HIGH COURT OF LESOTHO
TSAPANE 1st APPLICANT
CHABA 1st RESPONDENT
– LHDA 2nd RESPONDENT
Delivered by the Honourable Mr. Justice MX. Lehohla on 10th December,
basis of urgency the applicant has approached this Court by way of
motion proceedings seeking a rule nisi to be issued and returnable on
a date to be determined by this Court calling upon the respondents to
show cause why
2nd respondent shall not be restrained and interdicted from making
payments to the lst respondent out of the funds due to the late
Maseoli Tsapane pending the finalization of an action for
cancellation of a Will purportedly executed by the late Maseoli
Tsapane and such action to be
instituted within 30 days of the final order herefrom.
1st respondent shall not be restrained and interdicted from
receiving any moneys from the 2nd respondent paid out of funds due
to the late 'Maseoli Tsapane pending the finalization of an action
for cancellation of a certain Will purportedly executed by the late
'Maseoli Tsapane and such action to be instituted within 30 days of
the final order herein;
rules as to form and notice shall not be dispensed with on account
respondents shall not be ordered to pay costs hereof only in the
event of their opposing this application;
applicant shall not be granted further and/ or alternative relief.
prayers l(a) (b) and (c) operate with immediate effect as an
applicant relies on averments contained in an affidavit to which he
has deposed. From the applicant's affidavit can be distilled the
Chief Mapheelle predeceased his wife Chieftainess 'Maseoli who also
died years later on 12th December, 1999.
applicant is the brother of the late Chief Mapheelle. He is also the
uncle of 'Masepiriti the mother of the 1st respondent. 'Masepiriti is
the daughter of the late Chief Mapheelle by his deceased wife
'Maseoli. Of importance is to observe that the late Chief Mapheelle
Tsapane and his late wife 'Maseoli died without leaving any male
daughter Masepiriti was married into the Cheba family. It is in that
family that the 1st respondent Mahloli Cheba was born.
applicant who is the late Chief's brother is thus the rightful
successor to that late Chief in accordance with provisions of the
Chieftainship Act in respect of Molikaliko Ha Tsapane.
OF DISPUTE BEFORE COURT
nature of the dispute has by and large been highlighted by the
applicant in respects pertaining to both his and the 1st respondent's
case. I need only indicate at this stage that the 2nd respondent has
undertaken to abide the decision of the Court.
then, the dispute arises out of a certain resettlement scheme by the
2nd respondent (LHDA). In terms of the scheme the 2nd respondent
acquired certain fields or lands and residential areas around Mohale
Dam. Acquisition of these areas was a necessary factor in the
construction and development of works carried out by the 2nd
respondent towards achieving its purpose of building the dam and
rendering it sustainable.
the fields falling within the affected area belonged to the late
said scheme the 2nd respondent periodically effects payments as
compensation for their loss to people whose residential rights and
fields were taken away for the benefit of the LHDA.
this compensation which falls due periodically in respect of the late
Chief Mapheelle's fields which is the subject matter of the instant
part the 1st respondent in order to assert her rights to the proceeds
arising from the compensation scheme, relies on a certain written
instruction or Will allegedly executed by the late Chieftainess
'Maseoli Tsapane the wife of the late Chief Mapheelle and grandmother
to the 1st respondent.
applicant's case is that the Will and or written instructions are a
fake, null and void ; and thus cannot be relied upon by the
respondents or indeed anybody.
applicant asserts that by virtue of being heir to the late Chief and
Chieftainess he is entitled to compensation arising out of this
applicant has thus approached this Court for relief in the form of a
temporary (as opposed to a permanent) interdict pendente lite in
terms of which he seeks an order ensuring that the status quo as
regards the funds in question is maintained till such time as when
the determination has been made in a trial proper on the validity or
otherwise of the Will and or the written instruction repeatedly
response to the above summary of averments the 1st respondent admits
that the applicant is the successor to the late Chieftainess 'Maseoli
Tsapane the widow of the late Chief Mapheelle of Molikaliko Ha
Tsapane by virtue of the decision of the Tsapane family. (See also
head 2.1 of Mr. Molapo's submissions).
