CIV/APN/100/2006
IN THE HIGH COURT OF LESOTHO
In the matter between:-
THE EXECUTIVE COUNCIL OF THE
FULL GOSPEL CHURCH OF GOD
IN SOUTHERN AFRICA 1st Applicant
THE EXECUTIVE COUNCIL OF THE FULL
GOSPEL CHURCH OF GOD IN LESOTHO 2nd Applicant
and
DANIEL NTSAU 1st Respondent
BERENG LEKHANYA 2nd Respondent
ANDERSON MOKHAHLA 3rd Respondent
AARON MTHIMKHULU 4th Respondent
Summary
Jurisdiction - High Court Act 1978 - Section 6. No jurisdiction to hear matters civil justiciable in subordinate courts unless leave granted - "Civil cause" includes civil application.
Where an application for ejectment is brought before the High Court without leave having been granted by a Judge in chambers, the High Court has no jurisdiction and application ought to be dismissed.
Held: "Civil cause" in section 6 of the High Court Act should be widely construed to include civil application.
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And Held: Dismissal of an application in these proceedings does not determine the issues of entitlement over the properties of litigants and matter is not res judicata.
JUDGMENT
CORAM : HON. MR JUSTICE S.N. PEETE
DATE : 1st APRIL 2007
Date of Hearing : 19th February 2007
In their notice of motion filed in court on the 8th March 2006, the applicants prayed for an order couched in the following terms:
"1. Granting Applicants leave to institute this proceedings in the above Honourable Court.
That the Respondents and/or their agents are evicted from the properties listed in Annexure "B " to this application.
That the Respondents and/or their agents are interdicted and restrained from administering or dealing in any manner whatsoever with the properties referred to above.
That the Respondents and/or their agents are interdicted and restrained from interfering in the affairs of the First and Second Applicants.
That the Respondents are ordered to pay costs of the application.
Further and/or alternative relief " (My underline)
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On the day appointed for the hearing Mr Nteso, for the respondent, limited his submissions to the issue of jurisdiction —
submitting in the main that the claims under prayers 2,3 and 4 are ordinarily justiciable before the Subordinate Court.
He referred to section 17(c) and section 18(1) of the Subordinate Courts Order No. 9 of 1988 which respectively conferred jurisdiction
upon the Subordinate Court to adjudicate causes of action involving ejectment and interdicts. The jurisdiction of chief magistrates and senior Resident Magistrates is also extended to the whole country (section 15 (1) of the Order). The properties in question are located in all districts of Lesotho except in Thaba-Tseka and Mokhotlong.
It is not in dispute that the relief claimed by the applicants principally involves ejectment and interdict and hence is justiciable before the Subordinate Court.
It was Mr Nteso's main contention that the High Court had no jurisdiction to hear this application because the provisions of section 6 of the High Court Act No.5 of 1978 had not been complied with. It reads in full:-
"No civil cause or action within the jurisdiction of a subordinate court (which expression includes a local or central court) shall be instituted in or removed into the High Court save —
by a judge of the High Court acting of his own motion; or
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with the leave of a judge upon application made to him in Chambers, and after notice to the other party. "
Mr Nteso also cited the Lesotho Court of Appeal decision of Thabo Charles Maitin v Mary Barigye & Another1 where Tebutt AJA held that in terms of the provisions of section 17(c) of the Subordinate Court Order 1988 a subordinate court had jurisdiction to determine a claim for ejectment regardless of the value of the property involved and that the court a quo was right in dismissing the application because it had been brought to the High Court without leave - contrary to the provisions of section 6 of the High Court Act 1978.
As to the meaning of what constitutes "a civil cause, proceeding or matter", see the case of Ying Woon vs Secretary for Transport2 in which it was held that the word "cause" had the wide meaning of "a legal proceeding, a lis or cause, a process of some kind" and that the word "proceeding" similarly has a wide meaning going beyond the restricted meaning ascribed to the words "suit or action" - see Erasmus - Superior Court Practice — A1-9.
In my view therefore the words "civil cause" in section 6 of the High Court Act 1978 must be given a wide generic construction
that encompasses civil application (as opposed to criminal proceedings). No practical distinction needs to be made between
civil applications and civil action under section 6 of the High Court Act, otherwise the
1 1993-94 LLR 270 (CA)
2 1964 (1) SA 103 (N) at 108-109.
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rationale behind this section would be defeated and matters of ejectment and interdict would conveniently be moved in the High Court by way of application in order to go round the provisions of section 6 of the High Court Act.
The High Court ordinarily has no civil jurisdiction in all matters within the jurisdiction of the Subordinate Court unless the leave of a judge is granted upon application made to him in chambers and after notice the other party (Rule 6, supra).
In my view, the application for leave under section 6 (b) should be moved separately before a principal application which seeks the main relief can be brought after leave has been granted. In an application for leave, the High Court will not lightly assume
jurisdiction over a matter ordinarily justiciable in the Subordinate Court and the applicant should satisfy the judge in chambers that there is a balance of convenience in favour of removal. The convenience to be considered is what happens after the order is granted, not which court hears the matter - see Goode, Durrant and Murray vs Lawrence3.
In these circumstances, I hold that Mr Nteso's submission on the issue of jurisdiction to be a valid one and since no leave has been granted, the application is hereby dismissed with costs. For avoidance of doubt, it should be stated the dismissal of this
3 1961 (4) SA 329
4 As to whether esceptio res judicata applies see Purchase v Purchase - 1960 (3) SA 383; Becker v Wertheim - 1943 (1) PH F34 (A.D.); Boland Construction Pty v Petlen Properties Pty-1974 (4) SA 980; Spencer- Bower and Turner - Res Judicata - 2nd Ed p51.
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application does not finally determine the respective rights of the parties; this decision relates only to the matter of jurisdiction; the res judicata may be pertinent if an application for leave is later sought or an application is moved before the-subordinate court and the objection based on res judicata is raised.
S.N. PEETE
JUDGE
For Applicants : Mr Loubser.
For Respondents : Mr Nteso.
