Mahlakeng and Others v Southern Sky (Pty) Ltd and Others (CIV/A PN/240/03 )

Media Neutral Citation: 
[2003] LSHC 79
Judgment Date: 
23 July, 2003

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CIV/A PN/240/03

IN THE HIGH COURT OF LESOTHO


In the Matter Between:


MAPUSITSO MAHLAKENG 1st Applicant

MAMPO THAMAE 2nd Applicant

THOLO THAMAE 3rd Applicant

THAMAE THAMAE 4th Applicant

MAMANASE NGOANAOFELA 5th Applicant

MALAFETSANE THAMAE 6th Applicant

MAMETSE MAKHETHI 7th Applicant

NKABO MOKHETHI 8th Applicant

NKALA TSIKINYE 9th Applicant

MERIAM THAMAE 10th Applicant

MKETSO THAMAE 11th Applicant

NTHABISENG RAMOKOENA 12th Applicant

MAMPHAPHANG SEKOLOPATA 13th Applicant

THOBEI SEKOETJA 14th Applicant

MAKHANELO MOKHETHI 15th Applicant

MOKOETLA SENOKO 16th Applicant

MATAU MOLATSOANE 17th Applicant

MPHAPA MLAULI 18th Applicant

MALIPHOFU THAMAE 19th Applicant


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TEBATSI MOKHETHI 20th Applicant

SEKAKE THAMAE 21st Applicant

MOHLOMI MAHLAKENG 22nd Applicant

MASEBOKA THAMAE 23rd Applicant

MAORIA SENOKO 24th Applicant

MAMOOKHO TJAMELA 25th Applicant

THERESIA RATSOMO 26th Applicant

MANEO MOHAPI 27th Applicant

MOTLAKAMANG MELAO 28th Applicant

MOHAPI MOHAPI 29th Applicant

TAHBEO THAMAE 30th Applicant

MAMOTSILISI MOAHLOLI 31st Applicant

MAJOPO MAHLOANE 32nd Applicant

BOLOETSI NTLAMA 33rd Applicant

KHETHISA MOAHLOLI 34th Applicant

MALINEO MAKENETE 35th Applicant

MANTHATI LESIA 36th Applicant

MAPHAKISO MAFATA 37th Applicant

MAMOHASI MANEI 38th Applicant

SIMON LETEKA 39th Applicant

MOTSOENE LETEKA 40th Applicant

MALEFUKA RANKOE 41st Applicant

KELETSO TLALI 42nd Applicant

MOKOTLA THAMAE 43rd Applicant

PHAKISO MAFATA 44th Applicant

MOTAU KHOTLE 45th Applicant

TLALI KHOTLE 46th Applicant

THABANG MOHAPE 47th Applicant

MAKHOTSO MOHAPI 48th Applicant

S RABOTSOA 49th Applicant

TSELISO MOHAPI 50th Applicant

MAKHATSO MOHAPI 51st Applicant

MATHABISO KHOELE 52nd Applicant

REPHOLOSITSOE KHOELE 53rd Applicant

MAMHALI MOJAKISANE 54th Applicant

KOPANO THAMAE 55th Applicant

BOSELE MOHAPI 56th Applicant

MOFOTA THAMAE 57th Applicant

KHAUHELO THAMAE 58th Applicant

TSELISO THAMAE 59th Applicant

RAMOKONGOANE MOHAPI 60th Applicant

RAMOKONGOANE MOHAPI 61st Applicant

NTHOLENG MOAHLOLI 62nd Applicant

MOEKETSI MOHAPI 63rd Applicant

MOAHLOLI MOAHLOLI 64th Applicant

TSIU MOTLOI 65th Applicant

MAKHOTSO MAHOMO 66th Applicant

JULIA NGOANAQFELA 67th Applicant

DAEMANE SENOKO 68th Applicant

TEBOHO THAMAE 69th Applicant


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MABONANG LETEKA 70th Applicant

MANKHALA NTEBELE 71st Applicant

MAMOTEBANG TSUNYANE 72nd Applicant

MATHABO VEKE 73rd Applicant

And

SOUTHERN SKY (PTY) LTD lst Respondent

B&E (PTY) LTD 2nd Respondent

LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY 3rd Respondent

MINISTER OF ENVIRONMENT 4th Respondent

MINISTER OF NATURAL RESOURCES 5th Respondent

THE OMBUDSMAN 6th Respondent

THE PRINCIPAL CHIEF THABA-BOSIU HA RATAU 7th Respondent

ATTORNEY GENERAL 8th Respondent


RULING ON POINTS IN LIMINE


Delivered by the Hon. Mrs Justice A. M. Hlajoane on 23rd July, 2003.


