Morakeng v Morakeng (CIV/T 739 of 88) [1990] LSCA 177 (22 November 1990)

CIV/T/739/88 IN THE HIGH C O U RT OF LESOTHO In the matter between:- ELLIS MORAKENG Applicant and MATSELISO MORAKENG Respondent J U D G M E N T Delivered by the Honourable M r. Justice J. L. Kheola on the 22nd day of November, 1990 This is an application f or an order in terms of Rule 30 of the High Court Rules 1980 setting aside plaintiff's notice of set d o wn on the grounds that the N o t i ce of set down dated the 5th November, 1990 is an irregular and improper proceedings or improper step because it was drawn and served before a pre-trial conference had taken place contrary to the provisions of Rule 36 (1) of the High Court Rules. Secondly, that Rule 36 (4) has not been followed when the Notice of set down was drawn or when the request f or a date of hearing was m a d e. Thirdly, that in the light of the Registrar's rejection of the plaintiff's notice of set down by the Assistant Registrar, the matter ought not to appear on the r o l l. -2- It is common cause that on the 31st October, 1950 the respondent's attorneys wrote a Notice in terms of Rule 39 (2) informing applicant's attorneys that on the 2nd November, 1990 at 2.15 p.m. application would be made to the Registrar for a trial date. This notice was served on the applicant's attorneys on the 31st October, 1990. A date of trial was obtained and on the 5th November, 1990 a Notice of sot down was drawn up and served on the applicant's attorneys on the same day. The matter was set down for hearing on the 15th November, 1990. On the 5th November, 1990 which was the day on which the notice of set down was drawn up and served, the respondent's attorneys prepared a Notice of a pre-trial conference and informed the applicant's attorneys that a pre-trial conference would be held on the 12th November, 1990 at 2.30 p.m. at the offices of the respondent's attorneys. A pre-trial conference was duly held and attended by Mr. K. Sello, respondent's attorney and Mrs. V. Kotelo, applicant's attorney. There is no doubt that the Notice of set down dated the 5th November, 1990 was an irregular and improper proceeding and an improper step because Rule 36 (1) provides that before an action may be set down for trial the attorney acting for one of the parties shall invite the attorneys acting for the other parties to attend a pre-trial conference at a specified place and time with the object of reaching agreement as to possible ways of /3 -3- curtailing the duration of the t r i a l. It was an improper step to issue a Notice of set down before a pre-trial conference was held. Rule 36 (4) states in no uncertain terms that 'when an attorney sets a case down f or trial or makes a written request for a date f or the hearing thereof, as the case may be, he must state in writing that a pre-trial conference has been held or has been excused by order of a Judge given under sub-rule (2) herein. The respondent's attorney did not comply with t he above sub-rule. I was referred to two conflicting South African cases but I do not wish to say anything about them because Rule 36 (4) is very c l e ar and is not capable of any two m e a n i n g s. This is not the end of the matter because Rule 30 (1) under which this application is brought reads as follows:- "Where a party to any cause takes an irregular or improper proceeding or improper step any other party to such cause may within fourteen days of the taking of such step or proceeding apply to court to have it set aside: Provided that no party w ho has taken any further stop in the cause with knowledge of the irregularity or impropriety shall be entitled to make such application." It is the proviso to Rule 30 (1) that creates problems for the applicant. On the 5th November. 1990 when the applicant's attorneys received the notice of set down they were aware or had - 4- knowledge that it (notice of set d o w n) was irregular and improper. They not only accepted that irregular proceeding but took a further step by attending a pre-trial conference on the 12th November, 1990, long after the m a t t er w as set down for trial. It seems to me that the provisio regards the taking of a further step with t he knowledge of the irregularity or impropriety as an act of condoning such irregularity or impropriety. The applicant was therefore n ot entitled to make this application. In the result the application is dismissed with c o s t s. J. L. KHEOLA JUDGE 22nd November, 1990. For Applicant For Respondent - - M r. Maqutu M r. Sello.