CIV/APN/409/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MAJARA
JONATHAN MOLAPO Applicant

V

PRINCIPAL
SECRETARY MINISTRY

OF PUBLIC
SERVICE 1st Respondent

COMMISSIONER
OF POLICE 2nd Respondent

DIRECTOR
OF PRISONS 3rd Respondent

ATTORNEY
GENERAL 4th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 25th day of April.
1988.

On 11th
December 1987 the Honourable the Chief Justice made an interim order

1. That
   a Rule Nisi be and is hereby granted calling upon the 1st 2nd 3rd
   and 4th Respondents to show cause on the 18th December
   1987 why :-

   
   

1. The
   1st 2nd and 3rd Respondents or their agents shall not be restrained
   from evicting applicant from a certain house situate
   at No. 28 Tona
   Kholo Road Maseru West, Maseru Urban Area except in execution of a
   judgment granted by a Court of competent
   jurisdiction.

   
   

2. Costs
   of this application shall not be granted to applicant in the event
   of opposition of same by the 1st 2nd 3rd and 4th Respondents.

   
   

2. That
   prayer 1(a) operate as an interim interdict with immediate effect.

   
   

I have
not been able to secure the relevant original papers upon which the
above order was granted.

However I
have gathered from a subsequent application in which parties stand as
in the original application that, as stated by Majara
Jonathan Molapo
in paragraph 2.2.

2

of his
founding affidavit that the rule referred to above was extended to
5th February 1988. This averment has not been denied by
the
respondents.

I have
gathered from contents of a subsequent application by applicant
against the respondents that on 25th January 1988 the agents
of 2nd
Respondent came to applicant's residence and left instructions with
his domestic helper that by 3 O'clock in the afternoon
of 26th
January 1988 applicant should have vacated the place. Further it has
been brought to my notice that on 26th January one
Makhotla came to
the house of applicant in the company of two other police officers in
an effort to evict applicant. Applicant
explained to them the
existence of the Interim Order referred to above. However after an
interval of about an hour Makhotla came
back to the house in the
company of a group of prison inmates who started carrying out the
eviction by removing applicant's furniture
and household goods from
within and throwing them outside the yard.

I have no
doubt in my mind that had it not been for the existence of an interim
order served on respondents applicant had no business
to be in that
house once he had been given notice that his employment as a civil
servant had come to an end.

It was
argued on behalf of respondents that they carried out these eviction
proceedings relying on order 9 of 1987 section 2 of
which provides :

"In this order, unless the context otherwise requires -
"specified period" means the period 15th January, 1986 to

15th January, 1988."

Clearly
it cannot be argued with any measure of seriousness let alone
conviction that acts executed on 26th January 1988 are covered
by the
specified period loco citato .

It was
argued further for respondents that their act was rendered lawful on
the grounds that a certificate

3

issued by
the Military Council on 3rd January 1988 had an effect of barring the
contempt proceedings instituted by applicant as
a result of the
eviction he suffered on 26th January 1988. But it is patently clear
to me that this certificate was signed on the
3rd February 1988. In
fact in its prefacing paragraph it reads:-

"The Military Council on this 3rd day of February, 1988 hereby
certify as follows concerning the civil matter CIV/APN/409/87

presently pending before the High Court."

The
contents don't really matter I am not aware that they are in dispute
either. The point of my concern is with regard to how on
any
reasonable grounds could respondents be heard to say they rely for
their defiance of a Court Order on a certificate which had
not been
issued at the time and on the day when they carried out the acts
complained of :

It
becomes clear to me that the issuing of this certificate was but a
lame effort to justify the contempt already committed.

I have
observed that no affidavits by the respondents were filed at least in
an effort to explain and if such explanation be reasonable,
mitigate
their contemptuous act.

