HIGH COURT OF LESOTHO
by the Hon. Mr Justice M L Lehohla on the 12th day of February, 2001.
applicant obtained an Interim Court Order granted by my Learned
Brother Ramodibedi J on 7th September, 1999.
matter had been brought by way of urgency seeking that respondent be
to assault the applicant by use of a knife;
applicant entry into certain rentable premises situate at Thoteng,
Linotsing in the Mohale's Hoek urban area as such premises had been
made over to the applicant by a Resolution of the Letsepe family;
tenants with expulsion for not paying rental to him;
to set the rentable premises on fire should he be evicted therefrom;
be evicted from premises he forcibly occupied, and that he be
directed to return to his own household situate at Thoteng Mohale's
respondent was also to pay costs of the Application.
Prayers (a) as to modes and periods of service (b) (c) and (d) were
to operate with immediate effect.
applicant, a 69 year old female adult at the time of settling her
founding affidavit avers that she is the mother of her late daughter
Maleshoane Letsepe who died single and childless. Maleshoane is said
to have died in February 1996 leaving behind rentable premises
situate at Thoteng Linotsing in Mohale's Hoek urban area held under a
Form "C" a copy of which is annexed to the founding papers
applicant further avers that after Maleshoane's death she (the
appointed heiress and successor to the deceased's estate at a family
conference. A copy marked "B" whose translation is marked
"BB" is attached to the founding papers. The conference is
said to have been held on 30-03-1996 while the chiefs date stamp
reflects that this important issue was only brought to the attention
of the administrative authority on 16th August, 1999 as legitimising
what the family had resolved almost three years and five months
applicant goes further to indicate that the respondent is her 5th
child and that as a member of the Letsepe family he is fully aware of
the family resolution and finally that as a married man he has
children of his own and his own household situate at Thoteng in
applicant complains that since the death of Maleshoane the respondent
to assault the applicant with a knife and saying he would kill her;
from his own household and forcibly stays at the applicant's
rentable premises thus denying applicant entry into the said
rentable premises to which she has been given lawful authority to
run as hers by
collected rental from the tenants threatening them with expulsion if
they don't pay rental to him;
to set the rentable premises on fire if he is ejected from the said
applicant finally states that the respondent is in unlawful
occupation of the said premises harassing her and the tenants unless
they pay rentals to him direct.
prayed for urgent relief following the constant fear of attack by
respondent as set out above. The relief came by way of the interim
order as indicated earlier.
reaction to the foregoing the respondent in his answering affidavit
denies the truthfulness of some of the applicant's averments.
indicates that from a young age he stayed with his late sister at
rented premises of the Roman Catholic Church in Mohale's Hoek.
emphasises that he and the deceased amassed funds and built the
in question at Thoteng consisting of 16 complete units and 8
(meaning they have not yet been roofed).
respondent avers that he stayed with the deceased in the disputed
premises until her death. He avers further that the deceased and he
were in informal partnership running a shop as well as being hawkers.
They used the proceeds from these business ventures to develop the
said premises and maintain themselves.
respondent avers that when the deceased died he took full and
exclusive responsibility for her funeral.
respondent stresses that being a person who was closest to the
deceased during the latter's life time and immediately prior to her
death he was the only person better able to administer the deceased's
that he is a married father of five children and has to use the
rental from four rooms for maintenance of his family while the rest
is used by the applicant.
respondent denies that there was ever a family conference in which
was made heir and successor to the deceased's estate. He relies for
Letsepe and Lefa Letsepe's supporting affidavits. The two are the
respondent's close relative and uncle respectively.
appears that Sello has signed Annexure B which appointed the
applicant heir and successor to the deceased's estate. He avers that
he was tricked into signing this believing it was merely an
invitation to family meeting. Sello pleads that because he is
semi-illiterate he was thus easily tricked by his eldest brother
respondent is adamant that a conference could not have validly been
held without his being invited as not only a member of the Letsepe
family but one who is an interested party in the matter, regard being
had to the fact that he contributed towards the development of the
estate in question.
respondent's mother in her reply denies that the respondent stayed in
any Roman Catholic Mission premises with his late sister. She denies
that the respondent amassed any funds jointly with his late sister at
all. She avers that the late sister started her hawker business
selling soft goods till building the premises in question on her own.
