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CIV/APN/285/2000

IN THE HIGH COURT OF LESOTHO

In
the matter between:

HLALEFANG TAASO APPLICANT

and

MOTLATSI MAKHOTHE 1^st RESPONDENT

HER WORSHIP MRS POLAKI 2^nd RESPONDENT

(MASERU MAGISTRATE'S COURT)

THE CLERK OF COURT 3^rd RESPONDENT

(MASERU MAGISTRATE'S COURT)

ATTORNEY-GENERAL 4^th RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice T. Monapathi on
the 21st day of August 2000

This matter came before this Court by way of review of
judgment of the Second Respondent herein. The decision had been in an
application
for rescission of judgment in case number CC 789/99 of
the Maseru Magistrates Court in which the Applicant therein was the
present
Applicant. To avoid confusion I called the present Applicant
Defendant and the First Respondent Plaintiff as the need arose.

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This Court had an advantage on hearing of the Court file
of the Court a quo reasons for decision by Second Respondent which
followed
this Court's Order for despatch of such record. The
application before the Court a quo had been opposed.

The important events of the application before the Court
a quo were that the application for rescission had had to be set down
for
hearing on the 14^th February 2000. Mr. Phakisi told
this Court that he had at all material times been aware that the
requirement for filing of security
by the Applicant had been present
in terms of Rule 46(3) of the Subordinate Court Rules Legal Notice
No. 132 of 1996. The sub-rule
reads in full as follows:

"(3) save where leave has been given to defend as a
pro deo litigant in terms of Rule 50, no such application shall be
set down
for hearing until the applicant has paid into Court or has
secured to the satisfaction of the plaintiff, to abide the directions
of the Court the amount of the costs awarded against him under such
judgment and also the sum of M40 as security for the costs of
the
application. Provided that the judgment creditor may, by consent in
writing lodged with the Clerk of the Court waive compliance
with this
requirement. (My underlining) I will come back later to a few aspects
of the separate provisions of the rule.

Mr. Phakisi who was Defendant's Counsel, in the Court a
quo, confirmed that on the 2^nd day of February 2000 there
was a telephone conversation with Plaintiff's Counsel regarding the
setting down of the application for
rescission for argument.
Following the conversation, the Plaintiff's Counsel wrote a letter to
Defendant's Counsel requesting the
latter to verify whether the date
agreed upon between themselves, in a telephone conversation, had been
obtained. The letter was

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attached to the founding affidavit to the present
application and was marked "HT1".

I noted further that it had been unclear in the above
telephone conversation nor in the letter "HT 1" whether it
was the
Plaintiff or the Defendant who caused the matter to be set
down. I thought this was of paramount importance in seeking from the
onset
to unlock the vexed question of whether or not there had been
waiver of payment of security as the Applicant contended that there
had been. For some unknown reason Mr. Phakisi refused to come out
clearly as to who caused the setting down of the application in
the
Court a quo. I inclined to the probability that it was the Plaintiff
who caused the setting down notwithstanding the equivocal:
"Both
parties came together before the Clerk of Court and agreed to set
down the matter for the 14^th February 2000." For if
it was in the High Court a notice in terms of Rule 39(2) would have
indicated as to who had caused the
matter to be set down. The
question as to who sets down the matter would feature later
concerning to question of waiver. But not
because it would impact in
any way in the reasons for my decision.

Concerning this alleged waiver of security it is however
interesting how the Applicant introduced that question in his
affidavit in
the following paragraphs thus:

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I am advised by my Attorneys of record that before a
matter of rescission of judgment can be set down for hearing the
Applicant therein
has to file security for costs in terms of Rule
46(3) of the Subordinate Court Rules 1996.

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As I was the Applicant in CC 789/99 in a matter for
rescission of judgment, I am informed by my Attorneys of record, the
information

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I believe to be true and correct, that the matter could
not be set down for hearing before I filed for costs, or the
Respondent had
waived compliance with this requirement in terms of
Rule 46(3) of the Subordinate Court Rules 1996." (My
underlining)

Before I come to the events of the 14^th
February 2000 I needed to record the prayers in the application
before the Court a quo. This was because of the weight I would end
up
attaching to prayer (c) of the notice of application. Of value in it
was precisely that the prayer (Mr. Phakisi later argued)
contained an
application for condonation. This the learned magistrate did address
but not as broadly as one would have wished. The
notice of
application read in part:

" 1. That a Rule nisi be issued and made
returnable on a date to be

determined by the above Honourable Court calling upon
the

Respondent to show cause if any, why:

(a)

2. 
   

   
   

3. 
   

