IN THE HIGH COURT OF LESOTHO
In the matter between:
ISHMAEL MAKALO MONARE 1ST APPLICANT
LESOTHO PUBLIC MOTOR TRANSPORT 2ND APPLICANT
ADVOCATE KOILI NDEBELE 1st RESPONDENT
LAW SOCIETY OF LESOTHO 2ndRESPONDENT
ATTORNEY GENERAL 3rdRESPONDENT
Delivered by the Honourable Madam Justice N. Majara
on the 21st September 2011
Application for declarator and interdict – special plea of lis pendens pleaded - whether prayers sought tenable when no specific remedy or order sought – prayers not tenable as no specific order sought - matter already pending in the Courts and declarators sought prematurely - Courts will not grant abstract and academic declarators that serve no purpose – application dismissed.
This is an urgent application wherein the applicant seeks an interdict and declarators to the effect that the 1st respondent should be ordered to return the costs awarded by this court in CIV/APN/501/2010; declaring the failure by the 1st respondent to hand over to the 2nd applicant certain files as null and void; declaring as unlawful the 1st respondent’s shared office space with the 2nd applicant’s directors; declaring the 2nd respondent’s passive attitude to the grievances of the 2nd applicant as professional negligence; interdicting the 1st applicant from claiming costs awarded in any matter where the 2nd applicant is cited or is involved for whatever reason and interdicting the 1st respondent from holding himself out as the legal representative of the 2nd applicant or presenting himself as such from any authority; further and or alternative relief. The application is opposed and it was argued before me on the 23rd August 2011.
The case of the applicant is stated in the founding affidavit deposed to by the 1st applicant. He describes himself as the spokesperson for the 2nd applicant the latter being a company carrying on business in Lesotho and in which he holds shares.
The deponent avers that on the 20th July 2010 he submitted for registration a list of the Executive Committee of the Lesotho Bus and Taxi Owners Association for the year 2010/2011 and that the 1st respondent frustrated that process by submitting the names of a warring faction which brought about litigation in CIV/APN/415/20. He adds that the 1st respondent also represented the 2nd applicant and its affiliate association by force in another matter before the Court of appeal.
The deponent lists a litany of charges against the 2nd respondent including that he tempered with the receipt book of the 2nd respondent and received money for himself to the tune of five thousand and six hundred Maloti (M5 600.00) and issued a receipt thereof to one Joshua Seifu in whose favour he had prepared an unlawful sub-lease agreement.
It is the 1st applicant’s further averment that the 1st respondent came to occupy their offices without payment of rent as a favour and for practical reasons after his erstwhile lawyer Advocate Kgoadi for whom the 1st respondent had been an intern left. He later received a letter from the 2nd respondent alerting him that it was wrong for an Advocate practicing as such to share an office with taxi operators but the 1st respondent told him to ignore that letter. Later the 2nd applicant instituted ejectment proceedings against the 1st respondent in CC: 225/2011 in terms of which the latter has been barred from filing a plea.
Further that the 1st respondent has forbidden the applicant from touching his filing cabinet for the reason that he might lay his hands on 1st respondent’s clients’ files. That in addition, the 2nd respondent has seized the 2nd applicants’ court files and is refusing to hand them over for the reason that he has not yet been paid his legal fees. This despite the fact that the applicants had terminated their mandate with the office of Mr. Monyako, seemingly the attorney from whom the 1st respondent had been getting briefs in respect of the applicants’ court cases.
The deponent also informed the Court that the 1st respondent has installed the 2nd applicant’s letterhead in his office computer ‘in order to use it against them for his private personal vendetta’.
In his opposing papers the 1st respondent contends that the applicant has not been authorized to institute the present proceedings against him as the attached resolution, annexure “KN1” does not have the letter head of the company. Further that the company has never held a meeting on the stated day as there is no supporting affidavit from any person who was purportedly present in the meeting.
Alternatively, that although the 1st respondent was authorized to institute these proceedings, he was not authorized to seek prayers c), d) and e) in the notice of motion.
Further that the application has been brought on an urgent basis without any prayer for a rule nisi and that this seriously inconvenienced him as a legal practitioner who has to handle several other matters.
