IN
THE HIGH COURT OF LESOTHO

CIV/T/29/2006

In
the matter between:

NTLELE
NTOI APPLICANT

VS

`MAMOKHALI
PAULINA NTOI DEFENDANT

JUDGMENT

Delivered by the Honourable
Judge M. Mahase

On the 9^th
March 2008

Civil Procedure – Divorce
– Rule nisi – Rescission of a restitution order – None
compliance with the Provisions of Rule
39(2) and 42 of the High Court
Rules.

This is an
application for the rescission of a restitution order which was
granted by this court on the 25^th
October 2006. In that order, the defendant was called upon to
restore conjugal rights to the plaintiff on or before the 3^rd
November 2006, failing compliance therewith, she must show cause why
a final decree of divorce should not be granted on the 8^th
November 2006.

The restitution
order was served upon the defendant’s attorneys on the 26^th
October 2006.

It is apposite to
note that, there is no order of court that this restitution order be
served upon the defendant’s attorneys and
not personally upon the
defendant.

The issues for
determination by this court are as follows:-

• 
  Whether the
  applicant/defendant ought to have been furnished with a Rule
  39(2)
  notice prior to the issuing of a restitution order.

  
  

• 
  Whether
  applicant/defendant has established the requirements of an interim
  interdict?

  
  

• 
  Whether the
  applicant/defendant has established urgency in the present matter?

  
  

This application
is being opposed by the respondent/plaintiff on the following
grounds:-

• 
  The Provisions
  of Rule 39(2)
  relate to matters in which pleadings have been closed. In other
  words, so it has been submitted, the Provisions of this Rule

  envisage matters where pleadings are ripe for trial and no other
  matters.

  
  

What is clear and
unchallenged is that the effect of this kind of an order is interim.
It therefore does not fall within the Provisions
of Rule 39 (2) of the Rules of this Court.
The order of restitution of conjugal rights is but one of the routes
which have to be traveled before the divorce proceedings
can be
finalised; it has no final effect to such proceedings.

The
applicant/defendant does not say that she has not at all been served
with this order, nor does she say that she was never aware
of its
existence.

She was indeed
aware of it. That explains why she has filed this application and
also that explains why she does not challenge
or object to the
service of same. One can not, however ignore the fact that this
order has been served upon the applicant’s/defendant’s
attorneys
against the mandatory Provisions
of Rule 42(3) of the Rules of this Court.
This provides that:-

The order for
restitution of conjugal rights shall, unless the court otherwise
directs, be served on the defendant personally.

It is clear that
the applicant/defendant has nailed her colours on the mast of Rule
39(2)
but in the view of this court it is immature for applicant/defendant
to invoke the Provisions
of this Rule 39(2)
at this stage of the proceedings where a pre-trial conference between
the parties has not even been held.

The Provisions
of this Rule 39(2)
are unambiguous and they relate to the steps which one has to take in
setting down a case for trial.

This Rule
39(2)
provides as follows:-

In cases where
the pleadings have been closed and where a pre-trial conference has
been held the plaintiff may apply to the Registrar
to set the case
down-for trial. If the plaintiff does not apply within 30 days after
the latter of the dates in which the pleadings
are closed or on which
the pre-trial conference has been held either the plaintiff or
defendant may set the case down for trial.

It has not been
denied that the divorce case between the parties herein was not ripe
for trial. Neither has applicant/defendant
argued that she has
suffered any prejudice as a result of the issuance by court of this
order which was ultimately served upon
her attorneys; which service
was not proper in this case. It is also not her case that as a
result of this restitution order having
been issued and so served she
would suffer irreparable harm. In the premises this point raised by
the applicant/defendant is dismissed,
because it is clearly
misplaced.

The issue of
contempt of court which has been raised or alluded to by the
applicant in her replying affidavit does not at all arise
in this
case. She has filed an urgent application in which she challenges
the method by which the restitution order in this case
has been
obtained.

This she did on an
urgent basis. She has not violated that order, rather she has
approached this court for relief. It is not like
she has violated
that order flagrantly, and or with impunity.

Having so filed
this application and having been granted interim orders the
applicant/defendant has averted the danger of the divorce
proceedings
against her having been finalized. She therefore has not been
prejudiced in anyway much as she has relied upon the
Provisions
of rule 39(2),
which are not relevant for the present application.