This is an Application arising out of some quarrying activities conducted at a quarry known as Semphuroaneng at Ha Ntsi. The prayers sought in the Application are couched as follows: I. Dispensing with normal rules as to form and service on account of urgency.


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That a rule Nisi issue returnable on the date and time to be determined by this Honourable Court, calling upon the Respondents to show cause if any why;


  1. the first and second Respondents shall not be interdicted forthwith from carrying out blasting activities at Semphuroaneng, Ha Ntsi, pending the finalisation of assessment of damage caused to Applicants' houses, at Ha Nisi to be conducted jointly by experts appointed by the Applicants and the Lesotho Highlands Development authority;


  1. The Applicants and the third Respondent shall not be directed to appoint experts representing each party to the dispute to assess damage caused to the Applicants' houses attributable to blasting activities conducted by the LHDA at Semphuroaneng within a period to be determined by the Court and such experts to complete their task within such time as may be determined by this Honourable Court.


  1. The first and second Respondents shall not be interdicted from carrying out quarrying activities at Semphuroaneng, Ha Ntsi, pending the linalisation of this application;


  1. The Respondents' exemption of first Respondent's quarrying activities at Semphuroaneng. Ha Ntsi, from an environmental impact assessment study that involves Applicants shall not be declared invalid;


  1. The Mining lease issued to the first Respondent herein authorising the first Respondent to conduct quarrying activities at Semphuroaneng, Ha


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Ntsi, shall not be cancelled;


  1. The Respondent shall not be directed to involve the Applicants in conducting an environmental impact assessment study of contemplated quarrying activities by the first Respondent at Semphuroaneng;


  1. The sixth Respondent shall not be directed to desist from writing correspondence prejudicial to the Applicants' rights and interests pertaining to the quarrying activities, at Semphuroaneng, without prior consultation with, and authorisation by, the Applicants herein;


  1. The Respondents herein shall not be directed to pay costs hereof; (i) The Applicants shall not be granted further and or alternative relief.


    1. That prayers 1 and 2 operate with immediate effect as an interim order of Court.

The Application was moved ex parte and an interim order was granted on the 5th June, 2003. The facts of this case which are a common cause briefly are that;


In 1995. Lesotho Highlands Development Authority Contractors operated a quarry at Ha Ntsi for material needed for the construction of the mountain road, leading to the Mohale Dam Site. In the performance of that work, blasting was required in order to loosen up the material before it could be used on the road construction.


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But, before the commencement of the work at the said quarry at Semphutoaneng Ha Ntsi, it was agreed between the parties that photographs of the houses or structures within 500 radius of the quarry be taken. This was for purposes of monitoring and evaluating the effect of such blasting, if any, to the said property. The houses were not only photographed but were also numbered.


The Ha Ntsi Community started complaining in 1996 about damage to their houses and attributed the blame to the blasting at the quarry by LHDA. This however was disputed by LHDA. And whilst the dispute between the Applicants and LHDA was contiunuing the first Respondent herein was granted a lease to mine the quarry at the same place, Semphuroaneng Ha Ntsi. Against this background, the Applicants contend that the Mining lease permitting the first Respondent to mine quarry at the said place was irregularly granted as there has been no consultation contrary to the provisions of the Mining Rights Act 1967. Applicants contend further that allowing the mining to be conducted before the realisation of the dispute between the Applicants and LHDA will destroy or compromise the evidence that Applicants have against the LHDA. Applicants contend further that it was in fact irregular and unreasonable for the first Respondents to have been permitted to mine without a full

environmental impact assessment study.


The Respondents raised the following points in limine in their answering affidavits.


(i) Dispute of fact


(ii) Non-compliance with the rules of Court


(iii) Material non-disclosure


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(iv) Detects in founding and supporting affidavits (v) Urgency.


Dispute of Fact


As rightly pointed out by the Applicants, mere assertion on the part of the Respondent that a dispute of fact exists in the proceedings is not enough to challenge the procedure followed in bringing an action. The Court must itself determine whether a genuine and real dispute of fact exists, which cannot be satisfactorily determined without the aid of oral evidence.

In the founding papers, the Applicants clearly indicated at Para 7 of 4th Applicant's affidavit that, "after the work of the mining of quarry was completed, problems developed as the third Respondent disputed liability for some of the damage done to the houses of people in the village. " Even in the replying papers, Applicants are not denying that there is a dispute of fact, they are only saying those disputes that exist are not genuine.


The third Respondent is denying liability and on the contrary show that Applicants within the 500m radius of Semphuroancng have had their compensation in the form of new buildings. The first Respondent also denies that they did not comply with the pre-conditions assessment, before carrying out its mining activities.