affected by the resettlement scheme the late 'Maseoli was resettled
by the 2nd respondent at Ha Matala in Maseru.
common cause that during her lifetime as a result of this scheme the
late 'Maseoli periodically received compensation from the 2nd
asserted on behalf of the 1st respondent that after 'Maseoli's death
she presented to the 2nd respondent a Will in terms of which the 1st
respondent was appointed heiress to the deceased's movable and
immovable property. See Annexure LTI to applicant's founding
stated that it was on the basis of this Will that the 1st respondent
the compensation from the 2nd respondent.
Molapo for the 1st respondent took Mr. Phafane to task in respect of
an aspect that Mr. Phafane did not pursue or raise in addressing this
Court namely that the applicant seeks the relief, inter alia, on the
grounds that the said Will is fraudulent and that since the testatrix
was a Chieftainesss, her estate should be governed by customary law.
frankly if this aspect of the matter is to be entertained at all it
should be in a trial proper and not in a case where consideration is
focussed on whether or not a temporary interdict should be granted.
It may well be fitting to raise it where a final and permanent
interdict is sought but definitely not in case such as the instant
Molapo argued further that the applicant's case is flawed on the
basis that no prima facie right has been established or shown to
exist. On this basis, it was argued that the Court was being
persuaded not to entertain the application as in any case the
purported right to inherit is lacking.
learned counsel for the respondent submitted that it would be wrong
to grant the relief sought simply because the applicant says he has a
prima facie right. Learned counsel stressed that the applicant has
only been appointed a successor to the Chieftaincy of Molikaliko and
learned counsel further submitted that succession relates to status
while inheritance relates to devolution of property. I agree but
would hasten to indicate that the applicant averred that he is also
heir to the deceased estate of the late Chief and Chieftainess.
thus factually wrong to criticise the applicant as having contented
himself with what he said in his founding affidavit without saying
more in reply; despite a direct challenge by the 1st respondent in
her answering affidavit. Indeed at page 32 of the replying affidavit
in paragraph 4.2 ad para 5 the applicant avers that "over and
above the fact that the family made the decision that it did in my
presence, I am the heir by operation of law and I did assume all the
duties of an heir including taking care of 'Maseoli until her death".
respondent took issue with the applicant regarding the fact that the
has not informed the Court whether he buried the deceased regard
fact that the right to inheritance goes hand in hand with the
responsibility to take care of and bury the deceased. The learned
counsel for the 1st respondent submitted that this is a material fact
on which inheritance under customary law may be based. Court was
referred to Mokhethi vs Mokhethi 1974-75 LLR 404 at 413.
AND ITS APPLICATION IN RELATION TO TEMPORARY INTERDICTS.
already indicated in passing that the approach adopted by law in
respect of temporary interdicts differs from that adopted in respect
of permanent and final interdicts.
instant matter the applicant has come seeking a temporary interdict
pending an action for cancellation of the alleged Will.
sought is for maintenance of the status quo pendente lite.
the argument persuasive and founded on sound legal ground that
of a Will in the circumstances can only be properly done by way of
trial action. The applicant's fear seems to be well founded that by
the time the action is concluded the funds constituting the subject
matter of this application will have been exhausted and thus the
effort to restore the status quo will have been thwarted.
inclined to view with favour the submission that the Court is not
presently being asked to delve into issues pertaining to the validity
or otherwise of the Will.
for determination sticks out commendably as being simply whether the
applicant has made a case for a temporary interdict.
thus prudent to take heed lest the simple object for determination be
confused with other issues which should properly be dealt with in the
action for cancellation of the Will as they can only be relevant
accept the invitation to decide whether in the circumstances
presented by the facts of this application the applicant was or was
not entitled to the protection afforded by the law in the form of
temporary interdict pendente lite.
pre-requisites for granting a temporary or interim interdict are
neatly set out in Setlogelo vs Setlogelo 1914 AD 221. In the case of
an interlocutory interdict such as the instant one the requirements
are summarised as follows:-
prima facie right, [as opposed to a clear right relating to
(ii ) A well grounded apprehension of irreparable harm.
