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 9th 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 25th October 2006. In that order, the defendant was called upon to restore conjugal rights to the plaintiff on or before the 3rd November 2006, failing compliance therewith, she must show cause why a final decree of divorce should not be granted on the 8th November 2006.
The restitution order was served upon the defendants attorneys on the 26th October 2006.
It is apposite to note that, there is no order of court that this restitution order be served upon the defendants 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 applicants/defendants 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 applicants/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 applicants 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 applicants/defendants 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