CIV/T/739/88

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

ELLIS
MORAKENG Applicant

and

MATSELISO
MORAKENG Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 22nd day of
November, 1990.

This is
an application for an order in terms of Rule 30 of the High Court
Rules 1980 setting aside plaintiff's notice of set down
on the
grounds that the Notice of set down dated the 5th November, 1990 is
an irregular and improper proceedings or improper step
because it was
drawn and served before a pre-trial conference had taken place
contrary to the provisions of Rule 36 (1) of the
High Court Rules.
Secondly, that Rule 36 (4) has not been followed when the Notice of
set down was drawn or when the request for
a date of hearing was
made. Thirdly, that in the light of the Registrar's rejection of the
plaintiff's notice of set down by the
Assistant Registrar, the matter
ought not to appear on the roll.

2

It is
common cause that on the 31st October, 1950 the respondent's
attorneys wrote a Notice in terms of Rule 39 (2) informing
applicant's
attorneys that on the 2nd November, 1990 at 2.15 p.m.
application would be made to the Registrar for a trial date. This
notice
was served on the applicant's attorneys on the 31st October,
1990.

A date of
trial was obtained and on the 5th November, 1990 a Notice of sot down
was drawn up and served on the applicant's attorneys
on the same day.
The matter was set down for hearing on the 15th November, 1990.

On the
5th November, 1990 which was the day on which the notice of set down
was drawn up and served, the respondent's attorneys
prepared a Notice
of a pre-trial conference and informed the applicant's attorneys that
a pre-trial conference would be held on
the 12th November, 1990 at
2.30 p.m. at the offices of the respondent's attorneys. A pre-trial
conference was duly held and attended
by Mr. K. Sello, respondent's
attorney and Mrs. V. Kotelo, applicant's attorney.

There is
no doubt that the Notice of set down dated the 5th November, 1990 was
an irregular and improper proceeding and an improper
step because
Rule 36 (1) provides that before an action may be set down for trial
the attorney acting for one of the parties shall
invite the attorneys
acting for the other parties to attend a pre-trial conference at a
specified place and time with the object
of reaching agreement as to
possible ways of

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curtailing
the duration of the trial. It was an improper step to issue a Notice
of set down before a pre-trial conference was held.
Rule 36 (4)
states in no uncertain terms that 'when an attorney sets a case down
for trial or makes a written request for a date
for the hearing
thereof, as the case may be, he must state in writing that a
pre-trial conference has been held or has been excused
by order of a
Judge given under sub-rule (2) herein. The respondent's attorney did
not comply with the above sub-rule.

I was
referred to two conflicting South African cases but I do not wish to
say anything about them because Rule 36 (4) is very clear
and is not
capable of any two meanings.

This is
not the end of the matter because Rule 30 (1) under which this
application is brought reads as follows:-

"Where a party to any cause takes an irregular or improper
proceeding or improper step any other party to such cause may within

fourteen days of the taking of such step or proceeding apply to court
to have it set aside:

Provided that no party who has taken any further stop in the cause
with knowledge of the irregularity or impropriety shall be entitled

to make such application."

It is the
proviso to Rule 30 (1) that creates problems for the applicant. On
the 5th November. 1990 when the applicant's attorneys
received the
notice of set down they were aware or had

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knowledge
that it (notice of set down) was irregular and improper. They not
only accepted that irregular proceeding but took a further
step by
attending a pre-trial conference on the 12th November, 1990, long
after the matter was set down for trial. It seems to
me that the
provisio regards the taking of a further step with the knowledge of
the irregularity or impropriety as an act of condoning
such
irregularity or impropriety. The applicant was therefore not entitled
to make this application.

In the
result the application is dismissed with costs.

J.L.
KHEOLA

JUDGE

22nd
November, 1990.

For
Applicant - Mr. Maqutu

For
Respondent - Mr. Sello.