CIV/T/36/87
IN THE HIGH COURT OF LESOTHO
In the matter between:
WAYNE E. BATEMAN Plaintiff
vs.
G. GOVONI IMPORTS & EXPORTS (PTY) LTD. 1st Defendant
GOVONI IMPORTS & EXPORTS LESOTHO (PTY) LTD 2nd Defendant
JUDGMENT
Delivered by the Honourable Acting Judge,Mr. Justice M.L. Lehohla, on the 20th day of March, 1987.
The facts relating to the instant matter of application in terms of Rule 48(3) by 2nd Defendant's attorneys fall within a very narrow compass.
My reading of the file indicates that on 23-2-87 Kheola A.C.J. made an order granting 2nd Defendant extension of time within which to serve and file a Notice of Appearance to defend the action inter partes above.
On 16-3-87 an application was tabled before me in terms of Rule 48(3) on behalf of 2nd Defendant for an order:
Directing Plaintiff to furnish security for 2nd Defendant's costs in the sum of M2000.00.
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Directing that all further proceedings in the above matter be stayed until the aforesaid Order is complied with,
Payment of costs of this application.
The affidavit of Mr. Koornhof, the 2nd Defendant's attorney, was used in support of the application.
In that affidavit, Mr. Koornhof averred that on 23rd February, 1987, he served a Notice to file security on behalf of 2nd Defendant on Plaintiff's attorney in terms of which Plaintiff was requested to furnish security in the sum of M2000.00 for 2nd Defendant's costs ......, by reason of the fact that Plaintiff is a peregrinus of (sic) Lesotho.
Indeed proof of such service appears ex facie the papers. Moreover this fact has not been denied. It is therefore taken as conclusive and as substantiating the deponent's averment.
Deponent further said in terms of Rule 48(3) Plaintiff is required to furnish the security within ten days of the demand and ad para. 3 further brought attention to the fact that the said period of ten days expired on 6th March, 1987, but the Plaintiff failed to furnish the said security.
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Rule 46(3) states: "If the party from whom security is demanded contests his liability to give security or if he fails or refuses to furnish security in the amount demanded or (vide Legal Notice 12/81) the amount fixed by the Registrar within ten days of the demand, or of the Registrar's decision, as the case may be, the other party may apply to court on notice for an order that such security be given and that the proceedings be Stayed until such order is complied with". (My underlining;)
Rule 48(1) entitles the party desiring security from the other to give notice for costs/setting forth the grounds upon which security is claimed and the amount demanded.
Rule 48(2) gives the Registrar a final decision to determine the amount to be given if the amount of the security only is contested.
Regard should be had to the fact that 2nd Defendant complied with Rule 48(1) supra and that Plaintiff did not contest the amount in terms of Rule 48(2) supra and that the ten days envisaged by Rule 48(3) supra expired on 6th March, 1987, without Plaintiff complying with the demand or raising any objection within the ten day period set out above notwithstanding the notice given to him through his attorney plus the accompanying grounds for making of such application for security for costs.
In this posture of events, it appears 2nd Defendant
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was entitled to approach the Court as he did seeing that Plaintiff let pass over in silence the ten-day period without a stir while it would appear from the affidavit he purported to file on the very morning of the hearing of this matter i.e. 16.3.87 he already knew of the change in his circumstances from the status of a peregrinus to incola as long ago as 19th February, 1987; see Plaintiff's affidavit ad para. 4.
When asked why the notice to oppose this application was not filed within the ten-day period in order to alert the 2nd Defendant of the stand likely to be taken by Plaintiff, Mr. Addy replied that Plaintiff was entitled to five days' notice. Needless to say he did not point to the rule which supports his contention nor did I see the relevance of his submission.
Asked why he only purported to file his papers from the bar, he said the 12th was a holiday and the Registrar could not accept his papers on the 13th following and further submitted that it has always been the practice to submit papers from the bar.
Apart from Mr. Addy's argument failing to answer the question why his papers were not filed within the period ending on 6th March, 1987, his reference to the fact that it has been a practice to submit papers from the bar is in conflict with provisions of
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Circular issued by the Registrar in 1970 to put a stopto any such practice. It was with a view to ensuring the smooth and orderly running of the business of the Court that for purposes of filing papers for use in a Motion Court usually held on Mondays such papers should be in the Registrar's files before noon of Thursday preceding the Motion Court day. This is what has been the practice as far as I am concerned.
The importance of filing papers timeously cannot be over-emphasised. It, among other things, ensures that the Court has an opportunity to read them and consider subsequent arguments based on them with a clear mind. It also helps avoid the irregularity that is apparent in the present papers where, because of failure to file them in the office of the Registrar, the revenue stamps have not been defaced contrary to provisions of Section 11 of the Stamp Duties Order 1972, a breach of which carries very heavy penalties. It may be worth mentioning if only in passing that a good many of instruments coming before this Court bear revenue stamps which are not defaced. In this regard the Registrar and staff are referred to Sect.11(6) of the Stamps Duties Order supra.
Finally while Plaintiff had apart from the long time that his affidavit shows he had to notify all concerned of what his status was, he had the crucial ten days ending on 6th March to alert the 2nd Defendant. I may in this regard also refer to Kheola A.C.J's unreported
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judgment in CIV/APN/22/87 WAYNE E. BATEMAN v G. GOVONI IMPORTS & EXPORTS (PTY) LTD. and others where the Learned Acting Chief Justice on 23rd February, 1987, found it as a fact that the present Plaintiff is a peregrinus in spite of his protestations to the contrary showing as appear ad para.4 of his affidavit that four days before then he had regained the status of an incola of Lesotho who therefore should not be subject to the requirement of Rule 48 of the High Court rules.
There may be some criticism that the view taken in this matter tends to let technical forms triumph over substance but it is essential that the rules of Court be observed and enforced.
In the result, 2nd Defendant's application was granted with costs. Plaintiff was ordered to file security within 14 days failing compliance therewith proceedings in this matter will remain stayed.
M.L. LEHOHLA
ACTING JUDGE
20.3.87.
For Plaintiff : Mr. Addy
For Defendant 2 : Mr. Koornhof