(iii) A balance of convenience in favour of granting the interim
(iv ) Absence of any other satisfactory remedy.
is stimulating to observe that Setlogelo above has gained support in
a multitude of cases dealing with temporary interdicts it is
rewarding to observe in Attorney General & Anor vs Swissbourgh
Diamond Mines (pty) Ltd & Ors 1995-96 LLR & LB page 173 at
182 that our Court of Appeal has re-stated the requirements set out
above and highlighted the importance of these requirements and
approach advocated in cases where a Court is called upon to issue
interdicts pedente lite. Prest is cited with approval where he neatly
puts it as follows : (at page 255 of his works styled The
Requirements for the Grant of Interlocutory Interdicts in South
African Law - A Dissertation for a Degree of Doctor of Laws at the
University of Stellenbosch)-
"The interim interdict is an essential part of the South African
legal system. The problem lies, not in its existence, but in its
application. If the aims and objects of the remedy can be achieved by
simple and ready application, then it retains the vitality of its
intended role. If its application becomes cumbersome and laborious,
or its aims and objects can be defeated by manoeuver, ruse or
stratagem, it loses its effectiveness and becomes pedestrian and
pedantic. It cannot be overemphasised that its strength lies in its
flexibility and ability to produce a speedy answer to a pressing
Superior Court Practice by Erasmus et al @ E8-1 to E8-2 there is
reference to American Cyanamid Co vs Ethicon Co  1 ALL ER 504
(HL) and the learned authors observe and give the following caution
i.e. "The new rule of practice laid down by the House of Lords
has been held not to be in accordance with our law
Africa and should not be followed. The practice of our courts has
been rather ambivalent : in cases such as Eriksen Motors (Welkom) Ltd
vs Protea Motors, Warrenton the 'sliding-scale' test as propounded in
Olympic Passenger Service (Pty) Ltd vs Ramlagan is applied: the
stronger the prospects of success (i.e. the strength of the
applicant's case), the less need for the balance of convenience to
favour the applicant; the weaker the prospects of success, the
greater the need for the balance to favour him".
Mr. Phafane's submission that in a case of interlocutory interdict
such as the one under consideration the threshold test has with
development of our law shifted from prim a facie right that it used
to be. The balance of convenience has since been elevated to being
the core test. See Erasmus et al above. See also Swissbourgh above at
critical look at the requirements to be satisfied before an
application for a temporary interdict can be granted presents one
with amazing though educative revelations. For instance with regard
to prima facie right that should first be satisfied before the relief
can be granted, it is further stated that the Court will be enjoined
to grant the relief sought even if such a right is open to some
doubt. See Ferreira vs
& ORS & VRYENHOEK and Ors vs POWELL NO & ORS 1995 (2) SA
825 - A where it is stated as follows:
test enunciated in American Cyanamid Company vs Ethicon Ltd  1
ALL ER 504 (HL) should be recognised as of equal validity with the
'prima facie case ..........open to some doubt' test when deciding
whether interim relief should be granted in constitutional cases.
ground alone and in view of the fact that the applicant is admittedly
the heir and successor of the late Mapheelle and therefore a
beneficiary under the scheme run by the LHDA the submission seems
well grounded that this requirement has both been established and
met. Established and met in the sense that the 1st respondent says of
the applicant "you have only succeeded to Chieftainship of the
late Mapheelle but not to his property". In view of the
principle espoused by the authorities just considered above this may
create some scruples in the sense that the applicant's right may be
said to be open to some doubt, but the truth of the matter based on
principle stated would make his case pass muster in my humble view.
regard to the requirement relating to injury I have been referred to
of Law & Order Bophuthatswana & another vs Committee of the
Church Summit of Bophuthatswana & Ors 1994 (3) 89 at 98 H -I
where it is stated "The phraseology 'injury' means a breach or
infraction if the right which has been shown or demonstrated and the
prejudice that has resulted therefrom.............................
