CIV/A/24/86
IN THE HIGH COURT OF LESOTHO
In the Appeal of -
REGINA MAFATA 1st Appellant
THABANG MAFATA 2nd Appellant
vs
SEKHOANE MOKEMANE Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 24th day of November, 1987.
This is an appeal against an interlocutory ruling by a magistrate made during argument by the counsel for the appellants The grounds of appeal read as follows
The learned magistrate's Ruling is bad in law inasmuch as it amounts to the denying of the Applicant's right to reply to the submissions
made on behalf of the Respondent,
The learned Magistrate's Ruling is bad in law inasmuch as when reference is made to the judgment she regarded that as making her court the Court of Appeal
The facts of the case are as follows On the 22nd November, 1985 the respondent, who was plaintiff in the court below, lodged a
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summons with the Clerk of Court, Quthing Magistrate Court, in which he claimed ejectment of the appellants, who were defendants in the court below, from his unnumbered residential and commercial site at Lower Moyeni in the Quthing urban area. There is a return of service which shows that the appellants were served. Relying on that return of service, on the 4th February, 1986,Mr. Pheko, counsel for the respondent, applied for a default judgment and the court heard the evidence of the respondent and two other witnesses. A default judgment was granted as prayed.
On the 27th February, 1986 Mr. Mphalane, counsel for the appellants, applied for rescission of the default judgment granted on the 4th February, 1986 on the ground that the appellants were never served with the summons commencing action and also showing that the First Appellant has a bona fide defence inasmuch as the site was allocated to her and that she had a Form C for it.
The application for rescission of judgment was argued before the learned magistrate on the 13th August, 1986. Mr. Mphalane first addressed the court and thereafter Mr. Pheko, and thereafter Mr. Mphalane was given the chance to reply. It was during his reply that Mr. Pheko objected that what Mr. Mphalane was replying to was not a point of law and that in his reply Mr. Mphalane must confine himself to points of law raised during the submissions. The record reads as follows
"Mr. N. Mphalane in reply The Respondents referred this court to the main action in this case in saying that the witnesses gave evidence to show that the site was allocated to Mokemane Respondent/ Plaintiff. We therefore submit that there was no documentary proof adduced in that case. Mr. L. Pheko objects and says this is not a point of law. In replying Mr. Mphalane has got
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to confine himself on points of Law only. Mr. Mphalane insists on replying this fact because as he states it was raised by Mr. Pheko and he regards it as a point of Law. The courts Ruing is that this is not a point of Law and therefore applicants side cannot give a reply to. I further regard it as making this court an appeal court over a matter held by it while it has no such right. Even if it was an appeal court it would have no right of hearing an appeal on a matter heard by it. Mr. Mphalane submits that they are being denied the priviledge of replying so they are appealing against the court's Ruling. The Application will have to be stayed until we hear the outcome of the appeal."
At the hearing of the appeal Mr. Pheko indicated that he wanted to raise a point in limine and was allowed to do so. The point was whether the order or ruling of the learned magistrate was appealable or not. He submitted that the order was a simple interlocutory one and did not have a final and definitive effect on the main action. He referred to the case of Pretoria Garrison Institutes v. Danish Variety Products (Pty) Ltd., 1984 (1) S.A. 839 (A.D.) at p. 870 where Schemer , J A. stated the test as to whether an order is a simple interlocutory one or not in the following words
"From the judgments of Wessels and Curlewis, JJ.A., the principle emerges that a preparatory or procedural order is a simple
interlocutory order and therefore not appealable unless it is such as to "dispose of any issue or any portion of the issue in the main action or suit" or, which amounts, I think, to the same thing, unless it "irreparably anticipates or precludes some of the relief which would or might be given at the hearing."
Mr. Mphalane argued that the order of the learned magistrate had a final and definitive effect on the main action. I disagree with this submission. The ruling of the learned magistrate was that the point raised by Mr. Mphalane was not a point of law but a point of fact. I do not find it necessary for me to decide whether the point was one of fact or law. What has to bo decided by this Court is whether the ruling "disposed of any issue or any portion of the issue
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in the main action or suit" or whether it "irreparably anticipates or precludes some of the relief which would or might be given at the hearing." It seems to me that the ruling had no effect whatsoever on whether the learned magistrate would eventually grant or refuse the application for rescission of her judgment, it also had no direct result upon the final issue, i.e. allocation of the site in question. The ruling did not dispose of any portion of the suit and was a purely procedural order. I have formed the opinion that the order or ruling was a simple interlocutory one and as such was not appealable.
Subordinate Courts Proclamation No.58 of 1938 clearly sets out rules and orders which are appealable, Section 54 (b) of the Proclamation reads
"Subject to the provision of the last proceeding section, a party to any civil suit or proceeding in a Subordinate Court may
appeal to the High Court against
any rule or order made in such suit or proceeding and having the effect of a final and definite sentence, including any order as to costs."
In terms of the aforesaid section the order or rule made by the trial court is obviously not appealable.
In the second ground of appeal the word "judgment" has been used. It was submitted that when reference was made to the "judgment" the learned magistrate regarded that as making her court the Court of Appeal It will be noticed that in the ruling itself the word "judgement was not used. According to the record after the learned magistrate had made her ruling, Mr. Mphalane insisted that he had the right to reply because the point had been raised by Mr. Pheko and he regarded it as a
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point of law. It was then that the learned magistrate said that she regarded it as making her court a court of appeal over a matter held by it while it has no such right. Clearly, the magistrate was referring to the ruling she had just made and was saying that she had no power to reverse her own decision. Shu went further to say even the court of Appeal could not reverse its own decision. The learned magistrate could not have said reference should not be made to her judgment while she was fully aware that the application was for the rescission of her judgment.
Mr. Mphalane submitted that if the Court came to the conclusion that the ruling is not appealable, it should come to the conclusion that the trial court gave leave to the appellant to appeal against the ruling. He referred to the case of Steytler, N.O. v. Fitzgerald, 1911 Vol II A.D. 295 at p. 302-303. In that case the Court was applying section 3 (b) of the Union Act No.1 of 1911, and section 27 of ACT No. 35 of 1896 which provided that no interlocutory order is subject to appeal save by leave of the Court or Judge making the order. I was not referred to any Lesotho statute similar to the South African Acts mentioned above and I am not aware of any. Under the Subordinate Courts Proclamation No.58 of 1938 and the High Court Act 1978 a magistrate has no powers to grant leave to appeal on an interlocutory order which is not appealable under section 54. The submission that leave was granted by the court is not supported by the record. Mr. Mphalane simply told the court that because they were denied the privilege of replying, they were appealing against the court's ruling He never applied for leave to appeal even if there were any statute providing for that procedure.
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In the result the point raised in limme must be held in favour of the respondent, the appeal is dismissed with costs.
J L. KHEOLA
JUDGE.
24th November, 1987.
For Appellants - Mr. Mphalane
For Respondent - Mr. Pheko.