Mahlakeng and Others v Southern Sky (Pty) Ltd and Others (C of A (CIV) No. 16 of 2003)

Media Neutral Citation: 
[2003] LSCA 116
Judgment Date: 
10 October, 2003

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C of A (CIV) No. 16 of 2003

IN THE COURT OF APPEAL OF LESOTHO

 

In the matter between

 

'MAPUSELETSO MAHLAKENG AND 55 OTHERS APPELLANTS

 

and

 

SOUTHERN SKY(PTY) LTD AND 7 OTHERS RESPONDENTS

 

Held at Maseru on 2nd of October 2003

 

CORAM:

Steyn, P

Ramodibedi, J.A.

Melunsky, J.A.

 

JUDGMENT

 

Summary

 

The 73 Applicants launched an application for a temporary interdict against the 8 respondents - Interdictory relief sought without proper service and short notice given at 4.25 p.m. on day preceding application on respondents - Provisions of rule 4 and rule 8 not complied with ~ Counsel failing to inform Court of likelihood of opposition - Dispute originating in 1995 and extensive negotiations over the years - Irregularly alleged urgent relief sought - Decisions in High Court and Court of Appeal summarised deprecating the abuse of the provisions of rule 8 in respect of matters allegedly urgent - Present case an example of gross abuse of rules of Court by counsel - Rule correctly discharged by Hlajoane J - Appeal

 

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the 30th of May although the founding affidavit was only signed on the 2nd of June. As indicated above such notice as the 8 respondents received on the late afternoon of the 4th of June called upon them to appear in Court at 9.30 a.m. the next day, the 5th of June 2003. No provision was made for them to give notice of their intention to oppose as is required by form "J" which is applicable to all applications other than those brought ex parte. (It was contended on appellants' behalf that the application was not brought ex parte because it was "served" on the respondents.) The periods prescribed by the rules before the matter could be set down either ex parte or otherwise were also not observed.

 

The first respondent alleged that by arrangement with the registrar's office, his legal representative appeared at 2.30 p.m. on the 5th of June to oppose the application, only to discover that a rule nisi, part of which was to operate as a temporary interdict, had already been granted by the High Court earlier that day, i.e. the 5th of June 2003.

 

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The certificate of urgency referred to above was included with the papers filed on record. It was signed by appellants' counsel, Mr. K.K. Mohau who was also the legal representative of the appellants who drafted the application and the supporting affidavits. His certificate reads as follows"I,

 

The undersigned,

KARABO KARABO MOHAU,

 

An advocate of the above Honourable court duly admitted and practising as such with offices at S5, Speedy Building, do hereby certify that I have considered the above matter and bona fide believe in to warrant urgent relief in order to preserve evidence in the dispute between the Applicants and the Third Respondent as well as to ensure that proper measures have been undertaken to take care of the safety of the applicants who live

 

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entitled to recover any of the costs in respect of the application from the applicants."

 

J.H. Steyn

PRESIDENT

 

I agree:

 

M.M. Ramodibedi

JUSTICE OF APPEAL

 

I agree:

 

L. Melunsky

JUSTICE OF APPEAL

 

Delivered at Maseru this 10th day of October 2003

 

For Appellants : Mr. K.K. Mohau

For 1st and 2nd

Respondents : Mr. R. Mathaba

For 3rd Respondent : Miss T. Matshikidza

For 4th 8th

Respondents : Mr. T.S. Putsoane