CIV/APN/114/2008
IN THE HIGH COURT OF LESOTHO
In the matter between:-
THABANG (PTY) LTD 1ST APPLICANT
MARA HOLIDNGS (PTY) LTD 2ND APPLICANT
AND
TOTAL LESOTHO (PTY) LTD 1ST RESPONDENT
FARAH INVESTMENTS (PTY) LTD 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N Majara
on the 3rd June, 2008
This is an application filed on an urgent basis wherein the applicant approached this court for an order stated in the following terms:-
Dispensing with the Rules of Court concerning forms, notices and modes of service of process on account of the urgency in this matter.
That a rule nisi should issue returnable on a date and time determinable by this Honourable Court calling upon Respondents to show cause, if any, why;
Prayer 2 (a) in the main application shall not operate with an immediate effect as in interim order pending finalization of the main application.
Other prayers and merits of the matter shall not be dealt with in the main application.
Respondents shall not be ordered to pay costs on Attorney and Client scale only in the event of opposition of this application.
That prayer 1 of this application and prayer 2 (a) of the main application should operate with immediate effect as an interim order of Court.
The application is opposed in terms of the provisions of High Court Rule 8 (10) (c) of the High Court Rules on the following grounds:
Non-compliance with the Oaths and Declarations Regulations 1964 in that the founding affidavit of Haroon Ahmed is not properly attested to inasmuch as the alleged Commissioner of Oaths therein has not set forth the date of attestation of the affidavit as required by Regulation 5 (2) (b) of the Oaths and Declarations Regulations 1964.
Res Judicata, for the reason that the same prayers had previously been sought and were considered by my brother Monapathi J on the 28th March 2008 wherein he refused to grant it but for the first prayer regarding dispensation with the rules of court.
Review of Another Judges’ Order to wit, the granting of the order sought in the present application would be tantamount to asking this Court to review the decision of the other Judge which powers this Court does not possess.
Abuse of Court process because of the fact that the matter has already been dealt with and decided and that for all these reasons the application should be dismissed with costs on attorney and client scale.
In reaction to submissions made with respect to the above points, Mr. Mabulu Counsel for the applicant conceded that they had failed to comply with Regulation 5 (2) (b) of the 1964 Oaths and Declarations Regulations in that they had failed to insert the date of the attestation by the Commissioner of Oaths. He however made the submission that the omission was merely an innocent oversight of their part and prayed the Court to condone same.
On res judicata, Counsel for applicant argued that in order for it to be successfully raised, there must have been a final decision and not a temporary one and that the applicant should have been given a fair hearing, fully. He added that all that was ordered in the previous application was that the respondents should be served with the papers and then the matter was postponed. He made the submission that the point still remains to be argued and a final decision made on it so that the Court is not functus officio in this regard.
With respect to the point of review, it was Mr. Mabulu’s submission that since the initial application was made, there has been new developments on the site in that petrol had since been pumped into the station and the harm they were seeking to avoid had already taken place. He added that it is improper for the respondents to suggest that the applicant is seeking a review of the previous order because, so he contended, the present application does not seek to review the learned Monapathi J’s order since they as applicants were not alleging any irregularities or other grounds for review.
Lastly, Mr. Mabudu argued that this application does not amount to abuse of court process because they were never given a chance to address the Court
on the application but were ordered to serve the respondent with the notice of Motion. He added that the balance of convenience favours that the respondents be interdicted from selling the petrol because if they lose the application, the applicant will have suffered unnecessary prejudice which the respondents will not suffer if they are temporarily interdicted.
In his reply, Mr. Malebanye made the contention that the averment that the fact that the respondents will not suffer any prejudice is not alleged in the applicant’s papers. He added that the respondents had long entered into an agreement as far back as July 2007 so that Mr. Mabudu’s averment is not born out by the papers.
Further that the applicant should have shown that he has no alternative suitable remedy in his papers. It was Counsel’s submission that on the contrary, the applicant would still be entitled to an action for damages should he win the main application.
On non-compliance with the 1964Oaths and Declarations Regulation 5,Mr. Malebanye submitted that there is no proper affidavit and as such no proper evidence on oath before the Court supporting the prayers sought.
On the issue of review, Mr. Malebanye agreed with the argument that the applicant had not alleged any irregularities etc, but made the submission that that fact notwithstanding, the net effect of what he is seeking would be tantamount to a review of another Judge’s order.
With respect to abuse of court process, it was Mr. Malebanye’s submission that since the applicant has a suitable remedy in due course, and he is effectively re-applying for the same prayers, the Court should mark its displeasure by mulcting him with costs on a punitive scale.
On res judicata, Counsel for respondents reiterated that Monapathi J considered the prayers and made the decision not to grant the order sought but for the one for dispensation. He made the contention that contrary toMr. Mabudu’s submission, the applicants and not the respondents were heard and that the order was clear that they should serve the other side before a final order on the merits could be granted. He added that the application could not and should not be resuscitated in this manner.
It might also be apposite to mention at this stage that Mr. Ntsene who appeared on behalf of the 2nd respondent, fully associated himself with Mr. Malebanye’s submissions.
I now proceed to deal with the points.
