IN THE HIGH COURT OF LESOTHO In the matter
'MAELIA MOSELI (duly assisted by her
LESOTHO EVANGELICAL CHURCH 1st Respondent
KABELI 2nd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 1st day of March, 1993.
This is an application for the committal of the second
respondent to prison for contempt of a court order granted by this
the 4th March, 1991, directing respondents to allow
applicant's daughter to continue with her schooling pending the
of the main application in CIV\APN\65\91.
On the 4th March, 1991 the applicant obtained an interim
order against the respondents, prayer 1 (a) of which was to operate
immediate effect. -The second respondent was duly served with
the said interim order.
On the 14th March, 1991 the child returned to school.
She went back to attend her normal classes. Since her aforesaid
return the child continued to defy school regulations in
that she refused to recite "Our Lord's Prayer" as required
continued to refuse to sing the Lesotho National Anthem as well
as to sing hymns at the assembly.
As a result of the child's persistent defiance mentioned
above, on the 19th March 1991 the applicant was invited to a meeting
20th March, 1991. The applicant duly attended the meeting. The
child was asked to explain why she behaved in the manner she did.
explained that her conscience did not allow her to do those things.
The applicant was called upon to comment on the behaviour
child. She said she could not force the child to do what she (the
child) did not like. The child was again expelled.
Mr. Malebanye, applicant's Counsel, submitted that for
an applicant in civil contempt proceedings to succeed, he must prove
(a) That an order was granted against therespondent;
(b) That the respondent was either served withthe
order or was informed of the grant ofthe order against him and
could have noreasonable grounds for disbelieving
(c) That the respondent has either disobeyed itor
has neglected to comply with it (Hebsteinand Van Winson, Civil
Practice of the
Superior Courts in South Africa - 3rd Ed. at p. 657).
He further submitted that once the abovementioned points
have been proved, the onus lies , on a balance of probabilities, with
respondent to show that the disobedience of the court order was
not mala fide (Hebstein (supra) at p. 657; Haddow v. Haddow 1974
S.A. at p. 183).
He submitted that the second respondent cannot
circumvent the order of this Court by purporting to do the very thing
which this Court
still has to decide upon the appointed day of
hearing. If the second respondent felt prejudiced by the said order,
then she should
have anticipated the same as the Rules of Court
provided. He finally submitted that the second respondent failed to
show on a balance
of probabilities that her disobedience of the court
order was not mala fide.
Mr. Mathe, respondent's Counsel, submitted that the
respondents mistakenly believed that it was enough of them to have
applicant's daughter back to school after the interim
order was served upon them. They have conceded their mistake, even
are not saying so, of having to expel the girl without
affording her a hearing in the main action. It did not occur to them
they had to wait for the finalisation of the main action before
expelling the girl for the second time. He submitted that this was
genuine mistake on their part. The
respondents genuinely believed that the Court Order had
ceased to operate when they admitted the girl back to school.
In Gold v. Gold 1975 (4) S.A. 237 (D) it was held that a
bona fide belief that a court order had ceased to operate was a
answer to the case which the respondent was called upon to
Mr. Mathe submitted that the respondents did not act
wilfully in disobeying the order. There was no mala fides on their
part. If the
Court finds that they acted unreasonably and\or
negligently in not waiting until the main application was disposed
of, the Court
should not find the respondent's unreasonableness or
negligence to have amounted to an absence of honest belief.
The headnote in Noel Lancaster Sands (EDMS) BPK v.
Theron 1974 (3) S.A. 688 (TPD) reads as follows:
"In an application for committal to prison for
contempt of Court, an applicant must, in order to be successful,
prove that the
respondent, with knowledge of the order of Court,
acted in a manner which was in conflict with the terms of the order
of Court. If
the applicant proves this, he is prima facie entitled to
the relief sought, subject to a wide general discretion of a Court.
respondent can, however, defend himself by showing and proving
that he did not intentionally contravene the order of Court or,
that he did not act mala fide when the order was
contravened. The onus of proof in regard to the
existence of bona fides on the part of the respondent
rests on the respondent. The respondent also bears the onus of
proving the absence
of intention to contravene the order of Court.
Unreasonableness of conduct per se does not mean the absence of bona
fide. There are
degrees of unreasonableness and it may well happen
that a respondent's conduct was so conspicuously and blatantly
the Court would be prepared to reject as false on
those grounds the respondents' statement that his conduct was bona
fide, but then
the decision would go against the respondent on the
basis of a finding that he had not proved that he was bona fide, and
of his conduct would only be the method of
arriving at that result.
In an application for the respondent's committal to
prison for contempt of Court, the Court found that the respondents
the order of Court but that first respondent's
conduct had been bona fide although very unreasonable.
Held, although no order for the respondents' committal
to prison could be granted, that the first respondent should be,
pay applicant's costs on the attorney and client scale."
In the present case the sequence of events tends to show
that the second respondent had a bona fide belief that the court
ceased to operate. After she was served with the court
order she immediately complied with it and admitted the child back to
She apparently believed that the child would obey the school
regulations after her re-admission. The child continued to defy the
rules. A meeting was arranged between the school management and the
applicant and her daughter. The child was given a hearing. She
she could not do those things because they were against her
conscience. The applicant said she could not force her child to
things which were against her
conscience. As a result of this the child was expelled
for the second time.
In paragraph 9 of her founding affidavit the applicant
deposed that on the 29th July, 1991 she met the second respondent and
that she allows her daughter to attend school again but she
refused and demanded to be served with another court order before she
could allow the applicant's child back. The applicant deposed that
she told the second respondent that the interim order still stands
but she refused to allow the child back.
In paragraph 5 of her answering affidavit the second
respondent confirms what the applicant has said. She goes further to
she directed the applicant to go to the School Manager
because she had not received any communication that the child should
to return to the school. I think by communication she
meant the second court order.
It seems to me that the second respondent was under the
mistaken but genuine belief that the interim court order had ceased
after she allowed the child to continue her schooling
after the court order was served upon her. She may have acted
or negligently by not ascertaining the true import of
the interim court order by. consulting her attorney
but that is not proof of mala fides. I come to the
conclusion that the second respondent has discharged the onus placed
In the result the application for an order committing
the second respondent to prison for contempt of court is refused.
The general rule is that costs follow the result. In the
present case I am of the view that the general rule should not be
The applicant came to Court because of the negligence of the
second respondent in not seeking legal advice from her attorney about
the true import of an interim court order. The second respondent
shall pay costs of this application.
JUDGE 1st March, 1993.
For Applicant - Mr. Malebanye For Respondents - Mr.
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