HIGH COURT OF LESOTHO
MOTHUNTSANE 1st RESPONDENT
MAJOELE MOLAPO 2nd RESPONDENT
by the Honourable Ms Acting Justice N. Majara on 17th December 2004.
approached this court for relief in the following
1st respondent from holding himself out to the general public as the
headman of Damaseka in Linakeng area.
2nd respondent from recognizing 1st respondent as the headman of
Damaseka in Linakeng area.
1st respondent from exercising any powers of chief or headman of
Damaseka in Linakeng area.
respondent to pay costs of suit.
and/or alternative relief.
date of hearing counsel for applicant, Ms Sehapi, filed her Heads of
Argument on the points that she raised in limine. The
respondent filed an Answering Affidavit that has not been attested
to by a Commissioner of Oaths.
respondent filed a Supporting Affidavit that has no date of
attestation by a Commissioner of Oaths.
applicant's case that 1st respondent had not complied with the
provisions of Sections 3 and 4(5) of the Oaths and Declarations
Regulations of 1964. It was Ms Sehapi's
that on the face of it, 1st respondent's Answering Affidavit fails to
comply with the above regulations as well as Regulation
5 (2) (b)
submitted further that the Supporting Affidavit of one Malefetsane
Moleleki also does not comply with Regulation 5 (2) (b) of
Regulations for the reason that it has not been dated by the
Commissioner of Oaths as per the requirements of this section.
submitted that the defects are fatal and as such render the two
affidavits nugatory and that respondents should be regarded
failed to file any affidavits before the court and that as a result,
the prayer in the Notice of Motion should be granted
response, Mr Molefi, counsel for respondents argued that even if the
affidavit was not attested to by the Commissioner of Oaths,
deponent made the affidavit on oath and signed it. He argued further
that deponents deposed to the facts as being true and
within their personal knowledge in the presence of the Commissioner
of Oaths. His submission was that Regulation 3
had thus been complied
conceded that with respect to the Supporting Affidavit, the date of
attestation is absent but argued that that factor
alone does not
invalidate the whole affidavit. He submitted that the absence of date
did not prejudice the applicant in anyway.
that should the court find the absence of the dates as fatally
defective, respondents should be afforded the opportunity
regularize them especially because applicant would not suffer any
prejudice by such a ruling because as per his contention,
raised does not go to the root of the case.
the court to take into account the fact that 1st respondent has shown
his intention to oppose the application and that
even if the
affidavits are struck out, respondent would still have to argue his
case on the basis of applicant's papers.
proceed to deal with the points of law raised.
3 of the Oaths and Declarations Regulations of 1964 provides as
where otherwise provided by any other law an affidavit shall (my
underlining) be made on oath unless the person desiring
to make the
same is not able to understand the nature or recognize the religious
obligation of an oath..."
Answering Affidavit of 1st respondent is couched in the following
SELOMO MOTHUNTSANE Do hereby make oath and say,..."
wording of this affidavit, it is incorrect for applicant to contend
that 1st respondent's affidavit does not comply with
regulation. It is clearly made on oath and as such, complies with the
requirements of Regulation 3. I therefore reject this
argument in so
far as the provisions of Regulation 3 are concerned.
4 (5) in turn provides as follows;
deponent shall, after making the oath or affirmation, affix his usual
signature in his own hand writing on the affidavit
in the presence of
the commissioner of oaths."
end of his answering affidavit, 1st respondent has appended his
signature, below which is the signature of the commissioner
his capacity, area as well as his official stamp.
light of this, applicant has not been able to show the court why she
contends that 1st respondent has not complied with the
of the above regulation. She has simply alleged the defect without
pointing out what exactly it is that she avers
is lacking. It is
therefore not clear to the court whether applicant is challenging the
appended signature as not being that of
1st respondent or whether she
is alleging that it was not appended in the presence of the
commissioner of oaths whose signature
has also been appended on the
affidavit. In the court's opinion, ex facie the affidavit, the
has been complied with. This point is therefore also rejected.
5(2) (b) in turn provides as follows:
"Before attesting an affidavit the commissioner of oaths shall
ask the deponent whether he knows and understands the contents
affidavit and if his answer is in the affirmative the commissioner of
oaths shall (my underlining) — thereafter set
writing, the manner, place and date of attestation of the affidavit;
the signature, capacity and area of the commissioner of oaths, 1st
respondent's answering affidavit does not anywhere reflect
requirements of the above regulation were complied with in that it
does not set out the manner, place and date of attestation
affidavit which are usually stated in the following or as near as
possible standard terms:
signed and sworn to before me at-----------this —Day of —
200- the deponent having acknowledged that he knows and understands
the contents of the affidavit.
absence of this attestation therefore renders the affidavit
non-compliant with the requirements of Regulation 5(2)(b).
being the case, the question that this court has to determine is
whether this non-compliance is fatal which would in turn render
submitted on behalf of for applicant that the affidavit should be
struck out for reason of the said non-compliance whereas
submitted that the defect was not fatal as it does not prejudice
applicant in any way.
been emphasized time and again that under any rule/regulation, the
use of the word shall, indicates that such rule/regulation
mandatory and as such has to be complied with. This therefore places
responsibility on any legal practitioner to make sure that
comes to court he is well prepared and has not been negligent in the
preparation of his client's case. Rules/regulations
are there for a
purpose and should not be regarded as being of cosmetic value only.
