CIV/APN/28/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

RANTHAKO
KETSO APPLICANT

and

DEPARTMENT
OF MINES AND GEOLOGY 1ST RESPONDENT

ATTORNEY
GENERAL 2ND RESPONDENT

RULING

Delivered
by the Honourable Mr. Justice G.N. Mofolo. Acting Judqe. on the 21st
day of July, 1995.

In this
matter the applicant approached the court by way of motion
proceedinqs claiming:

1. that
   the suspension by 1st Respondent of Applicant's diqqina licence and
   riqhts at Kao Diamond Mininq be declared null and void,

   
   

2. Applicant
   pay Respondent M15.000-00 (Fifteen Thousand Maloti) damaqes which
   Applicant suffered as a result of the suspension/non-renewal
   of his
   digging licence,

   
   

3. costs
   of application and

   
   

4. further
   and/or alternative relief.

   
   

On 17
July, 1995 after the applicant's counsel had addressed court counsel
for the Respondents taking a point of law queried that
the claim
before court was improper in that there was a serious dispute of
facts which could not be decided on affidavit alone.

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Further
that as the applicant should have appreciated this dispute of facts
and acted accordingly the application was to be dismissed
with costs.

Counsel
for the applicant criticised the way the point of law had been taken
and protested that she had been taken by surprise while
at the same
time conceding that Mr.Mapetla for respondents was correct that
damaqes could not be claimed by motion proceedinqs.

I rule
that the point of law taken by Mr. Mapetla was properly taken and all
that remains is for me to decide whether the points
raised favour him
and if so whether I should dismiss this application with costs or
make an order which may seem to the court just
and equitable in the
circumstances.

It seems
to me motion proceedinqs are preferred where issues to be decided are
clear and may be resolved expeditiouslv and without
much time and
expense. As was said in Frank v. Qhlsson's Cape Breweries, Ltd (1924
A.D. 289) that:

it appears to be the rule that when only a question of law is as
issue motion proceedings may suffice.'

Dowlinq
J. in R. Bakers (Pty) Ltd. v. Ruto Bakeries (Pty) Ltd, 1948(2) S.A.
626 has qiven an illuminating insiqht into the

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intricacies
and power play between motion proceedings and trial action. According
to him, in motion proceedinqs a decision is arrived
at by a process
based on the preponderence of probability on affidavits as best one
can though,as he has observed, such a course
is fraught with
unreliability. That where, however, the procedure is not by way of
motion the position is different for where a
party, instead of
proceeding by way of action, proceeds by way of motion then such a
party is not entitled to attempt to force
a decision of probabilities
arising out of affidavits.

Dowling
J. protested that the indiscriminate use of motion proceedings pro
tanto is an abuse of process and tends to inflate costs
quite apart
from the fact that these proceedinqs become fishinq expeditions' in
themselves,

Notwithstandinq
the above strictures Dowlinq J. nevertheless went on in R. Bakers
(Pty) Ltd, above at p.631:

'The safequard that motion proceedings may be dismissed with costs if
the applicant should have foreseen an irresolute dispute
on fact is
not itself an adequate safeguard.'

In this
case the applicant appreciated or ought to have appreciated that
damages could not be decided on motion proceedings: he
was right,
however, to decide that the suspension of his licence could be
decided by motion proceedings. Mr. Mapetla submitted,
and rightly so
in my view, that what's

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important
is what meets the eye. Unfortunately, it is damages which meet the
eye as incapable of resolution by motion proceedings
but certainly
not the suspension of the licence. As I have said Ms. Kotelo's
concession was also appropriate in the circumstances
and would
attribute the decision to proceed by way of motion as having arisen
from the fact that claim (b) arose naturally from
claim (a) of the
Notice of Motion and applicant must have conceived (albeit wrongly)
that if claim (a) succeeded this would go
for claim (b).

The
unenviable choice facing the applicant seems to have been the fact
that his claim was based on law and fact.

Bowling's
amplification in Williams v. Tunstall (1949(3) S.A.L.R. 835) is in
point to the effect that:

'I agree however that the court's must today recognise that in
contemporary practice any dispute, save matrimonial causes and claims

for damages, but not excluding money counts, may be decided by motion
proceedings in an appropriate case .'

In his
course of judgment Murray A.J.P. in Room Hire co. (Pty) Ltd. 1949(3)
S.A. 1155 T.P.D. said:

'to the list must be added illiquid claims for damages in which
motion proceedings are not permissible at all and anything in between

is a guestion of choice whether to proceed by way of motion
proceedings or trial action.

Murray
A.J.P. in Room Hire Co. (Pty) Ltd supra at p.1162 continued:

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'It is obvious that a claimant who elects to proceed by motion runs
the risk that a dispute of fact may be shown to exist. In that
event
( ) the court has a discretion as to the future course of the
proceedings.'

The law
as enunciated appears to have taken the view that where the court is
of the view that the dispute of fact cannot be settled
other than
calling viva voce evidence the parties may be sent to trial in the
ordinary way either on affidavits as constituting
pleadings or with a
direction that pleadings are to be filed. It was also said that the
application may be dismissed with costs
'particularly where the
applicant should have realised that when launching his application a
serious dispute of facts not capable
of easy ascertainment' would
arise.

Watermever
C.J.'s directions in Peterson v. Cuthbert & Co, Ltd, 1945 A.D.
420 at 428 are so instructive they cannot go unnoticed
where he said:

'In every case the court must examine the alleged dispute of fact and
see whether in truth there is a real issue of fact which
cannot be
satisfactorily determined without the aid of oral evidence.'

I have
examined this application and I have found that in law damages,
requiring, as they do, proof in order to be established,
that they
therefore cannot be decided by motion proceedings; this, in my view,
does not go for applicant's claim based on (a) of
his Notice of
Motion which can properly be determined by motion proceedings.

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In this
application had been totally unmerited but brought in the hope of
inducing the court to apply Rule 8 to what is essentially
the subject
of an ordinary trial action' (Muray A.J.P. in Room Hire above at p.
1162/ then I would not hesitate to dismiss the
application with
costs.

I am not
satisfied that this application was brought spaciously considering
chat our own Rule 8 sub-rule (14) of the High Court
Rules in no
different in that it confers a discretion on a court to decide as
best it can to ensure 'a just and expeditious decision
where in its
opinion on application cannot be decided on affidavit. This, quite
apart, I am not inclined to throw out a baby with
the dirty water.

Consequently
my ruling is that this matter go to trial and that all affidavits,
and depositions forming subject-matter of the application
constitute
pleadings in the action.

the case
is such that I have no option but to order that costs of the
application be coats in the trial.

ACTING
JUDGE

20th July
, 1995