She denies that the respondent was in partnership of any kind with
sister. She charges that the respondent budged in unilaterally to
take control of
premises in open defiance of the Letsepe family.
applicant further states that the late Maleshoane's burial was
conducted by Moeleli the applicant's eldest son. She states that
Moeleli was assisted in the burial by the respondent's elder brothers
Poko and Tlhopho. She thus denies that the respondent could ever have
been the only one to bury the deceased at all and administer her
emphatic that the respondent and Sello Letsepe were present at the
family conference whereas Lefa was never involved in any of the
discussions leading to a conference because he had not attended the
funeral in the first place. The applicant is supported in this regard
by Poko who stresses at the family conference were present, the
following persons –
the eldest brother
all of whom are members of the Letsepe family.
explains that Lefa was absent from the funeral, from the post-funeral
resolution, even from the Chief's place where annexure "A"
was written and attested.
supports his mother in all material respects regarding her
appointment by the Letsepe family as the heir and successor to the
deceased estate in terms of the resolution bearing among others the
signature of Sello Letsepe who is in the unfortunate position of
either riding on two horses at once or in fact of running with the
hare and hunting with the hounds.
in attacking the applicant's case Mr Mda for the respondent indicated
that the applicant's case is flawed in that her founding affidavit
does not contain the essential averments such as indicating the
jurisdiction of the Court.
(C) at pg 78 of the Civil Practice of the Superior Courts in South
Africa by Herbstein and van Winsen 3rd Ed. under the heading Contents
of Affidavits Essential Averments sets out that
"If the Court is not satisfied on the facts stated in the
application that it has jurisdiction it will not entertain the
emphasised that necessary allegations must appear in the founding
affidavits, for the court will not, save in exceptional
circumstances, allow the applicant to make or supplement his case in
his replying affidavit. I agree with this true statement of the law
which is another way of saying an applicant must stand or fall by his
founding affidavit. See Herbstein & van Winsen above at pp 75 and
set out the above background Mr Mda dutifully submitted that there
are no averments showing that this matter could not competently be
dealt with at the Magistrate's Court.
that on the facts this matter could competently be dealt with by the
because it is within the Magistrate's Court's jurisdiction, Mr Mda
submits that it has irregularly been brought before the High Court in
total disregard of the mandatory provisions of the High Court Act
1978 section 6 reading –
civil cause or action within the jurisdiction of a subordinate court
(which expression includes a local or central court) shall be
instituted in or removed into the High Court, save –
a judge of the High Court acting of his own motion; or
the leave of a judge upon application made to him in Chambers, and
after notice to the other party".
submitted accordingly that because on the facts there hasn't been any
compliance with provisions of the enactment loc cit this Court should
rule that there are therefore no jurisdictional facts entitling the
applicant to the relief sought.
Counsel continued to enthral the Court with his sound submissions by
emphasising the well worn theme of heeding the importance of
complying with the Rules of Court as repeatedly harped on by the
superior Courts of this Kingdom.
entirely with the submission that the Rules of Court are an important
element in the administration of justice. Further that failure to
observe such Rules can lead not only to the inconvenience of
immediate litigants and of the Courts, but also to the inconvenience
of other litigants whose cases are delayed thereby. (See Swanepoel vs
Marais and Ors 1992 NR 1. HC at 2 J.
be over-emphasised that Rule 8(22)(b) appears to be one of the most
disregarded Rules. This is a Rule which appears to be observed more
in the breach than obedience. It provides that an applicant in an
urgent application is required to
reasons why he cannot be afforded substantial relief in a hearing in
due course if the periods presented by the Rules were followed. Many
causes have been lost merely for the failure to observe this Rule.
Indeed as far back as 27th February, 1989, this Court in Masoabi vs
Moiloa & 2 Ors CIV/APN/420/87 (unreported) at pp
2 and 3
strongly warned that:
"It is the essential part of this rule that when an application
is moved in terms of which directives given in the rules are
disregarded a proper application for dispensing with the rules must
first be sought by the party and granted by the Court. Failure to
observe this rule may result in the dismissal of the application on
the basis that if forms are neglected causes are
lost......................c/f C. of A (CIV) No. 16 of 1984
Kutloano Building Construction vs ;'Maseele Matsoso & 2 Ors
(unreported) at pg 7 where [Schutz P] said :
'But forms are often important and the requirements of the sub-rule
not without cause that in applying the dictum in Luma Meubel
Vervaardigers (Edms) BPK vs Makin and Anor (t/a Makin's Furniture
Manufacturers 1977(4) SA 135 W at 137 F by Coetzee J, Muller AJ in
Salt & Anor vs Smith 1990 NR 87 (HC) at p 88 said :
"Mere lip service to the requirements of Rule 6(12)(b) will not
do and an applicant must make out a case in the founding affidavit to
justify the particular extent of the departure from the norm, which
is involved in the time and day for which the matter be set down".
just catalogue the great lengths to which the Courts have gone in an
attempt to show their intolerance of the disregard of Rule 8 (22)(b).
