CIV/APN/127/84

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

COMMISSIONER
OF COMMERCE & INDUSTRY 1st Applicant

MINISTRY
OF COMMERCE & INDUSTRY 2nd Applicant

SOLICITOR
GENERAL 3rd Applicant

And

MAHOMMED
OSMAN Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 11th day of March, 1985.

The
applicants herein seek an order of this Court allowing them to file
further affidavits and/or alternative relief.

It is
perhaps convenient to mention by way of a back­ground that on
12th June, 1984, the present respondent, who was the applicant
in the
original application filed with the Registrar of this Court an urgent
application in which he moved the Court for a Rule
Nisi returnable on
a date and time to be determined by the Court calling upon the
respon­dents, who were the present applicants
to show cause why
the suspension of a trading licence issued to him to trade as a
garage at Qoaling in the district of Maseru should
not be revoked
with immediate effect; the respondents should not pay the costs of
that application and/or alternative relief. Founding
affidavits were
duly attached to the notice of motion. The Rule Nisi returnable on
18th June, 1984 was granted as prayed and subsequently
served upon
the respon­dents.

On 15th
June, 1984, the respondents intimated their intention to oppose
confirmation of the rule and the Com­missioner of Commerce
and
Industry, one John Maieane, filed on their behalf the opposing or
answering affidavit. A

2

replying
affidavit was filed by the applicant on 6th July, 1984.

After
several postponments and extentions of the rule, the matter was on
6th February, 1985 set down for hearing on 22nd February,
1985.
However, on 11th February, 1985, the present applicants filed the
present application and moved the Court as aforesaid. The
founding
affidavit was again filed, on their behalf, by the Commissioner of
Commerce and Industry who deposed as follows, inter
alia:

3. "since
   the filing of the three sets of affidavits ...... I have discovered

   
   

some new facts and documents concer­ning this matter, and wish to
disclose them to the Honourable Court.

3. I,
   therefore, pray that this Honourable

   
   

Court grant me leave to file supplementary affidavits."

The
respondent opposed the application on the grounds, inter alia, that
the applicants had not alleged any special circumstances
to warrant a
departure from the ordinary rule limiting the number of affidavits
which each party was per­mitted to file and
as the proposed
affidavits sought to in­troduce new facts and documents, it was
probable that the respondent would also ask
for leave to file further
affida­vits in reply resulting in further delay in finalising the
original urgent application to
his grave prejudice.

I think
it is clear from the provisions of Rule 8 of the High Court Rules
1980 that in application proceedings, the parties are
permitted to
file, as of right, only three sets of affidavits namely, the
founding, the answering and the replying affidavits.
If further
affidavits have to be filed, that is a matter entirely within the
discretion of the Court. This is explicit from the
provisions of
Sub-Rule (12) of Rule 8 of the High Court Rules which provides that
after the replying affidavit has been filed:

"(12)
no further affidavit may be filed by any party unless the Court in
its discretion per­mits further affidavits to
be filed.

3

The
discretion of the Court must, however, be a judicial and not just a
whimsical exercise i.e. it must be based on some convincing
reasons.
In the present case all that the deponent for the applicants avers in
his founding affidavit is that since the filing
of the three sets of
affidavits in the original application he has discovered new facts
and documents which he wishes to disclose.
The Court which has to
exercise a discretion on whether or not to permit the filing of the
newly discovered facts and documents
is not told what those new facts
and documents are.

If this
Court were to exercise its discretion properly, it seems to me
important that it should know the new facts and documents
discovered
by the applicants. The reason is simple, if the newly discovered
facts and documents are such that they cannot have
been in their
possession or know­ledge at the time of the filing of the
founding and the replying affidavits, the court will
be justified in
allowing the applicants to file supplementary affidavits to introduce
them. But if the new facts and documents
are such that they must have
been in the possession of the applicants at the time of the filing of
the founding and the replying
affidavits the applicants must have
filed them then and it will be im­proper to allow them to do so
now.

I do not
see how in the present case without knowing the applicants' newly
discovered facts and documents I can be convinced that
they are such
that they could or could not have been in the possession of the
applicants at the time of the filing of the founding
and the replying
affidavits in the original application. The onus clearly vests with
the applicants to convince me in this regard.
That onus has, in my
opinion, not been satisfactorily discharged by the applicants.

In the
result I take the view that this application ought not to succeed and
it is accordingly dismissed.

B.K.
MOLAI.

JUDGE

11th
March, 1985.

For
Applicants . Miss Tsiu

For
Respondent : Dr. Tsotsi.