CIV/APN/186/86

IN THE HIGH COURT OF LESOTHO
In the
Application of :

PAKI MOAKI Applicant

v.

MOJABENG MOAKI 1st Respondent

RETSELISITSOE MOAKI 2nd Respondent
MATHEAME
MOAKI 3rd Respondent

JUDGMENT

Delivered by the Hon. Acting Chief Justice J.L. Khepla
on the 17th day of June, 1986.

On the 9th June, 1986 the applicant brought an
application ex parte and sought an order in the following
terms:

1. 
   The respondents are hereby ordered to vacate
   the
   applicant business premises and to handover
   the keys of the said
   premises to the Deputy .
   Sheriff of this Honourable Court; .

   
   

2. 
   The respondents are ordered to handover to the
   Deputy
   Sheriff of the Honourable Court the vehicles

   
   

belonging
to the applicant with registration

Numbers B 1173, B 0316, B 0270 and B 0180 and that the
Butha-Buthe police are hereby ordered to keep the aforesaid vehicles
safely
until the determination of this application-

3. The respondents are hereby interdicted from
assaulting
and/or harassing the applicant in any manner
whatsoever
and or threatening to kill the applicant;

/4. The

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4. The respondents are hereby interdicted from

going
and/or visiting the applicants businesses.

5. The RULE NISI hereby issued calling upon
the
respondents on the 23rd June, 1986 why

1. 
   The aforementioned orders cannot be made
   absolute.

   
   

2. 
   The respondents should not be ordered to pay
   the
   costs of this application.

   
   

6. Prayers 3 and 4 should operate with an immediate
effect.

The order was granted as prayed and the return day was
fixed as the 23rd June, 1986. The respondents anticipated the return
day in
terms of Rule 8 (18) of the High Court Rules. 1980. The matter
was argued-before me on the 17th June, 1986. Having heard both
counsel
I came to the conclusion that the matter was very urgent
because the first respondent and her minor children had been ejected
from
what is a matrimonial home for the applicant and the first
res­pondent who are husband and wife. The first respondent and
her
minor children had no where to live as a result of the interim
order of this Court. I issued a short oral judgment and discharged
the rule with costs. I intimated to the parties that my written
reasons for judgment would follow at a later stage. What now follow
are my reasons for that decision.

It is common cause that the applicant and the first
respondent are married to each other according to Sesotho law and
custom. The
applicant states that the first respondent is his junior
(second) wife and at the moment he is living with his senior wife at
Tsime
in the Butha-Buthe district. The first respondent denies that
the applicant is lawfully married to the woman he is presently living
with at Tsime.

/She

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She says that the woman is his concubine. It seems to me
that for the purposes of this case there will be no need for me to
decide
the validity of that marriage.

It is common cause that the applicant is the rightful
owner of the immovable property situated at Butha-Buthe from which he
asks that
the respondents be ejected. He is the lawful owner of the
vehicles mentioned in prayer (2) of the Notice of Motion.

In his founding affidavit he states that on the 4th
February, 1986 the respondents jointly assaulted him with firearms
during which
incident he sustained three bullet wounds when the
second respondent fired shots at him. At that time the first
respondent was holding
him from behind and the two shots fired by the
second respondent wounded him and went through his arm and injured
the first respondent.
As he was powerless after he was shot, the
second and third respondents started kicking him all over the body
until he became unconscious.
He was taken to the hospital by the
respondents and after treatment he decided to go to Tsime with his
senior wife because he is
afraid that the respondents might kill him.

The applicant deposes that he considers the matter as
extremely urgent in view of the fact that he is suffering a
tremendous pecuniary
loss when he is not carrying his businesses..

On the anticipated return day the respondents raised a
number of points in limine and asked that the application be
dismissed without going into the merits. In her opposing affidavit
the first respondent stated
that the applicant has displayed a
lamentable lack of good faith in that he had not taken the Court into
confidence that proceedings
almost identical to the present
proceedings were brought by applicant before the Resident Magistrate
of Butha-Buthe in C.C 10/86.
On the 25th March, 1986

/the......

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the rule was discharged with costs. In discharging the
rule the learned Resident Magistrate stated, inter alia, that there
was a substantial
dispute of fact. The respondents were bound over to
keep peace in terms of section 341 of the Criminal Pro­cedure and
Evidence
Act, 1981. Mr. Kolisang, for the respondents argued
that non-disclosure of this important matter is a sign of manifest
lack of good faith on the part of
the Applicant. He argued that if
this material fact had been disclosed the Court might have refused
the application.

In the case of De Jager v. Heilbron and others,
1947 (2) S.A. 419 (W) at 419 Roper J. stated:

"It has been laid down, however, in numerous
decisions of our Courts that the utmost good faith must be observed
by litigants
making ex parte applications, and that all material
facts must he placed before the Court. (See eg In re Leydsdorp and
Pietersburg
Estates Ltd 1903 TS 254; Crowley v. Crowley 1919 TPD
426). If an order has been made upon an ex parte application, and it
appears
that material facts have been kept back which might have
influenced the decision of the Court whether to make the order or
not, the
Court has a discretion to set aside the order on the ground
of the non-disclosure (Venter v. Van Graan 1929 TPD 435; Barclays
Bank
v. Giles 1931 TPD 9; Hillman Bros. v. Van den Heuvel 1937 WLD
41). It is/necessary that the suppression /not of the material fact
shall have been wilful or male fide"

I respectfully agree with this statement of the law. In
the present case the applicant was asking this Court to eject his own
wife
from what he calls business premises. The truth is that the so
called business premises is the matrimonial home of the parties. The
respondents and other minor children live in those premises because
the applicant has not built any residential house for his family.
Again the applicant deliberately failed to disclose this material
fact.

If in his founding affidavit the applicant had disclosed
that he had previously brought almost identical proceedings before
the magistrate's

/court

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court, I would have undoubtedly refused the application
and ordered him to appeal against the discharge of the order with
costs against
him. It is true that the former application was brought
against the second and third respondents only. The first respondent
was not
a party. It was still the duty of the applicant to disclose
this material fact. The applicant obtained the order ejecting the
first
respondent and her children from what is her only home. In
other words, he succeeded in obtaining the order the effect of which
is
to throw his own wife and children into the street without
providing a suitable alternative accommodation.

If he had disclosed that he has built no residential
house for the first respondent the court would have made sure that
before it
granted the ex parte application suitable
alternative accommodation had been provided for the first respondent.
3y failing to disclose this material
fact the applicant abused the
court process to have his wife ejected from their matrimonial
home'when there was no alternative accommodation
provided. In his
replying affidavit the applicant admitted that he has built no
residential home for the first respondent. Now the
question one may
ask is: where did he expect the respondent and her minor children to
go when he deceitfully obtained an order ejecting
her from what is,
for all intents and purposes, her only home? Why did he not disclose
this in his founding affidavit?

On the grounds of non-disclosure of material facts and
utter lack of good faith the rule nisi was discharged with
costs to the respondents.

J.L. KHEOLA
ACTING CHIEF JUSTICE

30th June,1986.

For Applicant - Mr. Mphalane
For Respondenst -
Mr. Kolisang.