IN THE HIGH COURT OF LESOTHO
In the matter between:-
NTSIE SEQHOBANE 1ST APPLICANT
MATSELISO SEQHOBANE 2ND APPLICANT
LEBEOANA LETSIE 3RD APPLICANT
LEBEKO SEQHOBANE 1ST RESPONDENT
MAMALOOE SEQHOBANE 2ND RESPONDENT
Delivered by the Honourable Madam Justice N. Majara
on the 8th September 2011
Application to set aside dismissal order on the ground of want of prosecution – whether the order erroneously made – whether in terms of its wording Rule 45 (A) empowers the Court to also dismiss application proceedings –matter converted into a trial per order of Court in 1992 and as such governed by the Rule – application dismissed.
The present application was moved on an urgent basis on the ground that it affects the rights and welfare of a minor child and that it is a clear case of mistake, per the contents of the Certificate of Urgency filed pursuant to High Court Rule 8.
In terms of the prayers in the notice of motion the applicant also seeks this Court to inter alia, stay execution of the Order it made on the 11th May 2009 and to set aside the said Order as having been granted by mistake common to all parties as well as costs. The application is opposed.
In terms of the contents of the founding affidavit deposed to by the 1st applicant, it is the case of the applicants that the application was placed before the Honourable Chief Justice on the dismissal roll on the 11th May 2009 for want of prosecution. They add that the Order that the matter be dismissed was granted by mistake because the file that was placed before the Court was a dummy that did not reflect the full history of the case and the previous notes that were made by the Honourable Mr. Justice B. K. Molai.
Further that it was based on the premise that the ‘record reveals matter ground to a halt with filing on the 7th January 1992 of a Notice of Motion’ and that this was not the real scenario. The applicants further aver that after the papers in the application were filed, the Court per Molai J, ordered that viva voce evidence should be heard and following that the evidence from nine (9) witnesses was heard by the Court.
It is common cause that the original Court file was burnt in 1998 during the Lesotho political riots. In terms of the averments found at paragraph 8 of the founding affidavit ‘it was after the original record was burnt that His Lordship Mr. Justice B. K. Molai ordered that the record be reconstructed. However Mr. Matsau was no longer available hence the order that the matter commence de novo.’
Further that the 1st and 2nd applicants herein have since passed on and the latter is survived by a minor child, Mokeke Seqhobane who is now (at least at the time the present application was launched) 18 years of age and should therefore be allowed to substitute his mother.
The deponent to the founding affidavit also avers that the matter is urgent as the respondents have issued an ultimatum to tenants demanding payment of rental as of the 1st July 2009 and that this will be prejudicial to the minor child who is presently in his custody because the rental is used to pay for his welfare as he is attending school in the Republic of South Africa.
With respect to the dismissal of the matter in terms of Amendment Rule 45A, Mr. Matooane contended that the issue is whether the provision applies to application/motion proceedings brought under Rule 8. He added that High Court Rule 1 interprets an action as ‘a proceeding commenced by Summons or by Writ issued in terms of Rule 7’ the latter being a rule that deals with Arrests suspectus de Fuga. He added that this definition is buttressed by the wording in the Amendment rule which reads: “where an action has been entered for trial….”
It was Mr. Matooane’s submission that the amendment deals specifically with proceedings that are brought by way of summons and does not cover motion proceedings as contemplated under High Court Rule 8. Further that the rule sought to curb or counteract inordinate delay but does not go far enough as it covers only proceedings which have been commenced by summons and writ in terms of Rules 7, 9 and 18 respectively. That the authorities of Meyer v Meyer 1948 (1) SA 484 T and Molala v Minister of Law and Order & Another 1993 (1) SA 673 are applicable to this matter because it is an application proceedings.
The respondents filed their opposing papers and the opposing affidavit was deposed to by the 1st respondent who raised point that this application has no merit and is an abuse of the process of Court as CIV/APN/2/1992 is now 17 years old.
