CIV/APN/442/00 IN THE HIGH COURT OF LESOTHO
In the matter between :-
NTHABISENG MAPHEPHA APPLICANT
BOIKI TSIETSI 1st RESPONDENT
LIKOLOBE TSIETSI 2nd RESPONDENT
'MAGANDA TSIETSI 3rd RESPONDENT
'MAMOEKETSI 4th RESPONDENT
SEEMANE TSIETSI 5th RESPONDENT
Delivered by the Honourable Mrs Acting Justice A.M.
Hlajoane on the 11th Day of February, 2002
This was an ex parte Application for an interdict framed
That a Rusi Nisi be issued calling upon the Respondents
to show cause (if any) on a date to be determined by the Court why:-
1. (a) The period of service as provided for by the
Rules of Court
should not be dispensed with on account of urgency of
The Respondents should not be interdicted and or
restrainedfrom interfering with Applicant's rights over property
listed at page 2 of Annexure "A" to Applicant's founding
safe by due process of Law.
The first Respondent should not be interdicted from
holdinghimself out as heir to the estate of the late Patrick
The Respondents should not be ordered to pay costs
Applicant should not be granted further and or
2. That prayer (l)(a) and (b) operate with immediate
effect as aninterim order of Court.
Rule nisi was granted as prayed.
It is common cause that the Applicant is the daughter of
the late Patrick Tepiso Maphepha who passed away during
1999. The first
Respondent is the younger brother to the Applicant
whilst the rest of the Respondents are relatives to the Applicant.
Tsietsi is the same family name. Applicant is a
The following points of Law in limine were raised:
Dispute of fact
Lack of urgency
Requirements for interdict.
Dispute of Fact
It is worth mentioning at this point that from the
record it would seem that with the exception of 1st
Respondent, the rest of the Respondents do not oppose the
Application, indicating that they will abide by whatever decision the
The first Respondent therefore raises a clear dispute of
fact which he calls a foreseeable dispute, in that they as
not know about the will. There is nowhere in the
papers showing that the will was ever made known or brought to the
the Respondents in terms of Section 34 of the
Administration of Estates Proclamation 19 of 1935.
'The Master shall cause to be published in the gazette
and in such other manner as he thinks fit a notice calling upon
the heirs, Legatees and creditors of the deceased to
before him "
Though the record show that Respondents were aware of
the will, nowhere does the record show that the Master ever called
people before him, being the Respondents. Instead
counsel for the Applicant called the Respondents before him through
the chief of
Ha Matala, but they failed to attend. In terms of the
above quoted Section of the Administration of Estates, Counsel had no
authority. What the Section means is that, where the will has
mentioned no specific person as Executor, the Master, after
the heirs, the legatees and creditors of the deceased will
appoint the Executor dative. The Master never called the first
before appointing the Executor. In our case the Executor
was first appointed and an attempt to call the Respondents was after.
Handbook for Executors and Administrators 4th
edition at pages 7 to 8. When a dispute of fact arises in motions
proceedings the Court assumes the correctness of Respondent's version
Supreme Furnishers vs Molapo 1995-96
Lack of Urgency
Respondents say that the Applicant has made a blanket
claim on certificate of urgency without showing any justification for
approached Court ex parte. Applicant on the other hand avers
that in fact the matter was urgent as facts placed before Court
showed an infringement of a clear right.
In his affidavit, the Applicant has alleged that she is
in possession of a will and the Testator to that will passed away
1999. She further alleges that the Respondents
started tempering with her rights as early as October 1999, also in
July, 2000 and
October 2000, but only approached Court in November,
2000. The Applicant has not given any reasons for the delay.
In S.A.R. & H vs ILLOVO Suger Estates 1954 (4) S.A.
425 (n) the Court pointed out that the delay in bringing an
Court could be condoned considering the complexity of
a particular case. But in our case where Applicant alleges a clear
virtue of being in possession of a will, there is nothing
complicated which needed much of any preparation for approaching the
for a relief.
Requirements for Interdict
On the authority of Moabi vs Moabi and Others , 1980 (2)
S. A. 407, the Respondents averred that the Applicant has failed to
the requirements of interdict being:
A clear right on his part
An injury actually committed or a well founded
apprehension that theinjury will be committed by the Respondents
Absence of alternative remedy.
As was said in Moabi's case [Supra] this is an
Application for a permanent interdict, not a temporary interdict. A
will seldom be granted on Application, as the
proper procedure is going by way of an action, where a clear right
must not only be
alleged but must also be proved, Beukes vs Crous
1975 (4) S.A. 215. Absence of alternative remedy must be shown.
Setlogelo vs Setlogelo
1914 AD 221. The Court is left to speculate as
to when the bequeath was handed over to the Applicant after the death
of the testator
and the appointment of the executor. Applicant has
only shown that the testator died during April/May 1999 but has not
shown as to
when the property, subject matter of the bequeath was
ever handed over to her.
Alternatively, the Applicant could have approached Court
for an interim interdict pending an action to be instituted as there
obviously a foreseeable dispute of fact.
The Applicant has rightly conceded that as recognized by
our Courts, Rules governing Application Proceedings show that
constitute not only evidence but also pleadings, so that
the answering affidavit by the Respondents must have contained what
be set out in a plea. The Respondents have thus complied with
these provisions of the law.
Because the Respondents have succeeded on all the points
raised in limine I therefore find it not necessary to deal with other
that were raised as to the validity or otherwise of the will.
The rule is accordingly discharged with costs
A.M. HLAJOANE ACTING JUDGE
For Applicant: Mr Hlaoli For Respondents:
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