In this case, the respondent claimed two houses, one yard, three fields, and three forests as his property; and alleged that the appellant was using the property unlawfully. A first judgement was rendered in favour of the respondent. The appellant then appealed the judgement. After the appeal was dismissed, the appellant continued to be adamant against the court's decision and the respondent, therefore, applied for interdict orders seeking to restrain the appellant from entering the disputed property. The interdict was granted and was then appealed by the appellant. This case concerned the appeal against the judgment of the resident magistrate confirming the interdict granted against the appellant.
The issues for determination were (1) whether the application for an interdict was the proper remedy in the circumstance and (2) whether the summons was properly served to the defendant.
The High Court held that for it to issue an interdict it must be satisfied that (1) a clear right existed; (2) an injury was actually committed or reasonably apprehended; (3) no other satisfactory remedy was available to the applicant. The High Court held that damages to the property involved would be irreversible and that the matter satisfied the requirements for an interdict.
The High Court found that the appellant chose to ignore the summons. Moreover, even if he was not duly served with the summons, he was supposed to apply the default judgement to be set aside and not to ignore it.
The appeal was dismissed with cost.
HIGH COURT OF LESOTHO
Appeal of :
by the honourable Mr. Justice J.L. Kheolo on the 31st day of August,
an appeal against the judgment of the Resident Magistrate of
Butha-Buthe dated the 15th November, 1985 in which she confirmed
interdict granted on the 29th June, 1984. The respondent (applicant
in the lower court) had applied for an order in the following
Rule Nisi be issued calling upon the respondent to show cause why:
should not stop with immediate effect reaping the field which he
ploughed and sowed after the judgment was passed.
should not be directed to allow the applicant to reap the
fields for his own use.
should not be directed to stop cutting the trees from the forests
which were in issue in the case mentioned above.
Applicant the sum of R400.00 for damages suffered by the Applicant
for the huts destroyed,
Costs of the suit."
was confirmed except prayer (e) which was discharged on the ground
that the respondent had failed to prove it.
appellant is now appealing to this Court on a number of grounds; but
before considering the grounds of appeal I propose to give
short,summary of the facts of the case. The case which gave rise to
the application before the magistrate's court was first heard
khukhune Local Court on the 13th September, 1983. The respondent
claimed two houses, one yard, three fields, and three forests
property and alleged that appellant was using the property
unlawfully. At the end of the day the court gave judgment in
of the respondent. Appellant appealed to Hololo Central Court. The
President of Hololo Central Court remitted the case to
Court with the order that the appellant be given the opportunity to
hand in a family document as an exhibit which
would prove that the
property which is the subject matter of this dispute was given to him
by the family.
was set down for this purpose on the 7th February, 1984. The
appellant was served by post and the letter was posted to
him on the
7th December, 1983. The applicant failed to appear on the 7th
February, 1984 but the respondent attended. On the 7th
the Local Court president wrote a letter to the Central Court
President in which he stated that he was reinstating
judgment because nothing new had come up. After this second judgment
was announced and communicated to the Central
Court President the
respondent was continuing to use the property in question. It was as
a result of the appellant's ignoring and
defiance of the judgment
that the respondent instituted the interdict proceedings in the
requirements for an interdict are;
clear right on the part of the applicant.
injury actually committed or reasonably apprehended.
absence of any other satisfactory remedy available to the applicant.
ground of appeal is that there were other satis-factory remedies
available to the respondenti Mr. Matsau, counsel for
submitted that respondent ought to have instituted contempt of court
proceedings in the local court in terms of section
15 (a) of the
Central and Local Courts Proclamation Nc.62 of 1938. In the
alternative it is argued that the respondent ought to
the purported judgment in terms of Rule 45 of the Central and Local
Courts (Practice and Procedure) Rules, Government
Notice No.21 of
1961. I agree that there were other remedies available to the
respondent, but the question is whether or not they
satisfactory as an interdict, in other words whether the other
remedies would afford any adequate protection from the mischief
was continuing. The answer must be in the negative. The institution
of contempt of court proceedings is a very long
process. The judgment
creditor must go to the court and lodge his complaint and at the same
time give the names of his witnesses.
The public prosecutor will then
issue the summons and the subpoenae after he has obtained a date from
the Court President. By the
time the trial is over the harm which the
respondent wished to stop could have long been completed.
has been said above it is quite clear that contempt of court
proceedings are entirely unsatisfactory where the injury
started and is continuing. In the same way a writ of execution is
also unsatisfactory whore immovable property such
as land, houses
is concerned. In the case of movable property execution is effective
because the property is removed from the judgment
debtor and handed
over to the judgment creditor. With regard to immovable property
execution does not mean much, the messenger
of the court puts the
judgment creditor in occupation and ejects the judgment debtor. If
the judgment debtor re-occupies the land
or cuts the trees again
after he has been ejected, then contempt of court proceedings must be
remedies referred to by Mr. Matsau are totally unsatis-factory and
could not afford adequate protection from the mischief which
continuing. The suggestion that the respondent did not apply to the
Resident Magistrate to exercise her revisionary powers
26 of the Central and Local Courts Proclation No.62 of 1938 is
completely untenable. The respondent had a judgment
in his favour and
all what he wanted was to interdict the appellant from using property
awarded to him (respondent) by a judgment
of a court of law. If there
were any need for the parties to apply to the Resident Magistrate for
review, it is the appellant who
had to do that inasmuch as the
judgment of Khukhune Local Court was against him. However, instead of
applying for review or apealing
against that judgment the appellant
decided to use the property in defiance of a judgment of a competent
Matsau submitted that because the rules of procedure of the Central
and Local Courts do not provide for service by post, this
rule that there was no proper service of the summons and that the
matter should be remitted to Khukhune Local Court.
Rule 44 of Central
and Local Courts (.Practice and Procedure) Rules reads as follows:
to the provisions of Sub-rules (2) and (3), any plaintiff or
defendant who, after proper notice of the time and date set
the hearing of a case, fails without reasonable excuse to attend the
Court to prosecute or defend his case may, at the
discretion of the
Court, have a default judgment with costs entered against him.
judgment entered under Sub-rule (1) shall not become absolute until
the expiration of thirty days from the date on which the
judgment was given.
within thirty days from the date on which default judgment was
given, the defaulting party, after having served notice upon
other party of his intention, appears before the Court and shows
good and sufficient reason for his default, the Court may
such judgment and reopen the case and proceed to try the same."
instant case the appellant was given notice of the time and date set
down for the hearing of the case. He failed to attend
and has decided
not to apply for rescission of the default judgment. It may be that
it is correct that the rules do not provide
for service by post but
rules 44 refers to a notice and I am convinced that the appellant was
given proper notice but ignored it.
Even if there was no proper
service that will not affect the default judgment. It will remain a
valid judgment until such time
that it shall be set aside in
accordance with proper rules of procedure.
argued on behalf of the appellant that Annex "C" is not a
judgment but a letter written by the Khukhune Local Court
to the Hololo Central Court President. This argument is untenable. In
that letter he informed the Central Court President
that he was
reinstating his previous judgment because nothing new had come up. In
other words the previous judgment which had been
set aside by Hololo
Central Court was restored and made valid again.
reasons stated above the appeal was dismissed with costs.
Appellant - Mr. Matsau
Respondent - Mr. Maqutu
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