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CIV/APN/490/99
IN THE HIGH COURT OF LESOTHO

In the matter between:

MOHALE TUNNEL CONTRACTORS APPLICANT

AND
SECURITY LESOTHO (PTY) LTD RESPONDENT

JUDGMENT

Delivered by the Honourable Mr Justice WCM Maqutu On the
2^nd day of February, 2000

On the 25^th November, 1999, applicant, the
Lesotho Tunnel contractors, filed of record an urgent application on
notice to respondent. This matter
was supposed to be heard on the
29^th November, 1999. It was postponed to the 6^th
December, 1999. On that day it was postponed to the 13^th
December, 1999 for mention to enable the parties to obtain a date of
hearing.

On the 15^th December, 1999, the matter was
brought before me for hearing. In it applicant was asking for the
ejectment of respondent from certain
sites and that respondents
employees should be interdicted from entering those sites. Finally
applicant was asking the court to
direct the

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police to help the Deputy Sheriff to evict the employees
of respondent from the above-mentioned sites.

After hearing Mr Malebanye for applicant I dismissed the
applicant's application with costs and promised to give reasons on
the 2^nd February, 2000.

THESE ARE THE REASONS

Respondent brought CIV/APN/482/99 in which it was asking
for an interdict against the applicant and Mohale-Matsoku
contractors. In
it respondent wanted applicant and Mohale-Matsoku
Contractors to be restrained from expelling the employees of
respondents contrary
to the terms of a contract between respondent
and Mohale-Matsoku Contractors. The application in CIV/APN/482/99 was
being brought
because (according to respondent) applicant purported
to have terminated a contract to which applicant was not a party.

While CIV/APN/482/99 was pending, and in the full
knowledge of that application, applicant brought this application. In
this application,
applicant was seeking an eviction order against
respondent from the very sites which are the subject of
CIV/APN/482/99. Applicant
proceeded in this manner despite the fact
that he was aware that an injunction was being sought against
applicant because respondent
claimed applicant was terminating a
contract in which it was not a party. It is convenient at this stage
to quote a portion of applicant's
founding affidavit:

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"7

On the 14^th day of August, 1999, the services
of the Respondent company were terminated on notice.

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A dispute has arisen between the present applicant and
the respondent under case number CIV/APN/482/99 before the High Court
of Lesotho
where respondent is attempting to obtain certain relief
against the present applicant.

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At the hearing of this matter, a true copy of the papers
in CIV/APN/482/99 will be placed before Your Lordships as I am
advised that
that application together with this application will be
heard together."

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The opposing affidavit that I signed under
CIV/APN/482/99 be and is hereby incorporated word for word and figure
for figure to the
extent that such affidavit is relevant and indeed
is of assistance to this Honourable Court in determining the relief
prayed for
herein."

It is of interest that on the roll only this application
appeared. CIV/APN/482/99 was only brought to me as I was going into
court.
I noted that on the 13^th December, 1999 when it was
postponed, there was a judge's minute that it should be heard
together with this one. In the light of
what transpired in this
matter CIV/APN/482/99 was not even called for mention.

In answering this application for ejectment, respondent
challenged the claim there could be cross-referencing between this
application
and

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CIV/APN/482/99 because "there has not been a
consolidating order consolidating CIV/APN/482/99 and this matter".
Repondent
accused applicant of misleading this court. He persisted in
saying there has never been any contract between respondent and
applicant.
The contract that applicant purported to terminate is
between respondent and Mohale-Matsoku Contractors. As Mohale-Matsoku
Contractors
is not a party in these proceedings, there is non-joinder
of an essential party.

Respondent also objected to the fact that applicant had
brought ejectment proceedings to the High court when that is a matter
for
the Subordinate Court—See Section 16(1) of the Subordinate
Courts Order 1988. Ejectment proceedings could consequently only be
brought before this court regardless of value, if the party seeking
to do so had first sought leave court. See Section 6 of the High
Court Act of 1978.

Applicant's ejectment application had several problems
which proved to be fatal to it. These were:

1. Applicant made a skeletal case in his founding
affidavit, completely ignoring respondent's case of which he was
already aware.
Applicant ought to have been advised that he stands
and falls by his founding affidavit. It is trite law that in
application proceedings,
the founding affidavit constitutes the
evidence and the pleadings. It is no good annexing documents which
cannot be directly related
to the application by admissible evidence.
I could not understand why the contract that was allegedly terminated
by applicant was
not annexed to applicant's founding affidavit. What
was annexed was a contract with A.A. Security services, a contract
that was irrelevant
to legal proceedings between applicant and
respondent.

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2. 
   In application CIV/APN/482/99 respondent had
   challenged
   applicant's locus standi to cancel the contract and
   eject
   respondent from the sites in question. Despite the
   knowledge
   that the respondent claimed only Mohale-Matsoku
   contractors
   were the proper party to do so, applicant brought
   these
   proceedings without any attempt in his founding affidavit
   to
   allege facts supporting its locus standi. As respondent
   crisply
   put it, applicant failed to demonstrate "a clear
   right right" in
   his founding affidavit.

