Review of order of Maintenance and Children’s Court – Garnishee order granted without affording aggrieved party opportunity to present a defence – No explanation forthcoming from the learned Magistrate – It is a reviewable gross irregularity to conduct a material part of the proceedings in a party’s absence and without their involvement where they have not been given proper notice of the hearing.
IN THE HIGH COURT OF LESOTHO
In the matter between
TLALI TAU APPLICANT
‘MAMPHO MAKHETHA 1ST RESPONDENT
LERIBE MAGISTRATE (MRS.MCPHERSON) 2nd RESPONDENT
HRM-POLICE HEADQUARTERS 3rd RESPONDENT
TREASURY 4th RESPONDENT
COMMISSIONER OF POLICE 5TH RESPONDENT
ATTORNEY GENERAL 6th RESPONDENT
Coram: His Honour Justice Keketso Moahloli (a.i)
Heard: 30 July and 11 September 2018
Ruling: 11 September 2018
Reasons: 14 February 2019
 On 3 July 2018 the Applicant herein, Tlali Tau (“Tau”), brought an urgent application in terms of Rule 50 of the High Court Rules 1980, for the review of the decision and proceedings of the Magistrate’s Court of Leribe (sitting as a Maintenance and Children’s Court) in CIV/MAINT/LRB/134/2017, in which the 2nd Respondent (Her Worship Mrs McPherson), on 5 December 2017 issued a garnishee order -
 In the application Tau seeks orders that:
“1. Ordinary modes and periods of service be dispensed with on account of urgency.
2. A Rule Nisi be issued returnable on the 30th day of July 2018 calling upon the Respondents to come and show cause, if any, why -
 On 3 July my sister Hlajoane, having heard counsel for Applicant and read the papers filed of record, granted the Rule Nisi as prayed returnable on the 30 July 2018. She further granted prayer 3.
 It must be noted that only the 1st Respondent ever opposed the application. And on the return date, Advocate Moyeye who was representing the 1st Respondent withdrew the intention to oppose. The matter consequently continued unopposed. The rule was further extended to 27 August 2018 to enable the filing of the record.
 It must further be noted that even though the learned Magistrate (and her legal representative the Attorney General) were properly served with the founding papers, neither filed any intention to oppose the grant of the order sought by the Applicant, nor an explanatory affidavit.
Brief summary of the facts
 ’Mampho Makhatha, who was applicant in the court a quo, issued summons against Tau (Respondent in the lower court) seeking an order compelling Tau to maintain the child Kamohelo, who she claims he fathered. According to her handwritten minute in the record of proceedings, the 2nd Respondent who was the presiding Magistrate, on the 16 /08/17 postponed the matter to 14/09/17 “for DNA tests results”. There is no entry in the record reflecting what then transpired on 14 September 2017. The next minute of the learned Magistrate was entered on 5 December 2017. It reads as follows:
“ Plaintiff is before court. Defendant was served on the 20/11/17 but it is 10:00 and he is still not before court and has not offered any explanation.
Plaintiff under oath maintains she sell clothes in Maputsoe and defendant is a police thus able in law to maintain.
Ct: After hearing Plaintiff and perusing the papers filed of record and the return of service maintenance is granted as prayed.
Maintenance is set at M 1000 per month. [signature].”
 It is also not clear from the record whether the parties did go for the DNA tests. No mention is made to them in the learned Magistrate final minute of 05/12/17. In the present review application Tau is asking that the maintenance order bet set aside on the basis that it was made in his absence whereas he was not made aware that the matter would proceed on the 5th of December, 2017.
Analysis of argument and facts
 On the record Applicant was served with the summons on the 20th November, 2017. And in terms of that summons, he was ordered to appear on the 30th November, 2017. In his papers, he indicated that he indeed appeared on set date but nothing happened and he was told to go home and to wait for a new date. But he was never served thereafter. Consequently he was surprised to subsequently realise that M1000 was deducted from his salary and when he follow it up, he found that it was pursuant to a maintenance order.
 On 11 September 2018, counsel for applicant appeared before me. The rule was confirmed and the decision and proceedings in CIV/MAINT/134/17 were set aside. I indicated that the reasons for my decision would follow. Here are the reasons:
 In terms of Rule 50 (1) this Court has jurisdiction to review the decision or proceedings of any subordinate or other inferior court. Although the grounds for review are not explicitly stated in the Rules, under the common law this Court is endowed with inherent jurisdiction to review and set aside or correct errors in the proceedings of lower courts if, inter alia, there is a gross irregularity in such proceedings. A court commits a gross irregularity when it, for example, makes a decision against a party without affording that party an opportunity to present a defence. This is because the principle of audi alteram partem is regarded as sacrosanct in our law.
 In casu the summons contained in the record provided by the Clerk of Court clearly indicates that Applicant was supposed to appear on the 30th of November 2017. I do not know where the date of the 5th December, 2017 came from. None of the Respondents were before court to shed some light on this. From the record, the Applicant was never notified of any date of appearance other than 30th November 2017. Therefore the learned Magistrate was not justified to conduct a material part of the proceedings in Tau’s absence and without his involvement on 5th December. Doing so amounted to a gross irregularity. For irregularity to be gross, it must be of such a serious nature that the case was not fully and fairly determined. It is trite law that a failure to give proper notice of the hearing or conducting a material part of the proceedings in the absence of a party amounts to a grave procedural irregularity. And it has been held that “where a [magistrate] commits a procedural irregularity, the [judgment/decision] will be set aside on review if it results in the aggrieved party not having its case fully and fairly determined.” This is the case in the present review. The learned Magistrate came to a decision without affording Tau an opportunity to present his defence on the crucial issues of paternity and quantum of maintenance.
KEKETSO L MOAHLOLI
Adv T Molefi for Applicant
Adv Moyeye for 1st Respondent
 Legal Notice No.9 of 1980
 Reproduced without emendation
 Doyle v Shenker & Co Ltd 1915 AD 233; De Condeicao de Jesus v Magistrate Du Toit NO 
 Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others  7 BLLR 835 (LC) para 51; Gaga v Anglo Platinum Ltd & Others  3 BLLR 285 (LAC) para 46; Toyota SA Motors (Pty) Ltd v CCMA & Others  3 BLLR 217 (CC) para 105
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