CIV/APN/289/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

SAMUEL
PULE Applicant

V

ROSE PULE
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 29th day of November,
1982.

On the
15th day of November 1982 Advocate Modisane appeared in chambers
before the Honourable Chief Justice Cotran to move an urgent
ex parte
application. The Chief Justice, after perusing the papers, commented
as follows on the file :

"Order: I see no urgency here. Applicant must use form J of the
High Court Rules."

On the
19th November 1982 a document titled "Notice TO OPPOSE," It
is addressed to the Registrar and to Advocate J.L.
Modisane (styled:
Attorneys for Plaintiff). This confusion comes about simply because
Advocate Modisane has plainly refused to
obey the order of the Chief
Justice. To date, he has not followed the form J of the High Court
Rules as ordered. Instead, the format
he uses is worded as follows :

"TAKE NOTICE FURTHER THAT the Applicant has appointed the
offices of C/O Advocate J.L. Modisane of allied Building, P.O. Box

4547. MASERU, at which he will accept notice and service of all
process in the proceedings."

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"TAKE NOTICE FURTHER THAT THE applicant has appointed......(here
set forth an address within 5 kilometers of the office of
the
Registrar) at which he will accept notice and service of all process
in these proceedings.

TAKE NOTICE FURTHER THAT IF you intend to oppose this application you
are required

1. to
   notify applicant's attorney in writing on or before

   
   

2. and
   within fourteen days of such notification to file your answering
   affidavits if any;

   
   

AND FURTHER TAKE NOTICE that you are required to appoint in such
notification an address within 5 kilometers of the office of the

Registrar at which you will accept notice and service of all
documents in these proceedings." (My underlining).

If is
quite clear from the perusal of the Notice of Motion that Advocate
J.L. Modisane has been described as the person at whose
offices
service of all documents in these proceedings will be accepted on
behalf of the applicant. But Advocate J.L. Modisane is
admitted to
practice before the Courts of Lesotho as an Advocate and not an
Attorney. Advocate J.L. Modisane, moreover, did not
claim a right
under sec. 4 of the Legal Practitioner's Act 11 of 1967 nor that he
was a Law Officer in terms of sec. 5 of the above
Act. An advocate
receives his instructions, in our system of Law, through an attorney.
He never has anything to do with a client
directly. Whatever
information he needs from a client he will always communicate with
the instructing attorney and never with the
client directly. He has
no client. For his fees he looks to the instructing attorney. It is
therefore totally out of step and conflicts
with the practice of an
advocate under our Legal system to act as Advocate J.L. Modisane has
done and indeed has stubornly persisted
a long time against wise
counsel. This state of affairs cannot be allowed to continue any
longer. The judgment of Rooney, J. in
the case of Legal Practitioners
Committee v. Advocate Rashid Ahmed Karim, 1979(1) L.L.R at 260 is

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very
instructive on this point. The result of his stubornness has let to
his non-compliance with the head of the Judiciary's order.
It is a
grave insult to him; to this Court and to the profession as a whole.
Advocate Karim was struck off the roll.

Mr.
Moiloa took another point in limine. The founding affidavit was
vague. It disclosed no cause of action. There were no annexures.

There were supporting affidavits which could have been obtained with
the greatest ease. Was it really difficult for the applicant
to
furnish the respondent with a copy of their alleged earlier marriage
certificate or a certified copy thereof? In the case of
Lebelo v
Lebelo and Another, 1976 LLR. 206 at 209 (in the press) this Court
said :

"In motion proceedings .... the affidavit(s) constitute not only
the evidence but also the pleadings and therefore must contain
all
that would be necessary in a trial.”

In a
trial, therefore, a party would not be satisfied with making a bold
allegation in an extraordinary application, of this nature,

requesting the variation of the status of a person. Additional
evidence in support of such allegation would be furnished to enable

the Court to arrive at a just decision.

Then
finally I notice that the service of the process of the documents was
on an advocate. Is this a good service or not. This follows
the
decision of Rooney, J. in the case of Michael Mthembu v Chhogala
Igbal, 1980(2) LLR. at 510 with which I entirely agree. The
learned
judge refers to the passage in the case of Legal Practitioners
Committee v Advocate Rashid Ahmed Karim (supra):

"While it is true that in some areas there is not a precise
definition of the function of attorneys

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and advocates the distinction between the two branches of the
profession depends upon the general and accepted rule that in civil

matter........ the general public has access to allattorneys, but, an
advocate has no mandate to act for any person in a cause
or matter
unless he has first been instructed by an attorney duly admitted to
practise before the courts of this country."
On appeal to the
Court of Appeal (Court of Appeal CIV/3/79) unreported) Maisels P. in
reference to the above said that he agreed
with these observations
and went on "they afford in my Judgment valuable and correct
guidelines for members of the profession
in Lesotho."

Again in
words of Rooney, J. :

"Advocate Ramodibeli's intervention in these proceedings was
quite unwarranted. The plaintiff's attorneys were not entitled
to
treat with Mr. Ramodibeli as if he were the attorney for the
defendant. They should not, in my view, have served the notice
to
file plea upon him instead of upon the defendant at the address for
service given in the notice of appearance. I must in the

circumstances hold that the notice to file plea was not properly
served upon the defendant and it follows that the plaintiff was
not
entitled to bar him from pleading or make an application to this
Court for Judgment in default under Rule 23 of the High Court
Rules
(now repealed)."

The same
principle is applicable with equal force in the present case. The
respondent attorneys should not have served any process
or
document-on Advocate J.L. Modisane at all in the light of judge
Rooney's ruling which, to the best of my recollection, has not
been
over-ruled by a higher Court. It is not surprising that Advocate J.L.
Modisane deliberately refrains from reading such decisions
because he
wishes he practice as an attorney when he knows full-well he should
not.

In the
circumstances of this case I am left with no alternative but to
uphold the application made in limine, with Advocate J.L.
Modisane
being ordered to pay the costs.

The
Registrar of this Court is asked to send a copy of this judgment to
the Solicitor-General for his attention and action.

JUDGE.

29th
November, 1982.

For the
Applicant :

For the
Respondent : Mr. Moiloa