   
   

(d) Applicant shall not be ordered to pay security for
costs.

(e)

(0

Mr. Phakisi contended quite correctly that the prayer
(d) above was in the nature

of applying for condonation. It may have been
inelegantly drawn. This was in addition to the argument that was very
vociferous that
the Plaintiff should have been held to have waived
payment for security, which he could do, as provided in Rule 46(3). I
was keen
to find out from the Defendant's affidavit how he could have
motivated the above prayer. I did not however find anything in that
direction.

Back to the events of the application for rescission of
judgment as shown in

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the Applicant's affidavit in the instant application.
And more particularly to paragraph 13 onwards. On the 14^th
day of February 2000 Defendant's legal representative appeared before
the Second Respondent to move the application for rescission.
The
application was however dismissed with costs on the basis that
Defendant had not filed security for costs. The learned magistrate
did not go into the merits of the application. The Applicant made a
submission couched in following words as in paragraph 14:

"I aver that this was irregular inasmuch as the
dismissal was not in

accordance with Rule 46(3) of the Subordinate Court
Rules 1996,

regard being had to the fact that Respondent through his
legal

representative, had waived compliance thereof by taking
part in the

setting down of the matter for hearing. To set a
matter down for

hearing is a matter for the two parties and not the
Applicant alone."

From above it becomes easy to observe on obvious
contradiction. It is that if the

Defendant has opined that there had been waiver already
in existence by reason of

the matter being set down for hearing why would he (in
argument) insist on his

prayer for condonation of the filing of security? But
there it was. It does seem and

I was inclined for the view that that (condonation)
appeared to be what the

Defendant really sought.

The Defendant ended up by arguing for that the Court a
quo should not have dismissed the application but should have
directed the
Defendant to pay security for costs by virtue of the
power vested in that Court by Rule 56 of the Subordinate Court Rules
1996. Mr.
Phakisi specifically referred to Rule 56(1). The sub rule
reads thus:

"56 (1) Except where otherwise provided in these
Rules failure

to comply with these Rules or with any request made in
pursuance thereof shall not be a ground for giving of

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judgment against the party in default."

The rule suggests in its proper interpretation in my
view a simple solution and a guide to the Court in a situation in
which a Court
was being apprised of failure to comply with a rule. It
ought to resort to the easiest of steps which in my reckoning were
made "in
the interest of justice or fair play." What it
should have done was to give directions to the defaulting party to
comply with
the rule transgressed within a certain time, failing
which the Court would take action or make any order which it would
have made
except for the intervening directions which it had given.
It is some kind of a circumscribed discretion. This much is suggested
in
the sub-rules 56(2) and (3). It meant therefore that the learned
magistrate should not have immediately dismissed the application
without giving Defendant the opportunity to provide the required
security.

Before going back to the application of Rule 46(3) to
the extend that the Applicant sought to rely on it, it is beneficial
to look
at the reasoning of the learned magistrate against the
background of what has been said hereinbefore. I found that a
point-in-limine
was raised by Miss Mahabeer for the Plaintiff that
the application be dismissed for lack of security. The Court
correctly noted that
the Defendant had asked for condonation for
filing of the security. The Court felt that the requirement was
peremptory and gave the
Defendant no choice. The Court said Rule 56
could not apply to the case. In that regard it referred to
MASILONYANE v 'MATHABANG MALEKE
C of A (CIV) 16 of 1983 (full
citation not provided) in which it was suggested that the non-payment
of security was fatal to the
application itself. The learned
magistrate also applied the South African case of ADJOODA v MARIO
TRANSPORT 1976(3) SA 394 at 379.
The case dealt (as far as was
relevant) with the time at which security for costs may be furnished.
That is why Marais J said at
page 39B-C:

"It is true that the normal practice would be to
furnish security at the

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onset of the proceedings, but here it was done prior to
the final stage of the application that is before an order was asked
of the
Court and in my interpretation of the law it is clear that it
was done at a proper stage in time there is no substance in the
contention
that security should have been furnished much earlier."

The Court also referred in that regard to MATSIE MATSABA
v LESOTHO BANK (again full citation not provided) But in the instant
matter
we face a situation in which no security had been paid at all
in and the Defendant had obviously asked for condonation "not
to
file that security." This was, in addition against the
background of the circumscribed discretion (in terms of Sub-Rules
56(2) and (3) which one does not find in the High Court Rules. With
the latter practice it just has to be a judicial discretion which
is
by its nature broad and unregulated.