Although four points of law have been raised in this matter, it is my opinion that but for the one on non-compliance with the mentioned Regulations, the other three mainly, res judicata, review of another Judge’s order and abuse of court process basically address the same point, i.e. this application was previously moved before another Judge and he made a determination thereof.
It is trite that for res judicata to be successfully raised as a special plea, it has to meet three essential requisites namely:
The prior action must have been between the same parties or their privies.
The prior action must have concerned the same subject matter.
The prior action must have been founded on the same cause of action.
In his extrapolation of what these elements denote, the learned Isaacs states as follows in his celebrated work Beck’s Theory and Principles of Pleading in Civil Actions p 165:-
“The above requisites presuppose that there has been prior litigation or legal proceedings, and if there was in fact none the plea cannot be maintained. The three essentials likewise presuppose that the proceedings took place in a court of competent jurisdiction and were determined by a judgment which was final and a settlement of the rights of the parties.”(my emphasis)
Bearing the above quotation in mind, and mindful of the fact that the present application is only interlocutory in nature, it clearly does not meet the above mentioned essentials and I am of the view that the special plea of res-judicatacannot be successfully raised.
However, it is my opinion that despite this fact, it cannot be proper for an applicant to move an application before one Judge, and after an order has been made, move the same application before another because he was not happy with the previous one as obtains in this case. That is clearly playing one Judge against the other and it certainly cannot be allowed but rather, is deserving of censure for I agree that indeed it amounts to an abuse of court process.
It is my further opinion that allowing same would have the effect of reviewing another Judge’s order even if the term review has not been used by the applicant or as he contended, he did not approach this Court because he was challenging procedural irregularities or alleging the existence of the other grounds for review. It remains a fact that what this Court is being asked to do is to entertain the same application that another Judge has already dealt with and made an order on. Whether this is review properly so called or not is neither here nor there, what matters is that this is highly irregular and improper.
Although Mr. Mabudu attempted to justify this by contending that circumstances had since changed, alas, this was not alleged anywhere in the affidavits before the Court so that what he was effectively doing was giving evidence from the bar which evidence I cannot admit.
The situation is made worse by the fact that the file that was placed before me was a dummy and not the original one which made it difficult for me to read for myself what the minute therein says. However, it is common cause that the application was moved and an order made as Counsel for the respondents submitted.
Further, as Mr. Malebanye correctly submitted, although the applicants aver that they will suffer prejudice if the order they are seeking is not granted, they failed to show in their papers that there is no alternative suitable remedy such as an action for damages should the respondents lose the main application.
In the case ofSetlogelo v Setlogelo 1914 AD 221at 227 and other subsequent decisions, the appellate division stated that for an application for an interdict to succeed, the applicant has to establish in his application a clear right on his part, an injury actually committed, or a well-founded apprehension that the injury will be committed by the respondent and that there is no other remedy open to the applicant which will afford any adequate protection from the mischief which is being done or threatened.
In the present application the founding affidavit of the applicant contains the following averments at paragraphs 5 and 6 respectively:-
“I submit that the Respondents are embarking on these further improvements with a mala fide intent to defeat and frustrate the purpose of the main application and undermine the operation of restraining orders and prayers 1 and 2 of the interim order and to obstruct and undermine the ends of justice to the serious detriment and prejudice of the applicant’s interest and in contempt and total disregard of the Court Order, however, interim it might be but must be observed and respected, while the matter is pending in Court.
I am apprehensive that business operations will soon commence in favor of the 2nd Respondent, if the Respondents are not restrained from continuing and commencing the overall business and selling of petrol pending the outcome of the main urgent application especially the sought prayers 2 (a) and (b), the Applicant will suffer irreparable harm and the balance of convenience favours the granting of the order sought in prayer 2 (a) in the main application thereof restraining Respondent from continuing with operations and preparations for the opening of the business pending the outcome of this matter which is extremely urgent”
But for alleging that he will suffer irreparable harm, nowhere does the applicant show that he has a clear right and/or that he has no other adequate remedy as I have already stated above. Instead, his allegation gives this Court the impression that he has already been granted the order in terms of prayer 2 yet it is not in dispute that he was only granted the one on dispensation. Needless to say, not only is this wrong, but it actually amounts to misleading this Court not to mention that if applicant had been granted the prayer, then he would not have come before this Court seeking same. I will leave it at that for now. I accordingly find that these points were well raised by the respondents.
In addition, the Court was informed that pleadings in the main application have been closed and the matter is ripe for hearing. This means that instead of wasting time instituting interlocutory applications one after the other, the applicant should have approached the Registrar to obtain a date of hearing on the main. It is my view that his conduct is indeed an abuse of court process for which he should be mulcted with costs on a punitive scale.
For theses reasons I do not think it prudent to consider the application for condonation for non-compliance with Regulation 5 of the Oaths and Declarations Regulations as this would only be an academic exercise.
I consequently dismiss the application with costs on attorney and client scale for all the reasons I have already stated above.
N. MAJARA
JUDGE
For applicant : Mr. Mabulu
For 1st respondent : Mr. S. Malebanye
For 2nd respondent : Mr. P. Ntsene
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