There is a dispute regarding the allegations that the third Respondent is responsible for the damage to Applicants houses through blasting at the quarry, and


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that as such the third Respondent is obliged to reconstruct the said houses. Again, it is disputed that the reports of the consultants engaged by the third Respondent are valid and can be the basis for a decision by the third Respondent with respect to the alleged damage to the houses.


The case of Standard Bank v Nengarten & Others 1987 (3) S. A. 695 has given out some guidelines to be followed in making a determination by the Court in the excrcise of its discretion on whether or not to call viva voce evidence. This would be where the Court finds it convenient and the issues are clearly defined. The dispute being cmparatively simple and a genuine speedy determination of the dispute being desirable.


In this case the disputes are so complex that a lot of injustice would be done if of the place may be necessary. It cannot be said that the issued were clearly defined as there is a dispute on whether or not there was compliance with some pre-conditions assesment before the mining activities. It is not even clear as to what those pre-conditions are.


Non-Compliance with the Rules of Court


Rule 8(4) of the High Court Rules reads: -


Every application brought ex parte shall be filed with the Registrar before noon on two day preceding the day on which il is to be set down to be heard. If brought upon

notice......................................... "


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The present Application had been brought, ex parte on the 4th June, 2003 and moved the following day the 5th June, 2003. The above Rule clearly stipulates that an ex parte Application is to be filed with the Registrar some two days prior to its being set down for hearing. Rule 8 (5) further requests that even if the Application is to be brought ex parte the other side must still be given chance to oppose if he so wishes. The rule explains the reason for allowing two days to elapse before the matter is set down for hearing. Rule 8 (5) reads: -


"Any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice of an application by him for leave to oppose. Supported by an affidavit setting forth the nature of such interest and the grounds upon which he desires to be heard, whereupon the Registrar shall set down such application for hearing at the same time as the ex parte application. "


The sub-section clearly dictates that the other side must also be heard before a decision can be made in an ex parte application, by giving him chance to file opposing affidavits if any, so that his side of the story is known when the application is heard ex parte. Recent decision of this Court has shown that an ex parte application is not to be heard the same day it is filed or even the following day. An allowance of full two days have to be given, LHDA v Phatela & Another CIV/APN/8/02 delivered by my brother Mofolo J.


Mere service does not cure the defect of having not allowed enough time in terms of the Rules to the Respondent before an interim order is sought. The order can only be obtained if the Court considers that giving notice might defeat the purpose of the application. Gallaghan v Norman's Transport 1992 (3) S. A. 500. The mere


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existence of some urgency cannot justify deviation from the rules of the game. Material Non disclosure


The Respondents are saying that the Applicants have not informed the Court that they refused to allow the liaison committee access to survey their buildings. They have also not disclosed that their problems with the third Respondent could not be resolved timeously because of the Applicants behaviour. And lastly that Applicants houses in fact had actually been surveyed by third Respondent's expert, the only handicap has been that the Applicants were not satisfied with the assessment.


It is the duty of a litigant who decides to approach the Court ex parte to disclose to the Court every circumstance that might influence the Court in deciding whether or not to grant the relief sought. Cometal - Mometal Sarl v Corliana Enterprises (Pty) Ltd 1981 (2) SA 412 at 414.


Le Roux J at 349 in Schlesinger v Schlesinger 1979 (4) S. A 342 extracted the following rules;


(i) in ex parte applications all material facts must be disclosed which might influence the Court in coming to a decision;


(ii) the non-disclosure or suppression of facts need not be wilful or mala fide to incur the penalty of rescission (i. e. of the order obtained ex parte); and


(iii) The Court appraised of the true facts, has a discretion to set aside the


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former order or to preserve it.


The Applicants in this case are denying the non-disclosure but are saying that they did not cooperate with the liaison committee because they were never consulted in the matter including the setting up of the committee.


The Court will always frown on an order obtained ex parte on incomplete information, and in the exercise of its discretion opts for the setting aside of the former order.


Delects in Founding and Supporting Affidavits


The founding affidavit of Thamae Thamae, who happens to be the fourth Applicant, and the Chief of Ha Ntsi, was according to the record placed before this Court, deposed to on the 2nd May, 2003. Thamae must have deposed to his affidavit something like three weeks before the first Respondent acting through the second Respondent commenced operations at the quarry on 27th May, 2003.


