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

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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

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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.

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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