IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/493/2010
In the matter between:
‘MAMABU NTŠEKHE Applicant
MOILOA NTŠEKHE 1st Respondent
O/C MABOTE POLICE (LMPS) 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 31st Day of March 2011
1. Mr Thabane moved this application. This is an interdict, as more fully shown in the notice of motion, in which the First Respondent (Moiloa) is being sought to be interdicted by the Applicant who is the latter’s step mother. Mr Mohau for Respondent opposes the application.
2. It is about this Moiloa having attended at the home of the Applicant on the 9th September 2010 at about 7.00 p.m. This displeased the Applicant. There would have been no dispute had the Applicant not felt that Moiloa had been belligerent, he was violent and did assault Applicant as alleged. This is however denied by the Moiloa.
3. I suppose the principle whether this kind of interdict can be sought by the Applicant is not in issue. A submission by Counsel is however, initially that it is very difficult in this instance to seek an interdict because the Applicant is the co-owner of the house with the father of Moiloa. And indeed, in the same vein, Moiloa would reply that he has a right to attend at his father’s place, attend on his father who was weak and sickly and attend on his father who felt harassed or mistreated by the Applicant as he had perceived that to be so.
4. Another principle is that Moiloa would normally have freedom to visit his father which is presumably not difficult to decide in favour of the First Respondent. Most apparently this is a family dispute that is emotionally charged and this brings with it the question of sufficiency of evidence about things that happened in the presence of the Applicant, Moiloa and his father where they are disputed. Significantly, it is that Respondent’s father who Mr Thabane says would be unprepared to take the side of the Applicant. He has not settled any affidavit. This is an obvious complication, more especially as regards the sole words or story of the Applicant being against those of Moiloa.
5. A further complication is that the story that we have of the Applicant and Moiloa on this issue of whether assault occurred or not was not corroborated at all. That Moiloa has averred that he was in company of one fellow called Motlomelo and Motlomelo was not called. When compared with the Applicant.
6. On the other side, the two witnesses of the Applicant do not speak out clearly over the question of the assault. They deny on other this but crucially do not support the Applicant on the aspect of the alleged assault. The Applicant gives her own version and Moiloa does the same. It is that respect that the evidence is lacking. We have two conflicting stories which are what lawyers say is an attempt to believe one typewriter as against the other. And most critically the Applicant does not ask the court to call viva-voce evidence. Overall that would not be the fault of the Moiloa but the Applicant herself.
7. Applicant’s Counsel speaks about what is the truth and what is not the truth. It is that truth which the court is not able to discover. In simple terms there is no clear evidence. But the principles of evidence have given us an approach that is, in that event one must believe the Respondent or for better word, one must take the side of the Respondent. In other spheres of the law it would be said that there is no evidence on which a court may convict.
8. Unfortunately, this is a situation which calls for the court must dismiss this application. This is a difficult situation in which this evidence before court is not convincing.
9. The application is dismissed and there is no order as to costs.
T. E. Monapathi
For Applicant : Mr Thabane
For Respondent : Mr Mohau
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