The applicant approached the court by motion proceedings claiming that the suspension of the digging licence at Kao Diamond Mininq by the respondents be declared null and void. The applicant also prayed for damages and costs of the suit.
The respondents raised an objection on a point of law and submitted that the applicant was abusing court process by using motion proceedings to institute a case where there was a dispute of facts.
The court applied the rule that motion proceedings are preferred where the issues are clear. Further, the court held that matters brought by motion proceedings on disputed facts should be dismissed with costs. The court found that the applicant’s claim was based on issues of fact and law thus the difficulty in choosing how to institute the claim.
The court noted that it was required to examine the alleged dispute of fact and see whether in truth there was a real issue of fact which cannot be determined without oral evidence. Additionally, the court had the discretion to decide disputed claims by motion proceedings in appropriate cases.
It was held that the claim on license suspension by motion proceedings was correctly instituted and the damages claim was dismissed. The court applied its discretion as per rule 8 sub-rule (14) of the High Court Rules and ordered the matter to trial for the resolution of the license suspension. It was also ordered that the affidavits be considered as pleadings and the costs of the application be costs in the trial.
IN THE HIGH COURT OF LESOTHO
In the matter between:
RANTHAKO KETSO APPLICANT
DEPARTMENT OF MINES AND GEOLOGY 1ST RESPONDENT
GENERAL 2ND RESPONDENT
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:
(a) that the suspension by 1st Respondent of
diqqina licence and riqhts at Kao Diamond
Mininq be declared null and void,
(b) Applicant pay Respondent M15.000-00 (Fifteen
Maloti) damaqes which Applicant suffered as a
result of the suspension/non-renewal of his digging licence,
(c) costs of application and
(d) further and/or alternative relief.
On 17 July, 1995 after the applicant's
counsel had addressedcourt counsel for the Respondents
taking a point of law queriedthat the claim before
court was improper in that there was aserious
dispute of facts which could not be decided on affidavitalone.
Further that as the applicant should have appreciated
this dispute of facts and acted accordingly the application was to be
Counsel for the applicant criticised the way the
point of law had been taken and protested that she had been taken
while at the same time conceding that Mr.Mapetla for
respondents was correct that damaqes could not be claimed by
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
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
much time and expense. As was said in Frank v.
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
intricacies and power play between motion proceedings
and trial action. According to him, in motion proceedinqs a
arrived at by a process based on the preponderence of
probability on affidavits as best one can though,as he has
a course is fraught with unreliability. That
where, however, the procedure is not by way of motion the position
for where a party, instead of proceeding by way of
action, proceeds by way of motion then such a party is not
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
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
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
he was right, however, to decide that the suspension of
his licence could be decided by motion proceedings. Mr. Mapetla
and rightly so in my view, that what's
important is what meets the eye. Unfortunately, it is
damages which meet the eye as incapable of resolution by motion
but certainly not the suspension of the licence. As I
have said Ms. Kotelo's concession was also appropriate in the
and would attribute the decision to proceed by way of
motion as having arisen from the fact that claim (b) arose naturally
(a) of the Notice of Motion and applicant must have
conceived (albeit wrongly) that if claim (a) succeeded this would go
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
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
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
'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.
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
other than calling viva voce evidence the parties may be
sent to trial in the ordinary way either on affidavits as
pleadings or with a direction that pleadings are to be
filed. It was also said that the application may be dismissed with
'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
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
I have examined this application and I have found that
in law damages, requiring, as they do, proof in order to be
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.
In this application had been totally unmerited but
brought in the hope of inducing the court to apply Rule 8 to what
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
I am not satisfied that this application was brought
spaciously considering chat our own Rule 8 sub-rule (14) of the High
in no different in that it confers a discretion on a
court to decide as best it can to ensure 'a just and expeditious
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
Consequently my ruling is that this matter go to trial
and that all affidavits, and depositions forming subject-matter of
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
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