HIGH COURT OF LESOTHO
MOSHOESHOE (Nee MAKUME) Applicant
MAJOROBELA MOSHOESHOE 1st Respondent
MOSHOESHOE 2nd Respondent
MOSHOESHOE 3rd Respondent
MOSHOESHOE 4th Respondent
THE HIGH COURT 5th Respondent
by the Honourable Mrs Acting Justice A.M. Hlajoane on 30th
prayers sought in this Application were framed as follows: 1.
Dispensing with the ordinary rules pertaining to modes and period of
Authorising a rule nisi to be issued on the date and time to be
determined by this Honourable Court calling upon the first
Respondent to show cause if any why:
first Respondent shall not be restrained from claiming and
receiving and/or utilising payments due to the estate of the late
Sekete Moshoeshoe, pending finalisation of this Application.
first Respondent shall not be restrained from purporting to act as
the guardian of the three (3) minor children of the late Sekete
Moshoeshoe, pending finalisation of this Application.
that the estate of the late Sekete Moshoeshoe devolve intestate
under common law on the Applicant as the Surviving Spouse and widow
of the late Sekete Moshoeshoe.
that the estate of the late Sekete Moshoeshoe devolve intestate
under common law on the three (3) minor children namely Mathe aged
20 years, Maluke aged 18 years and Litsoanelo aged 16 years and on
Declaring the Applicant to be guardian of the three (3) minor
that Applicant be restored in possession of the car bearing
registration numbers AK 413 which Applicant was forcefully
dispossessed by 2nd and 3rd Respondents.
first Respondent pay the costs of this Application only in the event
and 3rd Respondent to pay costs of this Application only in the
event of opposition.
Applicant he granted such further and/or alternative relief.
1, 2 (a) and (b) operate with immediate effect as an interim order
against first Respondent.
relevant papers were duly filed in terms of the Rules of Court, and
the Applicant in her Replying affidavit reacted to the opposing
papers by raising the following points in limine:
paragraph 2 of the deponent's (1st Respondent) opposing affidavit is
hearsay evidence and inadmissible, and that an Application will be
made to have it expunged.
reference by deponent CIV/APN/474/2000 is not relevant and material
to the determination of this matter and is intended only to
prejudice me (Applicant) in my claim and Application will be made to
have it struck out.
purposes of clarity I will briefly explain the nature of that piece
document which the Court is asked to declare as hearsay evidence and
It is an
annexure "LTM" to the opposing affidavit which introduced
some allegation that in fact, Applicant was married to a certain
'Matli Mahlelehlele customarily, before getting married to the
deceased in this case. It is of importance at this juncture to note
that this was just an allegation which the deponent has no knowledge
of. The author of that document "LTM" has not deposed to
any affidavit. Applicant in this case contended that the deponent
never said that he verily believed the information to be true and
also set out facts of his belief. Syfrets Mortgage Nominees Ltd v
Cape St Francis Hotels (Pty) Ltd 1991 (3), S.A. 276.
definition of hearsay evidence as set out in the case of Estate De
Wet vs De Wet 1924 CPD 341, namely that, "It is the evidence of
statements made by persons not called as witnesses which are tendered
for the purposes of proving the truth of what is contained in the
statement." This has been the old approach before the acceptance
of the accommodation by the South African Law Commission in its
review of the Law of Evidence. The emphasis thus no longer falls on
the purpose with which the declarant made the statement but rather on
the question of the credibility of the declarer.
approach has thus simplified the definition of hearsay evidence to
mean, statement, be it oral or written, given by someone other than
the person who made the assertion, in circumstances where it is
important that the asserter be cross-examined. Of importance also is
the fact that although the purpose for which the
is tendered is no longer the primary test for hearsay evidence, it
nonetheless remains one of the factors which the Court must consider.
