CIV/APN/243/90

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

V

WILLIAM
JAMES LEMENA Applicant

and

REGISTRAR
OF THE HIGH COURT 1st Respondent

ATTORNEY-GENERAL 2nd
Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 9th day of August. 1995.

The
applicant herein seeks an order, against the Respondents, framed in
the following terms:

"1. Dispensing with the period of service of this application on
the grounds of its urgency,

2. That
   a Rule Nisi be issued calling upon the "Respondents to show
   cause (if any) on a date to be determined by this Honourable
   Court
   why the following order should not be made absolute:

   
   

1. the
   1st Respondent should not be restrained and interdicted from
   interfering with the applicant's duties by distributing the
   court
   processes to the applicant's

   
   

assistants;

2. the
   applicant should not be allowed, in the mean time, to

   
   

2

proceed with his duties of uplifting the court processes from the
above Honourable Court's Registry and distributes the same at
his own
discretion to hie assistants.

3. the
   1st Respondent should not be ordered to pay the coots of this
   application.

   
   

2. That
   prayer 2(a) and (b) should operate with an immediate effect as an.
   interim order;
   

   
   

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

   
   

The
application was granted only in terms of prayer 2 i.e. not prayers 1
and 3 of the notice of notion. The return day was fixed
as the 15th
October, 1990. The Respondents intimated intention to oppose
confirmation of the rule. Affidavits were duly filed by
the parties.

It is
worth mentioning that after several extensions of the return day, the
matter was. finally placed before my brother Lehohla,
J. for hearing
when the applicant filed a notice of motion in which he moved the
court that the judge should recuse himself. The
notice of motion was
not opposed and Lehohla, J. accordingly recused himself. The matter
was finally placed before me for hearing.

It may
likewise be mentioned, at this juncture, that in their answering
affidavits, the Respondents

3

intimated
intention to raise, at the hearing of this matter, certain points, in
limine. That was, however, not pursued at the commencement
of the
hearing of this case and I need not deal with it now.

In as far
as it is relevant, it is common cause, from affidavits, that on 2nd
October, 1986. the Chief Magistrate appointed, purportedly
in terms
of the provisions of section, 12 of the Subordinate Courts
Proclamation 58 of 1938, the applicant as messenger of the
Maseru
Magistrate Court subject to certain conditions. The appointment was,
on 12th November, 1986, approved by the Registrar of
the High Court
who, on the same day, also appointed the applicant' as deputy
sheriff, of the High Court. The applicant's conditions
of appointment
as messenger of the Maseru Magistrate Court were to apply, mutatis
mutandis, to his appointment as deputy sheriff
of the High Court. The
conditions were as follow:

" Mr. William James Lemena is hereby appointed in terms of sec.
12 of the Subordinate Courts Proclamation 58/1938 as Messenger
of the
Court for Maseru district.-

His appointment is for five (5) years subject to the, following
conditions:-

1. That
   the security of M2,000 (two thousand Maluti) lodged with the
   Standard Bank be not uplifted by him for this period.

   
   

4

2. The
   remuneration attached to the post is as set out in Table B of the
   second ennexure to the Subordinate Court Rules, to the said

   Proclamation. .

   
   

3. That
   he faithfully and efficiently execute his duties as prescribed by
   the Subordinate Court Rules.

   
   

4. That
   he employe sufficient assistants and allocates and supervises their
   work to ensure efficient service and/or execution of
   processes of
   court. Such assistants shall be persons of integrity and shall be
   subject to the approval of the chief magistrate
   but shall otherwise
   remain under firm control and supervision of the said Mr. Lemena who
   shall always remain vested with the
   power to suspend or dismiss the
   said assistance (sic).

   
   

5. That
   the contract will take effect from 1st November, 1986.

   
   

(Signed) A.N. Matete 2/10/86

Chief Magistrate

Approved by:

Signed) N. Lethunva 12.11.86 Ragistrar of the High

Court

William James Lemena

is hereby appointed as deputy sheriff of the High Court and Court of
Appeal.

The conditions of appointment set out above shall, mutatis mutandis
apply to Mr. Lemena in respect of the execution of his duties
as
deputy sheriff of the High Court and of the Court of Appeal.

(Signed) N. Lethunya. 12.11.86

Registrar of the High Court."

5

The
applicant employed, pursuant to his purported appointment as
messenger of the Maseru magistrate court and deputy sheriff of
the
High Court, five (5) persons as "Assistant Court Messengers",
whatever that means, directly responsible to him, in
the service of
court processes issued out of the Maseru magistrate court, the High
Court and the Court of Appeal. He had since
been the sole person
responsible for allocating to the "assistant court messengers"
court processes for service.

However,
at a meeting held on the High Court premises, on 31st August, 1990,
the Registrar of the High Court (one Miss Ramahloli)
told the
applicant and his "assistant Court Messengers" that she had
decided to take the responsibility of allocating
High Court processes
to them from then onwards. Despite the applicant's objection to the
move, the Registrar of the High Court
did herself carry out the duty
of allocating the court processes to him and his "assistant
court messengers".