It has also been held that prejudice is not equivalent to damages. It
will suffice to establish potential prejudice". On this score it
cannot be dismissed out of hand as baseless fear the applicant's
apprehension that by the time the trial is concluded there would be
nothing left in the "kitty". Indeed the applicant has
already suffered prejudice and without curial intervention he would
continue suffering more and more of that. I accept the submission
that prejudice in the context of the instant case should be
understood not in the narrow but broad sense of fear of potential
prejudice. It does not allay my own fear for the prejudice the
applicant has expressed by reference to the fact that the 1st
respondent is a person of straw, when instead of stating what the
values of her property amount to she contents herself with merely
saying she in not a person of straw as she has property. If she has,
it would be worthwhile if she named it. But she hasn't. On this
ground alone again it seems a case has been made for granting the
Erasums vs Afrikander Proprietary Mines Ltd 1976 (1) SA 950 at 965 –
it was felt by the court that the remedy insisted upon by the
applicant was wrong that court felt that
appropriate remedy in such a case, would be an application for an
interdict pendente lite , to safeguard any interest the applicant may
have in coal actually mined............" instead of an interdict
restraining the respondent from commencing and carrying on mining
Nestor & ors vs Minister of Police & ors 1984 (4) SA 230 at
244 H - I where it is emphasised that there has to be reasonable
apprehension by the applicant and that the basis for such
apprehension must be objectively established.
regard to irreparable harm or injury I was referred to Ebrahim &
Anor vs Georgoulas & another 1992 (2) SA 151 at 153 H - 155 C.
This is authority for the proposition that the applicant is not
required to establish that the injury feared is absolutely
irreparable. He ought to succeed if he has only shown that it will be
more difficult and costly to restore the status quo at a later stage
i.e. after the trial.
would not do for the respondent to adopt the attitude that indeed the
applicant has suffered injury but the respondent is prepared to
compensate him in damages anyway. Account is to be taken of the
costliness of litigation. Thus it would be very unwise of the
applicant to sit down and fold his arms, with the hope that after the
Will has been cancelled he would then institute proceedings for
recovery of money in the possession of the respondent if lucky in the
sense that such money would still be available. One has to reckon
with the real possibility that at that time such money might have
been spent elsewhere such that it might no longer be available in
whole or in substantial part.
regard to availability or otherwise of adequate remedy the
authorities seem to point in one direction in support of the view
that damages will not be considered to be an adequate remedy where
there is a continuing wrong and/or where the applicant is unlikely to
recover those damages by reason of the fact that the respondent is a
man of straw and/or where the value of an award of damages will be
rendered inadequate by reason of inflation dealing a detrimental blow
on the value of currency through long passage of time.
learned counsel for the applicant adequately illustrated that here
the wrong suffered is continuous in the sense that the 1st respondent
continues receiving monies
otherwise should properly be received by the applicant if his case
be cancelled as a fake notwithstanding any doubts attendant on the
prima facie right upon which his search for relief is based.
vs DIE ADMINISTRATED ORANJE -VRYSTAAT 1968 (1) SA III at 115 D - E
where the court refused an application for a permanent interdict
because the applicant had not shown on a balance of probabilities
that the only other remedy, namely an action for damages, would not
suffice to protect his rights.
Harchris Heat Treatment Ltd vs Iscor 1983 (1) SA 548 at 555 D-G where
O'Donovan J aptly said : " The remedy under the lex Aquilia in
cases of unlawful interference with the business of another is not
confined to competitors in trade. Loss will, at least prima facie, be
occasioned by the unlawful deprivation of the owner of a trade secret
of the right to exploit it, whether by attracting custom, or in other
it is argued on behalf of the defendant that an interdict should not
be granted if a remedy in damages is available to the plaintiff. In
the plaintiff has established that it is entitled to the interdict
which it seeks.
defendant has misappropriated intellectual property belonging to the
plaintiff and is continuing to use it when it is not entitled to do
so. This is a situation justifying the grant of an
is accordingly granted:
the defendant from using or otherwise dealing with the furnace
by it as the ZD furnace;
(Emphasis supplied by me).
