HIGH COURT OF LESOTHO
Case No. 11/2002 Cri. 1202/2001
Order No.3/2002 In Qacha's Nek District
the Honourable Mrs Acting Justice A.M. Hlajoane On the 26th Day of
matter came before me on automatic review.
Accused was charged before the Magistrate Court Qacha' s nek with the
crime of housebreaking with intent to steal and theft. The charge
having been read and explained to the Accused and the Accused pleaded
witnesses were called by the Crown. The first witness being the
Respondent/Plaintiff had a notice of withdrawal as Attorney and
record filed by his counsel. The reason for this withdrawal being
that client wished to instruct a lady practitioner who would be very
accommodative and understanding in the issues involving children.
raised an objection saying that the withdrawal came at the eleventh
hour yet the Respondent/Plaintiff was soon leaving for her studies.
The Court all the same granted the postponement to the 8th February
at 9:00 a.m. at the request of Respondent/Applicant.
commenced at 9:20 a.m. on the 8th February as requested, but 20
minutes late, but there was no appearance for the
Respondent/Plaintiff's counsel or the Respondent/Plaintiff herself.
matter proceeded and the interim custody was awarded to the father,
Applicant/Defendant. An order was also made of the appointment of the
liquidator to be approved by the Registrar, who will take over the
assets of the joint estate for liquidation and thereafter sharing the
proceeds equally between the parties.
13th February, 2002 on ex-parte application was moved for the
of the order of the 8th February, 2002. The rule was granted and was
made returnable on 20th February, 2002. The Respondent in that
application had the Rule anticipated to 18th February, 2002, and also
raised some few points of law in limine. The notice was in terms of
Rule 8(10) (c) of the High Court Rules.
person opposing the grant of any order sought in the applicant's
notice of motion shall:
(e) if he
intends to raise any question of law without any answering affidavit,
he shall deliver notice of his intention to do so, within the time
aforesaid, setting forth such question."
following points in limine were therefore raised;
(i) There is no evidence to show that Applicant instituted these
proceedings as she has not deposed to any affidavit.
(ii No good cause is shown why Applicant herself did not attend Court
despite the fact that she knew about the date of hearing.
(iii) No defence has been laid down for both orders namely: (a)
Interim custody during Applicant's absence
Division of the joint estate by a liquidator approved by the
Registrar of the High Court.
Application for stay the affidavits filed are those of a clerk from
Counsel's office and is supported by that of Counsel herself. There
is no affidavit filed by the Applicant herself. On the authority of
Selikane and Other vs Lesotho Telecommunications and Others 1999-2000
LLR & LB 127 the Court of Appeal showed that, one could not
depose to an affidavit of facts which he has no personal knowledge.
The clerk has no personal knowledge as regards the welfare of the
Applicant herself was before Court when the matter was postponed to
allow her to secure attendance of her female counsel. Her affidavit
would have helped to explain why she failed to attend. As it is now,
there is no explanation for her non-attendance as the Court was then
not aware that she in fact managed to brief a female counsel.
regards the interim custody of the minor child, the Court is left in
the dark as Applicant in this case chose not to depose to any
affidavit. It is not explained as to who would look after the child
in her absence or whether she is taking the child to school with her.
Respondent has only sought for interim custody.
question of division of the joint estate, the Court is not going to
go into it as it has not been one of the issues for determination in
this Application, as it is not being contested.
Application is therefore not properly before this Court, it is
dismissed with costs.
Plaintiff: Ms N. Thabane
Defendant: Mr Matooane
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