IN THE HIGH COURT
In the matter between;
NONYANYE EZEKIEL RAPITSE
1ST RESPONDENTCHIEF KAPOKO RAMOKOATSI 2ND
Mr. Sekonyela : Applicant
Mr. Mahlakeng : Respondents
DELIVERED BY THE HONOURABLE
MRS JUSTICE K.J. GUNI
ON THE 27th
The parties in this matter are
brothers, theirsister, MPOLAI RAPITSE died. As a result
of herpassing away, the dispute arose between the twobrothers
as to who has the right to bury the sisterand more importantly
but not in so many words as towho takes over her estate.
It appears from the
papers filed of record that her marriage had failed. She had
returned to hermaternal parental home where she was
seeminglyallocated the site to build her own house on thesite
which belong to one of the brothers i.e.NONYANE EZEKIEL
As the disputes raged on, at the time thepreparations
for the funeral were being embarkedupon, one of the brother,
MOEKETSI HENRY RAPITSEapproached this court on an exparte
and urgentbasis. He obtained the rule nisi couched in
theseterms:-(a) Respondents shall not be interdicted
forthwith from unlawfully interfering withthe
preparations for the decent burial ofthe deceased Mpolai Elsie
Rapitse at haRamokoatsi pending the finalisation ofthis
First Respondent shall not be directed todesist
from interfering with and/orhindering the Applicant from
conductingthe funeral service of the late MpolaiElsie
Rapitse at the house of the deceasedat Ha Ramokoatsi.
Respondents shall not be interdictedforthwith from
preventing and/or hindering
the holding of and
preparations for the funeral service of the late Mpolai
ElsieRapitse at her house, at Ha Ramokoatsi.
Respondents shall not be ordered to pay thecosts
for this application.
Applicant shall not be granted such furtherand/or
This rule nisi was on the return date confirmed inthe
absence of the respondents who although theyhad been served with
the interim court order andaccompanying papers, did not file any
opposingpapers. Therefore the matter proceeded asuncontested.
Having obtained the above court order on the 25thJuly,
2005 the applicant MOEKETSI HENRY RAPITSEresumed the
preparations to conduct the burialservice for the deceased MPOLAI
ELSIE RAPITSE fromher own house. The other brother NONYANA
EZEKIELRAPITSE realizing that the preparations for theburial
are resumed because the other brother hasnow obtained the court
order on the 25th July 2005,he claims he approached
the court ex-parte and onan urgent basis.
He claims to have been granted an interim courtorder
which suspended temporarily the operation ofthe judgment which
the other brother MOEKETSIHENRY RAPITSE was
granted by this court on the
SERVICE OF THE SAID COURT ORDER
The applicant avers that the respondent was servedwith
the said court order. The respondent deniesthat he was ever
served. The service of anyprocess must be effected in terms of
RULE 4 HIGHCOURT RULES 1980. There is no return of
service.It is argued by the respondents attorney thatthere
is no return of service because no servicewas effected. The
respondent denies that he wasserved with the court order.
The facts suggest that the deputy sheriff arrivedthere
late in the evening. He, the deputy sheriffin his affidavit
avers that the respondent refusedto accept the service
claiming that it was dark.It seems at that juncture, the deputy
sheriffdeparted after pointing out that he will return thenext
morning to effect the service within the hoursstipulated by the
RULE 4(4) which provides
service shall be effected as near aspossible
between the hours of 7.00 a.m.and 7.00 p.m.
The deputy sheriff
according to the respondent does not specify in his affidavit, at
what timehe served if at all he did, the said he courtorder.
The Deputy Sheriff never returned. Inhis affidavit the Deputy
Sheriff claims thatthe respondent took the papers and told
himthat he is telephoning his lawyer. Aftertalking to his
lawyer the respondent said itwas too dark and refused to accept
the service.This he did after he had been advised by hislawyer.
The respondent pointed out to the DeputySheriff that
before he is properly served withthe court order suspending the
judgment he hadobtained on the 25th July, 2005, he
will carryout the terms of that judgment. Clearly if thecourt
order suspending the operation of thatjudgment was not yet
properly served upon himhe was not therefore acting in violation
ofsuch an order.
It is material that proper and lawful service ofthe
court order must be effected. RULE 4, HIGHCOURT RULES 1980.
The expression of an intentionthat in the future, there will
be a proper serviceof the court order, is not enough to establish
contempt of the
court order if the person tookaction contrary to the intended
court order when such a court order has not yet been properly
servedupon him or her.
This application for contempt of court order
isdismissed with cost.
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