HIGH COURT OF LESOTHO
TUMELO MAKHAYA RESPONDENT
by Honourable Acting Justice M. Mahase On the 10th May 2006.
an application in which the applicant approached this court on urgent
and ex parte basis. She subsequently obtained orders
in fact an application interdicting the Respondent from denying
Applicant access to see the children of the parties herein
interdicting the Respondent from exposing their children to cold
Applicant has also in the like manner obtained an order directing the
Respondent to deliver to her a charcoal raider vehicle
numbers AH 480 pending the finalization
CIV/T/558/2005. CIV/T/558/2005 involves divorce proceedings pending
between the parties herein in this court.
It is a
matter of common cause that the said interim court order was obtained
ex parte without the other party having been heard.
been served with the founding papers and the interim court order, the
Respondent filed his intention to oppose the matter
on the 5th May
2006. Same had first been served upon the applicant's attorneys on
the 3rd May 2006 at 15:25 pm. Having been filed
in the High Court at
11:30 of that day. The Respondent subsequently also filed a notice of
anticipation of the return date to the
8th May 2006 at 9:30 am.
served upon the applicant's attorneys on the 4th May 2006 at 16:30 pm
and then was filed with the office of the Registrar
of this court on
the 5th May 2006 at 11:30 am. The Respondent's notice of anticipation
was filed together with his answering affidavit.
affidavit was served and received upon the Applicant's attorneys on
the 4th May 2005 at 16:36 pm. The Respondent
has also filed his heads
of argument. Same were filed in the High Court Registry on the 8th
May 2006 - no time specified. There
is no indication that same were
served upon the Applicant's attorney (but there is no objection
raised against this).
Application filed a replying affidavit on the 8th May 2006. There is
no indication that same was served upon the Respondent
objection has been raised against this). It was filed in the High
Court on the 8th May 2005 (time not shown).
applicant did also file an opposing affidavit to the notice of
anticipation of respondent on the 8th May 2006. This was filed
High Court on that date at 15:10.
has raised one point in limine with regard to the notice of
anticipation filed by the Respondent. The said point in limine
that the Respondent has disregarded the Rules of this court, to wit,
the requirements of Rule 8(18) of the High Court Rules
been submitted and argued that on this point alone this court should
dismiss this application.
(18) of the High Court Rules provides that any person against whom an
order is granted ex parte may anticipate the return
day upon delivery
of not less than 48 hours notice.
further argued that in the absence of condonation by this court of
such none compliance with this Rule, then the
has to be dismissed not with standing the affidavit of the Respondent
been argued, on behalf of the Respondent that the Rule was
anticipated to the said date because the interim court order so
obtained by the applicant against the Respondent is prejudicial to
also argued on behalf of the Respondent that the point in limine
raised by the applicant has no merit and that it is meant
delay the course of justice.
of the interim court order which has been obtained by the Applicant
on ex parte urgent basis reveals that among other
things, there is no
time specified as to when exactly that order was served upon the
Respondent on the 28th April 2006.
in contrast to the indication that the notice of anticipation was
actually received or served upon the Applicant's counsel
on the 4th
May 2006 at 16:36 pm.
difficulty here is that there is nothing in the said Rule of this
court showing as to how exactly any party who receives or
process is served should indicate the exact time when such process
was received or served.
words, the Rules of this court are not specific as to how, and by
whom the exact time of service or receipt of court process
party should be indicated on the court papers. As it is, one is not
even very certain that indeed the said court process
was received or
served at 16:36 pm by the Respondent's attorney upon the Applicant's
court has no way of verifying the correctness or otherwise of the
time written as the exact time when said court process was
upon the applicant's attorneys.
be remembered that this interim court order was obtained on ex parte
urgent basis without Respondent having been given
notice. Also not to
be overlooked is the fact that the parties herein are husband and
wife and that at the very mist or at the
very center of their
squabbles which have precipitated into the pending divorce
proceedings and this present application; are their
It is for
the interests not only of the parties herein that the present
application should be disposed off, but it is to the paramount
interest of their minor children that at least this application
should be finalized.
foregoing reasons and for the interests of all parties involved
herein, in particular having in mind the interests and
of their children this matter has to be argued and determined
course does not condone this now prevalent practice of denying a
party who has a substantial interest in the matter, the
right to be
heard before an interim court order adverse, or directly
prejudicially affecting that other party is obtained, from
heard without good cause being shown.
court is mindful of the fact that the said Rule 8(18) has not
specifically prescribed the time of 48 hours in seconds or minutes.
So on the face of it, there is nothing wrong nor prejudicial to any
party if the period of 48 hours stipulated in the Rule is calculated
from the 4th May 2006 up to and including the 8th May 2006 at 9:30
case, when this court finally resumed to hear the parties herein on
the 8th May 2006, it was very close to 16:36 pm. None
of the parties
can seriously argue that the "alleged" none observance of
this rule has prejudiced him/her. For this reason
and in the
circumstances of this case the point raised in limine by the
Applicant is dismissed.
I make no
order as to costs since this is a matrimonial matter and parties are
not yet even divorced.
Applicant : Miss Ranthithi
Respondent : Mr. Shale
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law