IN THE HIGH COURT OF LESOTHO In the
'MAMOELE LILETSEPE Applicant
LEFA LETSEPE Respondent
JUDGMENT Delivered by the Hon. Mr Justice M L
Lehohla on the 12th day of February, 2001
The applicant obtained an Interim Court Order granted by
my Learned Brother Ramodibedi J on 7th September, 1999.
The matter had been brought by way of urgency seeking
that respondent be restrained from
threatening to assault the applicant by use of a knife;
denying applicant entry into certain rentable premises
situate at Thoteng, Linotsing in the Mohale's Hoek urban area as
had been made over to the applicant by a Resolution of
the Letsepe family;
(d) threatening tenants with expulsion for not paying
rental to him;
(f) threatening to set the rentable premises on fire
should he be evicted therefrom;
(e) respondent be evicted from premises he forcibly
occupied, and that he be directed to return to his own household
situate at Thoteng
(g) the respondent was also to pay costs of the
Prayers (a) as to modes and periods of service (b) (c)
and (d) were to operate with immediate effect.
The applicant, a 69 year old female adult at the time of
settling her founding affidavit avers that she is the mother of her
daughter Maleshoane Letsepe who died single and childless.
Maleshoane is said to have died in February 1996 leaving behind
premises situate at Thoteng Linotsing in Mohale's Hoek urban
area held under a Form "C" a copy of which is annexed to
founding papers marked "A".
3 The applicant further avers that after
Maleshoane's death she (the applicant)
was appointed heiress and successor to the deceased's
estate at a family conference. A copy marked "B" whose
is marked "BB" is attached to the founding
papers. The conference is said to have been held on 30-03-1996 while
date stamp reflects that this important issue was only
brought to the attention of the administrative authority on 16th
August, 1999 as legitimising what the family had resolved almost
three years and five months earlier.
The applicant goes further to indicate that the
respondent is her 5th child and that as a member of the Letsepe
family he is fully
aware of the family resolution and finally that as
a married man he has children of his own and his own household
situate at Thoteng
in Mohale's Hoek.
The applicant complains that since the death of
Maleshoane the respondent has
threatened to assault the applicant with a knife and
saying he would kill her;
Moved from his own household and forcibly stays at the
applicant's rentable premises thus denying applicant entry into the
rentable premises to which she has been given lawful authority
to run as hers by
the Letsepe family;
forcibly collected rental from the tenants threatening
them withexpulsion if they don't pay rental to him;
threatened to set the rentable premises on fire if he
is ejected from the said premises.
The applicant finally states that the respondent is in
unlawful occupation of the said premises harassing her and the
they pay rentals to him direct.
She thus prayed for urgent relief following the constant
fear of attack by respondent as set out above. The relief came by way
the interim order as indicated earlier.
In reaction to the foregoing the respondent in his
answering affidavit denies the truthfulness of some of the
He indicates that from a young age he stayed with his
late sister at rented premises of the Roman Catholic Church in
He emphasises that he and the deceased amassed funds and
built the rentable
5 premises in question at Thoteng consisting of 16
complete units and 8 half-complete units (meaning they have not yet
The respondent avers that he stayed with the deceased in
the disputed premises until her death. He avers further that the
and he were in informal partnership running a shop as well
as being hawkers. They used the proceeds from these business ventures
to develop the said premises and maintain themselves.
The respondent avers that when the deceased died he took
full and exclusive responsibility for her funeral.
The respondent stresses that being a person who was
closest to the deceased during the latter's life time and immediately
her death he was the only person better able to administer
the deceased's estate properly.
He states that he is a married father of five children
and has to use the rental from four rooms for maintenance of his
the rest is used by the applicant.
respondent denies that there was ever a family conference in which
6 mother was made heir and successor to the deceased's
estate. He relies for support on Sello Letsepe and Lefa Letsepe's
affidavits. The two are the respondent's close relative
and uncle respectively.
But it appears that Sello has signed Annexure B which
appointed the applicant heir and successor to the deceased's estate.
that he was tricked into signing this believing it was
merely an invitation to family meeting. Sello pleads that because he
he was thus easily tricked by his eldest brother
The respondent is adamant that a conference could not
have validly been held without his being invited as not only a member
Letsepe family but one who is an interested party in the
matter, regard being had to the fact that he contributed towards the
of the estate in question.
The respondent's mother in her reply denies that the
respondent stayed in any Roman Catholic Mission premises with his
She denies that the respondent amassed any funds jointly
with his late sister at all. She avers that the late sister started
hawker business selling soft goods till building the premises in
question on her own. She denies that the respondent was in
of any kind with his
7 late sister. She charges that the respondent budged in
unilaterally to take control of the premises in open defiance of the
The applicant further states that the late Maleshoane's
burial was conducted by Moeleli the applicant's eldest son. She
Moeleli was assisted in the burial by the respondent's
elder brothers Poko and Tlhopho. She thus denies that the respondent
ever have been the only one to bury the deceased at all and
administer her estate.
