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Francistown Chief Magistrate, Thebeetsile Mulalu and the Attorney General are currently fighting a fierce legal battle at Francistown High Court after the Magistrate gave a nod for a litigant to sue the government for unlawful arrest, detention, prosecution and assault as a “poor litigant”. The case is before Justice Lot Moroka. The litigant Chivaka Paul who is a Zimbabwean national is suing the Commissioner of Police, Keabetswe Makgophe P40 000 for damages suffered.
In the matter, Magistrate Mulalu is cited as first respondent while Paul is the second respondent. According to the founding affidavit from Attorney General (Applicant) represented by state counsel Wedu Maphane, on the 25th of October 2016 they received a summons commencing action issued by the litigant claiming for damages for unlawful arrest, detention, prosecution and assault and he claimed P40 000 as damages from Commissioner of Police.
The litigant (Paul) was granted leave by the Magistrate to sue as a poor litigant in terms of the Magistrate Court Rules and not to provide any security for costs. Mulalu ordered that the litigant as a result of his poor status, court process herein be issued and served free of charge. An attorney Morris Ndawana was appointed to act for the litigant in the matter as a pro bono lawyer.
However Maphane is of the view that a decision affecting her was made without her involvement by the Magistrate. She argues that there is no provision which clearly stipulates that order 5 rule 1 of the Magistrate Court rules in this regard is intended to change the position of Common Law so as to exclude participation of a party against whom an order is made.
She says in her founding affidavit, that the Magistrate ought to have dealt with the matter ex-parte (dealt with the matter by himself) and then called upon the applicant in this matter to show cause why the decision made should not be made final, her being an interested party. Maphane further says in her founding affidavit that the Magistrate’s decision to let the litigant sue as a poor litigant directly affects the legal rights of the applicant (Attorney General) and rendered it contrary to the rules of natural justice. She said failure to do so left the decision of the first respondent(Magistrate Mulalu) liable to be set aside as a nullity.
In her notice of motion before the court, Maphane is further calling upon the Magistrate to show cause why his decision that the litigant sue as a poor litigant cannot be reviewed and set aside for being unfair.
In his responding affidavit Magistrate Mulalu stuck to his guns and conceded that such an application was brought before him for consideration. He said that after due and proper consideration of the relevant rules and procedures of the law, applicable to the said application the litigant was granted the relief sought for as per the application. Mulalu maintains that the order he made was in accordance with the relevant rules of the magistrate court Act. He denies that the decision complained of in any way affected the Attorney General (Applicant). He further said the rule complained of does not in any way require that notice should have been given to the Attorney General before consideration of the initial application.
“The Common Law Rules that the Applicant refers to in their founding affidavit certainly cannot and should not be used to overrule a clear and standing statutory rule in terms of the order of Court,” says Mulalu in his affidavit.
He said the decision complained of by the applicant did not call for her involvement in any way in so far as the rules applicable are concerned. He maintained that the applicant was not at the time the order was made an interested party. The magistrate denied that the decision to allow the litigant to sue as a poor litigant directly affects the legal rights of the applicant and the decision, having been taken without the hearing of the applicant renders it contrary to the rules of natural justice. Magistrate Mulalu averred that he acted in his official capacity, and bonafide for that matter as opposed to personal capacity. He said he is not liable to be sued in personal capacity. He prayed that the matter be dismissed as far as it relates to him.
In part his answering affidavit, Paul who is second respondent also maintains through his lawyer Morris Ndawana that such an application under order 5 of the Magistrate Court rules does not require the other party to be served with the same for the simple reasons that it is a mere definition by the court on the competency of the action and the ability of the applicant to pay costs
“The court is the only authority suited to deal with such an application and make a pronouncement on whether the litigant has a prima facie right of action or not, and also whether he had the means to prosecute his matter or not,” he says in his answering affidavit.
The Taxation Registrar will determine the parties’ legal costs on the 22nd of August 2018 as the case continues…