Boiler Efficiency Services CC vs COALCOR (CAPE) (PTY) Ltd & Ors
1989 (3) SA 460 at 475 G where Howie J succinctly rammed the point
"The value of damages award in several years' time is of
questionable adequacy in these inflationary times when in law one
cannot obtain pre-judgment interest on the damages. When one
considers, in conclusion, that refusal of an interdict will amount to
a licence to appellant to carry on infringing respondents' right
unrestrictedly, and one has regard to appellant's evasive response
regarding its financial capability, there can be no doubting that the
grant of an interdict was the right and proper course".
manner in the instant matter the applicant says the 1st respondent is
a person of straw. The 1st respondent reacts thereto by denying that;
without more. So hers is a bare denial. At paragraph 14 of the
founding affidavit (page 8) the applicant avers "I intend
instituting an action for cancellation of the purported will
aforesaid. But I have grave apprehension that by the time that action
is heard to finality, the 1st respondent will have exhausted the
funds held by the 2nd respondent under the resettlement scheme
aforesaid. Should she do so, as it seems evident that she will, I
will suffer an irreparable harm - inasmuch as the 1st respondent is a
person of straw who cannot restore status quo ante"
response thereto the 1st respondent at page 19 paragraph 10 without
taking the Court into her confidence and giving it information as to
the type and value of property she claims she has merely contents
herself by boldly averring that:
applicant was solely making this application to prejudice me in that
until now he has not instituted the alleged action which I verily
believe he does not have any prospects of succeeding in it (sic). I
deny that I am a person of straw as I have enough property within the
Jurisdiction of this Honourable Court" (Emphasis supplied by
in averring that the application is merely embarked on to prejudice
her as no purported action has been instituted by the applicant her
train has clearly left the metals and she shows that she has
misconstrued the operative prayer that the action be instituted
within 30 days.
further misconstrues the nature of the proceeding going on here by
saying the applicant has no prospects of success for surely prospects
of success is no requirement for determination whether or not the
relief sought should be granted. The list of requirements has
adequately been shown and dealt with seriatim above
exception of one remaining to be treated immediately in the next
Nowhere has there been included in that list" the prospects of
regard to balance of convenience i.e. the "core-test" the
question to determine is twofold in nature i.e. does balance of
convenience favour the granting or refusal to grant the remedy.
about this determination the Court weighs up the likely prejudice to
the applicant if the temporary interdict is refused and the refusal
is later shown to have been wrong on the one hand.
above for this likely prejudice to the applicant is weighed up
against the likely prejudice to be suffered by the respondent if the
temporary interdict is granted and the granting thereof is later
shown to have been wrong on the other hand.
Molapo sought to wriggle out of this real problem by adopting a
simplistic view that in criminal trials if a man is wrongly convicted
then the presiding officer can scarcely be blamed for exercising a
instant matter the law offers a reasonable approach to adopt between
the two sets of possibilities resulting in prejudice to one of the
parties when one or the other of these possibilities is adopted. The
test is: of the two evils which is the lesser and therefore which
should be opted for while the other is opted out. I am afraid in the
criminal case example cited by Mr. Molapo this convenient way of
dealing with the problem does not readily or at all offer itself
commendable as otherwise appears to be the case in civil matters.
