HIGH COURT OF LESOTHO
JAMES LEMENA Applicant
OF THE HIGH COURT 1st Respondent
by the Hon. Mr. Justice B.K. Molai on the 9th day of August. 1995.
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,
a Rule Nisi be issued calling upon the "Respondents to show
cause (if any) on a date to be determined by this Honourable
why the following order should not be made absolute:
1st Respondent should not be restrained and interdicted from
interfering with the applicant's duties by distributing the
processes to the applicant's
applicant should not be allowed, in the mean time, to
proceed with his duties of uplifting the court processes from the
above Honourable Court's Registry and distributes the same at
discretion to hie assistants.
1st Respondent should not be ordered to pay the coots of this
prayer 2(a) and (b) should operate with an immediate effect as an.
such further and/or alternative relief as the above Honourable Court
may deem fit."
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
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.
likewise be mentioned, at this juncture, that in their answering
affidavits, the Respondents
intention to raise, at the hearing of this matter, certain points, in
limine. That was, however, not pursued at the commencement
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
of the provisions of section, 12 of the Subordinate Courts
Proclamation 58 of 1938, the applicant as messenger of the
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
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
Court for Maseru district.-
His appointment is for five (5) years subject to the, following
the security of M2,000 (two thousand Maluti) lodged with the
Standard Bank be not uplifted by him for this period.
remuneration attached to the post is as set out in Table B of the
second ennexure to the Subordinate Court Rules, to the said
he faithfully and efficiently execute his duties as prescribed by
the Subordinate Court Rules.
he employe sufficient assistants and allocates and supervises their
work to ensure efficient service and/or execution 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).
the contract will take effect from 1st November, 1986.
(Signed) A.N. Matete 2/10/86
Signed) N. Lethunva 12.11.86 Ragistrar of the High
William James Lemena
is hereby appointed as deputy sheriff of the High Court and Court of
The conditions of appointment set out above shall, mutatis mutandis
apply to Mr. Lemena in respect of the execution of his duties
deputy sheriff of the High Court and of the Court of Appeal.
(Signed) N. Lethunya. 12.11.86
Registrar of the High Court."
applicant employed, pursuant to his purported appointment as
messenger of the Maseru magistrate court and deputy sheriff of
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.
at a meeting held on the High Court premises, on 31st August, 1990,
the Registrar of the High Court (one Miss Ramahloli)
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
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
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:
Complaint by Mr. W.J. Lemena:
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. .
instructions are to inform you that the office of the Registrar has
seize from Mr. Lemana powers vested in him in. terms of his latter of
dated the 1st November, 1986.
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
confirm that by taking these powers from Mr. Lemena. is a direct
contravention of the provisions of his letter of appointment.
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
instructions are, therefore, to inform you that you should
immediately desist from distributing processes to Mr. Lemena's
if you continue to do so
be obliged to apply to the High Court for an interdict.
Mphalane N. Mphalane & Co."
no reply, from the office of the Registrar, to the above cited
letter. In the contention of the applicant, the action
Registrar was an interference with the rights conferred upon him, in
terms of his (applicant's) letter of appointment. She
therefore, be interdicted as a matter of urgency. Hence the
institution of the present proceedings for an order as aforesaid.
of the Respondents, Gugu Sello and Baholo Lesenyeho, the Acting
Deputy Registrar and the Assistant Registrar of the High
respectively, deposed to answering affidavits in which they denied
that the applicant was appointed the sole deputy sheriff.
averred that it had come to the notice of the office of the 1st
Respondent that the applicant was, inter alia. causing serious
and discrimination in the service of court processes. As proof
thereof, they attached letters of complaints from the offices
attorneys Du Preez, Liebetrau & Co and Harley, Morris & Co.
his failure to perform faithfully, diligently and efficiently the
duties he had been appointed for, the office of the 1st
decided, therefore, to curtail the applicant's duty to uplift the
High Court processes for service. The deponents denied
applicant's contention that the decision of the 1st Respondent was an
interference with any rights of the applicant and that
therefore, be interdicted.
deponents do not, in their answering affidavits, seem to dispute that
the applicant was, on 12th November, 1986, appointed the
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.
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
"12, The written return of a messenger or any person authorised
to perform any of the functions of the court shall be prima
evidence of the matter therein stated".
be readily seen that the above quoted section 12 of the Subordinate
Court Proclamation 58 of 193$ dealt with the effect
return of service and had nothing to do with the appointment of
messengers of court. Section 10 of the Subordinate
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
court, subject to ouch conditions as to remuneration and tenure of
office as the Registrar of the High Court may determine."
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
appoint him (applicant) as such. That being so, the applicant cannot,
in my opinion, be heard to say he was lawfully appointed
the Maseru Magistrate Court.
common cause that pursuant to clause 4 of his conditions of
employment, as embodied in his purported letter of appointment,
applicant engaged, as "assistant court messengers", certain
viz. Masienyane, Matete, Kepanyane, Kotele, Nqosa, Peleha and
Malefane. It is to be noted, however, that the above cited
of the Subordinate Courts Proclamation 58 of 1938. which was the law
applicable at the time, made no provision for the
"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.
in their answering affidavits, the deputy Registrar and the assistant
Registrar of the High Court denied that he was appointed
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
as she did, the applicant as the deputy sheriff.
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
Sheriffs as he may from time to time appoint."
Registrar, as the sheriff of the High Court, was, therefore,
empowered, in terms of the provisions of the above cited rule,
appoint Deputy Sheriffs. The Rules of the High Court of Basutoland
prescribed by the High Commissioner' a Notice 8 of 1943,
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
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
Rules. 1980 made no provision as to how or by whom the Deputy
Sheriffs were to be appointed. The rules merely defined
"sheriff. They did not empower him to appoint his deputies
and/or assistants. Consequently, the High Court Rules.
amended, in terms of the provisions of section 2 of the Legal Notice
Number 32 of 1982. by deleting, in rule 1(1) thereof,
of the term "sheriff and substituting the following:
""sheriff" mean& the Registrar of the High Court,
Deputy Sheriff(s) and assistant Deputy sheriff(s)."
cited rule 1(1) of the High Court Rules 1980 (as amended) again
merely defines the term "sheriff as meaning the Registrar
High Court, Deputy Sheriff(s) and Assistant Deputy Sheriff(s). Unlike
rule 2 of the now repealed Rules of the High Court
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
High Court, to appoint another person as deputy sheriff. Nor have I
been referred to any such law.
circumstances, it can only be assumed chat when, on 12th November,
1986, she appointed the applicant as Deputy Sheriff, the
the High Court was relying on the provisions of rule 2 of the Rules
of the High. Court of Basutoland prescribed by
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
premises, I come to the conclusion that this application ought not to
succeed. It is dismissed and the rule accordingly discharged.
discretion of the court, the parties will bear their own coats.
Registrar of the High Court is to bring this judgment to the
attention of the Hon. the Chief Justice as a matter of urgency,
Applicant: Mr. Matooane
Respondent: Mr. Mohapi.
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