Mofo v E H Phoofolo & Co, Rapiletsa v Rapiletsa, Mosaase v Qoo (CIV/T/193/2003 CIV/T/256/2002 CIV/T/119/2001)

Case No: 
CIV/T/193/2003
Media Neutral Citation: 
[2003] LSHC 141
Judgment Date: 
25 November, 2003

Downloads

CIV/T/193/2003

CIV/T/256/2002

CIV/T/119/2001

IN THE HIGH COURT OF LESOTHO


In the matter between:


MOLIKO MOFO Plaintiff

and

E H PHOOFOLO & CO. Defendant

LINEO LUCY RAPILETSA Plaintiff

and

LEBOHANG ELLIOT RAPILETSA Defendant

PHOMOLO MOSAASE Plaintiff

and

MOROJELE QOO Defendant


RULING


Delivered by the Honourable Mr. Justice T. Monapathi on the 25th day of November, 2003


  1. These pre-trial conference matters have been placed before me on the 18th November 2003 for the purpose of conducting a pre-trial conferences in


2


terms of the new High Court (Amendment) Rules, Legal Notice No. 30 of 2002. An objection was raised and it incidentally came from Counsel from both sides that these matters could not competently be dealt with by way of pre-trial conference in terms of those rules. It was amongst others that a reference to a " designated judge" in those rules it only refers to a designated judge in terms of the High Court (amended) Rules that introduced the commercial practice of this Court as contained in High Court (Amendment) Rules 2000 Legal Notice No.24 of 2000. See Rule 2 thereof: "Interpretation".


  1. Incidentally, furthermore, this query had been raised the previous week before my brother Mr Justice Molai who directed that some pre-trial conference matters that appeared before him in terms of the said new rules be send back and subjected to the old Rule 36 as it originally existed.


  1. The objection before Judge Molai was successful that the following matters referred to the old rule as aforesaid and these were the following matters:


    1. CIV/T/364/98 TEBOHO MOTSEPE vs ATTORNEY GENERAL,


    1. CIV/T/478/2000 MOSEBO MABETHA vs MABETHA & FOUR OTHERS,


    1. CIV/T/298/03 BELINA MPHENETHA vs W. B. O. CONSTRUCTION


    1. CIV/T/298/03 'MAMATHE HANYANE vs CHING JONG ENTERPRISE AND SHELL LESOTHO


    1. CIV/T/368/2003 HANS THORN vs LESOTHO MILLING COMPANY AND THABISO SEALA.



3


  1. The matters that were before me are the following:


    1. CIV/T/193/2003 S N MOFO vs E H PHOOFOLO & CO;


    1. CIV/T/756/2002 LUCY LINEO RAPILETSA vs LEBOHANG ELLIOT RAPILETSA,


    1. CIV/T/119/2001 PHOMOLO MOSAASE vs MOROJELE QOO.


No objection was raised by Advocate Mohlomi and his adversary in MASERU CITY COUNCIL vs WASA CIV/T/660/2002 which I had dealt with before others.


  1. I align myself with decision of Mr Justice Molai for the following reasons: The rule of interpretation is that unless the context otherwise requires and wording must be read uniformly and be given the same meaning in all the rules and amendments thereof. But there is a difference here. The difference here is that the "designated judge" which appear in Rule 2 of the Legal Notice No.30 of 2003 does not bring in a new definition of a "designated judge." Neither is the designated judge in Sub-rule 18, Sub-rule 22 and Sub-rule 30. Neither would that definition be read differently from the definition which appear in the original of the amended rules that is Legal Notice No 24/2000 High Court (Amendment) Rules 2000. This would militate against the further requirement that the High Court Act and the Rules and their amendments must be read as one.


  1. It is therefore difficult to read that the next rendering of "designated judge" in the rules that follow to mean anything different from what is contained in the original rules. The reasons are firstly, that original amendment has gone into the extent of defining what a "designated


4


judge" is. Secondly, the latter rendering of the designated judge only goes to elaborate functions of a "designated judge". It does not have to be a different judge. In the absence of that definition in Rule 2 in High Court (Amendment) Rules 2002 one would have safely said that the latter shall prevail where there was a contradiction. Thirdly, and most specifically a designated Judge means a Judge appointed by the Chief Justice to hear matters designated as a commercial action in terms of the last mentioned rule. Most importantly in none of this pre-trial matter that Molai J has handled and in neither of those I handled was an appointment by a Chief Justice. That is a whole difference.


  1. It is important that in all of these pre-trial conferences that come if it is intended that an appointment be made by the Chief Justice but it must be made under the hand of the Chief Justice. It must not be an allocation made by the Registrar or his assistants. There is no way in which the "designate judge" can be different in meaning in the different sets of amendments. To designate means: "to point, indicate, specify, to point out by name or description, to name, nominate." See Concise Oxford Dictionary. Over all the only interpretation of the rules can be nothing other than the designated Judge as it exists in L/N 24/2000.


  1. My ruling is that this pre-trial conferences that I have handle shall be dealt with in the ordinary way. That is in the way the rule originally existed in the same manner as in the ordinary way unless Chief Justice duly appoint judges on a file by file basis. Even in that case I will be surprised if his interpretation will be that "the designated Judge" is anything other than a "designated Judge" intended to conduct investigation and inquiry under commercial Court rules.


5


  1. In these matters before me my ruling is that they should be handled in the ordinary way. I would add that should any party be dissatisfied that the minute or pre-trial conference has been irregularly or insufficiently conducted the matter can be referred to a presiding Judge. If he feels that there has not been sufficient compliance with the provisions of that Rule 36 he can himself give other appropriate directions. This is, of course, consistent with Rule 36(b).


  1. Perhaps there will be a requirement in the future that after the holding of a pre trial conference the minute and the file should be placed before any judge with a view to investigating whether the pre-trial conference has been sufficiently conducted. And thereafter the judge will give his opinion and further directions.


  1. I would find that it is a problem that: Firstly, a Judge has not been designated. And secondly, a designated Judge is a Judge designated in terms of commercial trials. So that my order is that let these pre-trial conferences be dealt with in the ordinary way unless there is an amendment to the latest Rules. That is my Order.


T. MONAPATHI

JUDGE

25th November, 2003