SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

CIV/T/344/2004

IN
THE HIGH COURT OF LESOTHO

In
the matter between:

NMW PLAINTIFF

And

DMW DEFENDANT

(Nee
N)

RULING

Delivered
by the Honourable Ms Acting Justice N. Majara

on
5^th
November 2004

Plaintiff
herein instituted action against defendant in which he claims relief
in the following terms:-

1. 
   Judicial
   separation Mense Et Toro on grounds of defendant’s malicious
   desertion and cruelty.

   
   

2. 
   Custody of the
   minor child MW.

   
   

3. 
   Forfeiture of the
   benefits of the marriage.

   
   

4. 
   Costs of suit in
   the event of opposition.

   
   

5. 
   Further and/or
   alternative relief.

   
   

Defendant
entered notice of appearance to defend and having been served with a
notice to file plea she raised and filed a special
plea as follows:

That Lega-Man
Chambers Incorporated
has no right to represent plaintiff before this honourable court for
the following reasons:-

1. Plaintiff’s
   representative does not have the right of appearance before this
   honourable court since it is not a member of
   the Bar and/or side bar
   of Lesotho.

   
   

2. The
   Summons commencing action has not been signed by a duly admitted
   attorney of this honourable court.

   
   

3. The
   office appointed by plaintiff as the office of attorneys of record
   is not the office of an attorney.

   
   

Defendant also
prayed that plaintiff‘s claim be dismissed with costs as
between Attorney and Client. Defendant’s attorney
of record as
per the court papers was Ms
Tau- Thabane.

On the 1^st
November 2004 Mr
Mabulu
for plaintiff and Ms
Qhobela
for defendant appeared before the court for the hearing of the
matter. Before Ms
Qhobela
could argue defendant’s point in
limine
as shown above, Mr
Mabulu
raised a point in
limine
from the bar as follows; that in terms of the Legal
Practitioners Act of 1983 Section 42 (4)
thereof, Ms
Qhobela
was not supposed to appear on behalf of any person (defendant in
casu
included) other than her employers because she is employed by KPMG
which is a statutory body and that the attorney of record is
Ms
Tau-Thabane.
He argued that as per the provisions of the subsection, Ms
Qhobela
could not take instructions from Ms
Tau-Thabane
because the latter is not her employer.

In reaction to
this argument, Ms
Qhobela
disputed that she was an employee of neither KPMG nor Harley and
Morris but was an advocate of this court who can take a brief
from
any attorney. She went on to argue that even the subsection that was
cited by Mr
Mabulu
was not applicable to her and that the relevant subsection would be
subsection
2
which in her opinion still did not preclude her from taking a brief
from an attorney.

Mr Mabulu’s
reply was to the effect that Ms
Qhobela
was an employee of a statutory body and that she had failed to show
where her offices are. He contended that Ms
Qhobela
earned a monthly salary from KPMG which is different from
remuneration of a person who has been instructed by an attorney.

At this stage, the
matter was postponed to the afternoon in order for the court to
consider the arguments of both sides before it
could make a ruling.
Having looked at the relevant sections of the statute, I dismissed Mr
Mabulu’s
point in
limine
for the following reasons:-

It is not disputed
that Ms
Qhobela
is an advocate of this court. What is submitted by Mr
Mabulu
is that she is restricted to appear only as per instructions of her
employer as per the subsection. The court therefore had to
determine
the meaning of the provisions of the section.

Section 42
(4) of the Legal Practitioner’s Act 1983
provides;

“An
advocate who is employed by a statutory corporation may
(my underlining) appear before the courts of Lesotho not being
Central or Local Court, on behalf of his employer and may,
(my underlining) notwithstanding section 6(2), take instructions
direct from his employer.”

Section 6(2)
in turn provides;

An
advocate shall not
–

1. 
   “appear
   in the Courts of Lesotho otherwise than on the

   
   

instructions of
an attorney admitted to practice in the

courts of
Lesotho; and that attorney is in possession

of a practicing
certificate”;

(b) “demand
or receive money or instructions direct from

a
client except through his instructing attorneys being

attorneys in
possession of current practicing certificate.”

My understanding
of the wording of the two sections is that section
6
is a mandatory section whereas section
42(4)
is an enabling and additional one to section
6
specifically formulated for legal practitioners who are employed by a
statutory corporation. Section
42(2)
is not restrictive hence the use of the word may. In my opinion, the
intention was not to restrict advocate to taking briefs from

attorneys but to give them a leeway to can be employed by statutory
corporations.

I did not find any
other words in the section whose meaning could be construed as
restricting such advocates to taking instructions
only from their
employers. That is why the legislature added the words
“notwithstanding section 6(2)”.

When proceedings
resumed and the court having dismissed that particular point in
limine,
Ms
Qhobela
argued the point in
limine
which had been raised in the defendant’s special plea as had
been filed in the courts file.

On the third
reason raised by defendant’s counsel to
wit,
that the office appointed by plaintiff as the office of the attorneys
of record is not the office of an attorney, Mr
Mabulu
handed before the court a copy of his practising certificate issued
by the Law Society of Lesotho in terms of Section
25 of the Legal Practitioners Act no.11 of 1983 which
stipulates that ‘KHATHATSO D. MABULU practices as an attorney
under the name of t/a Lega-Man Chambers Incorporated’.
This
certificate bears the stamp of the Law Society and the signatures of
the Society’s secretary and treasurer respectively.
Its
authenticity was not challenged and the court found no reason not to
admit it as proof that such an office is that of an attorney.

