HIGH COURT OF LESOTHO
'MAKOPANO NTHO APPLICANT
by the Hon. Mr. Justice G.N. Mofolo on the 6th day of September.
application came to this court on an urgent basis on 28 August, 2000
and the same day an interim court order was issued made returnable on
11 September, 2000 and prayers 1 (a), (b) and (c) of the Notice of
Application were made to operate with immediate effect.
A Rule Nisi returnable on the 11th day of September, 2000 at 9.00
a.m. be and is hereby issued calling upon the respondent to show
cause, if any, why
periods of notice and mode of service of processes prescribed by the
Court Rules shall not be dispensed with on the ground of the urgency
of this application.
the respondent shall not be directed to refrain forthwith from
assaulting or in any way molesting applicant.
the respondent shall not be directed to desist from chasing the
applicant out of the parties' marital home.
the application was seemingly urgent, there have been several
postponements and extensions of the rule for reasons that are not
immediately apparent to me though the suspicion is that since the
applicant was armed with an interim order hereafter there was no need
to move on an urgent basis.
factors affecting the application have been raised by counsel on
either side and I intend dealing with these though not necessarily in
the order in which they were raised. The application was argued on
merits. Mr. Mafisa has said though relationships between the
applicant and respondent are now good, he is pressing ahead with the
application so that the applicant is not assaulted
the reason why there is seeming peace is because respondent has an
order against him. He says respondent's conduct towards the applicant
is improper and respondent needs to be restrained permanently.
Ntlhoki for the respondent has said the truth of the matter is that
applicant was not assaulted but that in the heated atmosphere
applicant had banged herself against furniture. He says things got
out of hand and it was never the respondent's intention to assault
the applicant. He has said by reason of the fact that relationships
are now good the order would be academic as the application had been
overtaken by events. He says there is no need to disturb present
harmony between the parties.
Ntlhoki has said that another reason for dismissing the application
was that the application had been brought ex-parte on an urgent basis
a long way back in August, 2000 and it had been claimed a separate
action was contemplated. The so-called separate action had not
materialised. E.R. Sekhonyana v. LE. Church LLR1993-94 p.455 had been
quoted in support. Mr. Ntlhoki has submitted another reason was that
this was an application simplicita recognisable in the subordinate
court and could not come to this court except by leave of court. In
support he has quoted sec. 18 (i) of the Subordinate Court Order No.9
of 1988 as well as sec.6 of the High Court Act, 1978. He has also
said that the medical certificate is hearsay and inadmissible in that
the author has
a supporting affidavit nor is the certificate certified. In
conclusion Mr. Ntlhoki has submitted the doctrine of de minimis non
curat doctrine applies in the case.
several cases courts of law have made themselves clear on the
question of urgent applications, I have not found anything
particularly useful as to urgency in Molapo Qhobela & Or. V.
Basutoland Congress Party & Or. © of A (CIV) No.O) of 2000.
application proceeding as urgent and with urgent trappings is to
proceed as urgent, otherwise it loses its potency with the very
prospect of the application being dismissed on this ground alone for
being seen as an abuse of process. Even as Mr. Mafisa has submitted
that the respondent behaves as he does because he has an interim
interdict against him, it is unfair to temporarily interdict him, it
is unfair to temporarily interdict a person and deprive him of his
immunities when, at the end of the day, he may be found blameless.
Proceedings against a party with an interim order have to be
expeditious so as not to have the sword of Demosthenes hanging over
his head under the pretext of urgency. A person cannot be punished
before being found guilty; an interim order without finality has such
an effect for it is subject to discharge at the end of the day.
Lesotho National Development Corporation and Lesotho National
Development Corporation Employees and Allied Workers Union C of A
(CIV) No.2 of 2001), the Appeal Court reiterated a number of rules of
court as to urgency and particularly Rule 22 (b) which reads:-
'In any petition or affidavit in support of an urgent application,
the applicant shall set forth in detail the circumstances which he
avers render the application urgent and also the reasons why he
claims that he could not be afforded substantial relief in an hearing
in due course if the periods presented by this Rule were followed.'
application has set forth no such circumstances or in any way
adverted to the Rule at all. In the course of its judgment the appeal
court has found a delay of 6 months 'not in the interest of the
parties' and it would seem too long notwithstanding that 'on the
respondents own case the matter required urgent resolution.' At page
19 the Appeal Court has noted:
it is once again brought to the notice of practitioners that they
face punitive costs orders should they issue certificates or urgency
and launch proceedings, whether ex-parte or not, when the
circumstances do not justify the use of extraordinary measures
provided for in Rule 22 of the High Court Rules. The High Court is
requested to ensure that the abuse of this Rule by practitioners
I do not
think the request by the Appeal Court to this court 'that the abuse
of this Rule by Practitioners' cease forthwith ends here. It is, in
my view, an appeal to this court that abuse of the Rule should be
punishable by extraordinary costs coupled with the dismissal of the
application on the sole ground of urgency where the Rules have not
been complied with.
As I have
said above, there is nothing in the founding papers motivating this
court on the urgency of the application. The application was launched
on 28 August, 2000, the interim rule obtained on the same day and
from here on the applicant decided to sit on his laurels. In view of
the fact that the application was claimed to be urgent and took
almost a year to reach finality, I cannot think of anything more
deliterious and reprobate.
is another thing. I do not agree with Mr. Mafisa that the good
relationships existing between the applicant and respondent are as a
result of the interim court order for, if so, the applicant should
have proceeded urgently as claimed. The truth of the matter is that
present respondent's behaviour is a matter of conjecture. It could
well be he behaves as he does because of the interdict or because he
is a reformed man.
application has taken an inordinately too long a time before finality
having regard to the fact that it was only head on 02 August, 2001,
almost a year
was launched; although it is not the function of courts of law to be
peacemakers their function being to settle disputes, it seems to
this court it would be in the best interest of the parties that the
reigning peace and harmony be not disturbed. I have no intention of
disturbing this peace for, were violations feared, the applicant
should have without much ado finalised the application and proceeded
on a threatened action. The threatened action has not materialised
because circumstances have changed for the better. Quite apart from
the fact that this application was not proceeded with in terms of the
Rules of court it would seem it was overtaken by events thus
rendering it unnecessary.
applicant having lost the initiative, this court is of the view that
this is an application which on all counts has to be dismissed and
accordingly the application is dismissed and the rule discharged.
There will be no order as to costs.
court has found it unnecessary to consider implications of the
medical certificate or de minimis non curat doctrine as these would
not take the application any stage further.
Applicant: Mr. Ntlhoki
Respondent: Mr. Mafisa
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