Matiso vs Commanding Officer Port Elizabeth Prison & another 1994
(3) SA 899 at 902 J-903 B where Melunsky J in giving effect to the
illustration of the above sets of possibilities had this to say :
"I turn to consider whether I should order the release of the
applicant pending the Constitutional Court's decision. The balance of
convenience in this regard is clearly in her favour for if she is not
released now it will be cold comfort to her if the Constitutional
Court eventually decides the matter in her favour. On the other hand,
the 2nd respondent will not be unduly prejudiced if the
Constitutional Court eventually decides the case against the
applicant for in that event she will in all probability have to serve
the remainder of the sentence imposed upon her by the
Magistrate. Therefore, I propose to order the immediate release of
the above approach as means off solution to the instant matter the
question to ask is what prejudice does the applicant suffer if he is
refused the interdict and he later sues successfully for the
cancellation of the will but finds that because the money was
released from the custody of the second respondent to the first
respondent who has squandered it all. Surely the success in the
cancellation of the will without accompanying proceeds which should
have accrued to him amount to more than cold comfort to the
applicant. It is simply frigid!!
other hand if the interdict is granted resulting in money being in
the hands of the 2nd respondent meanwhile, and later it appears
granting the interdict was a wrong move to adopt what prejudice does
the 1st respondent suffer if the cancellation of the Will is refused.
Clearly none. All she would do would be to march to the offices of
the 2nd respondent and collect her money intact.
Molapo submits that inflation shall have reduced what was due to her
Maybe so maybe not. Either way greater evil is avoided if the money
is kept in neutral hands pending finalisation of the trial action
relating to cancellation of the
any event such a loss as may likely be suffered by the 1st respondent
in the most extreme set of circumstances cannot nearly match the
extent of prejudice likely to be suffered by the applicant were it to
be discovered at the end of the day that he is in possession of an
empty judgement which made his victory amount to no more than an
undesirable pyrrhic victory.
enamoured of the dictum by Holmes AJ in Erikson Motors Ltd vs Protea
Motors & Another AD 1973 (3) SA 685 at 691 where in his
characteristically terse lucidity that distinguished Learned Judge
after giving consideration to the requisites set out in Setlogelo
above said at (F):
"The foregoing considerations are not individually decisive, but
are interrelated; for example, the stronger the applicants' prospects
of success the less his need to rely on prejudice to himself.
Conversely, the more the element of 'some doubt', the greater the
need for the other factors to favour him. The Court considers the
affidavits as a whole and the interrelation of the foregoing
considerations, according to the facts and probabilities: see Olympic
Passenger Service (Pty) Ltd. vs Ramlagan, 1957 (2) SA 382 D at page
383 D - G. Viewed in that light, the reference to a right which,
'though prima facie established, is open to some doubt'
is apt, flexible and practical, and needs no further elaboration.".
I have no
doubt that on the balance of probabilities the balance of convenience
favours the granting of this application.
on Knor D'Arcy Ltd & others vs Jameson & others 1995 (2) SA
579 at 639 G -1 Mr. Phafane submits that in the final analysis the
question whether or not to grant a temporary interdict is in the
discretion of the Court. He urges that in exercising its discretion
the court should have regard to factors such as equity and fairness
inter partes. I agree with this submission.
A above at letter E says "In exercising its discretion the Court
weighs, inter alia, the prejudice to applicant, if the interdict is
withheld, against the prejudice to the respondent if it is granted."
This more than suffices to persuade me to the view that the balance
of convenience favours the granting of the temporary interdict.
To sum up
then it seems in the 1st respondent's affidavit and in turn in her
counsel's submissions a misconception is discernible that a prima
facie right is a right that is indisputable and unassailable. That is
not the test. The body of authority cited should suffice to disabuse
both counsel and his client of this much mistaken view. In fact the
applicant's right may very well be disputed and proved to be invalid
at the end of the day. Hence the statement given in unison by
authorities that in respect of a temporary interdict notwithstanding
all the controversy, it may well be granted. This is in part
precisely the reason for the distinction between a clear right in
permanent interdicts and a prima facie right in regard to temporary
application succeeds and is granted in terms of prayers 1(a) (b) and
(c). Costs naturally should follow the cause. And it is so ordered.
Applicant: Mr. Phafane
Respondent: Mr. Molapo
Respondent: No appearance
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law