CIV/APN/177/87
IN THE HIGH COURT OF LESOTHO
In the matter of:
BEDCO Applicant
v
'MASEBOTA KHUELE Respondent
RULING
Delivered by the Hon. Sir Peter Allen on the 4th day of June 1987
This is an application for stay of proceedings pending appeal. The proceedings are between the same parties except that the present
applicant is, in fact, the respondent in the original CIV/APN/105/86 which is an action for unlawful dismissal, at present in the course of being heard by me.
As a result of three objections made in limine by BEDCO I gave a ruling on 27 May 1987 rejecting those objections and consequently I expected to continue with the hearing today (4 June 1987). Instead this present application has appeared. It was filed in the Registry only yesterday (3 June) and it claims to be urgent.
First of all I wish to draw attention to the style of this Notice of Motion, and many others that I have seen before me. It seems to be the practice here to bring Notices of Motion and other proceedings without
2
stating on them, as a part of the heading, the exact sections, rules or regulations under which the particular action or application is brought before the Court. Apparently most counsel expect the Court to discover or know the relevant authority. But this will just not do. I find it unacceptable. In my opinion an application brought before the Court without stating on it under what legislation it is brought, particularly in reference to court rules, is improperly before the Court because it is incomplete and incompetent. I can see no difficulty at all, as far as advocates and attorneys are concerned, in complying with such a simple and essential requirement. Indeed in many other countries the papers would not be accepted for filing by the Registry without displaying such authority for their basis.
This present application is apparently for a stay of proceedings pending the outcome of an appeal from the "judgment" of this Court. There is no reference to any rule giving a right to make such an application and, although I asked several times for it, none was given.
Mr. Mahlakeng stated that he had filed a Notice of Appeal number A/10/87 on 3 June 1987. But it is clear from S.16(1) of the Court of Appeal Act, 1978 that there is only a right of appeal against "final judgments of the High Court". In the case of an interlocutory order there must first be an application to the Court of Appeal for leave to appeal.
In the present instance there has been no such application, for leave to appeal. Mr. Mahlakeng submitted
3
that this was because my Ruling was in the nature of a final judgment. But this is nonsense. If my Ruling amounted to a final judgment then the proper application to make is for a stay of execution. This present application is for a stay of proceedings which, of course, means that the trial is still in progress; which it could not be if a final judgment had been delivered. So his own argument contradicts his application. This is highly illogical.
It is surely perfectly clear that my Ruling was made on points raised in limine i.e., preliminary points, and that as a result of that Ruling, the trial was set to proceed towards an eventual conclusion and judgment. Because of this delay that stage has not yet been reached. Consequently my Ruling resulted in, and contains, an interlocutory order not a final judgment, or any other sort of judgment, for that matter.
Following from that, it is clear that BEDCO has no right of automatic appeal against my Ruling. It can only apply to the Court of Appeal for leave to appeal. This has not been done. It has merely lodged a premature notice of appeal which is meaningless and it can have no influence upon this Court's actions.
Furthermore, if the applicant had wanted a stay of execution from a final judgment, it would have to have complied with Rule 6(3) and (4) of the Court of Appeal Rules, 1980, by filing the application "not leas than seven days before the date set down for hearing the application." This was certainly not done.
4
It is important that the Court should, wherever possible, hear argument from both sides in any matter before it. In my opinion far too much use is made here of ex parte so-called urgent applications.
As I pointed out in Court, if Mr. Mahlakeng had not been so hasty, the substantive case could have been heard and disposed of. Then, if judgment went against BEDCO, and they wanted to appeal, he could have lodged his appeal by right in the normal way. If the judgment was favourable to BEDCO then there would be no need for an appeal and all the inevitable expense and delay which would be entailed. It is simply a matter of exercising a little patience and not "going off at half-cock," as clearly has been done in this instance.
Mr. Pheko pointed out also that, even if my earlier Ruling had gone against his client, he could simply have amended it or filed a fresh application. I agree with that.
To sum up, I hold that my earlier Ruling was an interlocutory order and that no application has been lodged for leave to appeal against it; and that, even if it had been, the present applicant has not shown by what authority he can apply here for a stay of proceedings.
Accordingly, I find this application to be misconceived, premature and improper and it is dismissed with costs.
The hearing in CIV/APN/105/86 is to proceed.
P.A.P.J.ALLEN
JUDGE
4th June, 1987
Mr. Mahlakeng for Applicant
Mr. Pheko for Respondent