IN THE HIGH COURT OF LESOTHO
In the Applicant of
CONNIE MOKETE Applicant
SIMON MOKETE Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice W.C.M. Magutu. Acting
Judge on the 21st day of December,
The Rule Nisi has already been discharged. These are the
reasons that the court promised to funish.
This is an urgent application that was brought jex -
parte by applicant. In it applicant asked for an order in the
(a) The Respondent shall not be restrained and
forthwith from refusing to release to the Applicant
certain personal and household items listed in annexure "CM2"
affidavit that are presently in his custody and
control pending disposal of the present application,
The Deputy Sheriff shall not beauthorised and
directed to takethe items listed in prayer l(a)above and
release them to thecustody of the Applicantforthwith.
The Respondent shall not pay thecosts of this
Applicant shall not be grantedsuch further and/or
alternativerelief that the Honourable Courtmay deem fit.
That prayers l(a) and (b) aboveshall operate as
an interiminterdict with immediate effect."
The court after reading the papers formed the view that
even though the matter was to the applicant urgent, respondent ought
given notice. Consequently the court directed applicant to
The court in so doing was conscious of what Beck J. said
in Republic Motors v. Lytton Roan Service Station 1971(2) S.A 516 and
F - H:
"The procudure of approaching the court ex parte
for relief that affects the rights of other persons is one which, in
is somewhat too lightly employed. Although the relief
that is sought when this procedure is resorted to is only temporary
it necessarily invades, for the time being, the freedom of
action of a person or persons who have not been heard and it is, to
extent a negation of a fundamental precept of audi alteram
partem. It is accordingly a procedure that should be sparingly
and carefully disciplined by the existence of factors of
such urgency, or of well-grounded apprehension of perverse conduct on
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."
Lehohla J. associated himself with these remarks in L.
Khoboko v. N. Khoboko & 2 Ors CIV/APN/402/86.
Nethertheless the court dispensed with the Rules ordered
that respondent be served and the matter be heard as a matter of
within a few days. Service would not (in this case) have put
the course of justice in danger of frustration.
Our rules 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
states that "he has considered the matter and that
he bone fide believes it to be a matter for urgent relief."
Coetzee J. in Luna Meubel Versaardigers v. Mark in &
Ano. 1977 (4) S.A. 135 at page 136 complained bitterly about the ease
which 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.
quite intolerable ...."
Mr. Justice Coetzee is definitely right, this practice
has to be discouraged. It has not had had disasterous results because
court was uanble to give urgent relief because of shortage of
judges. An urgent application easily took twelve months to be
of. By common consent the word "urgent" lost is
meaning because it was virtually impossible for the courts to give
or immediate relief even if they wished to do so.
Applications on notice can be heard speedily. They have
the advantage of giving the other side a
right to be heard. Periods for filing opposing papers
can be shortened to meet the exigency of the situation. It is,
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
of application. It is quite legitimate and it is often
desirable to obtain a Rule Nisi after serving the other party. Where
has happend the court is unlikely to grant an order that is
prejudicial or wrong without hearing both sides.
My understanding of a certificate of urgency is that it
entitles an applicant to set set-down the matter at short notice to
side. It does not necessarily entitle the applicant to
proceed ex parte.
In 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.
654 at 675H. "Therefore, Practitioners should
carefully analyse the facts of each case to determine, for the
purpose of setting
the case 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
Vervaardiqers v. Makin & Ano 1977(4) S.A, 135 at 137F.
In this matter respondent did nothing after service.
Service had been effect on the 9th December, 1993. The court
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
of the marriage has extensive powers over the
property belonging to the joint estate.
In support of his argument Mr. Monts'i for the
Respondent referred to the case of Ex parte Sayle v Commissioner for
1945 AD 388. At page 395 Watermeyer C.J. (dealing with
the contention that
the 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,
in equal undivided shares."
The 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 not in 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
the joint estate.
Watermeyer C.J. at pages 396 and 397 of Estate Sayle
then showed that it is marital power that often creates confusion.
the wife is the sole owner of half of the joint estate.
The law does not permit the husband as an administrator to deal
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
the fact that the
husband 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.
In E.M. Ramabooa v. P.S. Ramabooa 1967 - 70 LLR 90, per
Mr. Evans J. held the court does not normally interfere with the
marital power unless there are legal proceedings
contemplated. In this action, applicant does not allege that she
proceedings 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 proceedings pending.
The courts in Lesotho have been protecting the husband
marital power to such an extent that in Kurubally v. Kurubally &
Mofokeng J. who dismissed the application (where
divorce proceedings were instituted after the application had been
"The belated institution of a divorce was, in my
view, to bring the application in conformity with the Lesotho law.
is too drastic to allow for this
9 patching up."
The present application is just as drastic. During the
subsistence of the marriage, the wife has brought an application ex
which she asks the court to direct the husband to hand over
to her the entire household furniture. Among this included are, a
suit, curtains, blankets, sheets, kitchen utensils, Kitchen
accessories, cutlery, cooking utensils, gas heaters and so on. The
for this application and its urgency is that she desperately
wants them. She used this property before she went for studies and
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
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
The reluctance of this court to permanently interfere
with the affairs of husband during marriage
by curbing the husband's powers was again voiced by
Cotran C,J. in C. Kahimbara v. J. Kahimbara CIV/APN/209/85
(unreported) when he
"The applicant has not sought judicial separation
and since the application is a bare one, i.e. not pending action, it
the effect of the court granting a final mandatory
interdict curtailing the husbands marital powers ... that, I am
afraid is not
Mr. Mathe for applicant was not fully heard as he ought
to have been. Nevertheless, he had no authorities to advance that
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
of several men and women of good will.
Nevertheless, I sincerely believe even where the rights
of men and women were equal, this application might not succeed.
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
before matrimonial proceedings are complete to hand over
the parties joint estate to him or her. The court's duty in granting
relief 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 determined.
The other difficulty applicant had was that out of 50
items, unspecified personal clothes were item number 8, These
applicant is entitled
to. The question is what these clothes consist
in. This court has in the past had difficulty with such vague
generalisation. It becomes
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 it.
The court ought to have refused to grant this
Rule Nisi 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
In the circumstances, the court's order is as follows:-
The Rule Nisi is discharged with costs. Costs to be
recovered from applicant's share of the joint estate.
W.C.M.MAQUTU ACTING JUDGE.
21st December, 1993.
For Applicant : Mr. Mathe, For Respondent: Mr.
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