HIGH COURT OF LESOTHO
matter between :-
TSIETSI 1st RESPONDENT
TSIETSI 2nd RESPONDENT
TSIETSI 3rd RESPONDENT
TSIETSI 5th RESPONDENT
by the Honourable Mrs Acting Justice A.M. Hlajoane on the 11th Day of
an ex parte Application for an interdict framed as follows:-
Rusi Nisi be issued calling upon the Respondents to show cause (if
any) on a date to be determined by the Court why:-
period of service as provided for by the Rules of Court
should not be dispensed with on account of urgency of this matter.
Respondents should not be interdicted and or restrained from
interfering with Applicant's rights over property listed at page 2
of Annexure "A" to Applicant's founding affidavit safe by
due process of Law.
first Respondent should not be interdicted from holding himself out
as heir to the estate of the late Patrick Tšepiso Maphepha.
Respondents should not be ordered to pay costs herein.
should not be granted further and or alternative relief.
prayer (l)(a) and (b) operate with immediate effect as an interim
order of Court.
was granted as prayed.
common cause that the Applicant is the daughter of the late Patrick
Tšepiso Maphepha who passed away during April/May, 1999. The
is the younger brother to the Applicant whilst the rest of the
Respondents are relatives to the Applicant. Maphepha and Tsietsi is
the same family name. Applicant is a divorcee.
following points of Law in limine were raised:
worth mentioning at this point that from the record it would seem
that with the exception of 1st Respondent, the rest of the
Respondents do not oppose the Application, indicating that they will
abide by whatever decision the Court will make.
Respondent therefore raises a clear dispute of fact which he calls a
foreseeable dispute, in that they as Respondents did not know about
the will. There is nowhere in the papers showing that the will was
ever made known or brought to the attention of the Respondents in
terms of Section 34 of the
of Estates Proclamation 19 of 1935.
'The Master shall cause to be published in the gazette and in such
other manner as he thinks fit a notice calling upon the.....heirs,
Legatees and creditors of the deceased to attend before
the record show that Respondents were aware of the will, nowhere does
the record show that the Master ever called the relevant people
before him, being the Respondents. Instead counsel for the Applicant
called the Respondents before him through the chief of Ha Matala, but
they failed to attend. In terms of the above quoted Section of the
Administration of Estates, Counsel had no such authority. What the
Section means is that, where the will has mentioned no specific
person as Executor, the Master, after consulting the heirs, the
legatees and creditors of the deceased will appoint the Executor
dative. The Master never called the first Respondent before
appointing the Executor. In our case the Executor was first appointed
and an attempt to call the Respondents was after. Fairbairn's
Handbook for Executors and Administrators 4th edition at pages 7 to
8. When a dispute of fact arises in motions proceedings the Court
assumes the correctness of Respondent's version Supreme Furnishers vs
say that the Applicant has made a blanket claim on certificate of
urgency without showing any justification for having approached Court
ex parte. Applicant on the other hand avers that in fact the matter
was urgent as facts placed before Court clearly showed an
infringement of a clear right.
affidavit, the Applicant has alleged that she is in possession of a
will and the Testator to that will passed away during April/May 1999.
She further alleges that the Respondents started tempering with her
rights as early as October 1999, also in July, 2000 and October 2000,
but only approached Court in November, 2000. The Applicant has not
given any reasons for the delay.
& H vs ILLOVO Suger Estates 1954 (4) S.A. 425 (n) the Court
pointed out that the delay in bringing an Application to Court could
be condoned considering the complexity of a particular case. But in
our case where Applicant alleges a clear right by virtue of being in
possession of a will, there is nothing complicated which needed much
of any preparation for approaching the Court for a relief.
authority of Moabi vs Moabi and Others , 1980 (2) S. A. 407, the
Respondents averred that the Applicant has failed to satisfy the
requirements of interdict being:
clear right on his part
injury actually committed or a well founded apprehension that the
injury will be committed by the Respondents
of alternative remedy.
said in Moabi's case [Supra] this is an Application for a permanent
interdict, not a temporary interdict. A permanent interdict will
seldom be granted on Application, as the proper procedure is going by
way of an action, where a clear right must not only be alleged but
must also be proved, Beukes vs Crous 1975 (4) S.A. 215. Absence of
alternative remedy must be shown. Setlogelo vs Setlogelo 1914 AD 221.
The Court is left to speculate as to when the bequeath was handed
over to the Applicant after the death of the testator and the
appointment of the executor. Applicant has only shown that the
testator died during April/May 1999 but has not shown as to when the
property, subject matter of the bequeath was ever handed over to her.
the Applicant could have approached Court for an interim interdict
pending an action to be instituted as there was obviously a
foreseeable dispute of fact.
Applicant has rightly conceded that as recognized by our Courts,
Rules governing Application Proceedings show that affidavits
constitute not only evidence but also pleadings, so that the
answering affidavit by the Respondents must have contained what would
be set out in a plea. The Respondents have thus complied with these
provisions of the law.
the Respondents have succeeded on all the points raised in limine I
therefore find it not necessary to deal with other points that were
raised as to the validity or otherwise of the will. The rule is
accordingly discharged with costs
Applicant: Mr Hlaoli
Respondents: Mr Mahase
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