Mohale v Lesotho Electricity Corporation (CIV/APN/301/2003 )

Case No: 
CIV/APN/301/2003
Media Neutral Citation: 
[2003] LSHC 132
Judgment Date: 
3 November, 2003

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CIV/APN/301/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:


SEBILI MOHALE Applicant

and

LESOTHO ELECTRICITY CORPORATION Respondent


For Applicant : Mr T Mahlakeng

For Respondent : Mr S Phafane


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 3rd November 2003


Cases Cited: 1. Lesotho Highlands Development Authority v Matee Phatela and the

President of the Labour Court CIV/APN/8/02 page 7-9, Mr. Justice G Mofolo on the 23rd day of August 2002.


  1. 'Mapuseletso Mahlakeng and Others v Southern Sky (Pty) Ltd and Others C of A (CIV) No. 16 of 2003, Steyn P 2nd October 2003.


  1. EasterBrook Transport (Pty) Ltd v The Commissioner of Police and The Attorney General - CIV/APN/58/95 page 3-6, Mr Justice W.C.M. Maqutu, 3rd March 1995.


  1. Highlands Water Venture v D.N.C. Construction (Pry) Ltd - CIV/APN/123/94 Mr Justice Monapathi 1st day of December 1994


  1. Gallaghan v Norman's Transport 1992(3) S A 500 at 502-503.


  1. The Liquidator Lesotho Bank (In Liquidation) v Mphanyeso Solomon Molete - CIV/APN/50/2003 page 4 Mr Justice Monapathi,


2


15th May 2003.


  1. National Motor Company (Pty) Ltd v Pitso Malunga - CIV/APN/436/91, Mr Justice J.L.Kheola, 27th March 1992.


  1. 'Mathabang Rasebolelo v Lebohang Rasebolelo and Another - CIV/APN/295/00 page 8, Mrs Justice K. Guni J, 15th August 2002.


  1. Gallaghan v Norman's Transport 1992(3) S A 500 at 505


  1. Best Boxers Club v Lesotho Amateur Boxing Association - CIV/APN/97/03, Mr Justice Monapathi, 18th March 2003, page 10.

  2. The Liquidator Lesotho Bank (In Liquidation) v Mphanyeso Solomon Molefe - CIV/APN/50/03 page 4-5, Mr Justice Monapathi on the 15th May 2003.


  1. Phai Fothoane v President Christian Democratic Party C of A (CIV) No. 48 of 2000


  1. Points-in-limine have been raised about Applicant's non-compliance with Court rules, abuse of ex parte motion procedure and lack of urgency in the Applicant's case. I made a ruling on these on the 27th October 2003.


  1. My instant feeling was that a matter may be very very urgent and that a demonstrable case may be made that the harm being suffered by an applicant is a serious one that has gone on unabated for a short time or a long time. And that is such a case no prejudice would result to the Respondent if an interdict is granted with immediate effect. And in some of the cases that would probably and justifiably cause an applicant to rush to Court where a complaint has just recently arisen. In all these cases I see that an application ex parte will be justified based on the urgency of the matter, I concluded that the application is not urgent at all nor did the Applicant treat it as such on the facts. The Applicant's electricity was disconnected on the 21st March 2003. He did nothing until the 18th July 2003 almost four months later when he obtained an ex parte order.


3


  1. In my finding the instant case is not one where even an urgent ex parte application is justified. Urgent applications do not necessarily have to be brought ex parte See cases 2,3,4, 5 and 6.


  1. I further find that the four months' period of delay in instituting the case on an urgent basis militated against the case being treated on an urgent basis. Delay in coining to Court is a bar to an applicant moving his application ex parte on an urgent basis. See cases 8,9,10,11 and 12.


  1. But it is not in all applications where ex parte applications are justified, where an applicant will apply without notice to Respondent and without notice to the Registrar. Except in exceptional cases that an application shall be moved on the day it is filed. See Rule 8(4). An application should not be moved without notice to the other side without compelling reasons such as to avoid irreparable harm or to arrest damage which would be irreparable. See case 2.


  1. I agree with Respondent that even where resort is made to Rule 8(22) of the High Court Rules still there must be compliance with Rule 8(4) and Rule 8(5) or else an applicant shall still be required to give justification for non-compliance therewith.


  1. I believe that a judge who dispenses with Rules 8(4) and 8(5) must explicitly state that he decided to do so or was persuaded on the very first day of the motion. If the judge did not do so there will more evidently be need to explain to the judge on the return date why applicant did not comply with Rules 8(4) and 8(5) . The instant case is a case where the Applicant has failed to explain on all occasions. See cases 3,4, 5,6 and 7.


4


  1. I would find that there is basis to discharge the rule nisi in this application as the Respondent has submitted.


The rule is discharged with costs.


T. MONAPATHI

JUDGE

27TH OCTOBER 2003