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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

7 reasonable explanation of their default.

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