IN THE HIGH COURT OF LESOTHO
In the matter between:-
NKONKO A. MASASA APPLICANT
PALESA MEHLOLO HANSEN 1ST RESPONDENT
THE SHERIFF – MR. MOKHORO 2ND RESPONDENT
THE LEARNED MAGISTRATE 3RD RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
THE CLERK OF COURT 5TH RESPONDENT
Delivered by the Honourable Madam Justice M. Mahase
On the 20th April, 2011
Civil Procedure – Practice - motion proceedings – review – urgent ex parte application – ejectment – failure by applicant to obey an order of Court – effect thereof. None compliance with Rules of Court.
The applicant has approached this Court on an urgent ex parte basis. He is asking this Court to review, correct or set aside certain proceedings to and order that the trial should start de novo before a different magistrate. The trial in question is CC1025/2010 of the Maseru Magistrates’ Court.
In that case, the trial court has given judgment in favour of the first respondent in the instant application. The said judgment is dated the 7th October 2010.
The applicant’s prayers are contained in the notice of motion filed in this Court on the 2nd February 2011. The application was subsequently successfully moved on that same day. Vide: interim Court Order, page 12 of the paginated record.
The net effect of the above interim Court Order was to stay execution of a warrant of ejectment which had been issued pursuant to a judgment of the court a quo dated the 7th October 2010. This judgment had been granted by default against the applicant and his subsequent application for rescission of that default judgment has also been dismissed.
The site in question; subject-matter herein is described as being site number 18333-026, situated at Roma Mafikeng in the district of Maseru.
The history of this case is a long, disturbing one, to say the least. Parties herein have been engaged in dispute over this site since or around the 21st September 2010. The facts common and those in dispute in this case have been clearly and briefly summarized on behalf of the first respondent at paragraphs 2 and 3 of heads of argument filed on her behalf.
The application is opposed by the first respondent; who has in that regard raised certain points in limine, to which I shall refer in due course.
It has been submitted on behalf of the first respondent that in fact, the issue for determination by the court is whether this application is a proper case for review, setting aside the order of court a quo and ordering that the matter should commence de novo before a different Magistrate.
In order to deal with and or to make a determination on the said issue, it behooves this Court to deal with the point raised in limine. In doing so, I propose not to follow the sequence in which they have been tabulated by the first respondent. Before doing so, I must indicate a fact which is a matter of common course; namely that the applicant in the instant application has, since the 7th October 2010 been disobeying, defying, disregarding and refusing to comply with all orders of court issued against him and that in doing so, he and his wife have, to date been able to frustrate their being ejected from the site in question. Vide annexure “PMH2”, page 33 of the paginated record.
To date the warrant of ejectment issued against the applicant has not been executed due to the applicant’s belligerent behaviour. He still remains in occupation of the site in question – vide return of service date the 21st October 2010 and 2nd February 2011 at pages 11 and 110 of the record of proceedings of the court a quo respectively.
This then brings me to the points raised in limine on behalf of the first respondent; to wit paragraphs 5.3 – contempt and 5.4, purging the contempt.
It has been submitted, and correctly so, on behalf of the first respondent that for as long as the applicant has not vacated the site in question and indeed for as long as he is deliberately and intentionally disobeying, neglecting, refusing and frustrating the execution of the order(s) of Court and the execution of the warrant issued and served upon him; the applicant remains in contempt of this Court and that until when he has purged his contemptuous behaviour, he should not be heard by Court.
From the brief facts of this case and from a proper reading of this first respondent’s submissions, the applicant has not come before this Court with clean hands. Instead he has approached this Court in the manner in which he has done so as to further frustrate not only the execution of the warrant of ejectment issued against him; but he has asked this Court to order that the case in the main case which he has lost a number of times, be started de novo before a different magistrate.
This the applicant does and prays for even though he has lost this case and even though all applications for rescission of judgments granted against him have been refused. This is a gross abuse of the Court process. He has never noted any appeal against those previous judgments in which he lost applications for rescission.
Applicant is not only trying to engage in delaying tactics so as to frustrate the execution of the Orders of Court in this case thereby remaining, and unlawfully so, on the site in question. Applicant should have first purged his contempt before he approached this Court for relief as set out in his notice of motion.
It is trite that an Order of Court has and should be obeyed whether or not the affected or the aggrieved party considers it correct, or proper. Nobody is entitled to refuse to obey or to ignore an order of court once there is proof that the existence of same has been brought to his attention by proper service upon him.
