IN THE HIGH COURT OF LESOTHO
In the matter between:
WELCOME TRANSPORT (PTY) LTD PLAINTIFF
MOSIANE CONSTRUCTION (PTY) LTD RESPONDENT
Delivered by the Honourable Mr. Justice T. Monapathi on the 3rd day of November, 1999
It was unchallenged that the Respondent, in this application for stay of execution and recission amongst other filed two notices of intention to oppose. The other one was followed by a notice of anticipation and an opposing affidavit. This notice of anticipation which was dated the 1st November 1999 appointed the day of yesterday the 2nd November 1999 as anticipated return date.
A rule nisi in the matter had been secured before Ramodibedi J on the 7th October 1999 and was returnable on the 25th October 1999. Mr. Phafane for Applicant and Mr. Buys for Respondent agreed that the matter be postponed to the 8th November 1999 and rule be extended thereto. It was not disputed that as at that date of postponement the aforesaid notice of anticipation had not been served. Presumably it had as yet not been the intention of the Respondent to file the notice.
The matter could not be heard yesterday but was postponed to today when
Mr. Phafane raised two points-in-limine without prior notice. They were firstly that the notice of anticipation was irregular and was conflict with Rule 8(18) in that less than 48 hours was appointed for hearing in the Respondent's notice of anticipation. That it was less than 48 hours was not disputed.
The second point taken by Applicant against the notice of anticipation was that having considered to postpone the matter on the 25th October 1999 the Respondent forfeited the right to anticipate the rule thereafter because there was an estoppel. That Respondent had by failure to anticipate before that date of postponement had by conduct represented to the Applicant that he did not intend to anticipate. The effect of the representation was that the Applicant was led to believe that there would be no such anticipation and he would prepare for hearing and settle replying papers in the ordinary way in the context of the return day of the 8th November 1999.
Mr. Buys conceded that the anticipation notice was conflict with Rule 8(18) in the way it was submitted by Mr, Phafane. He replied that there was no prejudice however. I did not agree that there was no prejudice. I did not accept that the test as to whether or not there was prejudice was a proper one. The way I saw it there was no good reason why that rule had not been observed. Indeed the non observance of that rule correctly reminded Mr. Phafane of the remarks of the Court of Appeal in STRONG THABO MAKENETE v MAJOR GENERAL LEKHANYA 1991-1992 LLR 126 that non-compliance with the rules will not simply be overlooked by the Court and that the continuous and rampant non-observance of rules of Court by our practitioners bordered on contempt.
The prejudice brought by non-observance of the time limit contained in the Rule 18(18) was as I observed tied up with the effect of the overly restricted time
which gave Applicants lesser time to prepare and do his papers. That could not be ignored.
I considered that time was the essence of a notice of anticipation. It was this sense that such anticipation could not be at "anytime" including after postponements or extension of the rule relevant rule. It was worse where the extension was by consent. It made the Applicant to rest hoping that it was expected of it to reply in due course, in terms of the rules, or await the agreed return day.
Mr. Buys in urging the Court to condone non-compliance with the time limit in Rule 8(18) pointed to different interpretation that have often been given by the High Court in some rules for instance as to the requirements of essentials of rescission application to show that the rules of practice are not binding and inflexible. I agreed partly with above submissions in that I recalled where this Court gave a different interpretation as to requirement of payment of security and another requirement in rescission application which I need not spell out here. But I reasoned that where another judge of this Court has given an interpretation of a rule the force of that rule as guiding principle becomes forceful and persuasive authority. I felt therefore that the case of DORBYL FINANCE v MASOABI CIV/APN/429/92 before Kheola J (as he then was) had correctly interpreted the Rule 8(18) in that once had been a postponement or extension of a rule the Respondent was placed in a situation where he would not seek to anticipate if he had not done so before the postponement. I was not able to get a copy of the ruling. Both Counsel (who had been involved in that application) agreed that that was the effect of the ruling.
Mr. Buys after making what I considered to be considerable concessions on
both points submitted that the points had been taken without advance notice and without a formal application to strike out (in terms of Rule 30) the impugned notice of anticipation. I agreed that normally attacks against transgression of rules have to be made in as formal a fashion as possible. But the dictate of the pressures of the time and urgency of proceedings will not always lend themselves to strict formality. In any event I took it that points of law can be raised at anytime where there is no prejudice to the other side. I found also that the attitude of the Applicant in having taken the points without formal notice from the bar as it were could not be punished by denial of costs.
I concluded that in all the circumstances that arose in the matter, when it was being argued, the application for anticipation of the return day made by the Respondent ought to fail with costs to the Applicant. The return day of the 8th November 1999 remained valid.
I shared the concern of Mr. Buys that matters which are postponed to motion Court will more often be postponed to another day and will not be argued on the motion day. But I felt that the Registrar could always be approached to remove a matter which is contested from the motion roll (where it does not really belong) to another roll or before a judge on the same date. This concern about delay could not have been a justification for breach of the Rule 8(18).
The points taken by Mr. Phafane succeeded with costs.
For the Applicant : Mr. Phafane For the Respondent: Mr Buys