CIV/T/679/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

A.C.
BRABY (PTY)LTD Plaintiff

VS

THE
ATTORNEY GENERAL Defendant

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Mr. Justice. M. Lehohla on the 1st Day of May, 1987.

The above
action was instituted by Plaintiff against Defendant on the grounds
that defendant failed to pay to plaintiff an amount
of M2503.56 in
respect of advertising services rendered to the Ministry of
Information and Broadcasting on behalf of the Lesotho
Government.
Plaintiff alleged in summons served on defendant that despite demand
in terms of section 4 of the Government proceedings
and Contracts Act
1965 delivered to defendant on 2nd April 1985 defendant failed to
effect payment.

The
action was opposed in terms of Notice of Intention to defend filed on
6th November 1985, copy whereof was served on plaintiff's
attorneys
on the same day.

On 3rd
July 1986 plaintiff filed a notice of withdrawal of action with copy
served on defendant on the same day.

What is
in issue was the question of costs following the application by
defendant in terms of Rule. 43(1) d.

2

On 11th
August 1986 an order for costs was entered in. favour of defendant.

In an
argument raised by Mr. Redlinghuys in opposition to the application
for costs it was submitted that applicant had not indicated
when
payment was made. Further it was submitted that applicant was
required in terms of Rule 8(21) to have filed an affidavit setting

out his claim. Rule 8(21) reads:

"Notwithstanding anything to the contrary contained in this
Rule, interlocutory and other applications incidental to pending

proceedings may be brought on notice, accompanied by such affidavits
as may be required and set down..............."

It is
significant that the wording only shows that an application envisaged
by the above Rule may and not shall be brought on notice.
If I am
correct in the view that bringing the matter on notice is optional,
then the filing of an accompanying affidavit is equally,
if not even
more optional. But should the correct position be that the filing of
the notice is not optional, the filing of accompanying
affidavit
becomes sine qua non procedure i.e. something that cannot be
dispensed with once the notice has been filed, then it would
be
essential to determine the meaning of the phrase underlined in the
expression "applications incidental to pending proceedings"

appearing in Rule 8(21) above. My paraphrasing of the underlined
words could be rendered as referring to applications originated
in
Court, but awaiting final determination. Unlike in Criminal,
proceedings where (vide CRI/A/55/83 William Mabote VS REX)
(unreported)
Mofokeng J. correctly pointed out that withdrawal of an
appeal can only be effected with leave of Court, it seems to me that
there
is no necessity for leave of Court to be sought by a party
wishing to withdraw in a civil matter. Notice of withdrawal served
and
filed is enough

3

Once that
has been done it would seem the final determination of the matter has
been effected by either of the parties giving notice
That being so it
cannot be said afterwards there are any proceedings pending.
Therefore it would appear provisions of Rule 8(21)
cannot apply in
such a case.

Relying
on Viljoen vs Federated Trust Ltd 1971(1). S.A 750 Mr, Redlinghuys
submitted correctly that Steyn A.J. dealt with striking
out in that
case; and further submitted that facts on which applicant relies must
appear on record. If the record is deficient
on that he must not
complain that the record does not show what he wants to show,"
However perusing Yorkshire Insurance Co.
Ltd vs Reuben 1967(2) SA. at
265 where Munnik J had occasion to deal with the South African Rule
6(11) which is on all fours with
our Rule 8(21( supra I discovered
that his statement of the law is not only accurate but has the
beneficial effect of throwing
light on the instant matter. Referring
first to South African 6(11) read with 6(1) which is analogous to our
8(1)" the learned
Judge said

"It
will be noticed that this specifically refers to applications
incidental to pending proceedings and I have no doubt that
the
present application is such an application - being brought 'on
notice' as opposed to Rule 6(1) where it is provided that every

application should be brought on notice of motion "

Going
further, and this is important, the learned Judge said:

"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, in further applications
incidental to such
proceedings, the parties would be required to go through all the same
formalities again with all the concomitant
and unnecessary expense."

4

The
reading of my underlined phrase between the penultimate and the last
stops should illustrate the point and dispel whatever doubts
there
may have been as to the proper legal position.

I
therefore agree with Mr. Mohapi for the defendant that whatever
deficiecies are apparent in the defendant's notice as to date
of
payment would have been argued if the matter had gone to trial. But
it was withdrawn. The defendant had been put under the necessity
to
enter appearance, plead and come to court. See C of A (CIV) No. 6 of
1983 Mohatla vs Commissioner of Police & 2 Others (unreported)

where although the detainee had been released by respondents before
the return date the Court of Appeal set aside the High Court
order
that each party bear its own costs and made an order for costs
against respondents because the appellant had been obliged
to come to
Court to seek relief in the first place.

Defendant's
notice served on plaintiff is sufficiently informative regarding what
the substance of the application is about; namely
costs. Requiring
defendant to file an affidavit, I am afraid, would put him to
unnecessary expense. That cannot be allowed.

In the
result the defendant's application for costs in the instant case was
granted.

ACTING
JUDGE

1st May,
1987

For
Plaintiff : Mr Redlinghuys

For
Defendant : Mr Mohapi