CIV/APN/114/2008

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

THABANG
(PTY) LTD 1^ST
APPLICANT

MARA
HOLIDNGS (PTY) LTD 2^ND
APPLICANT

AND

TOTAL
LESOTHO (PTY) LTD 1^ST
RESPONDENT

FARAH
INVESTMENTS (PTY) LTD 2^ND
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N Majara

on
the 3^rd
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:-

1. 
   Dispensing with
   the Rules of Court concerning forms, notices and modes of service of
   process on account of the urgency in this
   matter.

   
   

2. 
   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;

   
   

1. 
   Prayer 2 (a) in
   the main application shall not operate with an immediate effect as
   in interim order pending finalization of the
   main application.

   
   

2. 
   Other prayers and
   merits of the matter shall not be dealt with in the main
   application.

   
   

3. 
   Respondents shall
   not be ordered to pay costs on Attorney and Client scale only in the
   event of opposition of this application.

   
   

3. 
   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:

1. 
   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.
   
   

   
   

2. 
   Res Judicata, for
   the reason that the same prayers had previously been sought and were
   considered by my brother Monapathi J on
   the 28^th
   March 2008 wherein he refused to grant it but for the first prayer
   regarding dispensation with the rules of court.

   
   

3. 
   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.

   
   

4. 
   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 1964
Oaths
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 to
Mr.
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 2^nd
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:

1. 
   The prior action
   must have been between the same parties or their privies.

   
   

2. 
   The prior action
   must have concerned the same subject matter.

   
   

3. 
   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-judicata
cannot
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 of
Setlogelo
v Setlogelo 1914 AD 221
at
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 2^nd
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
1^st
respondent : Mr. S. Malebanye

For
2^nd
respondent : Mr. P. Ntsene