It has been argued
by the respondent/plaintiff that the applicant/defendant has not
satisfied the requirements for the granting
of an interim interdict,
because she has failed to show that:-

• 
  She has a prima
  facie right. The respondent/plaintiff alleges in his heads of
  argument at paragraph 4.1.2 that nowhere in her
  founding as well as
  in her replying affidavits has applicant alleged that she has a
  prima facie right justifying the granting
  of the interim interdict
  in her favour.

  
  

In reply, it is
the applicant’s/defendant averment that in fact she has such a
right because it is respondent who has left their
marital home at
Naleli as he resides at Stadium Area with one Magauta Liaho. She
says she could therefore not restore conjugal
rights as ordered by
this court.

This court would
not dwell much on this point for the simple reason that, the above
issue has not been denied by the respondent/plaintiff.
How could
applicant be expected to go to Stadium Area where her husband was
residing with another lady illicitly?

In any case, the
service of the restitution order in question has not been properly
effected upon the applicant.

It should be
recalled that same was served upon the applicant’s attorneys even
though there was no order of court sanctioning
such service of a
restitution order. She has however not raised any objection against
such service of this order even though her
right of being personally
served with it has been violated in the manner alluded to above.
Unfortunately she invoked the Provisions
of Rule 39(2)
which step was not proper in the circumstances of this case

It is trite that
in cases such as the instant one where divorce proceedings have been
instituted by one party against the other,
service of summons and
restitution orders should be effected personally upon the defendant
unless the court has directed otherwise.
Vide Rule
42(3) of the High Court Rules.

In the instant
case, restitution order was served upon the attorneys of the
applicant/defendant in the absence of a directive/order
of court to
that effect. This is contrary to the Provisions
of Rule 42(3) of the Rules of this Court,
which provisions are mandatory.

This fact has not
been denied nor challenged by the respondent/plaintiff. It is
therefore to be taken as having been correct and
as having been
admitted by him.

The importance of
the provisions of this sub-rule can not be overlooked. These are
designed to inform the defendant who is a party
to divorce
proceedings to become aware of the restitution order and indeed to
have him/her informed of the consequences should
he/her fail to
restore conjugal rights within the stipulated time period.

There is therefore
no doubt in the mind of this court that failure by the
respondent/plaintiff to have this restitution order personally
served
upon the applicant/defendant in the circumstances herein alluded to
above constitutes a violation of the mandatory Provisions
of Rule 42(3) of the Rules of this Court
to the prejudice of the applicant/defendant.

This is moreso in
view of the unchallenged averments contained in the
applicant’s/defendant’s replying affidavit, to wit paragraphs
4,
10 and 12.

Be that as it may,
it is trite that being a Rule nisi, a restitution order once granted,
it can either be abandoned by the party
in whose favour it was
granted; or it may be confirmed or discharged on the return day.
Vide:- LESOTHO
FOOTBALL ASSOCIATION V LESOTHO SPORTS COUNCIL
(1991 – 1992) LLB – LB at page 27 and MCGRATH
V MACGRATH
1961(4) S.A. 562 at 564.

Instead of filing
the present application applicant/defendant should have come to court
to show cause, on the return day and by
filing appropriate papers,
explaining why she could not restore conjugal right to the
respondent/plaintiff.

It is further
trite that once the court has pronounced a judgment or order, the
Judge or Court is thereafter funtus
officio
and it can not alter, supplement or correct the judgment or order –
vide NAIDOO
V NAIDOO
1948(3) S.A. 1178; Lesotho Football Association (supra).

It should be
recalled that this order, subject-matter in the application in casu
was obtained on an urgent basis without notice having been given to
the other party. This was wrong/irregular – vide KHAKETLA
V MALAHLEHA
AND
OTHERS
C of A (Civ) No. 18 of 1991.

It becomes clear
then, from the authorities cited herein that the applicant/defendant
should have come to court on the return day
appropriately to say or
inform the court why she could not restore conjugal rights to the
respondent/defendant as per the restitution
order.

For the foregoing
reasons the interim order herein is discharged and the application is
dismissed.

This being a
matrimonial case, no order as to costs is made.

M. MAHASE

JUDGE

For
Applicant : Mr. Sepiriti

For
Respondent : Mr. Mojela