IN
THE HIGH COURT OF LESOTHO

CIV/APN/266/2007

In the matter between:-

NATIONAL
UNIVERSITY OF LESOTHO 1^ST
APPLICANT

MINISTER
OF EDUCATION & TRAINING 2^ND
APPLICANT

ATTORNEY
GENERAL 3^RD
APPLICANT

AND

DIRECTOR
OF DISPUTES PREVENTION &

RESOLUTION 1^ST
RESPONDENT

L. CHAKA 2^ND
RESPONDENT

K. KHALEMA 3^RD
RESPONDENT

REVEREND J. M
KHUTLANG 4^TH
RESPONDENT

R.C. LEDUKA 5^TH
RESPONDENT

K. LEISANYANE 6^TH
RESPONDENT

K. LEKHESA 7^TH
RESPONDENT

T. LETS’ELA 8^TH
RESPONDENT

F.K. MAKOA 9^TH
RESPONDENT

L. MATLOSA 10^TH
RESPONDENT

M. MOCHEBELELE 11^TH
RESPONDENT

M.N. MOKHOTHU 12^TH
RESPONDENT

S.J. MOLAPO 13^TH
RESPONDENT

K. MOSITO 14^TH
RESPONDENT

S. MOTSETSELA 15^TH
RESPONDNET

M. MPHAKA 16^TH
RESPONDENT

M. MUKELA 17^TH
RESPONDENT

T. NZEUKU 18^TH
RESPONDENT

L.S. PHAFOLI 19^TH
RESPONDENT

M.P. RAMOLLO 20^TH
RESPONDENT

M. THABANE 21^ST
RESPONDENT

And

LESOTHO UNIVERSITY TEACHER’S
AND

RESEARCHERS’
UNION 22^ND
RESPONDENT

RULING
ON POSTPONEMENT OF A CASE ALREADY FORMALLY SET DOWN FOR HEARING –
FAILURE BY ONE PARTY TO FILE HEADS OF ARGUMENT TIMEOUSLY

Delivered
by the Honourable Mrs. Justice M. Mahase

On
the 28^th
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
1^st
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 2^nd
July, 2007. The application was opposed and the replying affidavit
was filed way back on the 7^th
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 8^th
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
26^th
and 27^th
October, 2009, although for reasons not clear to this court, the
matter was enrolled on the weekly roll of this court only for
the
27^th
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 9^th
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 27^th
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 2^nd
respondent up to the 21^st
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 23^rd
October, 2009 for it to be argued on the 26^th
October, 2009. However, as I have already indicated above, this was
argued only on the 27^th
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 20^th
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 27^th
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 19^th
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