Also that in the exercise of its judicial discretion, it is still
open to the Court if in its opinion feels that hearsay evidence
should be admitted in the interest of justice. See Metedad v National
Employer's General Insurance 1992 (1) S.A. 494, that such evidence
may be used in civil matter:; in the search for truth. For an
excellent exposition of the definition of hearsay as well as the
exceptions to it see Hewan v Kourie 1993 (3) S.A 233.
annexure relied upon has no date and has not even stated as to when
the marriage to ' Matli Mahlelehlele took place. In Mia's Justice v
Mia 1944 WLB 102, Shreiner J had this to say:
"that if deponent is unable to state that he believes the truth
of the hearsay information furnished to him. he can hardly ever be
permitted to rely upon it for the relief which he seeks."
therefore not be proper to say that failure to comply with that
requirement for the admission of hearsay statements is a mere
technicality. The Court has however allowed the deponent, in
interlocutory matters where injury and or other special circumstances
appear to justify its doing so, to state that he is informed and
verily believes certain facts on which he relies for relief, Steyn v
Schabert 1979 (1) S.A. 694. But even there, facts must be stated in
full and grounds for such belief and also how the information was
obtained. The source of such information must be disclosed with a
degree of particularity sufficient to enable the opposing party to
even make independent investigations of its own including where
necessary, verification of the statement from the source itself.
Respondent explained the reason for having failed to get an affidavit
from the author of Annexure "LTM", that it was due to time
constraints and could therefore not have time to call the author to
depose to an affidavit. It has to be remembered that the interests of
minor children here are the ones to be safeguarded, the High Court
therefore being an upper guardian of all minors must take all that is
in its powers in order to protect those interests. The following is
said about the rule in Harnischfeger Corporation v Appleton 1993 (4)
479 at 484, "It intends that the principle against hearsay
evidence should not be a shield of defence against facts."
invoking the provisions of Rule 8(14) of the High Court Rules, the
Court directs that the Author of Annexure "LTM" be called
to come and give oral evidence on the issue of Applicant's marriage
into his family if any.
is saying that reference to CIV/APN/474/2000 by Respondents bears no
relevant and that it is not material for the determination of this
Application and is intended only to prejudice the Applicant in her
claim. The Court was told through annexure "A" that the
Applicant in this case sought to eject 2nd and 3rd Respondents from
their home where Applicant presently stays. It is the Applicant's
contention that the annexure is going to prejudice her in conducting
her case, and that it is only intended to cloud the Court's vision
and not to assist the Court in anyway.
Respondents' on the other hand feels that the document is highly
relevant in that it will help the Court to determine the issue of
guardianship of the minor
in a rather well informed manner. The Court is thus asked to make a
pronouncement on whether or not the said Application is to be
declared relevant or material to the issues for determination in this
proceedings in that CIV/APN/474/00 appear to be very relevant as they
seem to assist the Court in getting a clear picture of how the
Applicant relates to the minor children whom she now seeks to apply
for their guardianship. The same Application also assist the Court in
realising that in actual fact, the mother of the minor children is
still here in Maseru and was allowed interim custody of the minor
children during the lifetime of their father, the deceased in this
trite law that in ex-parte Applications utmost good faith on the part
of the Applicant becomes a necessary requirement. A party who
approaches Court Ex-parte and fails to make a lull disclosure of all
facts material to the issues in dispute runs the risk of having his
Application dismissed with costs, Papashane v Andre 1979 (1) LLR 1.
There has to be a disclosure of all material facts, that is, not only
facts that a litigant considers relevant, but all other facts that
may possibly influence the Court in coming to a right decision,
Ntsolo v Moahloli 1985-89 LAC 307.
Applicant in this case has therefore not approached the Court with
clean hands as she has withheld from it some relevant information. By
and large, the balance of convenience does not favour the Applicant
as the proper guardian to look after the minor children to the
prejudice of other interested parties not mentioned in this case. The
High Court being the upper guardianship of all minors had to be told
everything about the welfare of the minor children in order to decide
on what is in the
interest of those minors.
in the case of Tsehlo v Tsehlo 1985-90 LLR 356 was of the view that
it had no jurisdiction to deprive the father of custody of the minor
child where there were no matrimonial proceedings pending except
under its powers as upper guardian of all minor; where there was
danger to the child's life, health or morals. This goes to show that
the interests of minor children are always considered by this Court
to be of utmost importance, and the Court has to do everything that
is in its powers possible so as to protect those interests.
Applicant : Mr Lichaba
Respondents : Mr Makholela
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