CRI/APN/390/05

IN THE
HIGH COURT OF LESOTHO

HELD IN
MASERU

In the
Matter between:

LEHLOHONOLO
NEPO 1st APPLICANT

LETSABISA
MAKAMANE 2nd APPLICANT

AND

T.
MAHLAKENG 1st RESPONDENT

BOKANG
LETELE 2nd RESPONDENT

HIS
WORSHIP MAGISTRATE KOLOBE 3rd RESPONDENT

Ruling
delivered by Hon The Chief Justice ML Lehohla on 3rd October, 2005

The
application turns on the simple ground that respondents didn't file
answering affidavits to the application for review.

The
challenge advanced on behalf of the respondents is in a form of
points raised in limine. The most significant of which is, so
the
argument goes, that in their application the applicants have breached
procedural rules by failing to set out their prayers
etc.

2

In my
humble view the respondents made a mistake by ignoring the
requirement that before the lapse of the period stated they should

have filed their answering papers. The simple principle is that no
one is entitled to benefit from his or her own fault. The
determination
to fight the battle on points being raised in limine is
an unwitting attempt to thwart the primary requirement that the
respondents
ought to have filed their answering affidavits in the
main application for review in the first place. Instead they
temporised and
did nothing but prompt the applicants to react out of
frustration by setting the matter down hoping that the respondents
would
take counsel of prudence and file their answers. But lo and
behold! they instead rounded on the applicants and charged them with

having failed to observe the relevant rules when in fact the fault
lay with the respondents themselves.

The main
thrust of the application for review centred on mainly two factors
which have not been denied, namely;

that in respect of private prosecution (a) the party instituting it
is required (i) to pay security and (ii) proceed with the case
to its
conclusion without delay.

3

or (b) that such party has undertaken to give security in such amount
and in such manner as the court may direct that he will pay
the
accused such costs incurred in respect of the defence to the charge.

See
Section 16 (a) and (b) of our Criminal Procedure and Evidence Act 7
of 1981 read with Section 121 (3) (5) and (6) thereof.

Needless
to say despite that compliance with these sections in a private
prosecution is peremptory there has been no indication
that the
respondents or their legal advisors were inclined at any stage to
heed this requirement whatsoever.

The
upshot of the matter is that the main application for review remains
unchallenged. It cannot avail the respondents to fault
this
proceeding by saying that the applicants' notice which is in effect
notice of set down is not accompanied by averments and
orders prayed.

4

There is
strong authority with which I am in respectful agreement regarding
forms of notices in interlocutory matters that:

"There is to my mind a substantial difference between an
application being brought on notice and an application brought on

notice of motion. It could never have been intended, when parties are
already engaged in litigation and have complied with such
formalities
as appointing attorneys and giving addresses for the service of
documents in the proceedings, [that] the parties would
be required to
go through all the same formalities again with all concomitant and
unnecessary expense....................... interlocutory
and other
applications incidental to pending proceedings were not intended to
be brought by way of formal notice of motion in the
same way as
applications initiating proceedings."

See
Yorkshire Insurance Co. Lt vs Reuben 1967 SA at 265 by Mumnik J. On
this basis alone the points raised in limine ought to be
dismissed.

In the
circumstances it seems fair that the applicants' prayer for default
judgment is well-grounded and ought to be upheld and
it is so
ordered.

ML
LEHOHLA

CHIEF
JUSTICE

03rd
October, 2005

For
Applicants : E.H. Phoofolo

For
Respondents: T. Mahlakeng