The 1st respondent also contends that the prayers sought are bad in law in that prayer (b) in the notice of motion is not supported by facts because the plaintiff does not specify how much his shares are out of the alleged costs and seems to demand the whole amount as he was not authorized to do so in any manner.
That prayer (c) does not protect any of the applicant’s interests as it is a relief unenforceable in law not to mention that it is not supported by an affidavit stating why such a declaration is sought and what benefit the applicants will get from the declaration.
The 1st respondent adds that the applicants do not have the right to seek prayer (d) and that it is only the Law Society that has such rights to protect and enforce the Legal Practitioners Act. Further that the said prayer is one of ejectment in disguise which the subordinate court has the jurisdiction over. That prayer (g) is not supported by affidavit stating which case(s) the company has been involved in but is general and not based on any facts.
The 1st respondent also raised the special plea of lis pendens to the effect that the 2nd applicant has instituted ejectment proceedings against him in the Magistrate Court in CC225/2011 in which they contend that he is unlawfully sharing an office with them and the said action is still pending before the same court.
On the merits, the 1st respondent denies that the 1st applicant is the spokesperson of the 2nd applicant and adds that the latter has no authority from the board of directors of the latter. He also challenges the authenticity of Annexure “K. N1” namely, the resolution that the 1st applicant attached to the record.
He further disputes that the 1st applicant holds any shares in the trust of the company as he has since been removed by the association because of “his incapacity and or unwillingness to pursue and protect the interests of the Association in the applicant company”. He avers that the 1st applicant is now an operations manager.
While he admits that the 1st applicant had at one time authorized his present attorney of record Mr. Lephuthing to submit the list of the Executive Committee of the Association, 1st respondent asserts that the 1st applicant was never authorized by the Association to ‘file that Committee’ (I suppose by this he meant the list) as it was not constitutionally elected. He adds that the Association instructed him, i.e. the 1st respondent, to interfere with that unlawful registration.
The 1st respondent also disputes that he represented the 2nd applicant and its affiliate association by force in the Court of Appeal and avers that he only represented the association duly instructed by Mahlakeng & Co. He further denies that he ever received and or used for himself, any money from Joshua Seifu and stated that the said money was handed over to the 1st applicant in his presence. Further that he never tempered with the receipt book as averred but that it was the 1st applicant who did so and gave the receipts to one Isaacs Joseph.
With respect to his appearance in CIV/APN/242/11, it is the 1st respondent’s assertion that he did so duly instructed by K. D. Mabulu to represent the association and that the latter had so resolved as it had never authorized the institution of the case. He adds that it was agreed that the association would withdraw from the case and that Mr. Lephuthing would only represent the company.
On the allegations that he is illegally occupying the offices of the company, the 1st respondent has this to say at paragraph 15 and relevant parts of 16, of his answering affidavit:-
“I aver that I occupied the office by the consent of the company’s board of directors not Monare. He had no such capacity because the building belongs to the company not him. The rest of contents are denied.
It is denied that I share my office with company. There is no letter from the law society labelled K.N. 5. The letter from the law society was written to me on the 08th February 2010 on allegation that I share the office with Moeketsi Tsatsanyane and Makelo Ishmael Monare, see annexure “H”. I replied to the said letter on the 09th February 2011. Since then Law Society has never complained. See annexure “I”.
It is important to inform this honourable court that the place that I am occupying has three rooms. The reception, the main offices (my office) and the store room (which was formally free) (sic).
When I took the premised in 2009 I used to use only two rooms. The reception and the main office (sic). The other office remained free since I was not using it, I allowed the company to keep some of its properties and even to hold meetings which were scheduled once in a month on Sundays. ”
He adds in the subsequent paragraphs that after some confusion erupted in the directorship of the company which he alleges was caused by the 1st applicant who was then trustee, they i.e. the applicants started to persecute him and tried to prevent him from entering his office.
The 1st respondent also avers that the costs he received in C of A (CIV) 21/10 was by agreement with one Moeketsi Tsatsanyane as he had not paid him his fees for having appeared on his behalf in that appeal. He further denies the allegations that the applicants have some property in his office and states that the files in his possession were given to him by the said Moeketsi Tsatsanyane. He also denies that he has the letter head of the company in his computer and the rest of the allegations that relate to his brief from A.T. Monyako and the withdrawal of the case.