This is the situation regardless of whether
or not such
non-compliance is prejudicial to the other party. See the case of
Hajee Haroon Asman and His worship Chief Magistrate-Molefi
Others CIV/APN/466/2004 wherein I held that mandatory rules are not
just enabling which makes it imperative that they
be followed to the
the case of Moletsane v Moletsane CIV/APN/475/9
Ramodibedi J (as he then was) quoted with approval the remarks of
Schutz P in Matime and two others v Moruthoane and Another
C of A
(CIV) NO.4 of 1986. In the
two cases, the court did not consider the issue of prejudice to the
other party at all. In both cases it was simply stated
rules/regulations have to be complied with and failure to do so will
render a pleading fatally defective. The same
therefore applies in
casu. This therefore means that 1st respondent's affidavit is fatally
defective because it failed to comply
with the mandatory requirements
of the regulation.
also Ms Sehapi's contention that the Supporting Affidavit of
Malefetsane Moleleki has not been dated by the commissioner
and thus does not comply with
5(2)(b) of the Regulations.
regulation has already been quoted above and as I have already
pointed out, its provisions are mandatory and as such make it
imperative for any party to comply with them.
scrutinizing the said affidavit, the court found that although it has
been attested, it does not bear the date of attestation
however bear the month and year of attestation being March 2003.
question for consideration by this court would therefore be whether
where an affidavit contains the month and year of attestation,
lacks the actual date, in other words, where it is partially
defective, such defect is so serious as to render it fatal on
basis of which the affidavit should be thrown out.
opinion, although the actual date has been left out of the affidavit,
the fact that both the date and the year are present
the seriousness of this omission. In other words, the court finds
that with regard to this particular affidavit
there has been partial
compliance on the basis of which respondents should not be punished
by the court throwing out the affidavit.
This court will overlook
this particular omission in this particular instance for the reason
that it is a small aspect that has
been overlooked and/or omitted. It
should however be noted that this court is not by any means saying
that it will condone non-compliance
of rules/regulations as a general
prayed that should the court find that the affidavits do not comply
with the regulations, condonation be granted so that
the defect can
be cured. His grounds were that if such condonation is granted
applicant will not suffer any prejudice.
opposed the application on the grounds that it was made from the bar
and that in any event respondents have no prospects
addressing the above issue, I wish to point out that it is trite law
that each and every case should be treated according
to its own
merits. The reasons for this position are many but suffice it to say
it allows the court to exercise its discretion
considered all the important circumstances of each particular case
the subject matter is the headman-ship of a village. Experience has
shown that in the interests of justice and those of
issues of this nature should not be treated lightly by the courts. I
am saying this because this
fully aware that it has happened where issues of
chieftaincy and/or boundaries are concerned serious conflicts have
occurred usually culminating in bloodshed. This is because
issues go to the root of communities' identifying with and giving
allegiance to the headmen/chiefs who govern them. As a
have been known to take sides with those contesting the title,
usually culminating in them taking up arms against
each other which
more often than not, has resulted in loss of lives.
court that dispenses justice, and on the basis of the above reasons,
it is my opinion that in this case, the dictates of justice
that this court has the duty to prevent such possible carnage and
should therefore entertain and decide this case on the
avoid the possible occurrence of bloodshed or hostility in the
enough, this court has found that respondent's founding affidavit is
defective for its non-compliance with regulations. However,
reasons stated above, I am going to allow respondents to cure this
defect and file properly dated and attested affidavits
interests of real and substantial justice. I do not think that this
decision will in anyway prejudice applicant. As I had
Osman's case (Supra) p10;
"Courts therefore have a duty to ensure that rules are followed
and should not lightly condone deviation thereof unless there
compelling circumstances to so condone."
addition, Rule 59 of the High Court Rules does make provision for the
court to condone any proceedings in which the provisions
of the rules
have not been complied with if it considers it to be in the interests
of justice (my underlining). I do not think
that at this stage I
should consider the issue of
or not respondents have prospects of success in the main as Ms Sehapi
had submitted. That issue will be dealt with when
the court makes a
determination of the matter in its totality.
reasons, although the court does uphold some of the points in limine
raised by the applicant, respondents are nevertheless
condonation to go and cure the defective affidavits. Respondents are
however ordered to pay the costs of
Applicant : Ms Sehapi
Respondents : Mr Molefi
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