On 5th
September, 1990 the applicant caused a letter (annexure WJL3) to be
addressed to the Registrar of the High Court. It was
copied to the •
Chief Magistrate, the Secretary of the Law Society and the Senior
Clerk of Court. In that letter, the applicant
informed the Registrar
of the High Court

6

that the
decision she had taken at the meeting of 31st August, 1990 was unjust
and should not, therefore, be implemented. There
was no response from
the office of the Registrar of the High Court. Consequently, the
applicant approached his attorney of record
who, on 14th September,
1990, addressed a letter to the Registrar of the High Court. The
letter reads, in part:

"re:
Complaint by Mr. W.J. Lemena:

We refer
to the abovemeationed matter and we wish to inform you that we are
herein acting on behalf of Mr. Lemena, the deputy sheriff
of the High
Court as well as the Messenger . of Court for the Magistrate Court. .
. ,

Our
instructions are to inform you that the office of the Registrar has
taken upon

itself to
seize from Mr. Lemana powers vested in him in. terms of his latter of

appointment
dated the 1st November, 1986.

In terms
of the said letter, Mr. Lemena is the sole appointed deputy sheriff
as well as the messenger of court and his powers are
to employ his
deputies who are directly responsible to him and to allocate to them
and to supervise their work to ensure efficient
service.

We
confirm that by taking these powers from Mr. Lemena. is a direct
contravention of the provisions of his letter of appointment.

You are
further advised that Mr. Lemena as the only appointed deputy sheriff
and the messenger of court has furnished a security
to the High Court
in terms of the rules that his security covers his assistant, they
cannot serve any processes which' are not
issued by Mr. Lemena to
them.

Our
instructions are, therefore, to inform you that you should
immediately desist from distributing processes to Mr. Lemena's
assistants
if you continue to do so

7

wo will
be obliged to apply to the High Court for an interdict.

Yours
faithfully,

Sgd N.
Mphalane N. Mphalane & Co."

There was
no reply, from the office of the Registrar, to the above cited
letter. In the contention of the applicant, the action
of the
Registrar was an interference with the rights conferred upon him, in
terms of his (applicant's) letter of appointment. She
should,
therefore, be interdicted as a matter of urgency. Hence the
institution of the present proceedings for an order as aforesaid.

On behalf
of the Respondents, Gugu Sello and Baholo Lesenyeho, the Acting
Deputy Registrar and the Assistant Registrar of the High
Court,
respectively, deposed to answering affidavits in which they denied
that the applicant was appointed the sole deputy sheriff.
They
averred that it had come to the notice of the office of the 1st
Respondent that the applicant was, inter alia. causing serious
delays
and discrimination in the service of court processes. As proof
thereof, they attached letters of complaints from the offices
of
attorneys Du Preez, Liebetrau & Co and Harley, Morris & Co.

8

Due to
his failure to perform faithfully, diligently and efficiently the
duties he had been appointed for, the office of the 1st
Respondent
decided, therefore, to curtail the applicant's duty to uplift the
High Court processes for service. The deponents denied
the
applicant's contention that the decision of the 1st Respondent was an
interference with any rights of the applicant and that
she should,
therefore, be interdicted.

The
deponents do not, in their answering affidavits, seem to dispute that
the applicant was, on 12th November, 1986, appointed the
messenger of
the Maseru Magistrate Court. What they dispute is the applicant's
appointment as the sole deputy sheriff of the High
Court and the
Court of Appeal.

It may,
however, be noted that the appointment of the applicant as messenger
of the Maseru Magistrate Court, was purportedly made
in terms of the
provisions of S. 12 of the now repealed Subordinate Courts
Proclamation 58 of 1938 which was the applicable law
at the time. The
section read:

"12, The written return of a messenger or any person authorised
to perform any of the functions of the court shall be prima
facie
evidence of the matter therein stated".

9

It will
be readily seen that the above quoted section 12 of the Subordinate
Court Proclamation 58 of 193$ dealt with the effect
of messenger's
return of service and had nothing to do with the appointment of
messengers of court. Section 10 of the Subordinate
Courts
Proclamation 58 of 1938 (as amended). was the relevant section for
the appointment of messengers of court. The section read:

"10. A magistrate may, subject to the approval of the Registrar
of the High Court, appoint messengers and deputy messengers
of the
court, subject to ouch conditions as to remuneration and tenure of
office as the Registrar of the High Court may determine."

The
appointment of the applicant, as messenger of court, in terms of the
provisions of section 12 of the Subordinate Courts Proclamation.

supra, was a nullity and of no legal force or effect, for the simple
reason that the section did not empower the chief magistrate
to
appoint him (applicant) as such. That being so, the applicant cannot,
in my opinion, be heard to say he was lawfully appointed
messenger of
the Maseru Magistrate Court.

