CIV/APN/164/88

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

DURGAPURSAD
HAMPROTAL Applicant

V

TELEKO
MOSAO 1st Respondent

COMMISSIONER
OF POLICE 2nd Respondent

RULING

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 30th day of May,
1988.

May 27th
1988 was the anticipated return day in response to an urgent
application moved ex parte before Molai J who granted the
interim
order returnable on 3rd June, 1988.

On the
anticipated return day applicant sought extension of the return date
to the original one granted at the hearing of the application
ex
parte. First respondent vehemently opposed the postponement and the
concomitant extension of the rule.

Applicant
sought the postponement on the grounds that because of the distance
between his attorneys' offices in Maseru and his own
place of
residence in Durban Stanger he is not able to furnish his replies on
the anticipated return date. First respondent however,
and properly
so argues that when applicant approached the Court ex parte he should
have weighed the odds against him end realised
that should the
respondent anticipate the rule the applicant would be faced with the
obvious predicament he finds himself in today.
In other words
respondent cannot be allowed to evade the worst circumstances brought
about at his own instance.

2

In an
attempt to come to the applicant's rescue Mr. Moiloa submitted that
the subject matter in the main application namely a motor
vehicle is
in neutral hands and in any event the original return date is only a
week away and that applicant has understood that
he would be required
to pay the costs of the postponement.

I have
had occasion to refer to C of A (CIV) No. 16 of 1984 Kutloano
Building Construction vs Matsoso & 2 Others (unreported)
at 7
where Schutz P. said

"I am afraid that my decision may smack of the triumph of
formalism over substance. But forms are often important and the

requirements of the sub-rule are such."

The
purport of this dictum clearly is to enforce compliance with the
rules. It has basis on the well known principle of the procedural

rule that when form is not observed a failure of action ensues.

A
countervailing view however exists and I think it has application in
the instant matter that forms are surrendered in order to
avoid
miscarriage of justice.

Consequently,
in exercise of my discretion baaed on R. 59, and not without
reluctance I grant application for extension of the rule
to 3rd June
1988. The application is postponed to that day. Costs of 27th May
1988 were awarded to first respondent. Today's costs
will stand over
pending the final determination of issues involved in the
application.

ACTING
JUDGE.

30th May,
1988.

For
Applicant : Mr. Moiloa

For
Respondents : Mr. Nthethe.