   
   

3. 
   Applicant attempted to supplement his case in his
   replying
   affidavit through what he called the "confirmatory
   affidavit"
   of Andrew Wilson who is styled a Quantity
   Surveyor of
   Mohale Matsoku Contractor in an unsigned affidavit
   which is
   on page 72 of the paginated record. On page 171 of
   the
   paginated record the same Andrew Wilson in
   another
   "confirmatory affidavit" of 13^th
   December 1999 is described
   as a civil engineer. It is trite law
   that an applicant is not
   entitled to file supplementary
   affidavits with his replying
   affidavit for the purpose of
   supplementing the founding
   affidavits. Applicant could only
   supplement his case with
   leave of court after making a specific
   application to that
   effect. To put this principle in the words
   of Herbstein and
   Van Winsen The Civil Practice of the Superior
   Courts in
   South Africa 4^th Edition at page 366 "The
   general rule which
   has been laid down repeatedly is that an
   applicant must stand
   or fall by his founding affidavit and the
   facts alleged in it, and
   that although sometimes it is
   permissible to supplement the
   allegations contained in that
   affidavit, still the main foundation of the application is
   the allegation of facts stated
   there, because those are the facts
   that the respondent is called upon either to affirm or deny...and
   where the applicant had
   failed to allege his locus standi to make
   an application it was
   held that he could not do so in a replying
   affidavit". It is this
   difficulty that applicant had and
   which he unsuccessfully tried
   to solve through annexing a
   "confirmatory affidavit" of a civil
   engineer of
   Mohale-Matsoku Contractors to his replying
   affidavit.

   
   

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Applicant brought an ill-advised application founded on
a dispute of fact which ought to have been resolved in
CIV/APN/482/99. In
his founding affidavit applicant glosses over this
dispute and deliberately conceals its nature. Failure to disclose
facts which
would be adverse to the success of applicant's
application, especially where an application was intended to be ex
parte (as this
one was originally intended to be) can be fatal. Faced
with a similar case, Conradie J in Hall and Another v Heyn and
Another 1991(1)
SA 381 at 397 BC said:-

"It is trite law that an applicant should,
especially in the case of an ex parte application, place all relevant
facts before
the court.... I think I am entitled to discharge the
rule nisi on that ground alone."

This application ended up being on notice, nevertheless,
throughout these proceedings the summary true facts of what
CIV/APN/482/99
contained were never brought out by the applicant
except by a general reference to it. Even when such reference was
made, it was
to applicant's affidavit. A litigant cannot require of a
court that it should bring a file of another case pending before it,
in
order to determine issues before it. It would be pre-mature to
determine whether the existing dispute is of a kind that would be
of
a class that would convert CIV/APN/482/99 into a trial cum
application.

An interdict of a temporary nature is a matter that
should be dealt with by way of application. A permanent interdict
should normally
be instituted by way of action. In urgent matters,
a party has to have

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protection from a continuing mischief or infringement of
his rights. Sometimes the interdict sought may be of a permanent
nature,
but on the balance of convenience the applicant might have no
option but to seek a immediate curial intervention. In that event
even
a dispute of fact might have to be resolved by way of viva voce
evidence. Even though there are cases of this nature, application
proceedings are not meant for disputed matters.

In urgent matters, courts prefer to give temporary or
interim relief. Parties are normally expected to institute an action
so that
both parties can fully ventilate their grievance. A practice
has developed over the years whereby applications are extensively
used
in legal proceedings. This has been done so often that the
distinction between matters suitable for action proceedings and those
suitable for application proceedings has often been blurred.

Application proceedings are nevertheless always risky
for a litigant who chooses them as a means of obtaining a remedy from
this court.
Legal proceedings are normally expected to be brought by
way of action. In an action there has to be pleadings such as a
summons,
a plea, discovery of documents and a pre-trial conference
before a matter is brought before court for full ventilation through
viva
voce evidence. In application proceedings the matter is dealt
with through affidavits. No viva voce evidence is normally expected.
In other words, application proceedings are not designed for the full
ventilation of a dispute.

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A party who proceeds by way of application (unless there
is no other course open to him) must have made sure that there is no
real
dispute of fact, before he proceeds. He must be expecting either
that his adversary has no genuine defence or if there is a dispute,
it will be that of law. If there is a dispute of fact, the court is
entitled to dismiss applicant's claim, unless it can be persuaded
otherwise, and applicant could not have forseen such a dispute. There
are applications in which viva voce evidence can be called
to resolve
a dispute on a few issues. This is a matter for the court to decide.

It is an abuse of court process for no good reason to
lodge an application while another application covering virtually the
same ground
is already before court. Not only does it make papers and
proceedings unnecessarily prolix, it also even makes litigation
unmanageable
and repetitive. What this application ought to have been
is a counter-application to CIV/APN/482/99. Problems such as
ejectment which
is a magistrate's court matter would not arise in a
counter-claim because it would follow logically from the failure of
respondents'
application in CIV/APN/482/99. Similarly the non-joinder
of Mohale-Matsoku Contractors (which is a legitimate objection in
this application)
would not be an issue in CIV/APN/482/99 because
Mohale-Matsoku Contractors is already a party in it.

The balance of convenience favoured a dismissal of this
application and granting applicant leave to counter-claim out of time
in CIV/APN/482/99.
This would obviate the duplication and confusion
that would have existed had this application and CIV/APN/482/99
continued

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to be separate. The way this application had been
brought did not also entitle applicant to any indulgence in my view.

WCM MAQUTU
JUDGE

For applicant : Mr S Malebanye
For respondent
: Mr K Mosito