HIGH COURT OF LESOTHO
QEFATE NKUEBE 1st APPLICANT
MONICA NKUEBE 2nd APPLICANT
NKUEBE 1st RESPONDENT
NKUEBE 2nd RESPONDENT
MAKHAOLA SEMPE NKUEBE 3rd RESPONDENT
by the Honourable Acting Mrs. Justice A.M.
on 27th August. 2002
Application was moved ex-pane and Applicants prayed for a final order
in the following terms.
with the Rules pertaining to service and form on the grounds of
urgency of the matter.
to be interdicted and/or restrained from interfering with
Applicants' rights over a house currently used as an office of the
Chief of Sebapala in the Quthing district.
to be interdicted from expelling or evicting 2nd Applicant from the
premises mentioned in (b) above pending finalization hereof.
to pay costs in the event of opposing this Application.
and/or alternative relief.
Application the subject matter is a house. The first Applicant claims
the house to be his whilst the third Respondent also claims the same
house as his. Both these litigants claim each to have inherited the
same house from their respective fathers.
their opposing papers, the Respondents instructed their Attorney to
take the following points in limine.
since the Application, in terms of Section 18 (1) of Subordinate
Courts Order NO.9 of 1988, falls within the
Jurisdiction of the Subordinate Court, it ought therefore to have
been lodged with the Subordinate Court.
there is no order under Section 6 of the High Court Act NO.5 of 1978
which has been made by any judge of the High Court in terms of
Section 6 of the High Court Act.
there is no urgency in this matter.
only confine myself to the points in limine that have been raised
without going into the merits of the case as these points were raised
in the opposing affidavits before the Replying stage. On the basis of
such points raised the Respondents are praying that the Application
should be dismissed with costs.
to give an extract of the Section relied upon by the Respondents.
18(1) of Subordinate Courts Order 9 of 1988.
"Subject to the limits prescribed by this order, the court may
grant against persons and things, orders for arrest tanguam suspectus
de fuga, attachments, interdicts and mandamenten van spolie. "
section gives the Subordinate courts jurisdiction to deal with
matters including amongst others interdicts. Indeed Subordinate
courts have power to entertain and grant interdicts, but the moot
question is whether they have a right to grant permanent or final
order of interdict bearing in mind the fact that permanent interdicts
in effect stand in Pari materia with orders for perpertual decrees of
silence. In granting a final interdict therefore all the relevant
circumstances are to be taken into account, and factors to be
considered would amongst others be the hardship which an interdict if
granted would inflict upon the Respondents and also hardship upon the
Applicants the refusal of such interdict would inflict.
therefore under the circumstances expresses the same sentiments as
were expressed by my brother Lehohla J in
of Ts'ehlo v Nts'asa CIV/APN/229/94, in that it would seem only
natural on account of the exigency of the remedy being sought that
Applicants did well to approach the only court where his plea if
sustainable would fetch a permanent relief.
UNDER SECTION 6 OF HIGH COURT ACT 1978.
been the Respondents case that Applicants have not sought for an
order under Section 6 of the High Court Act 5 of 1978.
of High Court Act 1978 reads as follows:-
"No civil cause or action within the jurisdiction of a
Subordinate Court (which expression includes a Local or Central
court) shall be instituted in or removed into the High Court save -
judge of the High Court acting on his own motion, or
the leave of a judge upon application made to him in chambers, and
after notice to the other party. "
this point I still express the same sentiments as in the previous
one, that considering the nature of the relief sought
only fair and reasonable to have approached the High Court for
permanent relief. In fact, this point cry out the same echoes as the
are saying that the matter is not urgent regard being had to the fact
that the dispute over the said house dates as far back as 1970. The
fact that the dispute over the house is of a long standing nature is
not denied by the Applicants as shown at 3.3.3 of their heads of
arguments. On numerous decisions, the Court of Appeal has advised
that orders should only be granted without notice to the other side
where that is vigorously justified, Commander LDF v Matela 1999-2000
LLR & LB 13.
case therefore, could it be said that prior notice to the other side
would have frustrated the order that the court would give, no. Being
a dispute over a house both sides had first to be
before granting an order of whatever nature. On those many ocassions,
the court has shown concern in that, as a general rule basic
considerations of fairness and the need to prevent the administration
of justice being brought into disrepute require appropriate notice to
be given. Counsel who disregards these requirements may well lend to
a dismissal of his application and appropriate order as to costs. I
have no doubt that this is one such a case as this matter involves
the question of rights over the premises.
trite law that a litigant who seeks ex parte relief must in drawing
his papers, disclose all material facts, that is, not only facts that
he considers relevant, but all other facts which may possibly
influence the court in coming to a decision. This is the uberrima
fides rule. Nts'olo v Moahloli 1985-89 LAC 307. He must make full and
accurate disclosure of relevant facts.
Respondent is saying that in fact the house subject matter of this
case was in fact built for his father Makhaola who used it till his
death and refused 1st Applicant use of it during his lifetime. The
dispute started a long time ago during the lifetime of their father.
It only came out from the Respondents that 3rd Respondents' father in
fact is also the son of Sempe Nkuebe, so that 3rd Respondent and 1st
Applicant are the grandchildren of the same father, Chief Sempe
Nkuebe. They are half brothers. It was therefore necessary for the
Applicants, especially the First Applicant , to have briefly given
the family tree of the Nkuebe family so that the court could be in a
position to know as to how the parties relate to each other. This is
a very material fact.
indeed trite law that, in the event of the court being appraised of
the true facts which had been withheld from it by the Applicant, the
court has a discretion to dismiss the Application on account of
non-disclosure. I consider therefore that this point in limine has
well been taken.
here content that the Applicants ought to have been aware that since
there has always been a dispute over this house, that they were
taking the risk in approaching the court by way of an Application.
Applicants on the papers have not denied, in fact are admitting that
there has always been such a dispute.
It is our
law that where the court considers that in launching
Application, the Applicant ought to have realised that a serious
dispute of fact was bound to develop, the court may dismiss the
application with costs. It was stated in the case of Van den berg v
Rand Water Board 194S AD 691 that, a final interdict may be claimed
by way of Application provided that (my own emphasis) the Applicant
does not forsee a material dispute of fact in which event trial
procedure should be used. Applicants for instance conceded that other
issues were a matter of evidence yet they choose to go by way of
Application. Applicant says it is a matter
evidence that Makhaola refused him the use of the house. Since it has
not been denied that ownership of the house subject matter of this
dispute is a long standing matter, I consider also that this point in
limine has well been taken.
therefore, the court considers that it had jurisdiction to deal with
this matter but that the matter was not urgent. Also that there has
been material non-disclosure of relevant facts and to the extent that
there is a dispute of fact which in fact was foreseeable. On the
question of ownership to the house and also to the extend that
Applicants are seeking for a final relief in motion proceedings, it
follows therefore that on the authority of Plascon Evants Paints v
Van Riebeck Paints 1984 (3) SA 623 the Respondent's version must be
authority of Adbro Investment Co. Ltd v Minister of the Interior 1956
(3) S.A.345, Applicants should have known that it would be impossible
for a court on motion proceedings to
declaration of rights, and for that also the Application ought to be
dismissed, and it is so dismissed.
Applicants' - Mr. Molapo
Respondents' - Mr. Khauoe
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