CIV\APN\171\93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

'MATHABISO
MOSALA Applicant

and

THE
LESOTHO AGRICULTURAL DEVELOPMENT Respondent

BANK

RULING ON
POINTS RAISED IN LIMINE

Delivered
by the Honourable Chief Justice J.L. Kheola on the 23rd day of May.
1994.

This is
an application for an order in the following terms:-

1. (a)
   Dispensing with the periods of time of service provided for by the
   Rules of Court.

   
   

2. Directing
   the respondent forthwith to unfreeze and access to the trustees of
   Cooperative American Relief Everywhere (C.A.R.E)
   the following
   accounts held with the respondent bank:-

   
   

(i) Account No.102403-0140

(ii) Account No.101866-0820

(iii) Account No.101866-0819

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3. Directing
   the respondent to pay for the costs hereof.

   
   

3. Granting
   applicant such further and\or alternative relief as this Honourable
   Court may deem fit.

   
   

Mr.
Molete, attorney for the respondent, has raised a number of points in
limine. The first one is that there is no certificate
of urgency
attached to the Notice of Application in terms of Rule 8 (22) (c)
which reads as follows:

"Every urgent application must be accompanied by a certificate
of an advocate or attorney which sets out that he has considered
the
matter and that he bona fide believes it to a matter for urgent
relief,"

Mr.
Phoofolo, attorney for the applicant, admitted that there is no
certificate of urgency in terms of the Rule stated above. He

submitted that although the application was brought on urgent basis
the respondent was duly served. He submitted that for that
reason he
suffered no prejudice whatsoever because having filed his notice of
intention to oppose

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the
matter on the 26th April, 1993, he had all the opportunity to prepare
for and to file the opposing affidavits. He applied to
the Court to
condone such failure to file a certificate of urgency.

It seems
to me that the provisions of Rule 8 (22) (c) are mandatory because
the word "must" is used. It means that every
applicant who
brings an urgent application has no choice but to file a certificate
of urgency with such an application. If he does
not do so the
application is fatally defective and might be dismissed on that
ground alone. The purpose of the Rule is to discourage
applicants
from bringing on urgent basis an application which is not urgent at
all. An advocate or attorney of this Court is expected
to consider
the matter very seriously before he can make a certificate of
urgency.

Mr.
Phoofolo has submitted that the respondent has suffered no prejudice.
I do not agree with that submission. Rule (8) reads as
follows:-

"In such notice the applicant shall appoint an address within 5
kilometres of the office of the Registrar at which he will
accept

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notice and service of all documents in such proceedings, and shall
set forth a day not being less than five days after service
thereof
on the respondent on or before which such respondent is required to
notify the applicant in writing whether he intends
to oppose such
application and shall further state that if no such notification is
given the application will be set down for hearing
on a stated day,
not being less than seven days after' service on the said respondent
of the said notice."

It is
quite clear that in any application which is not urgent the
respondent is given not less than five days after the application
has
been served on him to file a notice of intention to oppose. In the
present case the respondent was given a period less than
five days.
It was served with the notice of application on the 23rd April, 1993
and the application was to be heard on the 26th
April, 1993.

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In other
words the respondent was expected to file its notice of intention to
oppose and its answering affidavit within four days
after service.
That was contrary to the provisions of Rule 8 (8) and therefore
prejudicial to the respondent.

In terms
of Rule 8 (10) (b) the respondent was entitled to a period of
fourteen days after notifying the applicant of its intention
to
oppose the application to file its opposing affidavit. The respondent
was denied this opportunity because the applicant set
down the
application for hearing within only four days after service of the
notice of application on the respondent.

The
applicant obviously intended the application to be an urgent one. In
prayer 1 (a) he prays that the Court should dispense with
the periods
of time of service provided for by the Rules of Court, However that
prayer was never granted by the Court. As a result
the respondent was
entitled to the normal periods of service prescribed by the Rules.

The
"Form" used by the applicant is also very confusing. As I
have said it seems that the intention

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of the
applicant was that the application should be treated as an urgent
one. In which case the had to use Form "1" which
appears in
the First Schedule to the High Court Rules 1980. The "Form"
used differs from Form "1" in many ways.
It is addressed to
the Registrar and to the respondent. It has the address of the
applicant's attorneys at which the applicant
will accept notice and
service in the present proceedings. It seems to me that the
applicant's attorney used Form "J"
which is intended for
applications which are not urgent. Again there was no substantial
compliance with Form "J" in that
paragraph (b) does not
appear anywhere.

The
"Form" used by the' applicant's attorney is altogether
unacceptable. It is so confusing that one cannot say whether
this is
an urgent application or any ordinary application. I cannot condone a
rather complete disregard of the Rules of the High
Court 1980. Only
minor omissions can be condoned in terms of Rule 59 of the High Court
Rules 1980.

In
Moulded Components and Rotomoulding South Africa v. Coucourakis and
another 1979 (2) S.A. 457 (W.L.D>) it was held that -

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"The Court will not exercise its inherent power to regulate
procedure as a matter of course. The Rules are there to regulate
the
practice and procedure of the 'Court in general terms and strong
grounds would have to be advanced to persuade it to act outside
the
powers,provided for specifically in the Rules. Its inherent power
must be exercised sparingly. The Court will only come to
the
assistance of an applicant outside the provisions of the Rules when
the Court can be satisfied that justice cannot be properly
done
unless relief is granted to the applicant."

In
Western Bank Ltd v. Packery, 1977 (3) S.A. 137 (T.P.D.) it was held
that -

"Only in those areas where the Rules of Court are silent is
there still scope for exercising by the Court of an inherent power
to
grant orders "which would help to further the administration of
justice". Provisional sentence procedure, in so far
as the
filing of affidavits is concerned, it certainly no longer such an
area. Rule 8(5) is perfectly clear. The defendant may
deliver an
affidavit setting forth the grounds upon which he disputes liability
and in such event the plaintiff shall be afforded
an opportunity of
replying thereto. There is no counterpart to the discretion which the
Court is given in applications by Rule
6 (5) (c) to permit the filing
of further affidavits and unless the Court has power under Rule 27 to
allow a further affidavit,
there is no

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power to permit the filing of such affidavit, unless it has to do
with prevention of an abuse of the procedural machinery."

In the
present case the Rules of Court are not silent. They are very clear
and there is no justification in condoning their breach.

In the
result the points raised in limine are allowed. The application is
dismissed with costs.

J.L.
KHEOLA

CHIEF
JUSTICE

23rd May,
1994.

For
Applicant - Mr. Phoofolo

For
Respondent - Mr. Molete.