She is emphatic that the respondent and Sello Letsepe
were present at the family conference whereas Lefa was never involved
of the discussions leading to a conference because he had not
attended the funeral in the first place. The applicant is supported
in this regard by Poko who stresses at the family conference were
present, the following persons -
Moeleli the eldest brother
Tlhopho and 6. Sello all of whom are members
of the Letsepe family.
8 Poko explains that Lefa was absent from the
funeral, from the post-funeral
even from the Chief's place where annexure "A" was written
Poko supports his mother in all material respects
regarding her appointment by the Letsepe family as the heir and
successor to the
deceased estate in terms of the resolution bearing
among others the signature of Sello Letsepe who is in the unfortunate
of either riding on two horses at once or in fact of running
with the hare and hunting with the hounds.
However in attacking the applicant's case Mr Mda for the
respondent indicated that the applicant's case is flawed in that her
affidavit does not contain the essential averments such as
indicating the jurisdiction of the Court.
(C) at pg 78 of the Civil Practice of the Superior Courts in South
Africa by Herbstein and van Winsen 3rd Ed.
under the heading Contents of Affidavits - Essential Averments sets
"If the Court is not satisfied on the facts stated
in the application that it has jurisdiction it will not entertain the
Mr Mda emphasised that necessary allegations must appear
in the founding
9 affidavits, for the court will not, save in
exceptional circumstances, allow the applicant to make or supplement
his case in his
replying affidavit. I agree with this true statement
of the law which is another way of saying an applicant must stand or
his founding affidavit. See Herbstein & van Winsen above
at pp 75 and 76.
Having set out the above background Mr Mda dutifully
submitted that there are no averments showing that this matter could
be dealt with at the Magistrate's Court.
I accept that on the facts this matter could competently
be dealt with by the Magistrate's Court.
Therefore because it is within the Magistrate's Court's
jurisdiction, Mr Mda submits that it has irregularly been brought
High Court in total disregard of the mandatory provisions
of the High Court Act 1978 section 6 reading -
"No civil cause or action within the jurisdiction
of a subordinate court (which expression includes a local or central
shall be instituted in or removed into the High Court, save -
(a) by a judge of the High Court acting of his own
(b) with the leave of a judge upon application made to
him in Chambers, and after notice to the other party".
Mr Mda submitted accordingly that because on the facts
there hasn't been any compliance with provisions of the enactment loc
Court should rule that there are therefore no jurisdictional
facts entitling the applicant to the relief sought.
Learned Counsel continued to Central the Court with his
sound submissions by emphasising the well worn theme of heeding the
of complying with the Rules of Court as repeatedly harped
on by the superior Courts of this Kingdom.
I agree entirely with the submission that the Rules of
Court are an important element in the administration of justice.
failure to observe such Rules can lead not only to the
inconvenience of immediate litigants and of the Courts, but also to
of other litigants whose cases are delayed thereby.
(See Swanepoel vs Marais and Ors 1992 NR 1. HC at 2 J. It cannot be
that Rule 8(22)(b) appears to be one of the most
disregarded Rules. This is a Rule which appears to be observed more
in the breach
than obedience. It provides that an applicant in an
urgent application is required to
provide reasons why he cannot be afforded substantial
relief in a hearing in due course if the periods presented by the
followed. Many causes have been lost merely for the
failure to observe this Rule. Indeed as far back as 27th
February, 1989, this Court in Masoabi vs Moiloa & 2 Ors
CIV/APN/420/87 (unreported) at pp
2 and 3 strongly warned that:
"It is the essential part of this rule that when an
application is moved in terms of which directives given in the rules
disregarded a proper application for dispensing with the rules
must first be sought by the party and granted by the Court. Failure
to observe this rule may result in the dismissal of the application
on the basis that if forms are
neglected causes are lost c/f C. of A (CIV) No. 16 of
Kutloano Building Construction vs ;'Maseele Matsoso &
2 Ors (unreported) at pg 7 where [Schutz P] said :
'But forms are often important and the requirements of
the sub-rule are such.'"
