Makata v Commissioner of Police and Another (C OF A (CIV) N0.36/09)

Media Neutral Citation: 
[2010] LSCA 8
Judgment Date: 
23 April, 2010

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IN THE COURT OF APPEAL OF LESOTHO




C OF A (CIV) N0.36/09

In the matter between:



TŠABALIRA MAKATA APPELLANT



AND



COMMISSIONER OF POLICE FIRST RESPONDENT

ATTORNEY GENERAL SECOND RESPONDENT




CORAM: RAMODIBEDI, P

SCOTT, JA

HOWIE, JA

HEARD: 14 APRIL 2010

DELIVERED: 23 APRIL 2010







SUMMARY


Jurisdiction – Section 16 of the Subordinate Courts Act No. 9 of 1988 – Lays down separate and distinct grounds for founding jurisdiction – Delay in delivery of judgment.





JUDGMENT



RAMODIBEDI, P




[1] The dispute in this appeal commenced in the Maseru Magistrate’s Court. The appellant, as applicant, brought a notice of motion for relief couched in the following terms:-


1. Extending the period within which to institute an action against the Respondents herein;


2. Granting Applicant leave to institute his action against the Respondents herein within three months from the date leave is granted;


3. Directing the Respondents herein to pay costs hereof only in the event of their opposition hereto; otherwise, costs hereof to be costs in the main action to be instituted;


4. Granting Applicant further and or alternative relief.”



[2] It appeared from the appellant’s founding affidavit that he intended suing the respondents for damages for the alleged unlawful arrest and detention by the Bokong Police in Leribe district on 12 November 2004. He explained that he could not bring the action timeously, that is to say, within six months as laid down in section 77 of the Police Service Act 1998 because he was out of pocket. He had no money to instruct lawyers. Furthermore, he averred that he was unaware of the existence of legal aid services in the country.


[3] The respondents did not file any answering affidavits. Instead, they raised a point in limine to the effect that the Maseru Magistrate’s Court had no jurisdiction in the matter. This was so because, as they said, the cause of action arose in Leribe district.


[4] The Maseru Magistrate’s court upheld the respondent’s point in limine, and so did the High Court on appeal. Hence a further appeal to this Court by leave of the court a quo. As can be seen, the point for determination is short. It will not bear any elaboration.


[5] The starting point in determining the issue of jurisdiction, or lack of it, insofar as this case is concerned is no doubt section (16) of the Subordinate Courts Act No.9 of 1988 (“The Act”). That section must be read as a whole in order to determine its true scope and object. It reads as follows:-


“16. Save as otherwise provided by this Order or by any other law,

the persons in respect of whom the court shall have jurisdiction shall be,


  1. any person who resides, carries on business, or is employed within the district;



  1. any partnership whose business premises are situated, or any member whereof resides, within the district;



  1. any person whatever, in respect of any proceedings incidental to any action or proceedings instituted in the court by such person himself;



  1. any person, whether or not he resides, carries on businesses, or is employed within Lesotho, if the cause of action arose wholly within the district;



  1. any party to interpleader proceedings, if,



  1. the execution creditor and every claimant to the subject matter of the proceedings reside, carry on business, or are employed within the district; or



  1. the subject matter of the proceedings has been attached by process of the court;



  1. any defendant, whether in convention or reconvention, who appears and takes no objection to the jurisdiction of the court.”




[6] As is plain from the section, the Legislature laid down seven grounds for founding jurisdiction. These grounds are in my view separate and distinct from one another. In casu, the appellant chose the first ground, namely, the place where the respondents reside, carry on business or are employed. It is common cause that that place is Maseru. It follows that the Maseru Magistrate’s Court has jurisdiction in the matter. In this regard, I am in respectful agreement with the following remarks of Centlivres JA, writing for the South African Appellate Division in Ex parte Minister of Native Affairs 1941 AD 53 at 58:-


In a large number of statutes relating to the jurisdiction of a Court we find that the Court is given jurisdiction over a person who resides within its area. In this respect the Legislature has simply followed the common law rule, actor sequitur forum rei.”



[7] It requires to be stressed that the appellant, as plaintiff and therefore dominus litis, was entitled to choose the forum in which to institute the action. As this Court acknowledged in Mpati v Lekaka 1995 – 1999 LAC 73 at 78, the court will not lightly interfere with plaintiff’s right to choose the forum.


[8] In casu, Adv. Moshoeshoe for the respondents sought to rely on the following remarks made by the trial Magistrate:-


It is true, as Mr Mokhehle pointed out, that a person may be

sued at the forum where he has a place of residence and or where he holds a permanent job. However, as far as these proceedings are concerned the maxim fails. The Respondents herein are representatives of the State. The Applicant has cited them in their official capacities. The State has apparatus everywhere to enable a smooth and efficient running of its affairs. It would be very absurd and may lead to a backlog of cases if litigants, when so desiring, would decide to institute proceedings in the Magistrate Court of Maseru district even in situations where the causes of action have arisen elsewhere other than the district of Maseru, merely because this is where the official representatives of the State are resident or that they hold their permanent jobs herein. It should be clear that which is being sued is the state and not the cited Respondents. They merely represent the state.”


[9] In reply, Adv Mohau KC for the appellant correctly submitted in my view that the trial Magistrate’s reasoning is flawed at least for three reasons, namely:-


  1. It conflates different types of jurisdiction as laid down in section 16 of the Act.



  1. It misses the real point that the Crown may be sued at its administrative centre.


  1. It overlooks relevant statutory provisions contained in section 16 of the Act.






[10] Indeed as I have said in paragraph [6] above and as I repeat now for emphasis, the grounds for jurisdiction as laid down in section 16 of the Act are separate and distinct from one another. The plaintiff has the right to choose any one or a combination of these grounds for jurisdiction.


