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CIV/APN/480/98

IN THE HIGH COURT OF LESOTHO
In the matter between:

MPOLOKENG LEHAPA 1^ST APPLICANT

MOLIEHI LEHAPA 2^ND APPLICANT

and

MOLEKO LEHAPA RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice T. Monapathi on the 19th day of August l999

Mr. Mpopo appeared for the Applicants in this application for "rescission and stay of execution in CIV/APN/48/98 in the main and incidental motion proceedings". Applicants also sought for:

"condonation for apparent contempt of Court to the extent that it was not wilful nor intentional and to the extent (that) it has been purged

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by compliance".

It therefore showed that the matter had a long history which included an ex­tempore ruling which I made on the 11^th May 1999 Mr. Mpopo had appeared for the Respondents then when the Applicants were being asked to explain why they should be committed for contempt.

In my decision of the 11^th May 1999 I had refused when Mr. Mpopo asked that the matter be postponed. Counsel spoke from the bar without a formal application. And I commented as follows:

"But I see Mr. Mpopo's attitude of applying for leave from the bar as confirming what has always been neglect upon neglect in this matter close to (so) four months when often (this) Respondent(s) has had an opportunity to rectify the situation. One way would have been to get a lawyer at the earliest point of this application for contempt. Now she is bringing Mr. Mpopo at the late hour with this approach by her lawyer which I have faulted. I feel that I cannot allow this

application The Order that I make in this circumstances is

that the Respondent will explain under oath why she should not be committed for contempt". (My underlining)

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If the contempt was purged why was the matter being sought to be revived from its apparent death by a separate prayer. The Applicants application for condonation that I have mentioned was a waste of time and it was accordingly refused. If there would be merit in the other prayers the matter of condonation would be superfluous.

The facts which made the application a frivolous one were as follows: Respondent/Applicant moved an ex-parte application on the 17^th December 1998 against the present Applicants. Both were served with interim Court Order and notice of motion. A return date was appointed as the 23^rd December 1998. On the 23^rd December 1998 only the First Applicant appeared before my brother Peete J. Applicant explained that her lawyer Mr. Mpopo was sick.

Peete J ordered the Applicant to file her opposing affidavit by the 6^th January 1999 and that on the 11^th January 1999 the rule would be confirmed if then she had not secured the services of Counsel. On the 11^th January 1999 Respondents had not filed any papers nor had she acquired the services of Counsel. Consequently the interim Court Order was confirmed. The final Order was served on the Respondents on the 10^th February 1999.

It was because of the Respondents attitude of refusal to comply that an

4 application for contempt of Court was filed and served on the 22^nd April 1999. It had appeared that the Second Respondent was a ward of the First Respondent, she being her daughter. On the 30^th April 1999 First Applicant appeared before Court and informed that she had failed to enter her intention to oppose or opposing papers because she had not fully briefed her new lawyer. When asked who that lawyer was she replied that she had not yet known his name but his offices could be found at the LNDC Centre.

It was after the history of the contempt of Court application that I have spoken about at the beginning that the present application was filed. It was opposed and later postponed to the 9^th June 1999 for hearing.

It was made clear to me that the First Applicant failed to give a reasonable explanation for her default. That in addition this application was made with the intention merely to delay the Respondent's claim. Short of admitting that her client and the chief of Ha Ratsosane chief Mothobi Mothobi had committed a fraud it was difficult for Counsel to explain the following. Firstly, why was the alleged donation of the plot and premises of the Respondent (Annexure A) made on the 4^th June 1987 eight years after the form C (Annexure "B") (dated 26^th March 1979) was issued. If the explanation was (in fact it was) that the form C was backdated, if this was not an admission of fraud I did not know what it was.

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Although a donation of immovable property would amount to a transfer to

a donee, I would still have the same doubt about the power of chief Maselemeng Mothobi to have issued a Form C in 1987 when she was no longer allocating authority in an urban area of Maseru City municipality

" such power being vested in the proper authority of Maseru

Urban Land Committee in respect of allocation relating to Maseru Urban Area".

See CIV/APN/27/98 INVESTMENT TRIANGLE (PTY) LTD v THABO NTSANE AND FOUR OTHERS, 12^th June 1999, Lehohla J. Further explanations by Mr. Mpopo about problems that had to do with confusion of titles and loss of tide documents that was allegedly notorious in that area of Ha Tšosane further compounded an already bad story.

Other features about the letter of donation such as the writer and signatories being people who the Respondent did not know, the absence of Respondent's own witnesses, the absence of Respondent's own signature and the whole gamut of flaws (which I observed) of this alleged donation further convinced me that the First Respondent did not have a bona fide defence. In that regard I was referred to the case of PAUL PELELE LETSOELA v CHIEF OF KOLOJANE AND

6 ANOTHER CIV/APN/131/91 at page 2 and TAIWAN CONSTRUCTION

(PTY) LTD v LESOTHO INSURANCE CO. (PTY) LTD 1982-1984 LLR page 299.

The Respondent made several submissions which I noted. Firstly that where there was no reply to challenge correctness of averments contained in the affidavits the issues are to be resolved on the basis of acceptance. He said affidavits made by the Applicant constituted not only allegations but also his evidence and if this is not contradicted or explained it will usually be accepted by the Court. In other words affidavit that constitutes proof no further proof is necessary. See MOHOSHELA v O/C THABA TSEKA AND ANOTHER CIV/APN/2/95 Ramodibedi ? at page 10.

I concluded that the Applicants had seriously failed to give a reasonable explanation for their default. First Applicant failed to inform this Court as to why she failed to instruct a lawyer despite the warning by Peete J. She may have been bedridden but she did not tell the Court how long that was. She had forgotten that when giving evidence under oath in the contempt proceedings she had said it was her daughter Second Applicant who was ill and who she was nursing back to health. I surely was persuaded that the Applicants' conduct had been a scheme of utter neglect upon neglect which went to show that the Applicants failed to give a

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I found no need to consider the urging that in terms of Rule 27(g) (b) payment of security to costs in application of this nature was mandatory. That non compliance with the provisions of paragraph (b) of sub rule (6) above rendered the papers in this application not properly before this Court and that the Court ought to have declined to entertain the matter. (See E R NKHETSE v SANTAM BANK LTD AND OTHERS 1982-1984 LLR 242. These were sought to be taken as preliminary points. I had decided to hear all points at once to lay the matter to rest. That is why the substantial points of explanation for default, intention to delay and absence of a bona fide defence captured my most attention.

In the end I concluded that the application ought to fail and I awarded costs to the Respondent.

T. MONAPATHI
JUDGE

For the Applicants : Mr. Mpopo
For the Respondent : Mr. Nchela