It was not without cause that in applying the dictum in
Luma Meubel Vervaardigers (Edms) BPK vs Makin and Anor (t/a
Furniture Manufacturers 1977(4) SA 135 W at 137 F by Coetzee
J, Muller AJ in Salt & Anor vs Smith 1990 NR 87 (HC) at p 88 said
"Mere lip service to the requirements of Rule
6(12)(b) will not do and an applicant must make out a case in the
to justify the particular extent of the departure
from the norm, which is involved in the time and day for which the
matter be set
12 I may just catalogue the great lengths to which
the Courts have gone in an attempt to show their intolerance of the
disregard of Rule
In Pentagon Fibreglass & Plastics (Pty) Ltd &
Ors vs Hennie (Pty)Ltd
1978(3) SA 5887 where "the respondent had applied
on a matter of urgency for a perpetual interdict restraining the
from infringing its design" the Full Bench of the
Transvaal Provincial Division held that the permanent interdict
have been granted in the Court below because the
respondent had failed to comply with the requirements of Rule
6(12)(b) [our Rule
8(22)(b)] by showing that it could not be afforded
substantial redress at a hearing in due course.
In Salt supra at 87 failure to meet the requirements of
Rule 6(12)(b) which is on all fours with our Rule 8(22)(b) resulted
dismissal of the application. Muller A.J. put it neatly at
p.88 as follows:
"This Rule entails two requirements, namely the
circumstances relating to urgency which have to be explicitly set out
the reasons why the applicants in this matter could
not be afforded substantial redress at a hearing in due course".
Mr Mda demurring at the fact that none of the two
requirements set out above has been met urged that the application be
on the ground alone that the
13 applicant has not at all in her papers addressed the
requirement imposed by the Rule.
He went further to question the fact that the
application was moved ex parte thus rendering the applicant's
in view of the fact that it is trite law that
an ex parte application is used -
when the applicant is the only person interested in the
where the relief sought is a primary step in the
proceedings e.g. an application to sue by edictal citation;
where, though other persons may be affected by the
Court's Order immediate relief is essential because of the danger of
notice may precipitate the very harm applicant is trying to
forestall. c/f C. of A. (CIV) NO. 18/91 Khaketla vs Malahleha &
Ors (unreported) at 5 to 6 where it is stated:
"The principle of audi alteram partem ought not to
be subverted, even when granting a rule nisi, by ordering the rule
part thereof) to operate as an interim order if such interim
order affects the rights of another party, unless such interim order
can itself be justified by the exceptions above referred to".
The exceptions referred to were cases where :
Statute or the Rules of Court sanction such departure;
the relief sought does not affect any other party.See
also Herbstein & van Winsen 2nd Ed. p 58.
Mr Mda 's submission is not without a basis when
attacking the fact that the
14 applicant has not even attempted to justify why she
obtained an interdict ex parte against the respondent thus in
the fundamental principle of audi alteram partem.
He thus rammed the point home when he indicated that the
conduct complained of on the part of the respondent has been going on
1996 after the deceased's death and nothing took place for
upwards of three years when at the end thereof and rather suddenly on
7th December 1999 the applicant approached the High Court
ex parte and on the basis of urgency.
The procedure in applications of this nature where the
nature of the conflict involved cannot be resolved on papers such as
the Court is not able to tell which type-writer to believe
where it is on the one hand alleged that the deceased's estate was
developed by the deceased and on the other hand where the
respondent says he also contributed to its development is governed by
Evans Paints vs van Riebeeck Paints 19984(3) SA 623 A at
The dictum in that Authority is as follows :
"Where there is a dispute as to the facts a final
interdict should only be
granted in notice of motion proceedings if the facts as
stated by the respondents together with the admitted facts in the
affidavits justify such an order where it is clear that
facts, though not formally admitted, cannot be denied, they must be
A phrase that should not be overlooked however appears
at p 34 paragraph I. It is as follows :
"In certain instances the denial by the respondent
of a fact alleged by the applicant may not be such as to raise a
or bonafide dispute of fact (see Room Hire Co (Pty) Ltd
vs Jeppe Street Mansions (Pty) Ltd 1949(3) SA 1155 (T) at 1163-5".
CORBETT JA proceeds fruitfully as follows :
"If in-such a case the respondent has not availed
himself of his right to apply for the deponents concerned to be
cross-examination under Rule 6(5)(g) of the Uniform Rules
of Court and the Court is satisfied as to the inherent credibility
the applicant's factual averment, it may proceed on the basis of
the correctness thereof and include this fact among those upon which
it determines whether the applicant is entitled to the final relief
which he seeks Moreover, there may be exceptions to this general
rule, as, for example where the allegations or denials of the
respondent are so far-fetched or clearly untenable that the Court is
justified in rejecting them merely on the papers ".
I am strengthened in my view that the deponent Sello in
his attempt to support the respondent by denying that when he
signature to the family resolution to appoint the
applicant as heir and successor to the deceased's estate his denial
is merely farcical
because even if he were to be believed that he
16 resolution thinking it meant he was being invited to
a family meeting; the fact is that all those who signed did so in a
meeting for the purpose set out in the paper which was a
summary of what had been discussed in his presence namely that
was being appointed heir and successor. That the respondent
didn't find it necessary to exercise his right to apply for the
deponents to be called for cross-examination is an omission
that he would have to learn to live uncomfortably with because as it
is the Court is satisfied as to the inherent credibility of the
applicant and her witnesses.
