IN THE HIGH COURT OF LESOTHO
In the matter between:
MOCHONE STANZA MATLOSA APPLICANT
ZAKHURA BROTHERS (PTY) LTD. 1ST RESPONDENT
HIS WORSHIP MR. M.B. MABEJANE 2ND RESPONDENT
MESSENGER OF COURT 3RD RESPONDENT
Delivered by the Honourable Mr. Justice G.N. Mofolo on
the 1st day of December. 1995.
This is an application wherein the applicant asked this
court for an order in the following terms:-
1. That a RULE NISI be issued calling upon the
Respondents to show cause, if any. on the date and hour to be
determined by the Honourable
(a) the proceedings in a certain case No.C.C.120/95,
a case of the Mafeteng Magistrate's Court presided over
by the 2nd Respondent, shall not be staved pending the determination
(b) the Interim Order made by the 2nd Respondent on
the 10th day of November. 1995 in the said case shall
not be reviewed by this Honourable court and set aside in terms of
Rule 50 of
the Court Rules;
(c) The 3rd Respondent shall not be restrained from
executing the abovementioned order pending the
determination of this application;
(d) The 1st Respondent shall not be ordered to pay
costs of this application on an attorney-and-client
(e) Granting applicant further and/alternative relief.
2. That the time and normal modes prescribed by the
Rules of Court be dispensed with regarding the urgency of this
3. That prayers l(a) and (c) should operate with
immediate effect as an interim interdict.
4. That the 2nd Respondent herein is ordered to dispatch
within fourteen (14) days of the receipt of this order to the
of this court the record of proceedings referred to
There was also a certificate of urgency couched in the
Attorney of the High Court of Lesotho do hereby certify
pursuant to Rule 8(22) (c) of the High Court Rules. 1980 that I have
this matter and bona fide believe it to be a matter for
From the record of proceedings, it does not seem that
Mr. Sooknanan for the applicant curtailed the period within which the
could bring the record of proceedings before this
court and in his address, although Mr. Sooknanan had
specifically asked for shorter periods of service or that these be
with, before me he appeared to be still lingering after the
notion that the rules allowed the magistrate to drag his feet in
the record of proceedings.
Where this court has granted an application as
contemplated and periods of service have been curtailed or dispensed
it is incumbent on all parties concerned Co proceed
with maximum speed if orders of this court are not to be brought into
It is. in my view, flouting orders of this court for any
party, including counsel, to drag its feet.
When the 1st respondent received applicant's papers he
appears to have immediately proceeded to his lawyer and
him to act.
Fully understanding the import of the application Mr.
Nthethe attorney for the 1st respondent opposed the application and
notice to anticipate the rule.
Before me and probably oblivious of the tenor
and implication of his own application. Mr. Sooknanan seemed to be of
that Mr. Nthethe should have adverted to sub-rule 18 of Rule
8 of the Rules of Court. This, in my view, cannot be as the time and
normal modes prescribed by the Rules of Court were
dispensed with by prayer 2 of the applicant's rule nisi.
Applicant having dispensed with time and periods of service this, on
basis of reciprocity. goes for the 1st respondent.
I have reiterated above the rule which the respondent in
these proceedings sought to anticipate.
In his opposing or answering affidavit the applicant
took the following points in limine :
Lack of good faith.
The Notice of Motion is not in conformity with Rule
of the High Court Rules. 1980.
Regarding (a) above, it was alleged that Applicant has
not disclosed to this court that proceedings in Mafeteng Magistrate's
C.C.120/95 were based on applicant's failure to pay monthly
rentals in the sum of M220-00 per month for months October and
1995 and that if applicant had paid any one month, say
October, 1995 he could have at least annexed a receipt as prove of
and proof, at least, of bona fides on his part and
consequently that failure to do this by the applicant amounted to bad
Concerning applicant's Founding Affidavit before this
court. I have perused the same and have found that nowhere is the
non-payment of rent or payment of the same by the applicant
raised. I find this flabbergasting to say but the least
for this is the reason, at the end of the day. for the applicant to
this court asking for its intervention in that though the
applicant is paying rent the 1st respondent is harassing him.
As to payment of rent I agree with Mr. Nthethe that the
onus rested squarely on the applicant who is the assertor that he in
Pays rent and could have satisfied this court by annexing a
receipt to this effect in compliance with remarks of Kheola J. (as he
then was) in BOFIHLA NKUEBE and MOLEBATSI KHAILE & 3 ors.
CIV/APN/49/94 (unreported) in which the learned -judge said
"Now the most serious flaw in the applicant's case
is his failure to produce a receipt. The procedure which is
the constitution provides that when you pay your
subscription you will be given a receipt. The applicant has not
done that, well,
I will not use the word "stupid" but he is
not a man who can part with his money without receiving a receipt
Nor do I Chink that the respondent is so daft as not to
demand a receipt as proof of payment of rent. Applicant's defence
to be he did not know in respect of what the ejectment order
was served on him notwithstanding the fact that the Court Messenger
of Mafeteng Magistrate's court has submitted and affidavit
accompanied by his return of service that he did serve applicant all
papers in this application.
What I find strange is that notwithstanding the fact
that rules of court do not admit of documents which should have been
submitted in the founding papers to be submitted in
replying affidavits, because the applicant, as he says was not
founding papers he could have, in reply to
respondent's answering affidavit submitted his rental receipt and
asked this court to
wave its late submission.
With regard to the fact that the application is not in
accordance with Rules 50(b) of the High Court Rules. 1980. Mr.
had in mind the fact that nothing in the original
type-written record was said about the dispatch of the record of
the Magistrate's Court. This could well have been
so though there is a hand-written insertion in my record to this
I took Mr. Sooknanan applicants counsel to task as to
why seeing that the application was extremely urgent in approaching
on 13 November. 1995 he extended the rule to 27 November.