Pentagon Fibreglass & Plastics (Pty) Ltd & Ors vs Hennie
(Pty)Ltd 1978(3) SA 5887 where "the respondent had applied on a
matter of urgency for a perpetual interdict restraining the
appellants from infringing its design" the Full Bench of the
Transvaal Provincial Division held that the permanent interdict
should not have been granted in the Court below because the
respondent had failed to comply with the requirements of Rule
6(12)(b) [our Rule 8(22)(b)] by showing that it could not be afforded
substantial redress at a hearing in due course.
supra at 87 failure to meet the requirements of Rule 6(12)(b) which
is on all fours with our Rule 8(22)(b) resulted in the dismissal of
the application. Muller A.J. put it neatly at p.88 as follows :
"This Rule entails two requirements, namely the circumstances
relating to urgency which have to be explicitly set out and,
secondly, the reasons why the applicants in this matter could not be
afforded substantial redress at a hearing in due course".
demurring at the fact that none of the two requirements set out above
has been met urged that the application be dismissed on the ground
alone that the
applicant has not at all in her papers addressed the requirement
imposed by the Rule.
further to question the fact that the application was moved ex parte
thus rendering the applicant's situation irredeemable in view of the
fact that it is trite law that an ex parte application is used –
the applicant is the only person interested in the relief sought;
the relief sought is a primary step in the proceedings e.g. an
application to sue by edictal citation;
though other persons may be affected by the Court's Order immediate
relief is essential because of the danger of delay or notice may
precipitate the very harm applicant is trying to forestall. c/f C.
of A. (CIV) NO. 18/91 Khaketla vs Malahleha & Ors (unreported)
at 5 to 6 where it is stated:
"The principle of audi alteram partem ought not to be subverted,
even when granting a rule nisi, by ordering the rule (or any part
thereof) to operate as an interim order if such interim order affects
the rights of another party, unless such interim order can itself be
justified by the exceptions above referred to".
exceptions referred to were cases where :
or the Rules of Court sanction such departure; or
relief sought does not affect any other party. See also Herbstein &
van Winsen 2nd Ed. p 58.
Mr Mda 's
submission is not without a basis when attacking the fact that the
applicant has not even attempted to justify why she obtained an
interdict ex parte against the respondent thus in violation of the
fundamental principle of audi alteram partem.
rammed the point home when he indicated that the conduct complained
of on the part of the respondent has been going on since 1996 after
the deceased's death and nothing took place for upwards of three
years when at the end thereof and rather suddenly on 7th December
1999 the applicant approached the High Court ex parte and on the
basis of urgency.
procedure in applications of this nature where the nature of the
conflict involved cannot be resolved on papers such as where the
Court is not able to tell which type-writer to believe where it is on
the one hand alleged that the deceased's estate was solely developed
by the deceased and on the other hand where the respondent says he
also contributed to its development is governed by Plascon Evans
Paints vs van Riebeeck Paints 19984(3) SA 623 A at 634-5
dictum in that Authority is as follows :
there is a dispute as to the facts a final interdict should only be
in notice of motion proceedings if the facts as stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order.............where it is clear that
facts, though not
admitted, cannot be denied, they must be regarded as admitted".
that should not be overlooked however appears at p 34 paragraph I. It
is as follows :
"In certain instances the denial by the respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or bonafide dispute of fact (see..........Room Hire Co (Pty) Ltd vs
Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 (T) at 1163-5".
JA proceeds fruitfully as follows :
"If in-such a case the respondent has not availed himself of his
right to apply for the deponents concerned to be called for
cross-examination under Rule 6(5)(g) of the Uniform Rules of
Court.............. and the Court is satisfied as to the inherent
credibility of the applicant's factual averment, it may proceed on
the basis of the correctness thereof and include this fact among
those upon which it determines whether the applicant is entitled to
the final relief which he seeks...........Moreover, there may be
exceptions to this general rule, as, for example where the
allegations or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers..........".
strengthened in my view that the deponent Sello in his attempt to
support the respondent by denying that when he appended his signature
to the family resolution to appoint the applicant as heir and
successor to the deceased's estate his denial is merely farcical
because even if he were to be believed that he signed the
thinking it meant he was being invited to a family meeting; the fact
who signed did so in a family meeting for the purpose set out in the
paper which was a summary of what had been discussed in his presence
namely that applicant was being appointed heir and successor. That
the respondent didn't find it necessary to exercise his right to
apply for the opposing deponents to be called for cross-examination
is an omission that he would have to learn to live uncomfortably with
because as it is the Court is satisfied as to the inherent
credibility of the applicant and her witnesses.