The respondent's stance is also compromised at a point
which to me matters most with regard to what appears to be spoliation
proceeding. He avers that the deceased's estate consists of
16 units; four of which he uses while the rest are used by the
Given that all these fell to be inherited by somebody
somehow after the deceased died it boggles one's mind that the
blithely say that the applicant uses the rest of
these units without saying on what authority she does so. This
failure on the respondent's
part, in my view, strengthens the
applicant's version that her authority derived from a resolution
emanating from a family conference.
The respondent's denial of the
existence of such a conference and the authority it conferred on the
applicant is thus vain and futile.
In fact evidence
17 showing he was a participant therein is acceptable as
a statement of the truth before this Court.
As for the respondent his wild allegations that the
burial of the deceased was his sole responsibility simply strains
am of the view that it is not only far-fetched but
untenable. It is hard to believe his story that even though he has
who were present at their sister's burial he can
brazenly hope to convince this Court that he alone shouldered the
for the burial. It is this type of claim that
justified the Court's feeling that the desire to gain is all that is
behind such wild
claims as he is making.
The weaknesses in the applicant's case have been ably
highlighted by Mr Mda. But I regret to say it seems to me that the
squarely with the applicant's legal advisor.
This Court cannot overlook a plea by a parent for
protection against an attack on her with a knife by a son.
Although her case has been badly presented it seems to
me that she approached
18 this Court to seek summary restitution in the
form of spoliation order.
From the papers it became clear to me that the applicant
sought an order to restore possession into which she had been put by
Letsepe family which had such right. The interim order she
obtained ensured that the respondent did not dispose of the
of property which the applicant had previously been in
possession of. It behoved the respondent if he were to succeed to
the taking was not a spoliation because of any of the
following factors :
it was done by consent, or
under lawful warrant e.g. by virtue of a judicial
decree, statutory powers or other paramount authority.
Mr Mda raised an important point in his submission that
waiting for over three years does not justify moving the Court
on an urgent basis.
But Nienaber vs Stuckey 1946 AD 1059-1060 is authority
for the view that
"mere delay in application will not defeat a claim
for the remedy " C/f
Classen's Dictionary of Legal Words and Phrases Issue
S-90. Furthermore and assuming I am correct in regarding this
one for spoliation, the authority
19 of Meyer vs Glendinning 1939 CPD p 94 at 96 shows
that possession need not be exclusive (see Nienaber supra) which
also how far constructive holding can go. Furthermore
according to Classen above Meyer at 96 clarifies the position
spoliation by indicating that
"to obtain a writ thereof the common practice is to
make an ex parte application for a rule nisi calling upon the
to show cause why he shall not be ordered to restore
possession, the rule to act as an interdict preventing the respondent
with the possession until further order".
Without being specific as should have been the case the
applicant's papers in a rather rambling fashion traversed the
necessary for granting of a spoliation order
nonetheless. To that extent I think it barely fits the bill.
If applicant proves previous possession and his
dispossession by the respondent the rule stands a good chance of
being made absolute.
In Setlogelo vs Setlogelo 1914 AD p 221 at 222 the court
"the interdict ought to have been granted, inasmuch
as the fact of the disturbance of a bonafide possession was not
as no fact was adduced to show that the trespasser had
or believed that he had a right equal to or better than the
20 Mr Mpopo appealed to the Court to look at the
substance as opposed to
procedural and technical breaches and sought salvage
under Rule 59. But I am of the view that Rule 59 is not there to
in going about the litigation business. Moreover
Kutloano (above) LAC 1989-1989 pp 99 at 103 H authoritatively
preserved Schutz P's
invaluable dictum for practitioners and Courts
as follows :
"I am afraid that my decision may smack of the
triumph of formalism over substance. But forms are often important
and the requirements
of the sub-rule are such".
Mr Mpopo further submitted that the remedy sought had
also a form of specific performance which is not available in the
Court. I shall assume in his favour that this is so.
But the fact remains the case was clumsily handled. This
should be reflected in the award for costs.
The Rule is granted in terms of prayer l(b) (c) (d) (f)
and (g) as to costs which because of the remarks made above should
to 65% of the applicant's costs. With regard to prayer
(e) the Court is not disposed to grant any order the
21 nature of which would be entirely up to the
respondent whether he wishes to comply in the event he wants to stay
where he is stopped by order from staying. Otherwise
the order for his eviction is granted.
It is so ordered.
12th February, 2001
For Applicant: Mr Mpopo For Respondent: Mr Mda
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