IN THE HIGH COURT OF LESOTHO In the matter between
LINED SEOTSANYANA Applicant
'MASEABATA PHEKO Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on the 25th day of March. 1988
On the 23rd January, 1987 the applicant sought and obtained an interim order in the following terms
1. that Respondent shall desist forthwith from threatening Applicant with murder and physical assault,
2. that Respondent shall immediately cease calling Applicant's house or place of employment over the phone,
3. that Respondent shall immediately cease harrasing Applicant whether verbally physically or in any form whatsoever.
4. That Respondent shall hence forth not go to Applicant's residence or place of work,
5. that should any physical harm come to Applicant within the next 12 months Respondent shall be deemed a prime suspect for purposes of the law,
6. that Orders 1,2,3,4,5, & 6 operate with immediate effect as interim interdicts,
7. that Respondent should show cause, if any, on the 9th day of February, 1987 why,
a) this Order shall not be made final and,
b) Respondent shall not be imprisoned for contempt of Court in the event she shall have failed to comply with any or all of the terms of this order,
8. that the period of notice required by the rules of Court for Applications be and is hereby dispensed with.
9. Costs of this Application.
The matter was argued before me on the 16th February, 1987 and I came to the conclusion that there was a dispute of fact and ordered that I shall hear viva voce evidence. After several extensions of the rule nisi I started hearing oral evidence on the 23rd February 1987 and after several postponements the leading of oral evidence was completed on the 4th February, 1988.
It is common cause that the applicant and the respondent's husband, Jerry Teboho Pheko, had an illicit love affair for about two and half years. Jerry often visited the home of the applicant which was not far from the respondent's home. On the 20th January, 1987 Jerry had visited the applicant at her home and the respondent found them in compromising circumstances. She had seen her husbands car some distance from applicant's house but suspected that he must be at the home of the applicant.
When she arrived there she knocked at the door but there was no answer. After some time she saw applicant's son who was playing with other children. She asked the child where its mother was. The child said she was in the house with a friend. She then asked the child to call its mother but there was no answer.
According to the applicant and Jerry when the respondent started knocking at the door, they were in the bedroom. When the knocking continued they moved to the kitchen area. At that time the respondent was raving mad and demanding that the applicant should bring out her husband. Jerry says that at the time his wife was raving mad he and the applicant were puzzled and did not know what to do.
Finally, the respondent found an iron rod about 1% to 2 feet
window long and smashed the bedroom window with it and at the same time threatening
to smash the door in the same way. It was a tinted glass door. Immediately after smashing the bedroom window-pane, the respondent moved to the door. Jerry and the applicant decided that the latter should open the door on the understanding that as soon as the door was opened Jerry would catch hold of his wife before the two women could hurt each other. It is not clear why Jerry decided to follow the applicant towards the door instead of him opening the door. Jerry says that they agreed that applicant should open the door because it was her house. He would restrain the respondent as soon as the door was opened. The events that followed after the door was opened show that it was an unwise decision that the applicant should open the door.
The dispute is as to what happened immediately the door was opened. The applicant testified that when she opened the door the respondent was standing about one foot from the door and her right arm was raised up ready to strike with an iron rod she was holding in her hand. She caught hold of the iron rod with both her hands. The respondent pushed her into the house and a struggle started. The applicant says that she was trying to dispossess the respondent of the iron rod.
During the struggle the respondent, who is slightly taller than her. bit her (applicant's) left ear and kept her teeth tight until they both fell on a sofa. She eventually came off with almost half of the respondent's left ear After part of the ear was bitten off the applicant released the iron rod and went to the bathroom and tried to stop the bleeding. When she came out of the bathroom the respondent and her husband were leaving the room.
The respondent's version is that when the door opened she had raised up the iron rod intending to smash the door. The applicant rushed at her as soon as she saw her. She (applicant) caught hold of the iron rod and pulled her into the room. Her husband intervened and got hold of the iron rod until they all fell on the sofa. When they fell on the sofa the applicant sat on her lap and continued to hit her with her hands The respondent says that she could not defend herself because her husband was holding her hands. She then bit applicant's left ear until she cut off a piece of the ear. The applicant rose immediately the piece of the ear was bitten off.
Jerry's version is different from the versions of the applicant and the respondent. He says that after opening the door the applicant moved backwards, the respondent entered and then the applicant rushed at her and caught hold of the iron rod. The struggle followed until they all fell on the sofa. He did not see when the applicant's ear was bitten but he heard when the applicant shouted while they were still on the sofa that her ear had been bitten off.
It is really not very important to decide what actually happened when the door was opened. The respondent was the aggressor right from the beginning to the end. Her conduct on the day in question amounted to taking the law into her own hands. Before this
incident she already knew that her husband had an affair with the applicant. When she saw her husband's car some good distance from the applicant's house she knew that her husband must be visiting the applicant. She went straight to the house and raved mad and used insulting language for about an hour moving up and down round the house.
