IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO 60/2015
IN THE MATTER BETWEEN:
PS 2031 INVESTMENT CC t/a KALEMA
TECH & HIRE APPELLANT
METSI A PULA FLEET MANAGEMENT AGENCY
(PTY) LTD t/a METSI A PULA CIVIL PLANT
HIRE RENTALS RESPONDENT
CORAM: FARLAM - AP
Date of Hearing: 9 April 2016
Date of Judgment: 29 April 2016
Interim order with final effect - whether reviewable before proceedings in court of first instance terminated; Citation of Attorney General and Clerk of Court where decision of Magistrate acting in judicial capacity under review – not necessary. Denial of costs to successful party for disobeying court order against which party succeeded on appeal.
“ 1. The Rules of this honourable Court pertaining to service and notice to be dispensed with and the matter be heard as of urgency.
2. That Rule nisi be and is hereby issued returnable on 02nd day of April 2014 at 9. 30 am in the forenoon or soon thereafter calling upon the Respondent to show cause, if any, why:-
a) The Applicant cannot be ordered to attach and remove the following vehicles from the Respondent’s site on the 20th March 2014 pending the final determination of these proceedings.
(aa) CATTERPILLAR, 422E BACKHOE LOADER
(bb) CATTERPILLAR, BACKHOE
(cc) CAT 320 CXL EXCAVATOR
b) Respondent shall not be ordered to desist from unlawfully interfering with the applicant’s removal of the property mentioned in prayer 2(a) above pending the determination of these proceedings.
c) Respondent herein shall not be ordered to pay the Respondent (sic) an outstanding amount of M 580,748.40 due and payable as rentals.
3. The Respondent herein shall not be directed to pay the costs of this application.
4. Granting the applicant such further and/or alternative relief
5. That prayers 1, 2 and 2(a) and (b) operate with immediate effect as interim orders pending the final determination of this matter.”
“I respectfully submit that the respondents are in wilful default of payments as agreed, thus the said leased properties are unlawfully and wrongfully in possession of the Respondents herein. Consequently, the applicant experiences loss of business while the Respondents are failing to give back my properties now that they have failed dismally to pay rentals owed to the applicant.”
“The parties consent to the jurisdiction of the Magistrate’s Court in regard to any claim arising out of this AGREEMENT, notwithstanding that the amount in question may exceed the jurisdiction of the Magistrate’s Court.”
“I chose to pick one or two issues to be decided, in particular the ones for interim order having final effect and 2nd respondent having failed to pay security for costs.”
She however dealt exhaustively with the first issue only and did not come to any definitive conclusion on the second.
“This Court has on at least two occasions given its approval to the principle that criminal trials should not as a general rule be disposed of piecemeal. In Mda and Another v DPP LAC (2000-2004) the Court said (at 957 C-E):
See also Millenium Travel and Tours and Others v DPP C of A (CRI) no 15 of 2006 (as yet unreported) at p 10 (paragraph 12) [now reported LAC (2007-2008) 27 at 32].”
“(A) party to any civil suit or proceeding in a court may appeal to the provincial or local division of the court having jurisdiction to hear the appeal, against – (b) any rule or order made in such suit or proceeding and having the effect of a final judgment, including any order under Chapter IX and any order as to costs…”.
The Constitutional Court stated that this provision was an exception to the general rule, which the court set out in these words at 468F:
“Ordinarily, interim execution orders are considered interlocutory in that they provide parties with interim relief, pending the finalisation of legal action. Generally, it is not in the interests of justice for interlocutory relief to be subjected to appeal as this would defeat the very purpose of that relief.”
“The application in this matter was brought as an urgent ex parte application in the Court a quo without notice to the respondents. This Court and the High Court have warned time and again against the launching of such applications without notice to respondents …”
The court cited Court of Appeal and High Court decisions on this point and then went on to show why the matter should not have been commenced on urgency and on an ex parte basis.
“The practice of seeking interim relief, which is exactly the same as substantive relief sued for and which has the same effect, defeats the whole object of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on the proof merely of a prima facie case. This to my mind is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return date.” (per Chatikobo J at 193 A-C)
“There has been no dispute that security for costs has not been paid despite a formal request for payment of same. It would be in the Court’s discretion whether to allow for the stay of proceedings until such request has been complied with.”
She did not say that she was exercising her discretion in favour of the request for security for costs. But it seems that this is what she did.
1. Subject to para 2 the appeal is dismissed with costs.
2. The order in the High Court is altered and substituted with the following order-
“The Application for review of the decision of Magistrate succeeds, in that the decision of the Magistrate is set aside as irregular. Each party shall bear its own costs.”
M H CHINHENGO
ACTING JUSTICE OF APPEAL
I G FARLAM –
ACTING JUSTICE OF APPEAL
For Appellant : Adv. MM Rakharebe, instructed by Mosuoe & Associates
For Respondent : Adv. LMA Lephatsa, instructed by Tau-Thabane & Co.
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