Although the said certificate’s expiry date is the 31^st
October 2004, which day had already passed on the date of hearing, I
did not think that it was fatal as in my opinion, expiry of
a
document per se does not necessarily disprove a fact, in this case
being that, plaintiff’s counsel is an attorney of record.

In her arguments
in court, Ms
Qhobela’s
challenge was based on the fact that Lega-Man
Chambers Incorporated
is not a person and therefore it cannot append a signature on any
document. She submitted that in terms of Rule
18(6) of the High Court Rules,
a Special Power of Attorney has to contain the names of the person
within the office and that in
casu,
since Mr
Mabulu
had not signed in person he does not have the right of appearance
before this court.

She contended
further that even in terms of Rule (1) ‘attorney’ means a
person admitted and enrolled as such. She also
cited Rule 2 of the
Legal Practitioners Act which stipulates that “attorney”
means a person admitted to practice as
an attorney-at-law in the
courts of Lesotho. Ms Qhobela submitted that Lega-Man Chambers is not
a juristic person who can sign
and/or represent clients. She argued
that where such a company is not known, it becomes difficult to
identify the relevant attorney
as was the case in this instance.

In both his Heads
of Argument and in his reply, Mr
Mabulu
argued that the points in
limine
raised by defendant should have been merited with factual aspects and
defendant ought to have established whether plaintiff’s
counsel
was in actual fact not admitted in terms of the Act. He argued that
he is the plaintiff’s attorney and that Lega-Man
Chambers Incorporated
is the name under which he is practicing. His submission was that
defendant’s special plea was based on speculation and not

concrete proof.

Mr Mabulu’s
further submission was that the name Lega-Man
Chambers Incorporated is
just a professional name which is interchangeable with his personal
name, a factor also reflected in his practising certificate.
With
regard to the argument that the Power of Attorney was faulty in that
it had not been properly signed, Mr Mabulu argued that
there is no
specific rule which precludes an attorney from using his firm name.
He contended that this was especially so regard
being had to the
purpose of a Power of Attorney. He contended that the document is
meant to guard against litigants denying having
given their counsel
authority to legally represent them. His submission was that if
defendants did not know who Lega-Man
Chambers Incorporated
is, they ought to have sourced the information from the office of the
Law Society.

In the light of
these arguments, and taking into account the fact that Ms
Qhobela
stated that they were not challenging the fact that Mr
Mabulu
is an attorney nor that Lega-Man
Chambers Inc
is a professional name, but are challenging the fact that a firm
which is not a person as envisaged by the rules can be instructed,

the issue that the court has to determine is whether the Power of
Attorney and the subsequent documents in the courts file as signed
by
plaintiff’s counsel have not been duly signed by a duly
admitted attorney of this court.

Rule 18(6)
of the High Court Rules
to which the court was specifically referred provides;

“The
summons shall be signed by the Registrar and the
plaintiff’s attorney
(my
underlining)
or plaintiff personally and must disclose the attorney’s
address or plaintiff’s address which must be within, five

kilometers from the office of the Registrar at which he will accept
service.”

In my opinion, the
wording of this section does not anywhere suggest that the name of
the attorney has to be shown. It simply provides
that such attorney
shall sign the summons and his address be disclosed. This, Mr
Mabulu
did. We cannot therefore impute words which are not included in a
statutory provision.

Rule 1 of the same
Rules in turn provides the description of who an attorney is and it
provides that such person shall be one “…
admitted
and enrolled as such…”
in terms of the Legal Practitioner’s Act.

When one
scrutinizes defendant’s attorney’s Practising
Certificate, it is couched in the following terms and in so far
as is
relevant to the point at issue:

1. A
   practicing Certificate is hereby issued in terms of Section 25 of
   the Legal Practitioners Act No.11 of 1983 to

   
   

KHATHATSO D.
MABULU

Who practices
as an Attorney
under the name of
(my
underlining)
t/a
LEGA-MAN CHAMBERS INCORPORATED

2. Prior to and
as at the date of this certificate, there have not been and there are
no circumstances disqualifying the said Practitioners
from practicing
as such in Lesotho.

In the light of
the above, the court is convinced that in the absence of any
challenge to the authenticity of this certificate,
which clearly
states that Mr
Mabulu
practices as an attorney under the name Lega-Man
Chambers Incorporated,
the court fails to find any reason why the documents that he has
signed as such should not be accepted as having been duly signed
by a
duly admitted attorney of this court. This is especially so in the
light of the requirements of Rule
18(6) of the High Court Rules
as cited above.

As Mr
Mabulu
has rightly pointed out, before defendant’s attorney could
challenge this fact in court, they ought to have sourced the
information from the offices of the Law Society. I agree that as
the Society should have copies of its own records such as Practising

Certificates, which should be readily available on demand.

Although Ms
Qhobela
submitted that she did try to find this information from the offices
of the Law Society, the court is not convinced that it could
not be
found for the reasons as shown above.

For these reasons,
the point raised in
limine
is dismissed with costs, on a party to party scale since both
counsel’s points in limine
have been dismissed by this court.

N.
MAJARA

ACTING
JUDGE

For
Plaintiff : Mr Mabulu

For
Defendant : Ms Qhobela