CIV/APN/370/86
IN THE HIGH COURT OF LESOTHO
In the Application between;
EDWARD MOEKETSI KHALI Applicant
and
STEPHAN CARL BUYS N.O. 1st Respondent
MASTER OF THE HIGH COURT 2nd Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 6th day of May, 1988
On the 24th December, 1986 the applicant brought an ex parte application and a rule nisi was issued calling upon the respondents to show cause, if any why:
The 1st respondent should not be removed as Provisional Trustee of the applicant;
The Master should not ensure that the settlement of this estate is completed before the end of December, 1986 since the statement of affairs is available and complete with the exception of the assets of Mr. B.S. Dlamini which must be called urgently;
The 1st respondent should not pay all increase of the liabilities from their (sic) status on the 24th February, 1986 since the delays have been illegally caused by him;
The 1st respondent should not be ordered to pay the costs of this application and the costs of all applications made in this matter
before;
2
The 1st respondent should not be ordered to pay all damages arising out of his negligence and deliberate flouting of the law in this matter which included the deliberate and malicious selling assets without the authority of either the Master or the law and misleading the public and individuals in these actions.
In his founding affidavit the applicant accuses the 1st respondent of incompetence as a Trustee and refers the Court to a number of instances. He also accuses the 1st respondent as being a person who cannot be relied upon to be fair and impartial in this matter.
I do not propose to deal with the merits of the present application except to mention that the 1st respondent has denied all the allegations made against him. At the hearing of this application on the 15th April, 1988 Mr. Mphalane, counsel for the 1st respondent, raised in limine points of law and submitted that the application should be disposed of without going into the merits.
Mr. Mphalane submitted that in bringing this application ex parte the applicant failed to comply with the provisions of Rule 8 (22) (a) and (b). The rule reads as follows:
In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure as the court or judge may deem fit.
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.
3
In support of his ex parte application the applicant has averred that the 1st respondent is incompetent and has committed some irregularities, such as selling some properties which did not belong to the insolvent estate, but nowhere does he indicate explicitly that his application should be treated as one of urgency, nor does he explicitly request the court to dispense with the ordinary rules of service, nor does he advance explicitly any reasons why he claims that he could not be afforded substantial redress at a hearing in due course if the periods prescribed by the rules were followed (Eniram (Pty) Ltd. v. New Woodholme (Pty) Ltd., 1967 (2) S.A. 491).
It is absolutely necessary in an ex parte application that the applicant should request the Court to dispense with the forms and service provided for in the Rules of High Court. The applicant has made no such request in the Notice of Motion nor in the founding affidavit. The application is irregular because it does not comply with sub-rule 22 (a) of Rule 8.
The second and most serious irregularity committed by the applicant in the present application is the failure to set forth in detail the circumstances which he avers render the application urgent and the reasons why he claims that he could not be afforded substantial
relief in a hearing in due course if the periods prescribed the rules were followed. It is the duty of an attorney who wishes to bring an application ex parte to consider seriously whether the matter is so urgent that his client may suffer irreparable harm if the matter is heard in due course. He must set forth in detail the circumstances which render the application urgent.
4
In the present application Mr. Klass, counsel for the applicant, does not seem to have properly considered the matter. He submitted that there was urgency because the relations between the 1st respondent and the applicant had deteriorated to such an extent that they could no longer work together; that the appointment of the 1st respondent as trustee was irregular; and that the 1st respondent was in many respects incompetent. Mr Klass apparently wants the court to make deductions from the affidavit of the applicant that there are reasons which render the application urgent. He however admitted that it was necessary to pray that the forms and times of service provided for by the rules be dispensed with.
The present applicant has made no request in his affidavit that the application be treated as one of urgency. I am not prepared to treat it as urgent and to rely simply on arguments based on implications and deductions which may be made from allegations contained in the affidavits (Eniram (Pty) Ltd. v. New Woodholme (Pty) Ltd. (supra) at p. 493). The Rule requires that the applicant must specifically request the Court to treat the matter as one of urgency and to support such request with proper grounds in the affidavits.
I have come to the conclusion that this application cannot succeed on the ground of failure to comply with the Rules.
The rule nisi is discharged with costs.
J.L. KHEOLA
JUDGE.
6th May, 1988
For Applicant - Mr. Klass.
For Respondents - Mr. Mphalane.