In the papers, the 1st respondent admits that evidence was led to clarify certain issues in terms of the Honourable Molai J’s Order. He adds that after the record was destroyed in the fire during the 1998 political riots his lawyers reconstructed the record per the Court’s instruction but same was rejected by the learned Judge on the basis that the version that was placed before him was one sided as it was that of his lawyers only.
In addition, that it was ordered that the matter start de novo on the 14th November 2003 in terms of the contents of Annexure LL2. The deponent adds as follows in relevant parts thereof:-
“Four and half years down the line Third Applicant had not started the matter de novo. In the meantime Ntsei Seqhobane and ‘Matelisang Seqhobane, First and Second Applicants respectively are deceased.
If Third Applicant understood starting de novo to mean that the whole process including a new application and new affidavits were to be filed, he would have filed a new application altogether.
This has not been the case. It is our humble submission that CIV/APN/2/1992 is an abuse of the process of court and it ought to be dismissed on attorney and client’s scale on the ground that it is an abuse of the process of court.”
With respect to the merits, Mrs. V. M. Kotelo who represented the respondents made the submission that the matter was properly dismissed for want of prosecution as Annexure LL2 shows that the Order of court that the matter should start de novo, was made in 2003, five and half years before the present application was launched.
She added that the dismissal of the matter was in order because the applicant as the dominis litis had failed to act as the Honourable Molai J. had ordered and that this was a show of total lack of interest in pursuing the matter. Further that indeed the Court was correct in finding that the matter drew to a halt more than five and half years ago. Further that the fact that the file was burnt in 1998 was being used as an excuse for 3rd applicant’s failure to pursue the matter.
That in addition the respondents also dispute the averment that the Court ordered the matter to start de novo due to the fact that the reconstruction of the record was done after Mr. Matsau had left. That instead, at the time the order was made, i.e. that the mater should start de novo, the applicants were represented by Mr. Mosae as Mr. Matsau had since long been out of the picture.
Counsel for the respondents also made the submission that the 3rd applicant failed to show urgency because in terms of the order which the applicant obtained on the 7th January 1992 he collects rent at Ha Hoohlo and in addition to that per the contents of respondents’ annexure MM3 and 3rd applicant’s annexure LV4, the 3rd respondent entered into a sublease agreement in 2004 in terms of which he called himself the heir to the property that was owned by the deceased ‘Mathabiso Seqhobane and whose rental was in the amount of M1500 escalating by 10% per annum.
Further that aside from the step that was taken by the Chief Justice the total failure to prosecute the matter between the years 1998 to 2009 and 2009 to 2011 respectively, when the applicant obtained an ex parte Interim Order from my sister Chaka-Makhooane J. shows that the 3rd applicant does not have the requisite intention to prosecute this matter and that as such, it lacks urgency.
With respect to the issue of the dismissal of the matter by the Chief Justice in terms of High Court Rule 45A it was Mrs. Kotelo’s contention that the applicants’ reliance on the decision in Meyer v Meyer (supra) and Molala v Minister of Law and Order and Another (supra) to persuade this Court to set aside the Order that dismissed this case is merely a fishing expedition because the issue for determination herein is whether or not the rule applies to this matter.
It was her submission that the rule does apply because while at the inception of the case it was instituted as an application, it was converted to trial by the Court on the date of hearing in 1992. Further that the Meyer case (Supra) is not applicable in casu because it is meant to apply where there is absence of a Rule of Court expressly conferring power to dismiss an action for want of prosecution. Further that it is incorrect that Rule 45A (1) only applies to proceedings which have been commenced by summons or writ and that nowhere does the Amendment limit its application to Rules 7, 9 and 18.
I now proceed to deal with the question whether this matter was properly dismissed in terms of Rule 45A (1), i.e. whether the Rule is applicable in casu. The Rule reads as follows:-
“Where an action has been entered for trial and no step has been taken by either party for a year or more, the Registrar shall fix a date when the case shall be called in court and shall list it for dismissal for want of prosecution on that and serve notice thereof on all parties thereto.”
