IN THE HIGH COURT OF LESOTHO
CIV/APN/266/2007
In the matter between:-
NATIONAL UNIVERSITY OF LESOTHO 1ST APPLICANT
MINISTER OF EDUCATION & TRAINING 2ND APPLICANT
ATTORNEY GENERAL 3RD APPLICANT
AND
DIRECTOR OF DISPUTES PREVENTION &
RESOLUTION 1ST RESPONDENT
L. CHAKA 2ND RESPONDENT
K. KHALEMA 3RD RESPONDENT
REVEREND J. M KHUTLANG 4TH RESPONDENT
R.C. LEDUKA 5TH RESPONDENT
K. LEISANYANE 6TH RESPONDENT
K. LEKHESA 7TH RESPONDENT
T. LETS’ELA 8TH RESPONDENT
F.K. MAKOA 9TH RESPONDENT
L. MATLOSA 10TH RESPONDENT
M. MOCHEBELELE 11TH RESPONDENT
M.N. MOKHOTHU 12TH RESPONDENT
S.J. MOLAPO 13TH RESPONDENT
K. MOSITO 14TH RESPONDENT
S. MOTSETSELA 15TH RESPONDNET
M. MPHAKA 16TH RESPONDENT
M. MUKELA 17TH RESPONDENT
T. NZEUKU 18TH RESPONDENT
L.S. PHAFOLI 19TH RESPONDENT
M.P. RAMOLLO 20TH RESPONDENT
M. THABANE 21ST RESPONDENT
And
LESOTHO UNIVERSITY TEACHER’S AND
RESEARCHERS’ UNION 22ND RESPONDENT
On the 28th October, 2009
Civil Procedure – Postponement of case already formally set down for hearing – None filing of heads of arguments by other party – good and strong reasons to be advanced for grant of relief – Interests of other litigants and convenience of court also important.
The present application arises out of a long, protracted and somewhat complicated history.
The parties herein, the National University of Lesotho (NUL) and the members of a staff Trade Union (LUTARU), have over a number of years been in and out of court(s) including the Director of Disputes Prevention and Resolution (DDPR) fighting over the enforcement of the terms of a contract which was allegedly entered into between the employer (NUL) and its staff members (LUTARU)
In short, the NUL, and the Attorney General have been preventing the paying out of large amounts of monies as gratuities to members of LUTARU.
This in turn resulted in the filing of arbitration proceedings in the case styled A1338/03 which case is still pending before the 1st respondent. In the instant application, the applicants have once more approached the court on urgent basis. They have since been
granted an order interdicting the present respondents from proceeding with the setting down of the arbitration proceedings.
From the papers filed of record the order referred to above was granted on the 2nd July, 2007. The application was opposed and the replying affidavit was filed way back on the 7th August, 2007. Suffice it to mention that subsequently, this application was set down for hearing before this court when it became
clear that my brother A.J. Teele could not be available to deal with the matter.
The dates for prosecution of this application were obtained as being the 8th December 2008. Prior to that date of hearing, the applicants filed and served their heads of argument on the respondents/their attorney. However, still the application could not be prosecuted for reasons stated in paragraph 9 of the applicants’ founding affidavit in which they apply for postponement of the hearing of this application.
Further dates were obtained for the prosecution of this application and those were the 26th and 27th October, 2009, although for reasons not clear to this court, the matter was enrolled on the weekly roll of this court only for the 27th October, 2009.
Subsequently, the applicants’ attorney filed and served the respondents’ attorney with a notice of set down for the prosecution of this application on the above freshly obtained dates. That was done on the 9th February 2009 and again sometime in August, 2009 (no exact date given).
It is worth noting and it is a matter of common cause that by August, 2009, the respondents’ attorneys had still not filed their heads of argument. This they failed and or ignored to do despite the repeated reminders by the applicant’ attorneys that respondents should do so. Vide paragraph 10 up to 15 as to what later or ultimately transpired between attorneys of the parties herein.
Now, on the 27th October, 2009, attorneys for the parties herein extensively argued for and against the postponement of this application because, among others, Advocate Mosito K.C for the respondents had made it clear that:-
- He was not amenable to any postponement of this application for reasons he has stated on his heads of argument filed on behalf of his clients – the 2nd respondent up to the 21st respondents.
While Mr. Moiloa on behalf of his clients, the applicants also stated reasons in support of his application for a postponement – refer to same.
It is apposite to repeat that this application for a postponement was filed on the 23rd October, 2009 for it to be argued on the 26th October, 2009. However, as I have already indicated above, this was argued only on the 27th October instead.
In this application the applicant’s attorney has among others, asked or applied for an order that the respondents be ordered to file their heads of argument within fourteen (14) days of this order.
- Also of significance is that he has applied for the postponement of civil application numbers 266/07, 550/04 and 234/06 sine die.
As I have stated above each party has supported its application with reasons which I need not repeat here due to time constraints. Same are clearly spelt out on the papers filed on behalf of the parties herein.
I wish however to observe that civil applications numbers 550/04 and 234/06 have not been placed before me. I will therefore confine myself to issues raised relating to the instant application viz CIV/APN/266/2007.
Of particular importance, the attorney for the applicants brought to this court’s attention correspondence between the attorneys for the parties herein pertaining to the filing of the heads of argument by the attorneys for respondents. Having realized that the respondents’ attorneys had not filed any heads of argument Mr. Moiloa on behalf of the applicants did on numerous occasions remind and request the attorneys for respondents to file same.
