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CIV/APN/437/99
IN THE HIGH COURT OF LESOTHO
In the matter between
TIISETSO TSEPO MONESE APPLICANT
and
THIBELLO MONESE 1st RESPONDENT
U C ABDULLA T/A FAHHIDA CASH & CARRY 2nd RESPONDENT
THE COMMISSIONER OF LANDS 3rd RESPONDENT
THE REGISTRAR OF DEEDS 4th RESPONDENT
THE ATTORNEY GENERAL 5th RESPONDENT
Judgment
Delivered by the Honourable Mr. Justice T. Monapathi on the 4th day of November. 1999
This notice of motion which was on a certificate of urgency was filed on the 22nd October 1999. The prayers herein were exactly identical to those in CIV/APN/420/99 which was filed on the 11th October 1999. And the parties are the same. I concluded, with respect, that there were distinct similarities that made this application "an unrestrained re-visit" of all the issues in CIV/APN/420/99. See RAMATLAPENG v SULEMAN CIV/APN/73/99 5th March 1999
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(unreported) by this Court at page 6 thereof. The prayers in the application were as follows:
"1. That a rule nisi be issued calling upon the Respondents to show cause, if any, on the date to be determined by the Honourable
Court why:-
The second respondent shall not forthwith be interdicted from interferring with the property on sites number 33 and 34, Maseru
Central, next to his business premises, or occupants of same in any manner whatsoever pending the determination of this application:
The purported sale of the said property by 1st Respondent, or anybody else, to 2nd Respondent shall not be declared null and void and of no effect:
The 3rd and 4th Respondents shall not be ordered to cancel a Land Lease and its transfer to 2nd Respondent, if there are any already
registered. In the event of same having not been issued as yet. The 3rd and 4th Respondents be interdicted from entertaining any application for issue or registration of same;
The 2st and 2nd Respondents shall not be ordered to pay costs of this application;
Further and/or alternative relief."
The rule nisi had been ordered by Maqutu J on the 7th October 1999 to be returnable on the 21st November 1999. Mr. Buys for the First and Second Respondents appeared before me in the absence of Applicant's Counsel. Mr. Buys on the anticipated return date, brought my attention to the following.
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That having received notice of anticipation for the 2nd November 1999 in terms of Rule 8 Mr. Putsoane wrote a letter to Mr. Buys firm of attorneys in the following words:
"I have been briefed in the above matter, and I have been given information that you have anticipated the rule to the 2nd November 1999. Kindly be informed that I shall not be available from the 2nd to the 5th November 1999, this request that the rule be extended to the 8th November 1999."
As fate might have it neither Mr. Putsoane nor Miss Obasa (who was involved in CIV/APN/420/99 and who has a working relationship as a kind of a junior to Adv. Putsoane) nor Mr. Makintane Applicant's attorney who has briefed Mr. Putsoane appeared before me. This was so despite that Mr. Buys was not agreeable to any postponement. Mr. Buys persisted that he would argue the matter in the absence of his opponent. As he put it Applicant's Counsel who filed the application as an urgent one must have been prepared to treat as such all the way by appreciating the implications of the rule that allowed for anticipation by a respondent.
In any urgent matter there is the built in risk that a respondent against whom an order is granted ex parte may anticipate the return day upon delivery of a notice of not less than 48 hours' notice. [See Rule 8(18)] The philosophy of this rule is to enable a respondent who feels that he is prejudiced by the effect of a rule to apply for its discharge by the Court at the earliest occasion as the rule allows. It is a mechanism intended, as I opined, to lessen the prejudicial effect of an interdict or an order which may have been granted precisely because the judge did not hear and did not know the case or facts on the other side. It is intended to ameliorate,
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at the earliest opportunity, the harshness of such an order.
That a Court will incline towards affording a respondent who reacts in terms of Rule 8(18) an opportunity to appear and be heard after notice stands to reason. The Court will therefore look closely at any reason or excuse by an applicant who applied on an urgent basis and who seeks to postpone the speedy hearing of a matter in which there is a rule. A Court will invariably be unsympathetic to an excuse that looks flimsy and unjustified, having the policy of the rule in mind.
As I said a risk is there in the mind of an applicant who moves ex parte that the order he has secured will be anticipated. I would have tended to consider a requested postponement if Mr. Putsoane had had the courtesy to appear before me and ask for the postponement. That he neglected to appear before Court was an understatement. I therefore accepted that Mr. Buys was entitled to argue without his opponents who had chosen not to appear.
My attention was again brought to an important historical perspective whose facts anchored the submission by Mr. Buys. It was that the- matter in CIV/APN/420/99 was still pending. On the 8th October 1999 Mr. Putsoane for the Applicant moved for a rule nisi before
Ramodibedi J which was returnable on the 18th October 1999. On the latter date Miss Obasa for the Applicant together with Mr. Buys for the First and Second Respondent and Miss Matzhikiza for the Third and Fourth Respondent appeared before Peete J who was the duty judge during the week of the 15th - 19th October 1999. An attempt to place the matter before Ramodibedi J (who had granted the original order) did not succeed for the cogent reason that he was not the duty judge and the matter had not been placed before him for hearing.