At paragraph 24 of Thamae's founding affidavit, he is recorded to have said, "It is only proper therefore that the orders sought in the notice of motion be granted as a matter of urgency, especially as the first Respondent acting through the second Respondent commenced operations at the Semphuroaneng quarry today, the 27th May. 2003"


In reply to this Thamae explained that his affidavit was prepared on the 27th May, 2003 and sworn to on the 2nd June. 2003. but that the Commissioner of Oaths


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overlooked to change the month typed in the affidavit.


Section 5 (2) of the Government Notice No. SO of 1964 - Oaths and Declarations Regulations, clearly spells out the duties of Commissioner of Oaths.


Section 5 (2)


Before attesting an affidavit the Commissioner of Oaths shall ask the deponent whther he knows and understands the contents of the affidavit and if his answer is in the affirmative Commissioner of Oaths shall-


  1. certify below the deponent's signature.......................


  1. thereafter set forth, in writing the manner, place and date of attestation of the affidavit. "


From the reading of subsection (b) of Section 5 of the above, it is clear that it is the Commissioner of Oaths who has to make a certificate of attestation in which it will be shown the manner, place and date of attestation of the affidavit so that the explaining on that part can only be made by the Commissioner of Oaths alone.


Similarly the supporting affidavits by lst, 2nd, 3rd, Mathamae Thamae who calls herself Applicant yet 4th Applicant is Thamae Thamae, 6, 7, 10, 11, 12, 14, 15, 16, 17, 18, 19, 24 to 61, 63. to 64, 67 to 69, 71 and 73 Respondents were all also deposed to on the 2nd May, 2003 before the happening of the event, which is the operation at Semphuroaneng quarry on the 27th May, 2003, and before, according to 4th Applicant's version at Para 24, founding affidavit was deposed to.


It is clear therefore that both the founding affidavit and supporting affidavits were deposed to before the mining of quarry at Semphuroaneng, thus making them


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defective as on the papers before Court they were all deposed to on the 2nd May, The other contention is that the notice of motion is not only incredible but also defective in as much as the names of the deceased appear as Applicants. This has not been denied by Applicants, save to explain that their next of kin erroneously made affidavits using deceased persons names because the properties had been registered by LHDA under the deceased persons names.


The Court's attention was drawn in particular to the supporting affidavits of 'Maphakiso Mafata, one of those who claim to have used the names of the deceased. The one signature appears in support of the founding affidavit, and the other in support of the replying affidavit. The Court had occasion to look at both signatures and found them to be manifestly different from merely looking at them.


In the case of Moses v R 1997 LLR 77, where the accused in that case had been charged and convicted in dealing with dagga. The appeal was against an order by the Court for forfeiture of the motor vehicle which had been used for the conveyance of the dagga. The signature on an invoice was in issue. The Court held that a Judicial Officer was quite entitled to come to his own conclusion where the two handwritings were manifestly different from merely looking at them, and that there was no need to request an expert's aid in handwriting. But the Court went further and showed that once a Judicial Officer uses a technical language expected only from an expert then he ventures into a field where he is ignorant but assumes the role of an expert.


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In the present case, I have already shown that the two signatures by mere looking at them manifestly different. Now this, coupled with the explanation why names of deceased persons appeared as Applicants, and signing as those deceased persons fits the conclusion that the explanation is not only false but improbable. If that was the case the Commissioner of Oaths must have spotted that and advised accordingly.


Urgency

The Application is not urgent as the Applicants themselves have not treated it as such. The Court has already shown earlier on that it does not buy the story in trying to explain why the founding and supporting affidavits reflect 2nd May as the date on which they were deposed to. Besides, the Applicants became aware on the 8th of May when the Ombudsman uplifted his restraining order that the first Respondent was going to resume operations. Even on the 27th May 2003 when they witnessed the blasting. Applicants did nothing, only to rush to Court some 8 days later on the 4th June 2003.


Applicants arc saying they opted for this procedure because of existence of some real and well founded apprehension that respondent would destroy their evidence before trial. Eiser and Another v Vuna Health Care (Pty) Ltd and Others 1998 (3) S. A 139 explains instances of granting Anton Piller orders whose main purpose is to preserve evidence to be used.


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Thamae Thamae, the 4th Applicant in his founding affidavit at para 6 has shown that, buildings within 500 metres radius were even photographed and numbered to facilitate the assessment of damage following the blasting. This means therefore that evidence was preserved by the taking of those photos and numbering of same.


The Application therefore for all intents and purposes is not urgent and should therefore not have been treated as such.


For the reasons given the Rule is accordingly discharged with costs.


A. M, HLAJOANE

JUDGE


For Applicants: Mr Mohau

For 4th Respondent: Mr Mathaba

For 3rd Respondent: Mr Van Tonder

For 4th to 8th Respondents: Mr Putsoane