It is
common cause that pursuant to clause 4 of his conditions of
employment, as embodied in his purported letter of appointment,
the
applicant engaged, as "assistant court messengers", certain

10

people
viz. Masienyane, Matete, Kepanyane, Kotele, Nqosa, Peleha and
Malefane. It is to be noted, however, that the above cited
section 10
of the Subordinate Courts Proclamation 58 of 1938. which was the law
applicable at the time, made no provision for the
appointment of
"assistant court messengers" or deputy messengers by the
applicant who was admittedly not a magistrate.
What the law provided
was the appointment (with the approval of the Registrar of the High
Court) of messengers and deputy messengers
of the court by a
magistrate. The engagement, by the applicant, of the five (5) people
as "assistant court messengere",
was, therefore, in
conflict with the provisions of the relevant law, namely section 10
of the Subordinate Courts Proclamation 58
of 1938. It could not, for
that reason, be valid.

Although,
in their answering affidavits, the deputy Registrar and the assistant
Registrar of the High Court denied that he was appointed
the deputy
sheriff of the High Court and the Court of Appeal, proper reading of
his letter of appointment leaves no doubt, in my
mind, that, on 12th
November, 1986, the applicant was so appointed by the Registrar of
the High Court. The salient question that
arises for the
determination of the court is, however, whether or not the Registrar
of the High Court was empowered to

11

appoint,
as she did, the applicant as the deputy sheriff.

It ie
significant to note, in this regard, that rule 2 of the Rules of the
High Court of Basutoland. prescribed by the High Commissioner's

Notice 8 of 1941 provided, in part:

"2......"sheriff" shall mean the Registrar of the High
Court, and shall be deemed to include such Deputy Sheriff
or Deputy
Sheriffs as he may from time to time appoint."

The
Registrar, as the sheriff of the High Court, was, therefore,
empowered, in terms of the provisions of the above cited rule,
to
appoint Deputy Sheriffs. The Rules of the High Court of Basutoland
prescribed by the High Commissioner' a Notice 8 of 1943,
were,
however, repealed and replaced by the High, Court Rules. 1960 of
which rule 1(1) provided, in part:

"1(1) ...."registrar" shall mean the Registrar
appointed in terms of the High Court Act of 1978 and shall include

any assistant registrar duly appointed as such.

"sheriff shall mean the person duly appointed as such and shall
include any deputy sheriff duly appointed and assistants to
the

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sheriff or deputy sheriffs."

It is to
be noted that although they provided how the Registrar and the
Assistant Registrar of the High Court were appointed, the
High Court
Rules. 1980 made no provision as to how or by whom the Deputy
Sheriffs were to be appointed. The rules merely defined
the term
"sheriff. They did not empower him to appoint his deputies
and/or assistants. Consequently, the High Court Rules.
1980 were
amended, in terms of the provisions of section 2 of the Legal Notice
Number 32 of 1982. by deleting, in rule 1(1) thereof,
the definition
of the term "sheriff and substituting the following:

""sheriff" mean& the Registrar of the High Court,
Deputy Sheriff(s) and assistant Deputy sheriff(s)."

The above
cited rule 1(1) of the High Court Rules 1980 (as amended) again
merely defines the term "sheriff as meaning the Registrar
of the
High Court, Deputy Sheriff(s) and Assistant Deputy Sheriff(s). Unlike
rule 2 of the now repealed Rules of the High Court
of Basutolaad
prescribed by the High Commissioner's Notice 8 of 1941 it does not
empower the Registrar, or the Sheriff of the High
Court, to appoint
Deputy Sheriff(s). I am not aware of any other law that empowers the
Registrar, or the sheriff

13

of the
High Court, to appoint another person as deputy sheriff. Nor have I
been referred to any such law.

In the
circumstances, it can only be assumed chat when, on 12th November,
1986, she appointed the applicant as Deputy Sheriff, the
Registrar of
the High Court was relying on the provisions of rule 2 of the Rules
of the High. Court of Basutoland prescribed by
the High
Commissioner's Notice 8 of 1941. That law had, however, been repealed
in 1980 and was, therefore, no longer applicable
in 1986. The
Registrar of the High Court could not, in my view, properly rely on a
non-existent law for the appointment of the
applicant as deputy
sheriff. The question I have earlier posted viz. whether or not the
Registrar of the High Court was empowered
to appoint, as she did, the
applicant as Deputy Sheriff must, therefore, be answered in the
negative.

In the
premises, I come to the conclusion that this application ought not to
succeed. It is dismissed and the rule accordingly discharged.
In the
discretion of the court, the parties will bear their own coats.

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The
Registrar of the High Court is to bring this judgment to the
attention of the Hon. the Chief Justice as a matter of urgency,

B.K.
MOLAI

JUDGE.

9th
August, 1995.

For
Applicant: Mr. Matooane

For
Respondent: Mr. Mohapi.