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CIV/APN/94/92

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

PHILIP
MICHAEL BROWN Applicant

and

THOLOANA
MOTSOENE. Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 29th day of April 1992

The
applicant herein sought against the Respondent, an urgent order
framed in the following terms:

"1.
That a Rule Nisi be issued calling upon the Respondent to show cause
if any, on the 27th day of March, 1992 why:

1. The
   order for costs in CIV/APN/92/94 (sic) shall not be set aside;

   
   

2. In
   the alternative in the event of l(a) above not succeeding, the costs
   in CIV/APN/94/92 be taxed on the Magistrate's costs scale;

   
   

2. That
   the normal rules of court as to time limits for motion proceedings
   be

   
   

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dispensed with on account of the urgency of this matter;

3. That
   the Respondent be ordered to pay the costs of this application;

   
   

3. Further
   and/or alternative relief.

   
   

3. That
   execution in CIV/APN/94/92 be stayed pending the finalisation of
   this application,"

   
   

The
matter was, on 24th March, 1992, placed before Kheola J. who granted
the order as prayed. The return day was fixed as 27th March,
1992.
Confirmation of this interim order was opposed by the Respondent and
affidavits were duly filed by the parties.

It
appears from affidavits that on 13th September, 1991 Applicant and
Respondent concluded a written agreement whereby the latter
rented
her residential property at Thetsane's to the former for a period of
one year i.e. from 4th September, 1991 to 31st August,
1992. The
rental to be paid was M2,000.00 per month.

In
accordance with the terms of the agreement, on 29th February, 1992,
the applicant addressed to the Respondent a letter in which
he gave
the latter two months' notice to terminate the agreement. On the
following day, 1st March, 1992, the applicant addressed
yet another
letter to the Respondent. In that letter the applicant pointed out
that in terms of the agreement the Respondent had
undertaken, inter

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alia, to
provide adequate security doors on all external entrances and
maintain the property fixtures in good repairs. Contrary
to her
undertaking the Respondent had, however failed to provide the
applicant with a key to the garage's side entrance which was,

therefore, not secure. The kitchen door frame was causing problems
with locking; numerous light fittings, as well as the folding
doors
into the second bathroom and the quest toilet were not in proper
working conditions, The applicant concluded the letter by
telling the
Respondent that he was unhappy with the condition of her property and
had consequently decided to withhold a portion
(Ml,000) of the
monthly rentals.

The
Respondent denied that her property had the defects about which the
applicant was complaining. In any event the applicant had
never drawn
her attention to any such defects. On 6th March, 1992, the
Respondent, therefore, caused a letter to be written to
the
applicant. In that letter she objected to the legality of the
applicant's unilateral decision to withhold portion of the monthly

rentals and demanded payment of M2,000, being the total amount
withheld by the applicant, within seven (7) days. The Respondent

threatened that unless full payment was made within the time
stipulated in the letter of demand she was going to institute a civil

action against the Applicant.

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According
to her, the Respondent subsequently learned that following receipt of
the letter of demand the applicant, who is a citizen
of the United
Kingdom, was busy packing his belongings in preparation to leave
Lesotho and/or the jurisdiction of the court. On.
13th March, 1992,
i.e. before the expiration of the time limit stipulated in her letter
of demand, the Respondent had to approach
the High Court for, and
obtained before Kheola J. on the basis of urgency, an interim order,
returnable on 16th March, 1992, for
the arrest of the applicant
tanguam suspectus de fuga, together with costs, pending the
determination of the civil action to be
instituted against him for
payment of the M2,000.00.

It is
common cause that on the same day, 13th March, 1992 and before the
interim order for his arrest tanguam suspectus de could
be served
upon him, the applicant paid the rentals of M2,000.00 he had been
unilaterally withholding from the Respondent. When
on the return day,
16th March, 1992, the matter came before Kheola J. the applicant was
not in attendance. Only counsel for the
Respondent appeared and
pointed out that the M2,000.00 had since been paid in full. The need
for the institution of a civil action
against the applicant and,
presumably, his arrest tanquam suspectus de fuga had, therefore,
fallen away. However, the Respondent
applied for confirmation of the
interim order, only in respect of the costs, which application was
accordingly granted. I

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shall
assume, therefore, chat on 16th March, 1992 the interim order granted
on 13th March, 1992 was confirmed and discharged as
regard the costs
and the rest of the prayers, respectively.

