HIGH COURT OF LESOTHO
the Hon. Mr. Justice W.C.M. Magutu. Acting Judge on the 21st day of
Nisi has already been discharged. These are the reasons that the
court promised to funish.
an urgent application that was brought jex - parte by applicant. In
it applicant asked for an order in the following terms:
Respondent shall not be restrained and interdicted
forthwith from refusing to release to the Applicant certain personal
and household items listed in annexure "CM2" to
affidavit that are presently in his custody and control pending
disposal of the present application,
Deputy Sheriff shall not be authorised and directed to take the
items listed in prayer l(a) above and release them to the
the Applicant forthwith.
Respondent shall not pay the costs of this application.
shall not be granted such further and/or alternative relief that the
Honourable Court may deem fit.
prayers l(a) and (b) above shall operate as an interim interdict
with immediate effect."
after reading the papers formed the view that even though the matter
was to the applicant urgent, respondent ought to
be given notice.
Consequently the court directed applicant to serve respondent.
in so doing was conscious of what Beck J. said in Republic Motors v.
Lytton Roan Service Station 1971(2) S.A 516 and 518
F - H:
"The procudure of approaching the court ex parte for relief that
affects the rights of other persons is one which, in my opinion,
somewhat too lightly employed. Although the relief that is sought
when this procedure is resorted to is only temporary in nature,
necessarily invades, for the time being, the freedom of action of a
person or persons who have not been heard and it is, to
that extent a
negation of a fundamental precept of audi alteram partem. It is
accordingly a procedure that should be sparingly
carefully disciplined by the existence of factors of such urgency, or
of well-grounded apprehension of perverse conduct
on the part of the
respondent who if informed before - hand .... the course of justice
is in danger of frustration unless temporary
curial intervention can
be unilaterally obtained."
J. associated himself with these remarks in L. Khoboko v. N. Khoboko
& 2 Ors CIV/APN/402/86.
the court dispensed with the Rules ordered that respondent be served
and the matter be heard as a matter of urgency
within a few days.
Service would not (in this case) have put the course of justice in
danger of frustration.
have imported from the Transvaal in the Republic of Sough Africa Rule
8 (22)(c) of the Rules of the High Court 1980. In
terms of this
sub-rule every urgent application is to be accompanied by a
certificate of urgency. In it an advocate or attorney
that "he has considered the matter and that he bone fide
believes it to be a matter for urgent relief."
J. in Luna Meubel Versaardigers v. Mark in & Ano. 1977 (4) S.A.
135 at page 136 complained bitterly about the ease with
advocates and attorney issue a certificate of urgency.
"These practitioners feel at large to select any day of the week
and any time of day (or night) to demand a hearing. This
Justice Coetzee is definitely right, this practice has to be
discouraged. It has not had had disasterous results because this
court was uanble to give urgent relief because of shortage of judges.
An urgent application easily took twelve months to be disposed
common consent the word "urgent" lost is meaning because it
was virtually impossible for the courts to give instant
relief even if they wished to do so.
on notice can be heard speedily. They have the advantage of giving
the other side a
be heard. Periods for filing opposing papers can be shortened to meet
the exigency of the situation. It is, therefore,
quite possible for
an urgent application on notice to be heard within 24 hours. In a
fitting case the Rule Nisi procedure can be
used not only to speed up
the hearing but to obtain interim relief. Safcor Forwarding (Pty)
(Ltd v. N.T.C. 1982(3) S.A. 654 at
675 BC. In both the urgent
application on Notice and one using the Rule Nisi procedure, a
certificate of urgency could accompany
both types of application. It
is quite legitimate and it is often desirable to obtain a Rule Nisi
after serving the other party.
Where this has happend the court is
unlikely to grant an order that is prejudicial or wrong without
hearing both sides.
understanding of a certificate of urgency is that it entitles an
applicant to set set-down the matter at short notice to the
side. It does not necessarily entitle the applicant to proceed ex
matters of urgency, there has to be flexibility. "To hold
otherwise would, in my view, make the court captive to rules"
Corbett J.A. in Safcor Forwarding (Pty) Ltd v. N.T.C. 1982 (3) S.A.
675H. "Therefore, Practitioners should carefully analyse the
facts of each case to determine, for the purpose of setting
down for hearing, whether a greater or lesser degree of relaxation of
Rules and of the ordinary practice of the Court
is required. The
degree of relaxation should not be greater than the exigency of the
case demands." -Coetzee J. in Luna Meubel
Vervaardiqers v. Makin
& Ano 1977(4) S.A, 135 at 137F.
matter respondent did nothing after service. Service had been effect
on the 9th December, 1993. The court thereupon issued
a Rule Nisi in
terms of applicant's Notice of Motion. On the return date (20th
December, 1993) respondent showed cause and took
the point that
applicant's application did not disclose a cause of action.
