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