In this appeal the appellants were individuals alleged to have been appointed illegally and were pursuing their personal interests against government. That constituted an irregularity within the context of Rule 30(11) as read with Rule 43 (1) (a). Molati further cited the Canadian case of Gill v. Gill[2], where the following considerations had to be interrogated before allowing the withdraw of an affidavit. This is an appeal against the learned Judge’s judgment in the Court a quo dismissing an application in terms of Rule 30(1), as read with Rule 43(1)(a), of the High Court Rules 1980 by the appellants in the Court a quo. %PDF-1.2
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[51] The allegation by the appellants, that the Court a quo denied them the right to be heard bears no intellectual justification. [3] The notice of motion and certificate of urgency were served on the Respondents and the then 47th Respondent who is Attorney General, received all the papers on behalf of other Respondents. force for Lesotho, to he called the Lesotho Mounted Police Service and for the general functions 0F that force.
The Respondents were not given an opportunity to file opposing papers. Cases. [43] We are not saying that in sufficiently exceptional circumstances, the Attorney General may not defend or prosecute individual interests for example when such litigation is in furtherance of liberty and justice. Therefore the two matters must not be confused as in casu the appellants (co-Respondents in the Court a quo) were not dominis litis. Mohanoe, For the 2nd and 3rd Respondents: Adv. 0000000611 00000 n
[27] It was further argued that the Court below had failed to consolidate the two applications contrary to Rule 11, which left the second application undetermined, which does not serve the ends of justice. To that extent and on that ground alone, the judgment of the Court below ought to be set aside. On the 7th August 2017, a notice of appointment of counsel for 4th and 11th Respondents was filed. 0000001639 00000 n
The Rule applies to withdrawal of proceedings not a pleading. “But once the matter has been set down for hearing, it is not competent for the party who has instituted such proceedings to withdraw them without either consent of all the parties or the leave of court. After failure of the 1st application, the 2nd application was academic. [49] The issue of the 1st appellant purporting to file papers on behalf of other appellants was dealt with by this Court in Selikane and Others (supra), where we said: Per Ramodibeli JA: “Accordingly I am inclined to the view that these applicants were not properly before the Court and their applications stand to be dismissed on this ground alone. Molati, conceded is that it is the initiator of proceedings, who has an obligation under the Rule 43(1) (a). These exemptions do not apply to termination of employment.
They never filed opposing papers pursuant to Rule 8 sub-rule 10.
[36] Adv. Art. [47] The Rule is not of mutual application to Applicant/Plaintiff and Respondent/Defendant. [52] The appellants were supremely confident that their application under Rule 30(1) as read with Rule 43(1) (a) was going to succeed.
Clauses 5 to 8 provide for the appointment of the Commissioner of Police, Deputy Commissioner and other the members of the Police Service.
[48] We agree with Adv. Molati. [9] Adv. 2 (2) LC: the LC shall not apply to: the Royal Lesotho Defence Force; the Royal Lesotho Mounted Police; or any other disciplined force (...).
Sekati further, referred to the case of Selikane and Others v. Lesotho Telecommunications Corporation and Other[7].
For the purposes of service of process, the address of the Attorney General was to be used. The other party to the proceedings is not precluded from withdrawing its opposition.
These are: [10] It was the 4th to 11th Respondent’s case in the Court a quo that evidence can never be withdrawn in the manner the Attorney General did.
S. 21, 1998 Lesotho Mounted Police Service Act. The tenor of Rule 43(1) (a), which we quote in extension in order to paint a picture with broad strokes, though as we said earlier Adv.
In that the Court said the following: “It is not only the withdrawal of an admission that requires a proper explanation, every application for leave to amend requires this as part of the applicant’s obligation to establish that the application is bona fide”.
Lephuthing, sharply focused on the illegality of the promotions and briefly alluded to the dismissal of the application under Rule 30(1) and Rule 43(1). The appellants had notice of the withdrawal of the opposition.
Lephuthing.
© 1996-2017 International Labour Organization (ILO) |, civil/public servants; police; army; prison staff; state security corps; apprentices, Employment protection legislation database - EPLex, Labour Code (Amendment) Act, Act No.
[44] The Court a quo could not have restrained the 1st, 2nd and 3rd Respondents against their will not to withdraw their opposition to the application. It was strenuously argued by Adv. 5.
They sat on their laurels and they were time-barred and now wish to raise the point that the decision by the Court a quo prejudicially affected their interests.
The Authority is not empowered, however, to receive complaints directly from the public. We were further referred to the duties of the Attorney General under various statutes, which we have already referred to.
[18] The application, in absence of any opposition was granted in terms of prayers 2(b) and (c) of the notice of motion and costs were awarded to the applicants.
3. The Attorney General filed the notice of intention to oppose in the Court a quo. You now, had two sets of Respondents 1st, 2nd, 3rd and 47th were characterized as the main Respondents while 4th to 11th became the co-respondents in the Court a quo. 0000002297 00000 n
The police association secretary general also alleges the promotions were “unfair, discriminatory and violated the provisions of the Police Act of 1998 read with Lesotho Mounted Police Service (Administration) Regulations 2003 as amended.” 0000002680 00000 n
The Court cannot force a litigant to litigate an issue, if the litigant does not want to litigate it. The application was first served on the Respondents, before it was moved and the parties were present when it was being moved. In ground 11, the appellants were attacking the allowing of withdrawing the answering affidavit, while allowing the founding affidavit and the replying affidavit to remain on record. Ground 14, is a duplication of ground 7.
[42] In Johnny Wa Ka Maseko v. Attorney General (supra), Ackerman JA deplored the deployment of state machinery to protect reputations of the Crown. 1. Government is his client and cannot prosecute any litigation which conflicts with the interests of his client. History. 0000002485 00000 n
Sekati, that a distinction must be drawn between withdrawing “proceedings” and “pleadings”. The appellants failed to invoke the procedure laid down in the Rules, this was self-denial of the right to be heard. [39] The issues that are for determination in this appeal are: [40] The Attorney General in the Kingdom of Lesotho occupies a unique position. [20] Ground one was that, the Court a quo granted a default judgment to the applicant, which is contrary to the decision of this Court in National Independence Party and Others v. Manyeli and Others[8].
The withdrawal was without leave of the Court or the consent of the substantive commissioner. This affidavit however had been withdrawn in the Court a quo and cannot be subject of comment in this Court. [50] We now come to the issue of audi alteram partem. They were time-barred to file any papers, so that they are therefore not dominis litis. If out of time they would have applied for condonation. Counsel conceded this fact.
0000001307 00000 n
Sekati buttressed his assertion with the decision in the case of Minister of Safety and Security v. Mzukisi Tyali and Another[13], where it was said: “I am not aware of any provision which precludes a party from withdrawing an affidavit, or a requirement that such withdrawal should be accompanied by a prior application for the leave of the Court.
I agree: ________________________, I agree: ___________________________, For the Appellants: Adv. [32] Rule 43(1), is very clear in that it relates to “a person instituting any proceedings”. Molati graciously conceded that the tenor of Rule 43(1) is that it is the one instituting the proceeding i.e.
[4] The matter was filed on urgent basis and the grounds of urgency stipulated therein. Given that the 1st Respondent, had deposed to the effect that the promotions were in order. 172 0 obj
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