Rule
8(18) of this court is there to enable any respondent who is
aggrieved by the granting of an interim order to anticipate the

return date and have a proper order made by the court having heard
the two parties. Respondents did not bother to avail themselves
of
this avenue existing in the rules of this Court and instead embarked
on self-help in the face of a court order that they were
aware of.
This is something that no court can tolerate. Respondents maintain
that they acted in the public interest in evicting
applicant and.
refer to letters retiring him from the civil service. I do not think
that provisions of order 9 of 1987 3(1) apply
in this case if the
Crown relies on them to claim indemnity. This subsection is not the
same as relevant

4

section
set out in Public Service Order 1970. Public interest in the present
order relates to public safety, public order and suppression
of
mutiny .... etc. None of these categories are set out in the 1970
order in terms of which applicant was retired from the Civil
service.
Applicant's retirement seems to be in terms of sections 12 (6) (7) or
(9) of order 21 of 1970 wherein public interest
does not mean public
safety etc.

I
therefore reject argument which says that the termination of
applicant's employment in the public service is based on the more

recent order.

It was
argued for respondents that costs in the main application should not
be awarded to applicant because during the course of
argument in the
subsequent contempt proceedings applicant having realised how wrong
he was to try to impress on this Court that
he was wrongly dismissed,
was quick to abandon that application. See Legal Notice 71 of 1983
section 2(d). In other words he cannot
expect to receive costs in
that application because costs follow the event and in that case
there was no event in that the matter
was not heard to the end.

The view
I take is that in forestalling the event by their rash acts the
respondents were partly responsible for the fact that such

application was not argued to its logical conclusion. Therefore the
fact that the Court granted the interim order regardless of
how '
wrong the applicant had been on the law is a prima facie proof that
the court did not regard that he had vainly incurred
the costs in
bringing the application at that stage.

With
regard to costs order 9/87 section 3(2) makes reference to the fact
that in discharging a rule purporting to hold the crown
liable the
crown will not be ordered to pay costs. The awarding of costs is the
prerogative of the Court. A fortiori because there
is reference to
the award of costs in this subsection, there is an implied concession
that the Court is entitled to adjudicate
on the matter. Hence the
function to discharge the rule is the function of the court and

5

not of
either of the disputants.

It is
inconceivable that the respondents should say as they do that they
are pleading that they thought they could disobey an order
granted by
a competent Court. Moreover they obeyed this order for not less than
six weeks after it had been issued. I cannot see
what prevented them
from obeying it still for the remaining period of its duration till
both parties argued their case and a final
ruling was given in the
matter. It was no unlawful procedure for respondents to approach
court for the discharge of the rule instead
of taking the law into
their own hands. The court cannot afford to be ousted from its
jurisdiction, no matter how good the grounds
anybody purporting to
do. so thinks he has.

It is not
clear to me whether any interim order issued following the
application for contempt. There is no proof that papers relating
to
that application were served on the respondents, least of all 2nd and
3rd. respondents. I cannot presume that they are personally
aware of
these contempt proceedings. It is only fair that because they are the
persons most likely to be affected by the outcome
of the drastic
contempt order, they be served with the order embodied in this
proceedings so that an opportunity can avail to them
to make
representations before a final order can take effect, or otherwise
the matter disposed of accordingly. The original file
and whatever
was jotted therein are missing.

I rule
therefore that applicant be awarded costs in the main application
from its initiation till its abandonment. I also rule that
1st 2nd
and 4th Respondents should show cause on a date thirty days hence,
why

1. 2nd
   and 3rd respondents shall not be held liable for contempt of the
   Interim Order granted by this Court on 11th December, 1997;

   
   

2. 2nd
   3rd and 4th respondents shall not be made to pay the costs of this
   application on an Attorney and client scale.

   
   

6

I leave
it to the parties to make arrangements with the Registrar as to the
actual date of hearing of proceedings following the
above order.
Naturally costs stand over pending determination of issues set out in
(a) and (b) of the order I have made above.

ACTING
JUDGE.

25th
April, 1988.

For
Applicant : Mr. Matsau

For
Respondents: Mr. Malebanye.