not be dealing directly with
clients. He can only have audience if duly instructed,
Rule 17 (1)
(c).

6

Respondent's
Counsel further showed that the application for rescission offends
against Rule 8 (1) in that Applicant has not himself
deposed to an
affidavit but his Counsel. It is the Applicant himself who has to set
out facts upon which he relies for relief.

Again,
Applicant has not stated precisely under which Rule relief is being
sought. It is not clear whether it's under Rule 27 (6)
or Rule 45 of
the High Court Rules.

My
brother Nomngcongo J in Rev. Mohlomi and Others v L.E.C and Others
CIV/APN/268/2006 and CIV/APN/195/2006 was confronted with
the same
problem of expecting the Court and the other side to surmise what
relief is being sought. In Mohlomi supra my brother
Judge had this to
say that,

"The other party and the Court do not have to ferret the
Applicants papers to find out exactly what relief is sought."

It is the
requirement under Rule 20 (4) that pleadings must be presented with
sufficient particularity so as to enable the court
and the other side
what issues have to be decided and what case the opponent has to
answer. The Applicant has just not passed the
test of showing
precisely what relief is being sought.

7

I have
thus come to the conclusion that since the deponents to the founding
affidavits are not parties in the main application they
were
disqualified to deposing to the affidavits and as such their
affidavits are no affidavits at all.

The said
deponents have not shown under whose authority they so acted. There
was not even a supporting affidavit from the Applicant.
It has also
not been shown under which Rule of Court the application has been
made.

The
Respondent having succeeded in all points in limine, the application
is thus dismissed with costs.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicant: Mr Mabulu

For
Respondent: Mr Phoofolo