The authors, Herbstein and Van Winsen fourth edition have this to say:-
“The Court will usually refuse to hear a person who has disobeyed an order of court until he has purged his contempt. The fact that a party to a cause has disobeyed an order of court is not of itself a bar to his being heard, but if his disobedience is such that, for so long as it continuous, it impedes the course of justice in the course by making it difficult for the court to ascertain the truth or to enforce its orders, the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not first be removed”.
See also: Clement v. Clement 1961 (3) S.A. 861 at 864 to 865.
It is a matter not gainsaid that instead of obeying a court order, the applicant; and after being served with the order of court and warrant of ejectment in CC1025/10; he rushed to his lawyer for assistance to move this application. This he did that as he could continue to remain in occupation of the premises in question.
I must indicate at this juncture that in fact, and this is unchallenged, the applicant is assisted or joined by his wife in disobeying the orders of court in this respect. They also are or have always been rushing to their lawyer for his assistance by moving the court for unfounded rescission applications. This I say with respect to all.
It is not very clear to this Court what the outcome of the two contempt of court applications launched against both applicants and his wife previously in this same matter has been. The said applications appear at pages 12-13 and 14-15 of the paginated record from the court a quo. The then plaintiff now first respondent has taken the correct or appropriate steps against the applicant and his wife in the present application although there is nothing on record indicating what the outcome of those applications are.
Be that as it may, the first respondent is at large to pursue contempt of court application against the applicant and any one else who may assist applicant by engaging in unlawful means in disobeying an order of court.
Once again it was stated in the case of Culverwell v. Beira 1992 (4) S.A 490 (W) at 493 and 494 that:
“The respondent is not, however, entitled to refuse to obey the court order served on him on the ground that he has not had an opportunity of consulting with his attorney, and he may be held to have defied the order intentionally notwithstanding that his attorney has advised him not to comply with it for the time being”.
There is no doubt in the view of this Court, and this is a matter of common cause, that the applicant has since the 7th October 2010 been defying orders of court even after same and the warrant, for his ejectment from the rite in question were served upon him by the messengers of Court. See also annexures “PMH4” and “PMH5” herein. The fact that he has previously subsequent to such service of the said court process now rushed to court as he has presently done through his attorney does not and will not in anyway advance his case any further. He has to comply with orders of court.
This now brings me to the next points raised in limine on behalf of the first respondent to wit paragraphs 5.1, 5.2 and 5.5 of the first respondent’s heads of argument.
It readily becomes clear and this is a matter of common cause, that when on the 2nd February 2011, the applicant moved this Court for granting of prayers stated in his notice of motion, he launched that application on ex parte and urgent basis. He then also moved his application on that same date without first respondent having been notified of same. He subsequently obtained an interim order which appears at page 12 of the paginated record. I have already alluded to the net effect of this interim court order.
It has been submitted on behalf of the first respondent, and correctly so in the considered view of this Court, that in moving this application as he did, without giving first respondent notice of the hearing, the applicant has violated the provisions of Rule 8 (4) of the Rules of this Court.
The applicant has not laid down nor furnished any reasons justifiable in law for his having so moved this Court. The fact that the applicant alleges that he and his family have nowhere else to go is not at all a justifiable reason for his having moved the court as he did; while he knew that the other party; first respondent has an interest in the outcome of this application, and that being an interested party in whose favour judgments have been granted over this site since October 2010, she would definitely be affected by the outcome of this application.
The applicant has, in rushing to court as he did, violated the provisions of the above Rule of Court in that he filed and moved court to grant him an interim order on the very day that he filed this application. It is a mandatory requirement of the provisions of this Rule that such an application shall be filed with the Registrar before noon on two court days preceding the day on which it is to be set down to be heard. (My emphasis)
This the applicant did, well knowing that he has on a number of previous occasions, lost this case to the first respondent. Also he knew that he has since October 2010 been defying and disobeying with impunity all orders of court granted against him to vacate this site. He has also to date frustrated all efforts to have the warrant of ejectment against him from this site, executed. He still remains in occupation of this site to date even though he has lost the case over ownership of this site. This constitutes a gross abuse of the process of court.
There are numerous pronouncements by the Court of Appeal in this country in which this Court has deprecated this inexcusable practice of legal practitioners who are quick to move applications exparte without giving notice to other interested and necessary parties a hearing. Such behaviour has in some instances been visited by awarding costs to a successful party on a higher scale against the offending counsel on de bonus properiis.
Vide Mahlakeng and Other v. Southern Sky (PTY) Ltd. and Other 2000 – 2004 LAC at 749.