1995 thus giving the impression that the application was not
urgent. I have had no satisfactory explanation to
this query nor has Mr. Sooknanan satisfied me why instead of
the period within which a record of proceedings is to be
submitted to this court by the Magistrate's Court he has resorted to
periods of service as if the application was an ordinary
When applications are deemed urgent and there is a
certificate to this end, it is desirable that their
urgency should be manifest for otherwise the suspicion will be that
have been brought for the purpose of buying time
and thus abusing court procedures.
I am much indebted to some of the authorities MR.
NTHETHE for the 1st respondent has given me for not only are they
to the point but have made the task of this court
Thus in DE JAGER v. HEILBRON AND OTHERS. 1947(2) S.A.
415 (W) it was said it had been laid down in several cases that the
faith must be observed by litigants making ex-parte
application and that all material facts must be placed before the
"If an order has been made upon an ex-parte
application, and it appears that material facts have been kept back
might have influenced the decision of the court whether to make
the order or not the court has discretion to set aside the order
the ground of non-disclosure."
In LEYDSDORP an PIETERSBURG ESTATES Ltd above it was
"It is not necessary that the suppression of the
material fact shall have been wilful or mala fide."
as where, in the above case, the respondent having
undertaken to sell his property to pay applicant had in fact sold his
but refrained from disclosing full facts of the sale
including the fact that there was not complete agreement between the
and the purchaser on the terms of the sale. Said in
this case a rule nisi had been granted on the assumption that full
been disclosed but that if at the time of granting the rule
the court knew of the true state of affairs the rule would not have
In this application I must confine myself to points in
limine raised by 1st respondent's attorney and the reply thereon by
for the applicant.
Applicant's counsel view seems to be that even were it
necessary to disclose there was no such opportunity because:
necessary papers were not served on the applicant
applicant was given no chance to be heard as the order
ejectment was immediate.
I have already extensively addressed myself to (a) above
and need only to add that this is the difficulty inherent in
for where dispute of facts arises as has arisen in this
case they may not be decided on paper.
As for (b) the case of RUBY'S CASH STORE (PTY) LTD. v.
ESTATE MARKS & ANO. 1961(2) S.A. 121 (T.P.D.) sheds light on
J. has quoted copiously from the law of Holland and
especially Voet. It is said that in making the application it was
usual for the
appellant to apply for the insertion in the mandament
of a "clausule van inhibitie, i.e. an order for the
- 9 -
suspension of execution and that the application for
the mandament (and the clause) was made without notice to the
usually granted as of course but that it was not that
the respondent had no remedy for he could apply for the setting aside
order and that a successful party could in the same
proceedings even anticipate a possible application for a mandament
of the execution and file an application in advance
for the refusal of the suspension and that in the event the
read together. This is precisely what has
happened in this application which shows not only how much we have
developed from our
Dutch law, but how our present remedies are taken
almost verbatim from our early pedigree.
Postponement of execution was apparently refused if it
would inflict irreparable loss upon the winning Party against whom it
Voet is quoted as having said where the matter brooks no
delay execution should proceed.
In his judgment in Ruby's case above. Jansen J. went on
to say that:
"the granting or refusal of such application is a
matter of discretion ."
and as was held in AFRICAN CONGREGATIONAL CHURCH Co.
LTD. AMD AFRICAN CONGREGATIONAL CHURCH v. DUBE. 1944 W.L.D. 204 at
" the Judge must ask himself where does the
equity of the case lie as between the two parties.
and although I have eschewed going into the merits
of the application, this case is about stay of execution
and whether I decide the application on the preliminary objections
by the 1st respondent I will still have to answer whether,
even should I agree or disagree with the 1st respondent I will allow
In the particular case of Ruby's cash score above.
Jansen J. seemed in a bit of a quandary for while the balance of
the 1st respondent by reason of the premises
subject matter of the application being business premises, it
appeared that the applicant
from the papers, had not had enough time
to come up with a valid defence.
This is the problem facing this court, namely, whether
in view of there having been no disclosure the applicant should be
the wolves notwithstanding that he may if viva-voce evidence
is called, have such a defence.
While applicant has not satisfied me that equities
favour the suspension of execution pending review by reason of
failed to make necessary disclosures and the onus
being on him to make such disclosures already adverted to. I cannot,
on the other
hand, ignore the fact that applicant may have been at a
disadvantage for lack of notification, possibly non-service of court
as alleged by him and the fact that he had very little time
at his disposal or disposal of his counsel.
I will give a short suspension of the execution with an
order that applicant:
(a) causes the record of proceedings in Mafeteng
Subordinate Courts C.C.120/95 to be immediately submitted to
following applicant's application.
(b) both the applicant and 1st respondent choose and
on matters on which viva voce evidence will be necessary
and to call witnesses to the effect.
(c) review proceedings to have been completed within two
(2) weeks of the granting of this order unless
applicants' efforts will have been frustrated by the Magistrate's
in remitting proceedings to this court in which case
the applicant will approach this court for an extension of time.
(d) In the event of this application being delayed by
factors other than those spelled out in (c) above the
ruling in MPHANYA v. LEMENA & Or. - CIV/APN/344/95 will apply
creditor/lst respondent may proceed to execute without
necessarily applying to court again.
As the applicant has obtained merely a special
indulgence which should not be at the expense of the first
respondent, applicant is
ordered to pay 1st respondent costs of this
G.N. MOFOLO 1st December. 1995.
For the Applicant: Mr. Sooknanan For the 1st
Respondent: Mr. Nthethe
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