Matsoso & Another v Lesotho Tourist Board (LTB) & Another (CIV/APN/472/99; CIV/APN/473/99) [2000] LSCA 154 (15 December 2000)

1 C I V / A P N / 4 7 2 / 99 C I V / A P N / 4 7 3 / 99 IN T HE H I GH C O U RT OF L E S O T HO In she matter between: B O F I H LA T I K OE M A T S O SO J E R E M I AH S E F A T SA M A K H E NE A P P L I C A NT A P P L I C A NT and L E S O T HO T O U R I ST B O A RD ( L T B) 1st R E S P O N D E NT B O A RD OF D I R E C T O RS ( L T B) 2nd R E S P O N D E NT For Applicants : M r. K . T. K h a u oe For Respondents : M r. T. M a k e ka J U D G M E NT Delivered by the H o n o u r a b le M r. Justice T. M o n a p a t hi on the 15th d ay of D e c e m b er 2 0 00 I m a de my ruling on the 11th September 2000. My reasons therefor follow. W h at I h ad before me w as an application for a m e n d m e nt of the Applicant's prayer in notices of m o t i on in the t wo matters w h i ch w e re consolidated. A prayer can be a m e n d ed in terms of R u le 33. T he application w as opposed. T he original notices of motion contained the following prayers: 1. T h at the purported dismissal of the Applicant by the R e s p o n d e nt be declared null a nd void. 2. T h at the R e s p o n d e nt be ordered to p ay e m o l u m e n t s, service p ay f r om the date of the purported dismissal rill the applicant attains retiring age of sixty years. 3. T h at the R e s p o n d e nt be ordered to p ay the costs of this application "at" attorney a nd client scale. 4. T h at the Applicant be granted such further a nd alternative relief. It w as this prayers w h i ch w e re sought to be a m e n d ed by substitution of the following: "1 (a) T h at the H o n o u r a b le C o u rt should review a nd set aside the purported decision of the First Respondents disciplinary c o m m i t t ee to dismiss Applicant f r om e m p l o y m e n t. (b) To a dd another prayer as follows: T h at the H o n o u r a b le C o u rt should dispense with R u le 50(c) (b) as the record is clearly part of the proceedings. (c) C o n d o n i ng n on compliance of Rule 33 (4) (b) in the event that this H o n o u r a b le Court should hold that there is an objection to the Notice of A m e n d m e n t ." T h e re were a lot of intervening periods as between the last day of a r g u m e nt over the t wo points-in-limine a nd the last occasion w h en there w as a r g u m e nt in the m a in application w h en Counsel w e re asked to address the C o u rt later on this case of S I M ON P H A M O T SE M O S E H LE v L E S O T HO B A NK CIV/APN/226/94 M o f o lo J, of 16th M a r ch 1998. In this case a point h ad been taken that the H i gh C o u rt had no jurisdiction to hear labour disputes. Counsel for Applicant h ad replied to say that the matter h ad c o me by w ay of review a nd that in terms of section 24 of the L a b o ur C o de O r d er 1 9 9 2, the L a b o ur C o u rt h ad no p o w er of review and matters entertained by the L a b o ur Court could only c o me by w ay of appeal. M o f o lo J. in a well discussed j u d g m e nt w h en dismissing the point-in-limine said on pages 4-5: "According to the j u d g m e nt in Vereeniging V an Bo-grondse M y n a m p t e n a re v an Suid Africa v President of Industrial Court 1983(1) SA 1143(T) 1146-51 it does appear the inherent p o w er to review administrative action has also been distinguished from the once inherent but n ow statutory p o w er to review the proceedings of inferior Courts. Since the matter has c o me to this Court by w ay of review than appeal and since the Labour Court has no statutory right of reviews, this application is properly before Court." T h en on the day appointed for address on the latter case and on which day I would m a ke any ruling on the points-in-limine then the two Counsel (by mistake) seemed to have prepared argument on the case L E S O T HO E L E C T R I C I TY C O R P O R A T I ON v M A F O SO 1995-1996 L L R - L B 4 1 5. Although Miss M a n d i sa Mashologu confirms both Counsel's impression on affidavit I was always prepared to say that it was a mistaken impression. Indeed this case had nothing to do with any of the points then raised by M r. Makeka. T he reading of the M O S E H LE case on the other hand says all that is relevant in it to the present case. It was on the appointed day w h en M r. K h a u oe intimated that he intended to m a ke an a m e n d m e nt of the main prayer. T he Court urged that it had to be on a written application in terms of Rule 33(4). Another day was appointed. It was then that it was discovered that M r, K h a u oe had merely drawn, served and filed a Notice of Intention to a m e nd in terms of Rule 33. T he notice had set out the two prayers which have been referred to earlier on. In addition the Applicants' notice even