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W v W (CIV/T/344/2004)
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF LESOTHO
In the matter between:
Delivered by the Honourable Ms Acting Justice N. Majara
on 5th November 2004
Plaintiff herein instituted action against defendant in which he claims relief in the following terms:-
Judicial separation Mense Et Toro on grounds of defendant’s malicious desertion and cruelty.
Custody of the minor child MW.
Forfeiture of the benefits of the marriage.
Costs of suit in the event of opposition.
Further and/or alternative relief.
Defendant entered notice of appearance to defend and having been served with a notice to file plea she raised and filed a special plea as follows:
That Lega-Man Chambers Incorporated has no right to represent plaintiff before this honourable court for the following reasons:-
Plaintiff’s representative does not have the right of appearance before this honourable court since it is not a member of the Bar and/or side bar of Lesotho.
The Summons commencing action has not been signed by a duly admitted attorney of this honourable court.
The office appointed by plaintiff as the office of attorneys of record is not the office of an attorney.
Defendant also prayed that plaintiff‘s claim be dismissed with costs as between Attorney and Client. Defendant’s attorney of record as per the court papers was Ms Tau- Thabane.
On the 1st November 2004 Mr Mabulu for plaintiff and Ms Qhobela for defendant appeared before the court for the hearing of the matter. Before Ms Qhobela could argue defendant’s point in limine as shown above, Mr Mabulu raised a point in limine from the bar as follows; that in terms of the Legal Practitioners Act of 1983 Section 42 (4) thereof, Ms Qhobela was not supposed to appear on behalf of any person (defendant in casu included) other than her employers because she is employed by KPMG which is a statutory body and that the attorney of record is Ms Tau-Thabane. He argued that as per the provisions of the subsection, Ms Qhobela could not take instructions from Ms Tau-Thabane because the latter is not her employer.
In reaction to this argument, Ms Qhobela disputed that she was an employee of neither KPMG nor Harley and Morris but was an advocate of this court who can take a brief from any attorney. She went on to argue that even the subsection that was cited by Mr Mabulu was not applicable to her and that the relevant subsection would be subsection 2 which in her opinion still did not preclude her from taking a brief from an attorney.
Mr Mabulu’s reply was to the effect that Ms Qhobela was an employee of a statutory body and that she had failed to show where her offices are. He contended that Ms Qhobela earned a monthly salary from KPMG which is different from remuneration of a person who has been instructed by an attorney.
At this stage, the matter was postponed to the afternoon in order for the court to consider the arguments of both sides before it could make a ruling. Having looked at the relevant sections of the statute, I dismissed Mr Mabulu’s point in limine for the following reasons:-
It is not disputed that Ms Qhobela is an advocate of this court. What is submitted by Mr Mabulu is that she is restricted to appear only as per instructions of her employer as per the subsection. The court therefore had to determine the meaning of the provisions of the section.
Section 42 (4) of the Legal Practitioner’s Act 1983 provides;
“An advocate who is employed by a statutory corporation may (my underlining) appear before the courts of Lesotho not being Central or Local Court, on behalf of his employer and may, (my underlining) notwithstanding section 6(2), take instructions direct from his employer.”
Section 6(2) in turn provides;
An advocate shall not –
“appear in the Courts of Lesotho otherwise than on the
instructions of an attorney admitted to practice in the
courts of Lesotho; and that attorney is in possession
of a practicing certificate”;
(b) “demand or receive money or instructions direct from
a client except through his instructing attorneys being
attorneys in possession of current practicing certificate.”
My understanding of the wording of the two sections is that section 6 is a mandatory section whereas section 42(4) is an enabling and additional one to section 6 specifically formulated for legal practitioners who are employed by a statutory corporation. Section 42(2) is not restrictive hence the use of the word may. In my opinion, the intention was not to restrict advocate to taking briefs from attorneys but to give them a leeway to can be employed by statutory corporations.
I did not find any other words in the section whose meaning could be construed as restricting such advocates to taking instructions only from their employers. That is why the legislature added the words “notwithstanding section 6(2)”.
When proceedings resumed and the court having dismissed that particular point in limine, Ms Qhobela argued the point in limine which had been raised in the defendant’s special plea as had been filed in the courts file.
On the third reason raised by defendant’s counsel to wit, that the office appointed by plaintiff as the office of the attorneys of record is not the office of an attorney, Mr Mabulu handed before the court a copy of his practising certificate issued by the Law Society of Lesotho in terms of Section 25 of the Legal Practitioners Act no.11 of 1983 which stipulates that ‘KHATHATSO D. MABULU practices as an attorney under the name of t/a Lega-Man Chambers Incorporated’. This certificate bears the stamp of the Law Society and the signatures of the Society’s secretary and treasurer respectively. Its authenticity was not challenged and the court found no reason not to admit it as proof that such an office is that of an attorney. Although the said certificate’s expiry date is the 31st October 2004, which day had already passed on the date of hearing, I did not think that it was fatal as in my opinion, expiry of a document per se does not necessarily disprove a fact, in this case being that, plaintiff’s counsel is an attorney of record.
