HIGH COURT OF LESOTHO
MOAKI 1st RESPONDENT
SHERIFF (M. SEFAKO) 2nd RESPONDENT
by the Honourable Mr. Justice T. Monapathi on the 31st day of August.
an application for stay of execution of a writ. The writ was issued
in terms of an order of this Court of the 9th August
1999 at the
first hearing. The Court had ordered that the Applicant should pay to
the First Respondent a contribution towards burial
expenses of the
parties' daughter Setšohlo who had died about three weeks
earlier. It was for payment of fees of Counsel
as well. The
contribution was M26,000.00 and the fees were in the amount of
Applicant had also sought for an order that the Deputy Sheriff be
directed to release and return to Applicant all the property
items removed in execution of the writ referred to above. It was in
addition sought that the orders suggested in prayers 1(a)
and (b) be
allowed to operate as interim interdict with immediate effect.
time of the application no grounds of appeal had been filed.
Consequently I properly did not have a way of looking into prospects
of success. Prospects of success would, as a matter of necessity,
have to be aligned to the contents of the grounds of appeal.
did the Applicant have the onus of showing such prospects. He also
had the onus of showing any special circumstances as
to why the Court
should stay execution of the judgment in the main application. If it
was remembered that the sums ordered to be
paid by the Applicant were
towards contribution to the funeral expenses of the Applicant's
daughter, who had remained unburied
for close to a month, the
soundness of this application became very difficult to see in the
absence of special circumstances. None
application centred around the allegation that the Applicant had not
as at the time of the first hearing got full instructions
deponent who had supported the Respondent in her replying affidavit.
It was said that the deponent would have been discredited.
deponent was one Teachere Christmas Mathibe. It was put in this
manner in the paragraph 5 of the founding affidavit:
"If I had the opportunity to give instruction to my attorney I
would have indicated that the supporting affidavit of a certain
Teachere Christmas Mathibe which is referred to in paragraph 5 of the
replying affidavit of the Respondent was signed by a certain
Matsofala on Sunday the 8th August 1999 in the Butha Buthe prison.
I would also have indicated to my attorney that this Johannes
Matsofala was convicted in the Butha Buthe Magistrate's Court under
case number 180/98 on a charge of incest which was later, on
automatic review by the learned Judge G N Mofolo, changed to rape
Johannes Matsofala was sentenced to 8 (EIGHT) years imprisonment
without the option of a fine, for raping a certain Maente
a female of 16 years and the child of the deceased and the said
Johannes Matsofala. I have obtained a certified copy
of the record of
the proceedings in CR 180/98 which I attach hereto and refer the
Court specifically to the evidence of PW 3. Mmaphophoja
which is the married name of the deceased. Setsohlo Moaki. and on
page 18 of the record she clearly stated that the
Matsofala, is her husband, they had four children and they were
married under customary law in 1981 and parted
in 1989. The deceased
further states that she was employed in the RSA. The Court is
respectfully referred to the Founding Affidavit
of the Respondent,
paragraph 5 thereof, where Respondent declares under oath that "this
our daughter was never married and
has always been under my care
until she died". The Respondent misled the Court and was not
frank in putting the correct facts
before the Court. A further
worrying aspect is that in paragraph 4 of the Supporting Affidavit of
Teachere Christmas Mathibe he
states that he has no duty to bury the
deceased and "she is for all intents and purposes the
responsibility of her husband"
which in effect means that the
Supporting Affidavit also confirms that the deceased was married.
Johannes Matsofala does not state
in his affidavit that what he
deposes to is the truth."
this means that Mathibe was in fact Matsofala a convict who had been
with rape of his own daughter and daughter of deceased. That Mathibe
was the same person as Matsofala was not denied by
herein. As in the main application, no attempt was made to indicate
how the association between deceased and Mathibe
would have been a
observed no attempt was made to show prospects of success and how the
balance of hardships or convenience would favour the
virtually seeking to place in limbo a burial of the deceased who had
been lying in a mortuary for close to a month.
That is the
circumstance despite which the Applicant said that the balance of
convenience favoured him in granting of this application.
difficult to understand.
there were no grounds of appeal, the magistrate's record and the High
Court review Order No.9 of 1998 and the whole set of
paragraph 5 only amounted to a disguised attempt or an effort to
review the Court's decision in the main application.
The said record
and review order had, in reality, no bearing on this application for
stay nor for an application for rescission
if there was one.
that there were no prospects of success more so if there was no proof
of marriage between Mathibe and deceased. In addition
herein had accepted that Mathibe and Matsofala were one and the same
person. Still there would have been no prospects
of success, it being
just one of the factors affecting the Court's discretion. See SOUTH
CAPE CORPORATION v ENGINEERING MANAGEMENT
SERVICES (PTY) LTD 1977(3)
SA 534 A.D, at 545 and in RAMPHALLA v BARCLAYS BANK PLC AND ANOTHER
CIV/APN/310/97 Ramodibedi J, 10th
September 1997 at page 8.
bore in mind the provision of Court of Appeal Rule 6(3) in that the
ought to have been served at least seven (7) days prior to the date
That had not been done.
application failed with costs.
Applicant : Mr. Molete
Respondent: Mr. Phafane
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