required the Respondent to lodge a written objection to the proposed a m e n d m e nt within 14 days from the date of delivery of the notice failing which the a m e n d m e nt would be effected on the basis that there had been no opposition to the intended a m e n d m e n t. A second period intervened. It w as after this period w h en Counsel appeared before C o u rt M r. M a k e ka h ad already filed a nd served his notice of intention to oppose the application for a m e n d m e nt w h en Counsel appeared before Court. It w as then pointed out by Respondents that Applicants' notice of intention to a m e nd w as not a c c o m p a n i ed by a motivating affidavit h e n ce Respondents were not able to argue the matter. It w as pointed out by Applicants that Respondents have not filed an a c c o m p a n y i ng affidavit to the notice of intention to oppose in order to enable Applicants to fairly anticipate a ny objection to the application for a m e n d m e n t. M e a n i ng that the m e re intention to oppose could not just be sufficient. A c c o r d i ng to J A C OB S Z v F A LL 1981(4) 871 at least the notice of objection to a proposed a m e n d m e nt should set out the grounds thereof. T h e re w as yet another p o s t p o n e m e nt because M r. K h a u oe h ad indicated that w h en both sides have filed affidavits in support of their attitudes the g r o u nd will truly have b e en levelled. T h e re w as yet another postponement. On the next d ay of hearing both sides h ad duly filed those supporting affidavits. Perhaps there is a proper w ay of interpreting the said R u le 33 in order to avoid the delays. T h at R u le 33 does not prescribe w h e t h er a notice to a m e nd will be a c c o m p a n i ed by ground/reasons for intention to a m e nd m o re especially if objection is actually received. T h at application for leave to a m e nd will be supported by an affidavit setting out grounds/reasons thereof. This seems to be the interpretation given by the learned authors of T HE C I V IL P R O C E D U RE OF T HE S U P R E ME C O U RT OF S O U TH A F R I CA 4th Edition at page 5 14 in that "If an objection is raised the party wishing to a m e n d, m ay within ten days lodge an application for leave to a m e n d ." Indeed the case of J A C OB S Z v F A LL (supra) speaks of filing of a sets of affidavits in support of the application a nd the opposition. Following on a b o ve inquiry could it be that the objection to a proposed a m e n d m e nt in terms of R u le 33(4) should be a c c o m p a n i ed by reasons/grounds setting out w hy there is objection? If so w as it not in contemplation of the Rule m at this could only be d o ne after a nd in response to the motivation set out in the application itself? It looks like the application for a m e n d m e nt proper c o m es after an objection has in fact been received. Again in J A C O B SZ v F A LL (supra)King A} w h en speaking of a similar South African rule says: "Rule 28 does not require that a notice of an objection to a proposed a m e n d m e nt set out grounds of such objection in view of the fact that objections of this nature are almost invariably based u p on averments that pleadings objected to would, if a m e n d ed in the m a n n er sought, be excipiable. It would s e em to be desirable to bring this R u le in line with Rule governing exceptions a nd require that notice of an objection to a proposed a m e n d m e nt set out the grounds thereat." In my mind, in answer to another aspect it seems desirable that the notice of application to a m e nd need to indicate on its face the grounds u p on which the a m e n d m e nt will be m a d e. O n ly the application proper will develop those grounds on affidavit. I would find it difficult to understand w hy grounds for an a m e n d m e nt were not indicated on the original notice. I would see no danger in repetition if the first step m a k es the other party aware of the grounds on which the application is m a de from the onset. As I have said the issue w as resolved in the instant matter by agreement all along until in the end we saw a set of affidavits filed to the satisfaction of the parties. I also found the case of M A H L O M O LA K H A BO V L E S O T HO B A NK 1991-1996(1) L LR 241 very helpful on all the principles including the Courts exercise of its discretion on application for condonation and on application for a m e n d m e n t. T he principle on a m e n d m e nt of pleading can be generalized as follows. T he count's discretion must be exercised judicially in the light of the facts before it. Secondly a m e n d m e n ts should be allowed even where there is mala fide or injustice or prejudice to the other side which cannot be compensated by means of an award of costs. A m e n