respondent's stance is also compromised at a point which to me
matters most with regard to what appears to be spoliation in this
proceeding. He avers that the deceased's estate consists of 16 units;
four of which he uses while the rest are used by the applicant. Given
that all these fell to be inherited by somebody somehow after the
deceased died it boggles one's mind that the respondent should
blithely say that the applicant uses the rest of these units without
saying on what authority she does so. This failure on the
respondent's part, in my view, strengthens the applicant's version
that her authority derived from a resolution emanating from a family
conference. The respondent's denial of the existence of such a
conference and the authority it conferred on the applicant is thus
vain and futile. In fact evidence
he was a participant therein is acceptable as a statement of the
the respondent his wild allegations that the burial of the deceased
was his sole responsibility simply strains credulity. I am of the
view that it is not only far-fetched but untenable. It is hard to
believe his story that even though he has elder brothers who were
present at their sister's burial he can brazenly hope to convince
this Court that he alone shouldered the responsibility for the
burial. It is this type of claim that justified the Court's feeling
that the desire to gain is all that is behind such wild claims as he
weaknesses in the applicant's case have been ably highlighted by Mr
Mda. But I regret to say it seems to me that the fault lies squarely
with the applicant's legal advisor.
Court cannot overlook a plea by a parent for protection against an
attack on her with a knife by a son.
her case has been badly presented it seems to me that she approached
Court to seek summary restitution in the form of spoliation order.
papers it became clear to me that the applicant sought an order to
restore possession into which she had been put by the Letsepe family
which had such right. The interim order she obtained ensured that the
respondent did not dispose of the possession of property which the
applicant had previously been in possession of. It behoved the
respondent if he were to succeed to show that the taking was not a
spoliation because of any of the following factors :
was done by consent, or
lawful warrant e.g. by virtue of a judicial decree, statutory powers
or other paramount authority.
raised an important point in his submission that waiting for over
three years does not justify moving the Court exparte and on an
Nienaber vs Stuckey 1946 AD 1059-1060 is authority for the view that
"mere delay in application will not defeat a claim for the
remedy............" C/f Classen's Dictionary of Legal Words and
Phrases Issue S-90. Furthermore and assuming I am correct in
regarding this application as one for spoliation, the authority
vs Glendinning 1939 CPD p 94 at 96 shows that possession need not be
exclusive (see Nienaber supra) which decision shows also how far
constructive holding can go. Furthermore according to Classen above
Meyer at 96 clarifies the position pertaining to spoliation by
"to obtain a writ thereof the common practice is to make an ex
parte application for a rule nisi calling upon the respondent to show
cause why he shall not be ordered to restore possession, the rule to
act as an interdict preventing the respondent from parting with the
possession until further order".
being specific as should have been the case the applicant's papers in
a rather rambling fashion traversed the important factors necessary
for granting of a spoliation order nonetheless. To that extent I
think it barely fits the bill.
applicant proves previous possession and his dispossession by the
respondent the rule stands a good chance of being made absolute.
Setlogelo vs Setlogelo 1914 AD p 221 at 222 the court held that
"the interdict ought to have been granted, inasmuch as the fact
of the disturbance of a bonafide possession was not denied, and, as
no fact was adduced to show that the trespasser had or believed that
he had a right equal to or better than the occupiers".
appealed to the Court to look at the substance as opposed to
procedural and technical breaches and sought salvage under Rule 59.
But I am of the view that Rule 59 is not there to encourage slackness
in going about the litigation business. Moreover Kutloano (above) LAC
1989-1989 pp 99 at 103 H authoritatively preserved Schutz P's
invaluable dictum for practitioners and Courts as follows :
"I am afraid that my decision may smack of the triumph of
formalism over substance. But forms are often important and the
requirements of the sub-rule are such".
further submitted that the remedy sought had also a form of specific
performance which is not available in the Subordinate Court. I shall
assume in his favour that this is so.
fact remains the case was clumsily handled. This should be reflected
in the award for costs.
is granted in terms of prayer l(b) (c) (d) (f) and (g) as to costs
which because of the remarks made above should only amount to 65% of
the applicant's costs. With regard to prayer (e) the Court is not
disposed to grant any order the
of which would be entirely up to the respondent whether he wishes to
event he wants to stay elsewhere than where he is stopped by order
from staying. Otherwise the order for his eviction is granted.
It is so
Applicant: Mr Mpopo
Respondent: Mr Mda
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