[11] Furthermore, it is plain from a proper reading of section 16 that the Legislature intended to widen jurisdiction rather than restrict it. Thus, for example in terms of section 16 (f) such jurisdiction may be found even where the defendant appears but takes no objection to the jurisdiction of the Court. This is plainly so regardless of the defendant’s place of residence or where the cause of action arose.


[12] Finally, Adv. Moshoeshoe relied on the South African case of Minister of Law And Order v Patterson 1984 (2) 739 (A) in support of the trial Magistrate’s approach. In that case the plaintiff instituted an action for damages against the Minister of Law and Order in the Magistrate’s Court in Cape Town. The Minister raised a special plea, objecting to the Magistrate’s Court’s jurisdiction on the ground that the cause of action arose in the area of jurisdiction of the Magistrate’s Court at Hermanus. The Appellate Division held that the question whether the plaintiff was entitled to sue the Minister in the Magistrate’s Court in Cape Town had to be determined by reference to the provisions of section 28 of the Magistrate’s Court Act 32 of 1944.


[13] For comparative purposes it is convenient to reproduce the section in question. It provided as follows:-


28 (1) Saving any other jurisdiction assigned to any courts by this

Act or any other law, the persons in respect of whom the court shall have jurisdiction shall be –


  1. any person who resides, carries on business or is employed within the district;



  1. any partnership whose business premises are situated or any member whereof resides within the district;



  1. any person whatever, in respect of any proceedings incidental to any action or proceeding instituted in the court by such person himself



  1. any person, whether or not he resides, carries on business or is employed within the Union, if the cause of action arose wholly within the district;



  1. any party to interpleader proceedings, if –





  1. the execution creditor and every claimant to the subject matter of the proceedings reside, carry on business, or are employed within the district; or



  1. the subject-matter of the proceedings has been attached by process of the court;



  1. any defendant (whether in convention or reconvention) who appears and takes no objection to the jurisdiction of the court.

(2) ‘Person’ or ‘defendant’ in this section includes the Government

of the Union and the South African Railways and Harbours.”





[14] Although section 28 (1) is substantially similar to our section 16 it is instructive to observe that that section introduced subsection 2 in the following terms:-


“(2) ‘Person’ or ‘defendant’ in this section includes the

Government of the Union and the South African Railways and

Harbours.”



[15] As can be seen, section 16 of our Act does not have a corresponding section to section 28 (2) of the South African Act. I consider, therefore, that it would be dangerous to rely on South African cases on the point.


[16] In any event, it is further instructive to note that despite the differences in the Acts of the two countries, the Appellate Division in Patterson’s case came to the conclusion that the place of business of the State is Pretoria. It was there that the action should have been instituted. On that analogy, therefore, the principal place of business of the respondents in the present case is Maseru. Even if one approaches the matter from the angle that they were sued in their official capacities, Maseru remains the seat of Government. On either consideration the Maseru Magistrate’s Court is vested with jurisdiction in the matter.


[17] Weighing all of the foregoing considerations, it follows that the appeal must succeed.


[18] Before closing this judgment it is regrettably necessary once again to comment on the inordinate delay by the High Court in disposing of the matter. The parties are on common ground that the learned Judge a quo reserved Judgment on 23 April 2007. He only delivered written reasons on 16 November 2009, a period spanning 2 years,


7 months and 23 days. There cannot be the slightest doubt that this is an unconscionable delay on any account. Since the appellant’s application was launched in 2005, it follows that it took four (4) years to dispose of it up to the High Court level. It is in my view appalling, to say the least, that a simple application for an extension of time within which to institute an action has dragged for so long. It is a sorry indictment on the administration of justice in this country.


[19] It is again regrettably necessary to record that this Court has on several occasions drawn the attention of His Lordship the Chief Justice to the unwelcome culture of some Judges failing to deliver written reasons of judgments timeously. I point to the following cases by way of examples:-


Lesotho Teachers Trade Union v Director of Teaching Service And Others 2000 – 2004 LAC 803 at 804 – 806; Otubanjo v Director of Immigration And Another 2005 – 2006 LAC 336 at 343 – 346.


[20] As the highest Court in this country it is our constitutional duty to point out anomalies that clog the justice system. Similarly, it is the constitutional duty of the High Court, including the lower tiers of the courts in this country to accept loyally the injunctions and directives of this Court. It cannot be otherwise. See for example Broome v Cassell [1972] AC 1027 (HL) at 1054. It is in that spirit that the attention of His Lordship the Chief Justice is once again drawn to the Judge a quo’s inordinate delay in furnishing written reasons of judgment in the matter.


[21] In all the circumstances of the case the order of this Court is the following:-


  1. The appeal is upheld with costs.



  1. The matter is remitted to the Maseru Magistrate’s Court for determination on the merits on the same papers but before a different Magistrate.





  1. Costs in the High Court leading up to this appeal shall be borne by the respondents.



  1. A copy of this judgment will be referred to His Lordship the Chief Justice for his consideration.


___________________________

M.M. RAMODIBEDI

PRESIDENT OF THE COURT OF

APPEAL OF LESOTHO






I agree: _________________________ D.G. SCOTT

JUSTICE OF APPEAL






I agree: _________________________

C.T. HOWIE

JUSTICE OF APPEAL





For the Appellant: Adv. K.K. Mohau KC


For the Respondent: Adv. L.P. Moshoeshoe