The learned magistrate found that she was bound by that
decision of the Court of Appeal that the application was improperly
before
Court. This she felt dictated that the application should be
dismissed with costs. She said furthermore the Subordinate Court was
a creature of statute which did not enjoy any inherent jurisdiction.
This was why Rule 46 had to have an interpretation which resulted
in
the meaning and effect of immutability. The learned magistrate may,
in my view, have been unaware of Rule 56 which she should
have
applied or distinguished. This would be more so in view of the
application for condonation by the Defendant which required a
separate treatment, on its own.

The above would even be consistent with Mr. Phakisi's
submission (as the magistrate did note) that the point-in-limine
about non-payment
of security was not a proper technical approach. A
proper one was a reply or answer to the prayer (d) of the Defendant
as it had
touched on the same thing i.e. paying of security. The
learned magistrate agreed at the end of page 2 of her ruling. It
transpired
that the

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Plaintiff had in turn answered accordingly by insisting
on the provision of Rule 46 as she submitted that payment of security
was
mandatory and that non payment was fatal to the application.

The learned magistrate proceeded on pages 3 and 4 of her
ruling to reason in a way to effectively say that the provisions of
Rule
46 were mandatory, that there had been no waiver and that the
decisions of the High Court had to be followed. I supposed that must
have been in reference to the provisions of High Court Rules.

I now go back to the provisions of Rule 46(3). I
grappled with the difficulty of the interpretation of how an
application could not
be "set down" for hearing before
payment of security. It was that interpretation in the sub-rule which
was that the matter
could not be placed before a magistrate by either
party at all where security has not been paid. I disagreed with that
interpretation,
with respect. I understood and accepted an
interpretation that said that a matter could be set down by either
party but the presiding
officer would not hear the substantive
matter, the merits, and the subject of the application for rescission
itself. This is the
interpretation that made sense to me. This
therefore defeats the logic that the matter will not be set down and
once it has been
set down there has been waiver.

I repeat by way of emphasis that, I disagreed with Mr.
Phakisi who suggested that once a matter has been set down by either
party
and the Clerk of Court that amounted to waiver of compliance
with the requirement to pay security which is envisaged in the
proviso
to the sub rule 46(3). It cannot be so. I go further to say
that it should not be for either parties or Clerk of Court to be
afraid
of setting down a matter lest he be held to have waived
payment of security. This I say bearing in mind the power of a
plaintiff
or applicant as dominis litis. But the other party could as
well set down a matter so that it is finalized without necessarily

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having any intention to waive the requirement for
payment of security. In the same vein it is the presiding officer who
will decide,
once a matter is before him or her, whether security
ought to have been paid. But for all intents and purposes he or she
decides
so because the matter is before him or her having been set
down.

I now come to the other part of the proviso to Sub-rule
46(3) following on the above discussion. It is about the matter of
waiver
of compliance with the requirement "of consent in
writing." I am satisfied therefore that the meaning of "by
consent
in writing lodged with the Clerk of Court" cannot be
given any other meaning other than a literal one. I am in no doubt
that
it has to be a specific, direct and unambiguous direction or
communication to the Clerk of Court that contains such consent. It
cannot
be implied that because one party has set down the matter with
another and the Clerk of Court that amounts to a waiver to pay
security.
This would present serious difficulties against the need to
bring proceedings to finality.

I agreed with Mr. Phakisi that in situations such as
where an application for condonation was being made the learned
magistrate is
enjoined not only to accept or reject the application.
In the event that it is rejected the learned magistrate ought to go
further.
Applicant ought to have been ordered to do that thing which
he had asked to be overlooked. In this case as I concluded Defendant
ought to have been ordered to pay security and only in the event of
failure to do so would the Court dismiss the application without
hearing the merits.

For clarity the question which arises would be what
power would the magistrate have as a basis for exercising the
discretion where
a provision is a rule has not been complied with. It
was easy for the magistrate to have gone around the problem. She had
to read
the Sub-Rule 46(3) with Sub-Rule 56(1) (2) and (3). This
meant that the Defendant ought to have been ordered or directed to
pay security

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within a certain time on the penalty of dismissal of the
application. The only question that would remain was that of costs in
the
meantime. The defendant ought to pay these costs of the day as is
clearly envisaged in Rule 56(3).

It was clear in the circumstances that this application
ought to succeed and I made the following Orders:

1. 
   That the order for stay of execution was re-instated.

   
   

2. 
   The Defendant was ordered to pay security for costs
   within 7 days
   from the 21^st August 2000 failing which
   the application will be
   dismissed.

   
   

3. 
   A date of hearing be appointed within 7 days after
   payment of
   security.

   
   

4. 
   No costs were awarded in this application since there
   was no
   opposition filed.

   
   

T. MONAPATHI
JUDGE