The applicant has not only disregarded the provisions of the said Rule 8 (4) of the Rules of this Court. He went further to move the application on urgent basis. This he did to further forestall the ejectment while the ejectment order and the warrant of ejectment had already been issued and served upon him.
The route taken by the applicant in the instant application is the route which is not to be readily and lightly embarked upon because it is an extra ordinary route which should be adopted only in very extraordinary circumstances.
This is moreso because in the instant case, the applicant knew as for back as October 2010, that he has once more lost this are against the 1st respondent was after a rescission application which he had filed after he first lost this case had been dismissed.
The applicant has, much to the dismay of this Court not refuted the allegation that in approaching the court as he did, he also did so contrary to the mandatory provisions of Rule 8(4). He instead, refers to paragraph 12 of this founding affidavit. This does not advance his case in anyway because as has already been alluded to above, the applicant know as far back as October 2010 that he has lost the main case and that there was already in existence an order of court, and a warrant of ejectment issued and served upon him.
Applicant has not even disclosed to this Court that he has previously lost a rescission application in this very same case. Vide page 107 of the record of proceedings from the court a quo, dated the 27th January 2011. Subsequent to that, a warrant of ejectment of applicant from the site in question was issued and served upon him. That was when once more; the applicant refused to vacate the said premises and frustrated the efforts of the messenger of Court (2nd respondent) of executing the said warrant.
Shortly after that, applicant approached this Court on the 02/02/2011 and obtained the interim order of court referred to above, and subject matter in the present application. This now brings me to the next point raised in limine on behalf of the first respondent, namely that of material non-disclosure.
It has been submitted on behalf of the first respondent that the applicant has failed to disclose to the court that in fact, the first respondent is in possession of a valid lease document for the premises in question. Vide page 84 of the record of proceedings in the court a quo. Applicant has not challenged the authenticity of this lease and this was not subject-matter in the court a quo. He has also not gainsaid the first respondent’s averment in relations to the document which he (applicant) seeks to rely upon as proof that he lawfully occupies the site in question.
The undenied averments will and should stand as being admitted – vide Plascon-Evans Paint (supra). The applicant, having elected to approach this Court by way of an ex parte application, he should have disclosed all facts even those in favour of his opponent in his founding papers. He should have indeed made a full disclosure of all the relevant facts, vide Herbstein and Van Winsen page 367 (supra).
The applicant has respondent to the above by saying that the issue of disclosure is irrelevant as this is an application for review and such will be dealt with in the main applicant for rescission at the Magistrate’s Court.
With respect, this is not the law in relation to application filed ex parte without the other party having been notified and without that party having been heard before a rule nisi which adversely affects it could be moved. This is moreso in the instant case because the first respondent has had a number of judgments over this premises granted in her favour.
This Court finds the applicant’s allegation or averment that the issue of material non-disclosure shall be dealt with in the main application for rescission in the Magistrate’s Court is mind boggling. He has already lost that application, vide page 107 – record of proceedings in the court quo. There is nothing annexed in his founding papers which indicates that he has once more filed another application for the rescission of the judgment of the court a quo of the 27th January 2011; which order of court was served upon the applicant’s attorneys on that same day.
The first respondent has also submitted that there is in existence a material dispute of fact which the applicant should have foreseen before he approached this Court as he did; ex parte.
As I see it the argument here centres around the fact that the final judgment herein was obtained before one magistrate and not before the one before which the case was originally set down for hearing.
With the greatest respect to counsel, this issue cannot be decided on papers as they stand and in fact I do not see why it is raised as being a point in limine. None of counsel have sort to obtain an affidavit, at least before the Clerk of Court for her to check from her diary, who of the said magistrates had had the matter set down for argument before him.
The bottom line here is that the case was ultimately finalized on the 27th January 2011 when an application for rescission which had been filed by the applicant in the instant application was dismissed with costs on an attorney and client scale.
As has been alluded to above, the application defied and ignored an order of court and frustrated the warrant for ejecting him from the site in question. He cannot now be heard to say his behaviour does not constitute contempt of court, merely because subsequent to his contemptuous behaviour, he then approached this Court as he did. Applicant should have first obeyed an order of court whether or not he agreed with it and irrespective of how he feels about the way it has been obtained.
This application has no merit and it falls to be dismissed.
The points in limine raised on behalf of the first respondent have been well and properly taken. They are all upheld. The rule nisi of the 2nd February 2011 is accordingly discharged and the application herein is dismissed with costs to the first respondent.
For applicant - Mr. K.J. Nthontho
For first respondent - Mr. A.M. Chobokoane
For second up to fifth respondents - No appearance
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