CIV/APN/13/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

THABA
HOOHLO APPLICANT

V

CALTEX
OIL (S.A.) (PTY) LTD. RESPONDENT

REASONS
FOR JUDGMENT

Delivered
by the Honourable Mr. Justice W.C.M. Maqutu on the 28th November,
1994.

On the
28th November, 1994 this application was argued. Mr. Geldenhuys,
Counsel for the Respondent, had to begin as he had raised
certain
points in limine. Mr. Nathane for Applicant answered.

After
hearing both parties, I dismissed the application with costs and
promised to file reasons later.

In this
matter Applicant applied for an order in the following terms:

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"1. Declaring Applicant's purported dismissal as wrongful and
unlawful.

2. Directing
   Respondent to pay Applicant's salary and other benefits from the
   date of the dismissal to date.

   
   

2. Directing
   Respondent to pay interest thereon at he rate of 18.25%.

   
   

2. Directing
   Respondent to pay the costs hereof.

   
   

2. Granting
   Applicant such further and/or alternative relief as this Honourable
   Court may deem fit."

   
   

This
application was brought by Notice of Motion dated 15th December,
1993. It was filed on record on 17th January, 1994. All affidavits

and papers had been filed by the 26th May, 1994. The matter was
set-down by Respondent on the 11th August, 1994. The matter was

crowded out and had to be postponed to the 14th November, 1994.

This
Court has not gone into the merits of this application. Consequently
nothing that I say in this

3

application
should be construed as in any way determining the merits of
Applicant's case,

Mr.
Geldenhuys for Respondent first took the point that this matter is
pending before the Magistrate's Court, Maseru, as CC.953/90.
This is
admitted. Mr. Nathane for Applicant says although the parties are the
same in CC.953/90 and this application and the cause
of action the
same, the relief claimed is different.

In his
founding affidavit in this matter, Applicant says his employment was
unlawfully terminated around the 26th March, 1990. In
the particulars
of claim of CC.953/90 of the Magistrate's Court, Applicant says his
employment was terminated on or about the 21st
March, 1990. Both
parties agree this is the termination of employment that is the
subject of both applications.

In CC.953/90 Applicant claims:

1. M2010.00
   salary for March 1990.

   
   

2. M6030.00
   salary in lieu of three months' notice.

   
   

3. Costs
   on Attorney and Client scale.

   
   

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In this
application (CIV/APN/13/94) Applicant wants his dismissal to be
declared unlawful and his salary and other benefits to continue
as if
he was never dismissed.

The first
problem I have with Applicant is that nowhere in his founding papers
does he refer to CC.953/90. It is essential that
all facts that might
affect the outcome of Applicant's application should be disclosed in
the founding affidavit. Applicant is
not allowed to supplement his
case in Applicant's Replying Affidavit.

Dealing
with CC.953/90 (although he does not specifically identify it)
Applicant in his Replying Affidavit says:-

"I admit the contents hereof; save to say that the cause of
action in the case of 18th September 1990 and the present one
is
different."

Mr.
Nathane, Counsel for Applicant, conceded that the cause of action is
the same, what differs is the relief claimed.

What
worries me is the fact that applicant does not seem to be aware that
(when he brought this application) he was obliged to disclose
that he
had already instituted

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CC.953/90
before the Magistrate's Court, Maseru. The reason being that this is
a fact which could have a bearing on the outcome
of this application.
Because of this non-disclosure of CC.953/90 this Court is entitled to
take the view that Applicant has not
shown good faith. Good faith is
not expected to be displayed only in ex parte application. Herbstein
and Van Winsen civil Practice
of the Superior Courts of South African
Courts 3rd Edition at page 80 speaks of utmost good faith that is
expected in ex parte
applications. In my view that does not mean in
ordinary applications good faith is not required. What the learned
authors imply
is that the degree of good faith between ex parte
applications and applications on notice differs in degree, but it is
there in
all applications. Jones and Buckle Civil Practice of the
Magistrate Courts of South Africa 8th Edition Volume II page 400
succinctly
puts the position as follows:

"Good faith is a sine qua of all applications, whether ex parte
or on motion."

