CIV/APN/41987

C of A
(CIV) No.5/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of

SETH
LIETA Applicant

and

SEMAKALE
JOSEPH LIETA Respondent

JUDGMENT

Delivered
by the Hon. Mr Justice Sir Peter Allen on the 21st day of January,
1988

This
application was brought by Notice of Motion under a certificate of
urgency. The application is to cancel a Court Order of 3
April 1987
and to release the security paid into Court by the applicant under
that Order

The
parties are brothers who seem to have been involved in a certain
amount of litigation against each other, The respondent lives
in
Botswana and the applicant lives in Maseru.

The cause
of the dispute is a Toyota Stout Pick-up which the respondent was
purchasing from Financial Services Co. of Botswana (Pty)
Ltd. in
1986. The applicant then borrowed the vehicle and brought it to
Maseru for use in connection with his business here. This
was a
contravention of Botswana law since the vehicle was still subject
there to hire-purchase instalment payments.

The
respondent filed an action against the applicant (CIV/APN/2/87) and
Kheola J. gave judgment on 16 March 1987 in favour of the
respondent,
restoring the vehicle to him.

3

I do not
know why this matter has come before me since I would have thought
that it ought properly to have been dealt with by the
judge who made
the original order.

Furthermore,
there is no evidence before me that the vehicle has in fact actually
been repossessed by Financial Services Co. But,
even if there was, I
am at a loss to under­stand on what basis this application can be
considered to be urgent.

Not only
is the Court in Vacation but a session of the Court of Appeal is
scheduled to sit next week and the applicant's appeal
is fixed as the
first case for hearing on the Roll on Monday next. I am therefore
sitting in my capacity as an ex-officio judge
of the Court of Appeal
to decide a matter that is in any case to be fully dealt with next
week by the full Court. This does not
appear to me to be either
justified or proper.

Mr.
Mphalane for the respondent not only opposed the application but he
also filed a notice to raise six points of law in limine.
These
involve alleged breaches of rules 8 and 27 of the High Court Rules
and rule 3(9) of the Court of Appeal Rules 1980.

The most
significant of these, in my opinion, is rule 8(22)(b) which reads as
follows

"In any petition or affidavit filed in support of an urgent
application, the applicant shall set forth in detail the
circumstances
which he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
relief
in a hearing in due course if the periods presented by this
Rule were followed."

4

There
accompanied this application a certificate by the applicant's
attorney that he considered "the matter urgent for reasons
that
have been fully traversed (sic) in the Applicant's affidavit."
There was contained no statement by the attorney that
"he bona
fide believed it to be a matter for urgent relief" as is
required by rule 8(22)(c). Apart from that the affidavit
does not
contain any single reason for urgency in the matter in spite of Mr.
Maqutu's certificate to the contrary and in spite
of the mandatory
requirement or the above rule

I have
noticed that there are, in my opinion, far too many so-called urgent
applications filed in this Court which do not justify
the name since
there is really little or no urgency about them at all. I suspect
that many are brought in this way simply as a
device to jump the
queue and in an endeavour to have the matter disposed of without the
applicant waiting for his proper turn on
the Roll.

It
appears that a similar situation has caused judges in South Africa to
complain about this practice I refer particularly to Eniram
(Pty)
Ltd. v New Woodholme Hotel (Pty) Ltd 1967(2) SA 491, Republic Motors
v Lytton Road Service Station 1971(2) SA 516, and Luna
Meubel
Vervaardigers v Makin & Anor 1977(4) SA 135. In addition, this
same matter was brought up and considered at length last
year in
Lehlohonolo Khoboka v Nthoko Khoboko & Ora CIV/APN/402/86
(unreported).

No reaons
were given in the affidavit for urgency in this application and Mr.
Maqutu did not elucidate in the course of his address
to this Court.
I cannot find that it is a matter of any urgency at all.

5

This is
doubly so because the applicant's appeal in the matter is due to be
heard in a few days time and the Court of Appeal will
no doubt deal
with the whole issue and make whatever orders are necessary at that
time. I can see no good reason for asking me
to prejudge one part of
the dispute and otherwise act as if the appeal is not imminent.

The
applicant's deposit is safe in the Court and nobody can touch it
until the appeal has been disposed of. He has nothing to fear
about
that and, furthermore, he has failed to give this Court even a single
reason for releasing the security in advance of the
hearing of the
appeal

I find
that this application is misconceived and that it has been improperly
brought here and that there is no urgency involved
in it at all.

Accordingly
this application is dismissed with costs.

P. A. P.
J. ALLEN

JUDGE

21st
January, 1988

Mr.
Maqutu for the applicant

Mr
Mphalane for the respondent