She finally decided to break the bedroom window and threatened to do the same to the door. It is clear from the facts stated above that the respondent did not find the applicant and her husband by chance. She had been watching them and found what she had expected. Therefore the question of provocation does not arise. She cannot claim sudden provocation and loss of self-control when she found what she was looking for. She raved mad for almost an hour and her anger ought to have cooled down. She acted unreasonably and unlawfully.
The important question is whether after this incident the respondent made threats that she would kill her, whether she incessantly telephoned applicant at her house and place of work and insulted or abused her in any way. The applicant testified that the respondent telephoned her at her house several times and used very foul language. She knew her voice and on some occasions she identified herself by saying "ke 'm'ao 'Maseabata" (translation -it is your mother, 'Maseabata). The calls continued to such an extent that she decided to unplug her telephone receiver.
'Mathaba Mokhojoane (P.W.4) testified that at the relevant time she worked for the applicant as a house-maid. On several occasion she received phone calls at the house of the applicant and the caller identified herself as "Sabi" and asked where the applicant was and then used very foul language directed at the applicant. As the calls
continuted she ('Mathabo) decided to swear back in order to
discourage the caller from making any more calls.
Puleng Letuka (P.W.3) is the younger sister of the applicant. Her evidence is to the effect that on the 20th January, 198/ she arrived at the house of the applicant and found her talking on the telephone. She asked her to whom she was speaking. The applicant. said it was Jerry. She took the receiver from the applicant because she wanted to talk to Jerry but to her surprise she found that it was the respondent and not Jerry who was speaking from the other end of the line. Respondent said, "Don't you hear that he says he does not love you any more, you bitch." Puleng put down the telephone.
On the following day Puleng received a telephone call at her house. The call came from the respondent. She apologised that on the previous day she had called her a bitch thinking that she was the applicant. She (respondent), in answer to Puleng, said that she had flushed down the toilet the piece of ear she bit off from the applicant's ear so that she might have a mark for the rest of her lifetime. She said she would kill the applicant if the affair between her and her husband did not stop.
'Masebolelo Ramokhele testified that on the 23rd January, 1987 she received a telephone call from the respondent She said if she continued to keep the applicant in her house as a tenant, she (respondent) would set her house on fire because she was not satisfied with what she had done. 'Masebolelo says that she took the threat seriously, however, when she found that the applicant had instructed a lawyer she did not take any action because she wanted to remain neutral in the matter.
The respondent has denied making any telephone calls insulted the applicant or threatening to assault or to kill her. She admits
that on the 21st January, 1987 she telephoned Puleng and apologised to her, she denies that she said she flushed the piece of ear down the toilet.
I believe the applicant and her witnesses that the respondent, did telephone them and made the threats. I disbelieve the respondent. She is not telling the truth that she does not know what happened to the piece of ear she bit off. If she had left it in the house the applicant would have found it and would nave rushed to the hospital to see if it could not be re-attached. It was not in the house when the respondent and her husband left for their home and on the following day she confessed to Puleng what she had done to the piece of ear At that time she was still angry and was telling the truth.
I have come to the conclusion that the threats were made, however my difficulty is in regard to the way prayers 2 and 4 were framed. The applicant is a Travel Consultant with American Express in Maseru and the respondent is employed by the Trade Promotion Unit of the Ministry of Trade and Industry and travels a lot. If the respondent is interdicted permanently from telephoning or visiting the applicant's place of work, that would interfere with performance of her official duties. As a person who travels a lot she may have to go to applicant's place of work officially from time to time.
On the 28th January, 1987 the applicant filed with the Registrar of the High Court a Notice of Motion in which she applied for the amendment of prayer 2 by adding at the end of the prayer the words "in the latter case for the purposes of threatening, abusive or otherwise harrassing applicant." Amendment of prayer 4 by adding at the end of the prayer the words "in the latter case for purposes of assaulting, insulting, threatening or otherwise harrasing applicant."
According to the record of the proceedings the application was never moved on the 9th February, 1987 which was the date of set down for the hearing of the application. The prayers and the interim order remain as they were on the 23rd January, 1987.
As I have indicated above the respondent cannot be interdicted from telephoning and visiting applicant's place of work in the performance of her official duties and her lawful private purposes because a travel agency is a public place and the respondent is entitled to telephone or to visit it. So Orders 2 and 4 can only be confirmed in relation to applicant's house and applicant's residence respectively.
Order 5 was altogether unreasonable and ought not to have been granted and must be discharged.
In the result Order 1 is confirmed, order 2 is confirmed onl as regards applicant's house and discharged as regards applicant's place of work, Order 3 is confirmed, Order 4 is confirmed as regards: the applicant's residence but discharged as regards applicant's place of work, Order 5 is discharged.
The general rule is that costs must follow the result but in the present matter the applicant has not got all she asked for the greater part of the interim order has been confirmed and a smaller part discharged.
The respondent shall pay 3/5 (three-fifths) of the applicant's costs.
J.L. KHEOLA JUDGE
25th March, 1988.
For the Applicant - Mr. Maqutu For the Respondent - Mr. Pheko.
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