It is in
relation to the confirmation of the order for costs that, on 24th
March, 1992, the applicant instituted the present proceedings
for
relief as aforesaid. As it has already been pointed out earlier,
Kheola J. again granted an interim order, confirmation of
which is
opposed.

It is,
perhaps, convenient to mention, at this juncture, that when on 8th
April, 1992, the matter came for argument Kheola J. was
heading a
Commission of Inquiry and, therefore, not available to deal with it.
The matter was, for that reason, placed before me
for argument.

Briefly
stated, the case for the applicant is that both the application for
his arrest tanquam suspectus de fuqa and the proposed
civil action
upon which the arrest is based are matters that fall within the
jurisdiction of magistrate courts. There is no justification
for the
Respondent to have brought either of these matters before the High
Court. That being so, she is not entitled to the High
Court costs
which are on a higher scale than in the magistrate courts.

On her
part, the Respondent contends that she has merely

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proposed
to bring, against the applicant, a civil action , which, for reasons
already explained, has not been actually instituted
before any court.
Consequently, the question of whether the action is properly to be
instituted before the High Court or the magistrate
courts does not
arise. As regards the applicant's arrest tanquam suspectus fuga the
court has already given a final order in the
matter. If, in the
contention of the applicant, the court had no jurisdiction to
entertain the matter, he ought to have appealed
against the decision
of this court and not proceed by way of application as he had done in
the present case.

It is
significant to observe that in terms of the provisions of S.17 of the
Subordinate Courts Order. 1988 the magistrate courts
of various
classes have jurisdiction to entertain civil actions in which claims
range from M5,000 up to M10,000 and S. 18 thereof
empowers such
courts to grant orders of arrest tanquam suspectus de fuga. In the
present case the claim which forms the basis for
the proposed civil
action against the applicant and his arrest tanguam suspectus de fuqa
is admittedly M2,000.00. There can be
no doubt, therefore, that both
the proposed civil action against the applicant as well as the
application for an order of his arrest
tanguam suspectus de fuga are
matters within the jurisdiction of the magistrate courts. That being
so, S.6 of the High Court Act,
1978 clearly provides, in part:

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"6. No civil cause or action within Che jurisdiction of a
subordinate court

....... shall be instituted in ............ the High Court save:-

1. by a
   judge of the High Court acting of his own notion; or

   
   

2. with
   the leave of a judge upon applicant made to him in chambers and
   after notice of the other party.

   
   

(my underlining)

I have
underscored, in the above cited S.6 of the High Court Act. 1978, the
word "shall" to indicate my view that the
provisions
thereof are mandatory. In the present case there is no suggestion
that the provisions of S,6 of the High Court Act,
supra, have been
invoked prior to the Respondent approaching the court as she did on
13th March, 1992. It must be accepted, therefore
that the High Court
had no jurisdiction in the matter which was erroneously entertained
and indeed finalised, on 16th March, 1992,
in the absence of the
applicant. In terms of the provisions of rule 45 (1) (a) of the High
Court Rules 1980 the court is empowered
to rescind or vary the order
thus erroneously granted. The rule reads:

"45 (1) The court may, in addition to any other powers, it may
have mero motu or upon the application of any party affected
rescind
or vary -

1. an
   order or judgment erroneously sought or erroneously granted in the
   absence of any party affected thereby;"

   
   

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In the
present case, the application is, however, not that the court should
rescind the whole of the interim order granted on 13th
March, 1992.
What the court is asked to do is to set aside the order for costs or,
alternatively, order that Che costs be taxed
on the scale of the
magistrate courts.

If I
follow it properly, the applicant's contention is not that the
Respondent was not entitled to costs at all but chat she was
entitled
to costs on the scale of the magistrate courts which had jurisdiction
over the application brought on 13th March, 1992.
I entirely agree
with this contention. I would, therefore, confirm the interim order
granted by Kheola J. on 24th March, 1992 in
terms of the alternative
prayer l(b), viz. that the costs in CIV/APN/94/92 be taxed on the
scale of the magistrate courts. I would
also confirm the order in
terms of prayer 3,

B.K.
MOLAI

JUDGE

29th
April, 1992.

For
Applicant : Miss Mofolo

For
Respondent: Mrs. Kotelo.