The 1st applicant iterates his averments in his replying affidavit and disputes that Moeketsi Tsatsanyane is currently one of the company directors. He adds that the latter was removed on the 15th November 2010. In this regard he attached annexure MMB namely Form L from the Deeds Registry Office.
With regard to the prayers sought especially (c), (d) and (e) which were challenged as being bad in law and unenforceable, the deponent avers that same are sustained by annexures “KN2”, “KN7”, and “KN10” to the extent that the 1st respondent has since been fired by the company and is keeping their files and illegally sharing their offices with them.
He adds that the costs that were awarded to him by my sister Guni J were supposed to be taxed by an attorney but before that could happen, the 1st respondent who is an advocate surreptitiously and illegally intercepted them as if he is an attorney. Further that for this reason this particular prayer namely, (b), is not bad in law. The deponent adds that prayer (c) is also enforceable for the same reasons.
With respect to prayer (d) it is the applicant’s assertion that he has the right to approach this Court for same as the Law Society is failing to solve the problem. That it is a declaratory order that does not attempt and/or is a disguise to eject anybody. He adds that Subordinate Courts do not have the power to make declaratory orders. Further that the ejectment proceedings that are pending in the Magistrate Court do not involve the same subject matter as the relief that is sought herein is enforceable by motion proceedings in respect of infringement or apprehended infringement of legal rights that exist between the litigants.
The 1st applicant further reiterates his assertions as they appear in the founding affidavit. He further tells this Court that with regard to the matter of registration of different executive committees at the behest of the 1st respondent as evidenced by annexures KN 20 and KN 21 respectively, the applicants have instituted proceedings in CIV/APN/415/10 whereas with regard to the role of the 1st respondent they have instituted proceedings in CIV/APN/395/11 both which are still pending before this Court. It is the applicant’s contention that the 1st respondent cannot have been properly briefed as the legality of the committee that purportedly authorized him to represent the company in legal proceedings is an issue that is sub judice.
The applicant also refutes the averments of the 1st respondent to the effect that he is the one that tempered with the company’s receipt book and agreed with him that they must hide it and that all this is the result of the fact that the 1st respondent is sharing an office with the company and is using this as a platform to implicate the deponent with respect to missing finances of the company. He also disputes that he received any monies for Selfu and adds that the rent is still being paid to the 1st respondent and not to him.
It is also the 1st applicant’s assertion that the 1st respondent changed the directorship of the company on the 5th August 2011 despite the fact that the applicants had already instituted these proceedings and secured a date of hearing of this matter. That there is no need to call viva voce evidence in this regard because all the problems are the result of the 1st respondent’s sharing an office with the company. He iterates that the office space belongs to them and not to the 1st respondent as he averred in his answering affidavit.
The rest of the 1st applicant’s averments in the replying affidavit challenge those that are contained in the answering affidavit deposed to by the 2nd respondent. He further disputes the averments contained in the supporting affidavit deposed to by Moeketsi Tsatsanyane and avers that the latter is not a director of the 2nd applicant and as such has no mandate to authorize the 2nd respondent to take the costs of suit in lieu of his legal fees.
It is against this background that the issues for my determination are as follows; whether the 1st applicant has demonstrated that he has the authority to institute these proceedings; whether the applicants have satisfied the requirements of an interdict; whether the applicants have made out a case for a declarator(s) and whether the prayers sought are enforceable in law.
I find it apposite to mention at this stage that some of the issues that I have stated above are already subject for the determination of the Courts in other cases that have been instituted by the applicants. For instance, the issue whether or not the 1st applicant has been authorized to institute these proceedings is one of those that have to be determined in CC: 225/2011, CIV/APN/415/10 and CIV/APN/395/11 respectively and is by the 1st applicant’s own admission, sub judice. It is therefore my opinion that I am not in a position to determine the same issue in these proceedings. This factor on its own poses a series of problems which will come apparent below.