The
reaction of a Court to non-disclosure of a material fact will depend
on the circumstances of a particular case.

It goes
without saying that a disputed matter should be

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brought
by way of action. In the Magistrate's Court matters for which an
application is appropriate are limited by the Subordinate
Courts
Order of 1988 while in the High Court the scope of application
proceedings has been extended over the years. Nevertheless
in this
case summons had already been issued in the Magistrate's Court to
deal with the facts of this case which on the face of
the pleadings
are disputed. To expect the Court to allow (what appears to be
disputed matter such as this one) to be determined
by way of
application when an action is already pending in another court is to
ask it to take a retrograde step. In application
proceedings the
Court only sees type-written affidavits and decides the matter. The
Court (so to speak) chooses which type-writer
to believe while in
action proceeding the court determines issues of credibility and the
merits generally after seeing and hearing
witnesses themselves.

Mr.
Nathane says the Special Plea of lis alibi pendens cannot be pleaded
where although parties are the same and the cause of action
the same,
the remedy sought is different.

Mr.
Geldenhuys referred the Court to the case Williams v Shub 1976 (4) SA
567 for the proposition that lis pendens

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ought to
be upheld because the subject matter of the claim is the same but
relief differs. At first glance that case and this one
are similar,
but they have a substantial difference.

In this
case we are dealing with a claim of unlawful dismissal in which all
the reliefs claimed in CC.953/90 of the Magistrate's
Court, Maseru
and this application (CIY/APN/13/94) could have been claimed in the
alternative to the claim in this application.
In Williams v Shub
(supra) the claim was one of maintenance which had to be varied as
years go by, therefore the relief never changed.
CC.953/90 and this
case have one constant factor in common namely, the determination of
unlawful dismissal and the type of remedies
available did not have to
change with time. In William v Shub the cause of action in
proceedings before the court and previous
ones in which lis pendens
was pleaded was paternity, in future all that had to be adjusted was
the quantum of maintenance.

Liz
pendens and res judicata are pleaded on the grounds that bringing the
same matter between the same parties in different courts
is prima
facie vexatious. As already stated the claims for relief in CC.953/90
and this application are claims that ought to be
brought in the same

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proceedings,
the set of claims in CC.953/90 being an alternative of the claims in
this application. Isaac's Beck's Theory and Principles
of Pleadings
in civil Actions 4th Editions Para. 75 at page 138 shows that the
point mr. Nathane has taken about differences in
relief does not have
to prevail. He puts the issue as follows:

"Where the above essentials exist the mere difference of form
between the pending suit and that which is sought to stay is
not
material."

The
further difficulty I have with this application is that (at the time
it was brought) application proceedings were already inappropriate

because pleadings in CC.953/90 which were already in Applicant's
possession show the matter is disputed. Applicant was therefore

obliged not to proceed by way of application. That being the case the
balance of convenience is against staying this application
as one
would normally do where the special plea of lis pendens is taken. It
is no good to stay this application when in my view
it stands to be
dismissed later.

This
Court finds no problem with the continuance of Applicant's action in
CC.953/90. If Applicant should feel the question of reinstatement
is
one of specific performance which in terms of Section 29(d) of the
Subordinate Courts

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Order,
1988 could well be beyond the Subordinate Courts jurisdiction I say
that is not necessarily so. He can (by applying for leave
of court)
amend his pleadings in that court and make reinstatement his main
prayer and the existing prayers his alternative. If
Applicant does
this, then reinstatement would fall within the Magistrate's
jurisdiction. There is also Section 32 of the Subordinate
Court's
Order of 1988 which makes it possible for actions to be removed to
the High Court on application to the High Court. This
transfer of the
case to the High Court would be embarked upon if Applicant wants the
court reinstatement to be granted without
without necessarily having
to give Respondent the alternative of paying damages. Such a
reinstatement order would be entirely a
matter at the High Court's
discretion. There are therefore no real grounds for having brought
this application. Continuing proceedings
in CC.953/90 for which
pleadings were closed was always the best way forward subject to an
application for amendment with leave
of court.

