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 18th 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.
M. HLAJOANE
JUDGE
For Applicant: Mr Mabulu
For Respondent: Mr Phoofolo