IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

REFERENCE
NO C OF A (CIV) NO. 11/1989

CIV/APN/31/89

JANE
MOSOLLANE 1ST APPELLANT

MORALE
MOSOLLANE 2ND APPELLANT

AND

COMMISSIONER
OF POLICE 1ST RESPONDENT

ATTORNEY
GENERAL 2ND RESPONDENT

Held at
Maseru

Coram:

Ackermann
J.A.

Steyn
J.A.

Kotze
J.A.

JUDGEMENT
STEYN
J.A.

This is
an appeal against an order of the High Court (Molai J. presiding)
discharging with costs a rule nisi which had been issued
against the
Respondents insofar as the rule sought to impact upon them.

In order
to deal with the matter it is however necessary to set out the full
terms of the rule nisi. It was issued as follows:

“1. A Rule Nisi be and is hereby granted calling upon the
Respondents to show cause on 3rd day of March 1989 why:

Page 2

1. First,
   Second, Third and Fourth Respondents should not be restrained from
   holding themselves out as policemen when they are not
   policemen by
   law.

   
   

2. First,
   Second, Third and Fourth Respondents should not be restrained from
   taking the animals of the Applicants which under duress
   they made
   Applicants to agree to hand them over as compensation for alleged
   theft that was never brought before the courts of
   law.

   
   

3. First,
   Second, Third and Fourth Respondents should not be directed to stop
   harassing the Applicants by arresting them or unlawfully

   interfering with them in any way.

   
   

4. The
   Commissioner of Police the Fifth Respondent should not be directed
   to arrest the First, Second, Third and Fourth Respondents
   should
   they disobey the Court Order.

   
   

5. First,
   Second, Third and Fourth Respondents should not be directed to pay
   costs of this application.

   
   

2. That prayers 1 (a), (b) and (c) shall operate with immediate
effect pending the finalisation of this application."

Appellants
are both elderly citizens of Lesotho. They allege that they had over
time been harassed, assaulted and intimidated in
a variety of ways by
the first four Respondents in the Court below. They saw fit however
to join Fifth and Sixth Respondents in
their action although seeking
no relief against the latter. It must be noted however that no order
for costs was sought against
these two Respondents, unless they were
to oppose the application. This in the event they did with the result
reflected in the
order cited above.

Page 3

Various
issues of procedure and practice were raised in argument. Counsel
expressed great dissatisfaction with the fact that although
an order
was made on the 12th day of April 1989, no reasons for judgement have
ever been furnished by the Court
making the order, up to and
including the date of the hearing of this appeal on Wednesday,
January 22, 1992.

We will
in case No. 12 of 1990 - Malefane vs. Mphana - deal more fully with
these issues.

This
matter in essence concerns only the matter of costs and can in my
judgement be resolved within a narrow framework.

What the
Appellants sought in essence was a mandamus on the Respondents in
anticipation of their failure to comply with a Court
order.
Appellants had ample ground to approach the Court for an order to
restrain the first four Respondents from
assaulting and otherwise
harassing them in the manner described above. However, no factual
evidence was addressed or any foundation
laid for a contention that
the Respondents concerned would not take all the necessary steps to
ensure a compliance
with a Court order, should such order by
itself fail to have the desired restraining effect on the Respondents
accused of misconduct.

The mere
fact that a complaint to the police authorities concerned had not
restrained the first four Respondents from persisting
in their
unlawful conduct, did not in our view constitute sufficient grounds
for the joinder of the Fifth Respondent. No reasons
for citing the
attorney general were ever advanced and his joinder remains a
mystery.

The
joinder of the Fifth and Sixth Respondents in the circumstances
reflected in these papers was misconceived. They were entitled
to
oppose the granting of any order against them and the Court a quo was
right to award them their costs in doing so.

Page 4

The
appeal is dismissed with costs.

J.H.STEYN
JUDGE
OF APEAL

I agree

L.W.H.
ACKERMANN

JUDGE OF
APPEAL

I agree

G.P.C.
KOTZE

JUDGE OF
APPEAL

Delivered
at Maseru on 19th day of February 1992.