I now turn to deal with the question whether the prayers sought by the applicants have been properly sought, are tenable and serve any purpose. Prayer (b) seeks an order from this Court that the 1st respondent should return the costs that were awarded by my sister Guni J in CIV/APN/501/2010 to respondents therein especially those belonging to the 1st applicant. While this prayer is enforceable, it is my opinion that it should have been properly placed before the same Judge as she is the one that is familiar with the proceedings in question, who the parties were and whether they had the requisite authority and right to claim the costs. She would thus be in a better situation to make an appropriate order in that regard in the same case instead of the applicants instituting a fresh case altogether that also happens to be riddled with disputes of facts.
This is especially the case because there are several claims and counter claims by the respective litigants with respect to who has the requisite authority and the right to claim the said costs. As matters now stand ,it is my view that there are serious disputes of fact in this respect which cannot be properly determined on the papers and which the applicants ought to have anticipated considering the history of this matter(s) and the proliferation of cases before the Courts.
I turn now to deal with prayer (c) in the notice of motion in terms of which the applicants seek a declarator to the effect that failure of the 1st respondent to hand over the Court files of the 2nd applicant is null and void. The main problem I have with this particular prayer is that the applicants are not seeking any remedy or order to compel the 1st respondent to return the files to them. This is hardly surprising because there is a case that is already pending before this Court, the determination of whose facts would effectively also provide the relief that the applicants ought to seek hence the 1st respondent raised the special plea of lis pendens albeit it was not with reference to this specific prayer. It is however my view that the same argument holds in this regard.
With regard to prayer (d) to wit, declaring the 1st respondent’s shared occupation of the office space with the 2nd applicant’s Directors for purposes of offering legal services as unlawful, the 1st applicant has told this Court that ejectment proceedings are pending in the Maseru Magistrate Court so that by similar analogy, the issue has to be determined on the merits by that other Court in terms of which if successful, the applicants can be granted the appropriate remedy. As matters now stand, I cannot make this kind of declarator as it should properly be preceded by the judgment of that Court after a proper determination of the facts.
The same goes with the rest of the prayers in the notice of motion. The interdicts and or declarators sought therein cannot be granted whilst there are cases that are pending before the Courts in terms of which the parties’ respective rights will be properly determined on the facts and the evidence. At this stage the said prayers will not serve any purpose but for their being merely academic. I had occasion to deal with a similar issue in the case of Smally Trading Company (Pty) Ltd and another v Commissioner of Police and Five others CIV/APN/306/09 (unreported) in which I borrowed the remarks in the judgment of Gubbat CJ in Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1995 (4) SA 675, in terms of which he stated as follows atpage 679:-
“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the Court.”
The learned Judge went on to expound on the above statement in the following words:-
“The interest must relate to an existing, future or contingent right. The Court will not decide abstract, academic, or hypothetical questions unrelated to such interest.” (emphasis provided)
While I should not be understood to be saying that the present applicants do not have any right and or interest, the point I am making is that up until that issue has been properly decided as it is sub judice, the declarators I am being asked to make are abstract and academic and will serve no purpose.
Thus I respectfully agree with the sentiments expressed by Williamson J in his judgment in Adbro Investment Co Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) at 285 to wit:-
“I think that a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of mere academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant’s position with reference to an existing future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”
Over and above that, I have already stated that there are material disputes of fact with respect to who has the authority to engage the services of the 1st respondent which will in turn effectively deal with the question whether or not the latter has been properly mandated to represent the 2nd applicant and/or to claim the costs that flow thereof amongst others.
Lastly, the prayer that I should declare the 2nd respondent’s passive attitude to the grievances of the 2nd applicant as professional misconduct is likewise premature in my view in the light of the reasons that I have given above. This is because such a declarator can only follow once it has been found that that 1st respondent is indeed illegally occupying the office space with the applicants. However, the difficulty with it as it is currently framed is that it does not seek any particular remedy or order which in turn begs the question whether it is proper in law.
It is thus my opinion that the present application is actually a duplication and unnecessary multiplicity of cases before this Court which bears elements of abuse of the court process. It is for these and all the reasons that I have stated above that I accordingly dismiss this application with costs on these points alone.
For the applicants : Mr. Lephuthing
For the respondents : Mr. Ndebele
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