The last time that he wrote a letter to the respondents’ attorneys was the 20th October, 2009 in which he had advised them of the applicants’ intention to apply for a postponement due to the late filing of their heads. Vide paragraph 12 of applicants’ application for a postponement of hearing of this application.
Subsequently, the respondents’ attorney replied informing Mr. Moiloa that the respondents were not amenable by any means to agree to any postponement of this application for the reasons that heads of argument had not been filed. See respondents’ answering affidavit as well as their heads of argument on this issue.
Of importance is the fact that among others, the respondents’ attorneys is of the view that there is no rule of law that justifies the granting of a postponement simply because a party is not prepared to proceed with the matter. Vide paragraph 14.9 of his answering affidavit.
With the greatest respect to Advocate Mosito K.C. that is not the reason why the attorneys for applicants are applying for postponement. The main reason for their application for a postponement of this application is due to the fact that the respondents have not filed their heads of argument. It is the applicants’ averment that it is only when heads of argument have been filed and served upon them that the applicants will be able to properly prepare for the hearing of this application.
It is the argument of Advocate Mosito K.C. that failure to file heads of argument is not a ground good enough to have the matter postponed. He has spelt out his reasons in opposition of the application for postponement of this application clearly and in extend in his answering affidavit as well as in his heads of argument.
I must point out that the heads of argument filed on behalf of the respondents were later handed to this court just after 9.45 am when this court was ready to go into court for the prosecution of this application.
This court had therefore also not had time to go over them, before the court resumed on the 27th October, 2009. On the contrary, the heads of argument filed on behalf of the applicants had already been in the court file when at the end of the week beginning the 19th October, 2009, court files were handed to this court.
This therefore means that, this court has had time and opportunity when it went over the file in question before the date for the prosecution of this application, to read through the applicant’s heads of argument and or its submissions in regard to or in support of its application for a postponement.
This is an ideal situation, so to speak. It enables the court to follow with ease what the arguments of parties in any litigation are if it (court) has had the opportunity to go through papers filed timeously.
As it were, the scanty perusal by this court of the respondents’ heads of argument could not in seriousness and in fairness to this court be said to have been enough for it to follow arguments presented for or on behalf of the respondents.
This court is mindful of the fact that there is no Rule, in the Rules of this court/ the High Court which specifically makes it mandatory for parties to file heads of argument within a specified time. This is a matter of common cause. However, and in fairness to this court, the filing and serving of heads of argument by any party to litigation, let alone one so involved as this present one, at the very last minute, is not an ideal situation.
While it is correct that there is no provision in the Rules of this court that is specific as to when one should file one’s heads of argument, it is also a matter of common cause that such heads serve a specific and very important purpose; viz that of amplifying the parties’ arguments or submissions for the benefit of all and most importantly, the court is enabled to fast grasp and deal with the case as it has the benefit of clearly knowing what each parties’ case is based on supported by authorities. This assists the court to dispense justice.
Most importantly, it is the express attitude of this court and indeed that of the Court of Appeal of Lesotho that the filing of heads of argument are mandatory vide; ‘Mabathoana Moletsane v. David Moletsane CIV/APN/475/1996 (unreported) per Mr. Justice Ramodibedi (as he then was).
Lesotho University Teachers and Researcher’ Union v National University of Lesotho:- CIV/APN/23/1997 (unreported per his Lordship Mr. Justice Lehohla) (as he then was) (unreported).
Having made the above observations, it need hardly be emphasized how important the filing of the heads of argument is of great assistance to the court. Indeed, the formal promulgation (for want of a better word) or incorporation of such a mandatory provision in the Rules of the High Court will best deal with this issue.
It is however, not to be inferred that this court is saying that the postponement of a matter properly and formally set down for hearing on a particular date can be claimed as of right by any party to litigation. It is trite that an applicant for a postponement seeks an indulgence from the court. Vide:-National Police Service Union and Others v – Minister of Safety and Security and Others 2000 (4) S.A 1110 (cc) at 1112 C-F.
Such a party applying for a postponement of a case already set down for hearing, must also show a good and strong reason for the grant of such a relief. Vide Centirugo AGF v. Firestone SA (PTY) Ltd. 1969 (3) SA. 318 (T) at 320C – 321 (B).
Other relevant cases on the issue of the law on postponement include (although the list is not exhaustive) cases such as:-
McCarthy Retail LTD v. Short Distance Carriers CC 2001 (3) S.A> 482 (SCA)
Basotho National Party and Others v. Attorney General and Others – CIV/APN/295/202
In the premises, and bearing in mind that at first the applicants had offered to have the matter postponed without costs, and which offer was rejected by the attorney for the respondents; and further having regard to the opposition of this application for a postponement while counsel for the respondents is or should have been aware of the two judicial warnings (which he overlooked) of the Honourable Justices referred to above, the applicants’ application is granted with costs as prayed.
The respondents’ heads of argument have already been filed so that what now remains is for the parties to approach the office of the Registrar of this court and obtain dates mutually convenient to them for argument on the merits of this application.
M. MAHASE
JUDGE
For Applicants: Mr. H.P. Viljoen S.C
Assisted by Mr. D.P. Molyneax
For Respondents: Dr. K.E.M. Mosito K.C
Assisted by Adv. R. Thoahlane
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