In her arguments in court, Ms Qhobela’s challenge was based on the fact that Lega-Man Chambers Incorporated is not a person and therefore it cannot append a signature on any document. She submitted that in terms of Rule 18(6) of the High Court Rules, a Special Power of Attorney has to contain the names of the person within the office and that in casu, since Mr Mabulu had not signed in person he does not have the right of appearance before this court.
She contended further that even in terms of Rule (1) ‘attorney’ means a person admitted and enrolled as such. She also cited Rule 2 of the Legal Practitioners Act which stipulates that “attorney” means a person admitted to practice as an attorney-at-law in the courts of Lesotho. Ms Qhobela submitted that Lega-Man Chambers is not a juristic person who can sign and/or represent clients. She argued that where such a company is not known, it becomes difficult to identify the relevant attorney as was the case in this instance.
In both his Heads of Argument and in his reply, Mr Mabulu argued that the points in limine raised by defendant should have been merited with factual aspects and defendant ought to have established whether plaintiff’s counsel was in actual fact not admitted in terms of the Act. He argued that he is the plaintiff’s attorney and that Lega-Man Chambers Incorporated is the name under which he is practicing. His submission was that defendant’s special plea was based on speculation and not concrete proof.
Mr Mabulu’s further submission was that the name Lega-Man Chambers Incorporated is just a professional name which is interchangeable with his personal name, a factor also reflected in his practising certificate. With regard to the argument that the Power of Attorney was faulty in that it had not been properly signed, Mr Mabulu argued that there is no specific rule which precludes an attorney from using his firm name. He contended that this was especially so regard being had to the purpose of a Power of Attorney. He contended that the document is meant to guard against litigants denying having given their counsel authority to legally represent them. His submission was that if defendants did not know who Lega-Man Chambers Incorporated is, they ought to have sourced the information from the office of the Law Society.
In the light of these arguments, and taking into account the fact that Ms Qhobela stated that they were not challenging the fact that Mr Mabulu is an attorney nor that Lega-Man Chambers Inc is a professional name, but are challenging the fact that a firm which is not a person as envisaged by the rules can be instructed, the issue that the court has to determine is whether the Power of Attorney and the subsequent documents in the courts file as signed by plaintiff’s counsel have not been duly signed by a duly admitted attorney of this court.
Rule 18(6) of the High Court Rules to which the court was specifically referred provides;
“The summons shall be signed by the Registrar and the plaintiff’s attorney (my underlining) or plaintiff personally and must disclose the attorney’s address or plaintiff’s address which must be within, five kilometers from the office of the Registrar at which he will accept service.”
In my opinion, the wording of this section does not anywhere suggest that the name of the attorney has to be shown. It simply provides that such attorney shall sign the summons and his address be disclosed. This, Mr Mabulu did. We cannot therefore impute words which are not included in a statutory provision.
Rule 1 of the same Rules in turn provides the description of who an attorney is and it provides that such person shall be one “… admitted and enrolled as such…” in terms of the Legal Practitioner’s Act.
When one scrutinizes defendant’s attorney’s Practising Certificate, it is couched in the following terms and in so far as is relevant to the point at issue:
A practicing Certificate is hereby issued in terms of Section 25 of the Legal Practitioners Act No.11 of 1983 to
KHATHATSO D. MABULU
Who practices as an Attorney under the name of (my underlining) t/a LEGA-MAN CHAMBERS INCORPORATED
2. Prior to and as at the date of this certificate, there have not been and there are no circumstances disqualifying the said Practitioners from practicing as such in Lesotho.
In the light of the above, the court is convinced that in the absence of any challenge to the authenticity of this certificate, which clearly states that Mr Mabulu practices as an attorney under the name Lega-Man Chambers Incorporated, the court fails to find any reason why the documents that he has signed as such should not be accepted as having been duly signed by a duly admitted attorney of this court. This is especially so in the light of the requirements of Rule 18(6) of the High Court Rules as cited above.
As Mr Mabulu has rightly pointed out, before defendant’s attorney could challenge this fact in court, they ought to have sourced the information from the offices of the Law Society. I agree that as the Society should have copies of its own records such as Practising Certificates, which should be readily available on demand.
Although Ms Qhobela submitted that she did try to find this information from the offices of the Law Society, the court is not convinced that it could not be found for the reasons as shown above.
For these reasons, the point raised in limine is dismissed with costs, on a party to party scale since both counsel’s points in limine have been dismissed by this court.
For Plaintiff : Mr Mabulu
For Defendant : Ms Qhobela