d m e nt should be refused where there is a real doubt whether or not prejudice or injustice will be caused to the other party. A m e n d m e nt should not be refused in order to punish the other side for neglect. Even in the event of carelessness or neglect a m e n d m e nt can still be granted if the necessity has arisen. Refusal of an a m e n d m e nt should n ot h a ve the effect to prejudicing a party f r om ventilating his complaint the C o u rt or s o me other C o u r t. S ee A T T O R N EY G E N E R AL v L E R O T H O LI 1995-6 L LR 1 55 at p a ge 1 57 a b o ut the prejudicial effect of n ot allowing c o n d o n a t i on of late filing of a claim w h e re the refusal of condonation w o u ld h a ve a c o m p l e te effect of prejudicing a party f r om ventilating his claim. A question will be w h e t h er refusing the a m e n d m e nt sought in this case will h a ve that effect. T he R e s p o n d e nt said the L a b o ur C o u rt w as available. F or general principles on a m e n d m e n ts see C O M M E R C I AL U N I ON A S S U R A N CE L TD v W A Y M A RK NO 1995(2) SA (TK). T he present application for a m e n d m e nt h ad the hallmark or character of introduction of a n ew case of action w h i ch w as by substitution of a prayer for a declaration by that o ne for review. This w as in the circumstances w h e re a full fledged a r g u m e nt on the point-in-limine h ad already taken place a nd the Applicant just ran short of virtually c o n c e d i ng that such a point or defence w o u ld succeed, w h i ch w as put b e y o nd d o u bt by the application for a m e n d m e nt w h e re the defence by the R e s p o n d e nt w o u ld h a ve b e en effectively b e en jettisoned. S ee K A T Z EN A ND O T H E RS v H A LL A ND C O. 1947(2) P H . F 1 1 0 ( T ). Furthermore w h e re the point taken h ad b e en to the effect that this C o u rt w o u ld h a ve h ad no jurisdiction because an other court h ad such jurisdiction. T he learned authors of T HE C I V IL P R A C T I CE OF T HE S U P R E ME C O U RT OF S O U TH A F R I CA (supra) at pages 521-522 discuss the issue of introduction of n ew cause of action and n ew claim. T h ey conclude that introduction of n ew action of cause action is not "per se" a ground for refusing such an a m e n d m e n t. T h ey advocate for a general test of whether such prejudice to the opposition party could be remedied by an appropriate order as to costs or otherwise. T h ey then state m o st usefully: "In fact a careful scrutiny of s o me of the decisions in which a m e n d m e n ts invoking the introduction of a n ew cause of action were refused s h ow that to have allowed the a m e n d m e nt would have occasioned prejudice to the other side." I could not see m o re prejudice to the other side than where the effect of its properly taken objection, which would have succeeded, w as that the Court had h ad no jurisdiction. See C O M M E R C I AL U N I O NS v W A Y M A RK N O. 1995(2) SA 73 (Tk) at 80 D - E. A nd where furthermore an a m e n d m e nt w as sought at that stage of the proceedings a nd in the circumstances w h e re no explanation w as m a de as to w hy it w as not sought earlier the a m e n d m e nt ought to be refused although this is not a ground per se for refusal of an a m e n d m e n t. See I N T E R N A T I O N AL T O B A C CO C O. (SA) L TD v U TC ( S O U T H) L T D ( 5) 1955(2) SA 421(W). This Court learned that where a point such as the present (by Respondent) w h i ch indeed w as well taken, a nd w h e re it w o u ld be defeated by seeking a belated a m e n d m e n t, then it w o u ld have to be on exceptional circumstances, such as w h e re the effect of refusing the a m e n d m e nt w o u ld not be in the interest of justice. O ne example w o u ld be w h e re the need for a party to ventilate his claim w o u ld be completely blocked or frustrated. T he present w as not such a case. T he present case w as said to be o ne of f o r um shopping. It m e a nt that a proper Court remains o p en a nd available to the Applicants. W h en application to a m e nd w as m a de at a late stage of the proceedings the effect would h a ve b e en similar "to directing the attention of the other party to one issue a nd then at trial, attempt to canvass another". S u ch effect would be prejudicial. See K A LI v I N C O R P O R A T ED G E N E R AL I N S U R A N CE (T) 1976(2) SA 179 (D) 1 8 1 N - 1 8 2. Respondents h ad been dealing with the question of a prayer for a declaration w h i ch w as originally being sought. Their defence h ad been based on or in response to that. It w as another thing to get involved in a review application as the a m e n d m e nt sought. T he application for a m e n d m e nt w as refused with costs. T. M O N A P A T HI J U D GE