Apparently this was because the husband during the existence
marriage has extensive powers over the property belonging to the
support of his argument Mr. Monts'i for the Respondent referred to
the case of Ex parte Sayle v Commissioner for Inland Revenue
388. At page 395 Watermeyer C.J. (dealing with the contention that
husband was the owner of the joint estate) said:-
"The Dutch writer whom I have consulted seem unanimous in the
view that in Holland such property was owned by spouses in common,
equal undivided shares."
learned judge rejected the contention that, the husband who is
married in community (simply because he either exercised such
extensive powers of the property of the the joint estate) property,
"he was either the owner of it or that his position could
law be distinguished from that of an owner." If Mr. Monts'i had
actually perused this case, he might have realised
this does not
necessarily support the fact that the husband is virtually the owner
of the joint estate. The husband is only the
administrator of the
C.J. at pages 396 and 397 of Estate Sayle then showed that it is
marital power that often creates confusion. Nevertheless
the wife is
the sole owner of half of the joint estate. The law does not permit
the husband as an administrator to deal fraudulently
with the wife's
share nor does it allow the husband to dispose the wife's share of
the joint estate by will, This is so despite
the fact that the
sometimes does and can exercise these wide powers of administration
to the wife's detriment. In short, the husband never
owns the wife's
share of the joint estate.
Ramabooa v. P.S. Ramabooa 1967 - 70 LLR 90, per Mr. Evans J. held the
court does not normally interfere with the husband's
unless there are legal proceedings contemplated. In this action,
applicant does not allege that she contemplates
because of which she asks for an interdict or some interference with
the husband's marital power pending the
finalisation of those
proceedings. This happens where there are divorce or judicial
courts in Lesotho have been protecting the husband marital power to
such an extent that in Kurubally v. Kurubally & Ors
CIV/APN/270/83, Mofokeng J. who dismissed the application (where
divorce proceedings were instituted after the application had
"The belated institution of a divorce was, in my view, to bring
the application in conformity with the Lesotho law. The application
is too drastic to allow for this
present application is just as drastic. During the subsistence of the
marriage, the wife has brought an application ex parte
in which she
asks the court to direct the husband to hand over to her the entire
household furniture. Among this included are,
a bed-room suit,
curtains, blankets, sheets, kitchen utensils, Kitchen accessories,
cutlery, cooking utensils, gas heaters and
so on. The reason for this
application and its urgency is that she desperately wants them. She
used this property before she went
for studies and then left it with
her husband when she went for studies. The husband is unemployed. She
claims her husband is being
unreasonable in not allowing her to take
the property itemised on the list annexed to the application. On the
face of the application,
the wife wants to take everything. It is not
clear whether the husband would be left with anything in their home.
The court wanted
the husband to be served for precisely that reason.
He chose not to go into the merits at this stage.
reluctance of this court to permanently interfere with the affairs of
husband during marriage
curbing the husband's powers was again voiced by Cotran C,J. in C.
Kahimbara v. J. Kahimbara CIV/APN/209/85 (unreported) when
"The applicant has not sought judicial separation and since the
application is a bare one, i.e. not pending action, it will
effect of the court granting a final mandatory interdict curtailing
the husbands marital powers ... that, I am afraid
is not possible."
for applicant was not fully heard as he ought to have been.
Nevertheless, he had no authorities to advance that could
what this court has held in the past. He felt the law was unfair and
sides too much with men. In what he says he will
find the support of
several men and women of good will.
I sincerely believe even where the rights of men and women were
equal, this application might not succeed. Applicant
on the face of
the papers wants everything that the parties have for her sole use
and benefit. Even if this application had been
in order in that it
was being made pending other matrimonial proceedings, applicant might
still not succeed. None of the parties
should use the court
matrimonial proceedings are complete to hand over the parties joint
estate to him or her. The court's duty in granting temporary
merely in its descretion attempts to avoid or reduce hardship pendent
lite and not to do what it should do when the matter
is being finally
difficulty applicant had was that out of 50 items, unspecified
personal clothes were item number 8, These applicant is
The question is what these clothes consist in. This court has in the
past had difficulty with such vague generalisation.
difficult to know how many items of clothing are involved. Whether it
is one skirt or a pair of shoes is anybody's guess.
With the other 50
items, applicant has sometimes been detailed. For example she claims
a dust pan. That being the case, the court
could not acceed to item 8
of the 50 items claimed. It had to refuse the lot to enable applicant
to bring a well-considered application.
Nevertheless, it warned
respondent to hand over to applicant her personal clothing because
respondent has no legal right to keept
ought to have refused to grant this
but through oversight granted it. Consequently, the court is obliged
to Mr. Monts'i for drawing this court's attention
to this flaw in
applicant's application. As Corbett J.A. (as he then was) in Safcor
Forwarding (Pty) Ltd v N.T.C. (supra) at 676
said, the issuing of the
Rule Nisi (though a provisional order) does not tie the hands of the
judge who finally hears the matter.
circumstances, the court's order is as follows:-
Nisi is discharged with costs. Costs to be recovered from applicant's
share of the joint estate.
Applicant : Mr. Mathe,
Respondent: Mr. Monts'i.
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