I do not
think the question of waiver ought to affect the outcome of this
application although applicant initially elected to claim
damages.
The delay in taking advantage of the claim for reinstatement is a
problem for the Court that will deal with this issue.
Three years
have elapsed since

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CC.953/90
was instituted, this issue of reinstatement is being raised for the
first time after such a long time. Because of the
attitude I have
taken I see no point in going into the potential merits of the point
of waiver that Mr. Geldenhuys has raised.

An
attempt was made to blame the attorney who instituted CC.953/90 for
failing to take proper instructions from Applicant. Mr. Nathane
says
in 1990 Applicant wanted reinstatement. The papers before me
including his own affidavit (when he claimed pension contribution)

exonerate Applicant's former attorney. It seems Applicant accepted
the advice tendered by his former attorney. Applicant cannot
be
allowed to approbate and reprobate and in the process blame his
attorney who gave what advice he could on which CC.953/90 came
to be
instituted.

The case
CC. 1018/90 according to Mr. Nathane went against applicant for lack
of prosecution. 1 note with concern that this application
was
set-down by the Respondent. 1 do not believe CC.1018/90 necessarily
has much to do with this application and CC. 953/90. Applicant
in CC.
953/90 was merely claiming his pension contribution. Consequently 1
do not agree that previous costs that have not been
paid are costs in
a later action brought for the

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same, or
substantially the same cause of action,. In CC. 1018/90 Applicant is
asking the Respondent to send his pension contribution
to Maseru as
he was not prepared to go and fetch it in Bloemfontein as Respondent
wanted him to do. That being the case this portion,
of Respondent's
objection cannot be sustained.

Mr.
Nathane basing himself on the principles of Room Hire Co. (Pty) Ltd.
v Jeppe

Street
Mansions (Pty) Ltd. 1949 (3) SA 1155 at 1165 felt the Respondent's
denials were meant to manufacture a dispute. Although
the Court never
went into the merits, I should emphasise that in the High Court the
scope of applications was extended to matters
suitable for trial to
speed up proceeding as a matter of convenience. This is the reason
the use of application procedure is a
risky business. The reason
being that the Court has a discretion to dismiss the application if
the matter is disputed and the balance
of convenience favours the use
of some other procedure. In this case Applicant's manoeuvre of
introducing application proceedings
while an action is already
pending in CC. 953/90 cannot be seen as promoting the speedy
resolution of this matter.

Dilatoriness
in action proceedings can be tolerated (up to a point) because that
procedure is meant to provide for

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a full
ventilation of the grievance between the parties. Application
proceedings in the High Court being only allowed. in the
circumstances,
for a speedy resolution of claims, any dilatoriness in
them is regarded as a catastrophe. Judges are therefore armed with
extensive
powers to prevent such delays. Among these powers is that
of dismissing applications straight away if they are likely to cause
delays without giving the parties a speedy remedy that extension of
the application procedure was meant to provide.

In a
matter where applicant knew the matter was disputed when he brought
the application, his application has to be dismissed unless
some
redeeming features exist. CC. 953/90 discloses a dispute in its
pleadings. The quality of the dispute will be determined at
the trial
and an appropriate order as to costs made if indeed Respondent was
clutching at straws as Applicant believes.

Entertaining
this application before this Court can only cause more problems than
it would solve. I am therefore not prepared to
stay these proceedings
to await the determination of proceedings before the Magistrate's
Court. This will not prejudice Applicant
in any way having regard to
what I have already said above.

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The
cumulative effect of the facts surrounding this application left me
only one course open to me, that is of dismissing this application.

Applicant's
application is dismissed with costs.

W.C.M
MAQUTU

JUDGE

For
Applicant : Mr. Geldenhuys

For
Respondent : Mr. Nathane