CIV/APN/458/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
MASECHABA SEKHOANE APPLICANT
And
MOTHUPI SEKHOANE RESPONDENT
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo on the 22nd August 2005
This is an application brought on a certificate of urgency for an order in the following terms:
Dispensing with the forms and service provided for by the Rules of (sic) Court an account of urgency;
That a Rule Nisi issue returnable on the date and time to be determined by this Honourable Court calling upon the Respondent to show cause (if any) why:
The Respondent shall not be interdicted forthwith from collecting rentals from the rented quarters at Kumi Sekhoane's residential site at Qoaling;
The Respondent shall not be interdicted forthwith from alienating, selling or in any manner disposing of property that belongs to the estate of the Kumi and Mateboho Sekhoane situated at Qoaling, pending the outcome hereof;
The Respondent shall not be restrained from expelling tenants at the rented quarters at Kumi Sekhoane's residential site at Qoaling;
The Respondent shall not be directed to vacate the residence of the late Kumi and 'Mateboho Sekhoane situated at Qoaling.
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The Applicant's son Malakia Sekhoane shall not be declared the heir of the late Kumi and 'Mateboho Sekhoane;
The Respondent shall not be directed to vacate the main residence situated on Kumi Sekhoane's residential site at Qoaling;
The Applicant shall not resume occupation of the main residence situated at Kumi Sekhoane's site at Qoaling;
The Respondent shall not be directed to pay costs hereof;
The Applicant shall not be granted further and or alternative relief.
That prayers 1 2(a) and (b) operate with immediate effect as interim order (sic).
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A rule nisi and the interim order was granted by my Brother Peete J. in terms of prayer 2. The application was opposed and answering and replying affidavits were filed. The matter which started off as urgent was heard by me almost seven months later and after no less than twelve postponements. This brings me to the question whether there was an urgency at all in the application. In terms of the rules an affidavit filed in support of an urgent application
".......shall set forth in detail the circumstances which......render the application urdent. and also the reasons why [an applicant] cannot be afforded substantial relief in an hearing in due course if the periods presented by these Rules were followed." Rule 22 (b) (my emphasis)
Clearly then it is a sine qua non in applications of this nature to prove two things that:
there are circumstances that render the application urgent and these must be set out in detail.
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there are reasons why an applicant claims he cannot be afforded substantial relief in an hearing in due course if that rules are not adhered to.
The requirements must be contemporaneous, the one or other missing urgency has not been established.
My general experience in this regard is that applicants will set forth in great detail why they are entitled to be relief they claim urgency and then be quite unforthcoming as to why they should obtain that relief urgently rather than in the ordinary course. More often than not they then go on, if at all, to simply pay lip-service to the rule by making a bare allegation that they cannot get relief if they give ordinary notice to respondents. That is not enough, reasons must be advanced for the assertion.
The present case resolves around the succession to the estate of the late
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Kumi and Mateboho Sekhoane. Mr Mohau for the Applicant captures this in his heads of argument and I can only quote him.
"The main issue for the determination of this Honourable Court is whether the heir is determinable by operation of law or whether the family is at large to determine the heir at its own discretion ".
The issue of succession to this estate has long been a subject of serious contention in the Sekhoane family. It did not arise for the first time after the death of the late Mateboho. In fact it was so serious that even during her own lifetime the respondent according to the applicant herself, had to go to jail for it. on par. 7 of her founding affidavit she alleges that he served a term of imprisonment for violating a court order relating to his "ill-treatment of his own mother and dissipation of her property under the pretext that it was his father's property and therefore his" (My emphasis). It will be seen therefore from the applicant's own mouth that respondent has laid claim to
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this estate and therefore that it was hotly disputed. This was not only forseen by the applicant it was well known. The alleged dissipation of property that is laid as the ground of urgency in the certificate accompanying the notice of motion started during her mother's lifetime and respondent was prepared to be jailed for it and came out unrepentant. He according to the applicant shortly after his release moved into the property.
With full knowledge of this state of affairs the applicant did nothing from April nothing until the end of October when she rushed to this court claiming urgency. It is clear that, in my view nothing presented itself with any urgency in the circumstances. The applicant's case stands to be dismissed on that ground alone without even going into whether he could not be afforded substantial relief in due course.
See (COMMANDER LESOTHO DEFENCE FORCE V. MATELA 1999 - 2000 LLR & LB (13) (LAC) MOLAPO QHOBELA V BCP 1999 - 2000 LLR & LB (243) LAC.
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VICE CHANCELLOR OF NUL & ANOTHER V. MATSOBANE PUTSOA C of A (CIV) 28/2002.
Finally this is an application for interdicts and a declaration. To succeed the Applicant had to prove (a) a clear right, (b) an injury committed or reasonably apprehended, and (c) the absence of similar protection by any other ordinary remedy. (SETLOGELO V. SETLOGELO 1914 AD. 221). The Applicant who claims on behalf of her son apparently invokes customary law because it is alleged he is "eldest son of the eldest of son of Kumi and Mateboho Sekhoane". Now the Applicant in her founding affidavit describes herself as an accountant by profession. She lives in Khubetsoana Urban Area and she was married by civil rites as evidenced by the marriage certificate annexed to the founding affidavit. Her affidavit indeed exudes a modern woman who conducts her affairs in a manner that cannot be regarded as customary. Thus once again the spectra of our legal
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dualism reaves its ugly head. We have here an Applicant who invokes customary law as her personal law, but whose lifestyle does not appear to conform to custom, with radically different legal consequences.
At first blush it would appear that the Applicant, having abandoned the customary mode of life, cannot call in aid customary law in the conduct of her affairs (See Sec, 3 of the Administration of Estates Proclamation 19/1935; THOKA V. HOOHLO 1978 LLR 375. MOKOROSI V. MOKOROSI 1967 - 1970 LLR 1) In that case the estate would fall to be administered in terms of the Common Law and the Administration of Estates Proclamation (supra) and the Applicant's son could never under those laws be entitled to the extensive relief that he claims whereas under customary law that would have been possible, as, with certain qualifications, the heir takes all (See CONTEMPORARY FAMILY LAW OF LESOTHO - W.C.M. MAQUTU p. 168).
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I mention this, not to determine which law is applicable in this case but simply to show that applicant has failed to establish which law should be applicable to her or her son. That in my view to a failure to establish a clear right. For that reason also she cannot succeed.
The application is dismissed with costs.
T. NOMNGCONGO
JUDGE
For Applicant : Mr Molapo
For Respondent: Mr Mabudu
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