Sub-rule (2) in turn provides thus:-
“The case shall be called before the court on the date fixed by the Registrar and the Judge shall dismiss the case with costs unless sufficient reason is shown to the contrary.”
As Mr. Matooane submitted, the first sub-rule makes specific reference to an action entered for trial and makes no mention of application/motion proceedings. In turn, it was Mrs. Kotelo’s submission that this matter was converted into a trial in terms of Molai J’s Order so that the amendment Rule applies to it and this was not disputed.
The said conversion was done as far back as in the year 1992 so that in my view, after the Court heard the evidence of about nine (9) witnesses, the matter can no longer be referred to as an application. The minute the Court ordered that viva voce evidence should be led, then in my view, the matter was entered for trial. It is also my opinion that the words contained in the Rule, namely, ‘when an action has been entered for trial’ are not limited to the initial stage only but covers every trial even if same had been initiated by way of motion proceedings which is the case in the present matter.
In addition, the Rule provides for parties to be duly given notice by the Registrar that the matter has been set down for dismissal. In my view this affords them the opportunity to appear before the Court and address it with respect to why it should not be dismissed. In other words, while such cases are listed for dismissal, on the set date they are not dismissed automatically without the parties first having been heard unless of course they fail to appear despite having been so notified.
Against this background it is my opinion that the cases of Meyer (supra) and Molala (supra) respectively, are not applicable herein because in the former the Court based its finding on the reason that there was no Rule of Court providing for the dismissal of an action for want of prosecution. The Amendment Rule, in our case provides for such dismissal.
In addition, while the Court in the case of Molala, expressed the view that the Court should not adopt the approach of simply whether more than reasonable time has elapsed but to also assess whether a facility which is available to a party was used, it also drew attention to the fact that in other jurisdictions there are fixed time limits created by Rules of court that plaintiffs must respect.
Bearing in mind those sentiments, in our jurisdiction, not only are such time limits prescribed but an amendment to the Rules was also passed that was meant specifically to curb the issue of unconscionable delays which as I have already stated give the parties notice that the case has been set down for dismissal before it is so dismissed.
In the light of these reasons, it is my finding that the Order of dismissal of the matter was correctly made in terms of the Rules of this Court and that as such I have no reason to interfere with it.
With respect to the issue of lack of urgency in this matter, Mrs. Kotelo submitted on behalf of the respondents that the applicant disregarded the provisions of Rule 8 (4) and (22) respectively in that he did not file the application before noon on two court days preceding the day on which he was heard and did not show why he claimed he could not be afforded substantial relief in an hearing in due course if the periods prescribed by the rules were followed.
I have already shown that in the Certificate of Urgency attached to the Notice of Motion, Mr. Matooane stated that the matter is urgent because it affects the rights and welfare of a minor child and that it is a case of mistake common to both parties. I have already dealt with the second reason in my finding above namely that the dismissal order was not erroneous but was made in terms of the Rules with due notice having been given to the parties to make their submissions before it was made.
This leaves me to deal with only the first reason. It cannot be argued that matters that affect the rights and welfare of minor children have to be dealt with as expeditiously as possible. However, it is not in every case that such a reason will suffice on its own because every case has to be treated according to its own merits.
In casu,it is common cause that the matter involved the interests and welfare of the minor child from as far back as when his parents passed away in 2004, five (5) years before it was set down on the dismissal roll but the applicant did not take any steps towards prosecuting in spite of that very reason.
Instead he waited until after the dismissal order was made in the year 2009 before he decided to come to Court, yet the minor child’s interests and welfare were or must have been already affected in terms of his assertions, not to mention that at that time the child was even much younger than he might be now.
In other words, since the matter of the minority age of the child is not a new factor, it should have galvanized the applicant into action in 2004 after both his parents had passed away. I am therefore not persuaded that the applicant has successfully justified that this matter is urgent and find that the purported urgency is self-created. I accordingly find that this point was well taken by the respondents.
It is for all the foregoing reasons that I dismiss this application with costs.
For the applicants : Mr. T. Matooane
For the respondents : Mrs. V. M. Kotelo
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