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The matter was again before PeeteJ. on the 19th October 1999. There had been an objection about instructions of Counsel and appearance by either Mr. Putsoane or Miss Obasa without a brief. As a result the Applicant appeared in person together with Mr. Buys for the First and Second Respondent. I was satisfied that an order by Peete J was issued to the following effect:
That the interim order granted by Ramodibedi J on the 8th October 1999 in terms of prayers l(a) of the notice of motion was discharged upon grounds inter alia that:
Advocate Putsoane on moving the matter ex parte on the 8th October 1999 "was not properly instructed.............."
By consent, the applicant was directed to instruct an attorney of his choice to take proper advice in the matter.
"That the matter can then proceed further in terms of the rules
Costs to be in the cause," (My underlining)
I found the inference irresistible that the matter was pending and that it would proceed in due course. That was why costs were ordered to be costs in the cause. Furthermore except that the interdict was removed and that it alone was discharged other issues in prayers (b), (c), (d) and (e) of the notice of motion remained to be dealt with and heard in due course.
I concluded that paragraph 17 of the founding affidavit of Tsotang Monese in the instant matter could surely not be an presumptuous as to suggest that the
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application in CIV/APN/420/99 was dismissed or withdrawn. Its economy of words ran short of stating that the case was still pending except for the interim interdict which was discharged.
One other thing which bolstered my conclusion that the CIV/APN/420/99 was regarded by the Applicant herein as a pending matter was the replying affidavit of one Tsotang Monese which was served on the Respondents on the 1st November 1999 and filed on the following day. It was abundantly clear that the intention to pursue the claim was there and unequivocal. I concluded that it was unchallengeable that the application CIV/APN/420/99 was still pending before the High Court. That furthermore instead of pursuing the first application the Applicant sought to abuse procedure of Court and misled the Court by obtaining another ex parte, order without any bona fides, in an attempt to snatch an order.
Mr. Buys spoke well in his address before me. In referring to his heads of argument, to whose contents he also associated himself he touched on the following issues. That the Applicant had not shown any rights of ownership of the plot in dispute. Secondly, no case for irreparable damage had been made by the Applicant to entitle him to an order sought. Thirdly that the Applicant had failed to demonstrate any balance of convenience in his favour for the grant of the order he sought. And lastly that the Applicant had not shown that there are no other remedy available to the Applicant and there were prospects of success in his favour.
I was satisfied that this was a matter of the ownership of a piece of land which was hotly disputed. In the first place the deponent to the founding affidavit who was Tsotang Monese was not the Applicant who appeared on the head of all processes. The Applicant was Tiisetso Tsepo Monese. The paragraph 8 of the founding affidavit can only be an indication of the likely disputes of fact which
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inundate this claim. It reads"
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The applicant is the owner of, inter alia, certain immoveable property on sites number 33 & 34 Maseru Central along Kingsway,
next to Fahhida Cash & Carry, having been appointed the heir by the MONESE family to the estate of the late ELLIOT TSIETSI MONESE who was the original owner of the said property and died intestate without a male issue in his house. I annex hereto Marked "TM1", a true copy of ELLIOT'S certificate of title to the said property. I attach hereto supporting affidavits of applicant, MANTSIUOA, THEBE-CHITJA MONESE in support of my averments herein."
There was no doubt in my mind that this re-visit of the first application by the Applicant by stealth and subterfuge amounted to gross abuse of process of Court. I concluded that the application ought to be dismissed and the rule discharged. It hugely deserved the treatment. I say that the application has been launched in the face of a pending other application. That was a reason alone why the application should be dismissed and rule discharged. Incidentally I saw no reference at all to the CIV/APN/420/99 in the founding affidavit.
Last but not least it to consider what should be the attitude of the said buyers or intending buyers of the plot who may occupy and improve this disputed piece of land. The risk of this application being protracted was already apparent from the attitude of the Applicant's Counsel. There is no doubt that the buyers had their own intentions foremost of which was probably to want to improve the land as they may already feel that they are entitled to. The likelihood was that they may
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proceed to develop with the knowledge of this dispute. The warning was that in case any decision goes against the sellers they may be held not to have been bona fide, at least from the time of their knowledge of the dispute. So that it was also in their interest that this dispute be finalized with as much speed as possible.
I needed that the Counsel for Applicant be given notice that notice has been given that on dismissal of the application costs will be claimed on Attorney and client de bonis propris. A day should be appointed for his response. In a serious decision as this one, the basis of which was not only gross negligence but disrespect to the Court he must have time to respond. A suitable date should be appointed to allow Counsel to debate the issue of the costs sought by Respondent.
T. Monapathi Judge
4th November 1999
For the Applicant : Mr Putsoane
For the Respondent: Mr Buys
