HIGH COURT OF LESOTHO
MOSHOESHOE (nee Makume) APPLICANT
MAJOROBELA MOSHOESHOE 1st RESPONDENT
MOSHOESHOE 2nd RESPONDENT
MOSHOESHOE 3rd RESPONDENT
MOSHOESHOE 4™ RESPONDENT
THE HIGH COURT 5th RESPONDENT
by the Honourable Mrs Acting Justice A.M. Hlajoane on the 16th
by the Applicant's counsel is for an order of striking out certain
paragraphs in the first Respondent's opposing affidavit as being
scandalous, vexatious, argumentative and irrelevant. The Application
is made in terms of Rule 29
the High Court Rules 1980.
(5) of High Court Rules
any pleading contains averments which are scandalous, vexatious,
argumentative, irrelevant or superfulous the opposite party may,
within the period allowed for delivering any subsequent pleading,
apply for the striking out of the matter, aforesaid, setting out the
grounds upon which the application is made.
an application may be set down on not less than seven days notice to
the opposing party as an opposed application before the motion
Court may dismiss the application if it is not satisfied that the
applicant will be prejudiced in the conduct of his claim or defence
if it be not granted."
Applicant's purported marriage to deceased is null and void ab initio
on the ground that it was entered into during the existence of
another customary marriage contrary to section 29 (1) of the marriage
Act No. 10 of 1974.
1998 when applicant entered into an invalid marriage applicant was
already married per annexure "LTM" to 'MATLI MAHLELEHLELE.
The said marriage still exists and has not been dissolved.
5. 2 (a)
has failed to disclose the material fact that she had initially
instituted CIV/AN/474/2000 in which she sought to eject 2nd, 3rd and
4th Respondents from their home where applicant is now staying. A
copy of CIV/AN/474/2000 is attached and marked "A".
Applicant has failed to disclose that her application in
CIV/AN/474/2000 was dismissed.
Applicant has failed to disclose the material fact that she is
legally married to 'MATLI MAHLELEHLELE's family and has two children.
Applicant has not disclosed that she is now staying with her youngest
son while her eldest daughter is staying with her in-laws at Ha
As can be
seen from the reading of this section 29, reference is made to
'pleadings' and we can only speak of pleadings in a trial action not
in an application. According to the Concise Oxford Dictionary,
pleading 'is a formal statement of the cause of action' (my
emphasis); and Blacks Legal Dictionary has pleadings as 'individual
to an action' or' Process performed by the parties to an action which
sets allegations of fact to an action.'
before this court made provisions for two forms of proceedings,
namely proceedings by way of motion, Applications, and those by way
of summons. As was said by Jerold Taitz (1979) 96 SAL5 476, that "the
difference between a remedy and the procedure necessary to obtain
that remedy should not be overlooked." See also Zimmermann and
Visser on Civil law and Common law in South African at 147-149. That
is why we have different Rules for the two sets of proceedings. Rule
8 deals with Applications and Rule 18 with summons. We have different
terminology for parties in both proceedings and also for sets of
papers filed in each. In an action both sides will be filing their
pleadings which is their defence and end up by leading viva voce
evidence when pleadings are closed. But with an Application
proceedings each party gives his evidence on paper by way of
usually cite South African cases, our position is different because
in their case provision is made in the rules that inadmissible
evidence of any kind contained in affidavits may be struck out, Rule
6(15). But in our case, striking out applies in pleadings which are
in trial actions.
reason the application for striking out is misconceived and therefore
Even if I
were to allow the Application to strike out, according to Sherphard v
Tuckers Land and Development Corporation (Pty) Ltd 1978 (1) SA 173
Application to strike out must be made when the matter is before
court on its merits
made prior thereto the application is premature. The matter is yet
not before me on its merits.
Applicant : Mr Lichaba
Respondent : Mr Makholela
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