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IN THE
HIGH COURT OF LESOTHO

CIV/APN/324/93

In the
matter between

TSELISO
HLALBLE Applicant

and

DANIEL
MARAISANE 1st Respondent

MINERS
AND DEPENDENTS

WELFARE
ASSOCIATION 2nd Respondent

RULING ON
POINTS - IN - LIMINE

Delivered
by the Honourable Mr. Justice T. Monaoathi Acting Judge on the 13th
December, 1993

A notice
of motion has been filed on an urgent basis by the Applicant. An
interim rule was issued by my brother Mr. Justice B. K.
Molai on the
13th August 1993. Respondents were duly served with the Order and
have filed an replying affidavit. Applicant thereafter
filed a
replying affidavit.

The
Interim Court Order reads as follows:

"1. That a Rule Nisi be issued calling upon the Respondents to
show cause, if any, on a date to be determined by the Honourable

Court why:-

1. The
   suspension of Applicant by the 1st

   
   

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Respondent, as per letter dated 17th June 1993 written to Applicant
by the First Respondent, purportedly on behalf of the Second

Respondent, shall not be declared null and void and of no force and
effect;

2. The
   Respondents shall not be directed to allow the Applicant to return
   to his office forthwith and carry out his normal duties
   pending the
   determination of this application;

   
   

3. The
   Respondents shall not be restrained from interfering, except by due
   process of law, with Applicant's occupation of his office
   as the
   Secretary General of the 2nd Respondent in the National Executive
   Committee pending the determination of this application;

   
   

4. The
   replacement, if any, that may have been made to substitute the
   Applicant in his office, or any decisions that may have been
   made in
   relation to the Applicant during his absence from the office shall
   not be suspended pending the determination of this
   application;

   
   

5. The
   First Respondent shall not be ordered to pay costs of this
   application, and the second Respondent shall not also be ordered
   to
   pay costs of this application only in the event of it opposing same;

   
   

6. Granting
   the Applicant further and/or alternative relief."

   
   

On the
day of hearing I was persuaded that the points in limine be heard
first and separately. The reason why the Applicant moved
that the
point-in limine be argued together with the merits was that in
debating points in limine there would be no way of avoiding
to
canvass merits. The Court felt that it was only proper to argue the
preliminary points first.

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Mr.
Mosito for Respondents raised the following points -Firstly, that
there was no urgency in the matter and furthermore such urgency
if
any should have been stated in the founding Affidavit in order to
comply with the provisions of Rule 8(22) (b), Further-more
that there
was no basis and no reason why the Applicant should not have
proceeded on notice to Respondents. Neither were these
grounds for
urgency, as it was argued. Secondly, as Respondents Counsel
submitted, that the Applicant was guilty of serious non-disclosure

and lack of bona fides.

This he
has perpetrated, as alleged, by saying that the 1st Respondent is not
the President of the 2nd Respondent but its Vice President.
This, it
is further alleged, brings in serious dispute of fact which Applicant
should have foreseen, at the risk and pain of having
his application
dismissed with costs. This is what the Respondents ask for, namely
dismissal of the application.

This
Court has had the benefit of argumet from both Counsel. The Court has
made the following findings: Firstly, no ground has been
demonstrated
to exist for alleged urgency of the application. Indeed in my
observation no circumstance exist which render the application

urgent. Applicant has, additionally, failed to show why he could not
be afforded substantial relief in due course if periods presented
by
the

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rules of
Court were followed.

I do not
accept that there are any exceptional circumstance existing in the
Applicant's case which entitle him to proceed ex carte
against the
Respondents. Applicant's complaint against alleged unlawful
suspension, was a run-of-the will case where, for instance
an
employer suspends an employee pending an investigation into alleged
misconduct. I observe that this is not a case of suspension
so
serious in its repercussion that the Applicant ought to have been
heard. This would be the case for example when an employee
is
suspended without pay or some other basic benefits are withdrawn from
the employee during the suspension. The unreported case
of MOQHALI vs
LESOTHO TELECOMMUNICATION CORPORATION CIV/APN/247/93 delivered by my
brother Justice J. L. Kheola on the 6th October,
1993 is very
instructive in its full and comprehensive treatment of this problems
of suspension of employees pending certain investigations.
This was a
suspension of an employee by the management of a public Corporation.
Of course, several special procedural considerations
apply in regard
to the conduct of such corporations. Those are not of application
now.

The
submission that by Respondents that since the rule nisi issued by my
brother Justice B. K. Molai does not contain an order having

immediate effect, is therefore not prejudicial and

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aught
therefore to be regarded as if it was an Order on notice, is without
substance, in my view, As a fact there was an ex parte
Order in the
intentment of Rule 8(22) (b).

Applicant
has also argued that the urgency of the matter is implicit in that
the Respondent conduct was irregular and unlawful when
tested against
certain provisions of the 2nd Respondents Constitution. I was not
prepared to go into this question of how the Applicants
suspension
was lawful. This is in the realm of the whole gamut of the merits of
the matter. This is a different inquiry. I merely
observe that the
matter itself is full of disputes of fact all of which go to show
that the Applicant should not have proceeded
the way he did,

I have
expressed my concern that since the Applicant's suspension, it does
not appear that action has been taken to investigate
the allegations.
That would be undesirable. Applicant expects that the matter of his
suspension shall come to an end one way or
the other. The sooner the
better.

In the
result I would discharge the rule nisi granted on the 13th August
1993, with costs to the Respondents,

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T.MONAPATHI

ACTING
JUDGE

13th
December, 1993

For
Applicant : Mr. B. Sooknanan

For the
Respondents : Adv. Mosito