HIGH COURT OF LESOTHO
Application of :
MALAHLEHA 1st Applicant
MPHOS 2nd "
by the Hon. Mr. Justice B.K. Molai on the 6th day of August, 1991
March, 1991 the applicants herein moved, before this court, an urgent
Ex-parte application and obtained, against the Respondent,
Nisi framed in the following terms:
"1. Rule Nisi be and is hereby issued returnable on the 15th day
of April, 1991 calling upon the Respondent to show cause
shall not be directed forthwith to pay the salaries of the
applicants for as long as they continue to teach at Iketsetseng
shall not be restrained from trying to force out applicants from
Iketsetseng Private School pending the determination
Application 153 of 1990 which is pending before the Honourable court
between Respondent and the management committee
of the management of
the said school.
shall not be directed to pay costs.
prayers 1(a) and (b) operate as an interim interdict with immediate
effect pending the termination of this application."
March, 1991 the order was duly served upon the Respondent personally.
She, however, did nothing about prayer 2 notwithstanding
that in terms thereof prayers 1(a) and (b) were to operate as interim
orders, with immediate effect. Consequently, on
4th April, 1991, the
applicants filed with the Registrar of the High Court another urgent
Ex-parte application in which they moved
the court for an order,
against the Respondent In the following terms:
the Deputy Sheriff do take the body of Caroline 'Masechele Khaketla
(Respondent) and safely keep her, have her before court
at 9 O'clock
in the forenoon on the day of Monday the 8th of April, 1991 and
there to show cause why she should not be detained
complies with the order of the court directing Respondent to pay the
salaries of applicants for as long as they continue
to teach at
Iketsetseng Private Primary School.
Respondent also show cause why she shall not be directed to pay
costs of this application."
this application in terms of the prayers in the notice of motion. It
is significant that in terms of prayer (a) thereof
the return day was
8th April, 1991. However, in the morning of the following day, 5th
April, 1991 the Deputy Sheriff served the order upon,
the Respondent before court. As counsels for both the Respondent and
the applicants also attended court I decided
to go into court and
told, inter alia, that the Respondent was a citizen and owned
property in Lesotho. There was no fear that she was about to
of the jurisdiction of the court. In the circumstances there was
no justification for the arrest of the Respondent.
On the other hand
counsel for the applicants argued that by falling to pay the salaries
of the applicants as ordered by the court
the Respondent had
committed a contempt of court for which she had rendered herself
liable for arrest and committal to prison.
Until she had purged her
contempt of court the Respondent could not properly be heard by the
significant that on the papers before me the applicants had, on 25th
March, 1991, obtained Ex-parte an order against the
directing the latter, inter alia to pay the salaries of the former.
The order which was to operate with immediate effect
was served upon
the Respondent on 27th March, 1991. Not withstanding service of the
order upon her the Respondent had refused/neglected
to pay the
salaries of the applicants until the 5th April, 1991. It seemed
therefore, that unless good cause could be shown, the Respondent had
committed contempt of the order of the court, for which
she ought to
be committed to prison. However, committal to prison is so drastic a
step that no court of law would grant it before
the Respondent had
been afforded a fair opportunity to be heard. In the present case the
Respondent had been serviced with the
application papers and the
order for committal in the morning of the same day. 5th April, 1991.
I was not convinced, therefore,
that it could properly be said she
had been afforded a fair opportunity to be heard. I accordingly
decline to grant the order
for the committal of the Respondent until
she had been afforded the opportunity to be heard.
however, expressed concern about the Respondent's attitude to
refuse/neglect to pay the salaries of the applicants as ordered
the court. I had been told that if at the end of the day the
applicants were unsuccessful in their application for payment of
salaries and unable to refund the money the Respondent would stand to
incur irreparable harm. With that in mind I proposed
to make an order
that the salaries which the applicants had so far earned by teaching
at Iketsetseng School be paid into court
by the Respondent so that
the money would be readily available to the applicants in the event
of their being successful in the
application. Counsel for
Respondent assured the court that there would be no problems with
such an order which was accordingly made.
perhaps convenient to mention at this stage that by agreement of both
counsels consolidation of the two applications viz.
for salaries and
committal for contempt of court was ordered on 5th April, 1991. The
matter was then postponed to 12th April, 1991
to enable the
Respondent to file the opposing papers,if she so wished.
April, 1991 the Respondent filed with the Registrar of the High Court
notice of intention to oppose and another notice setting
matter for hearing on 12th April, 1991, in terms of the provisions of
rule 8 (18) of the High Court Rules 1980. On 10th
April, 1991 the
Respondent filed two documents styled answering affidavits. One was
in respect of the application to pay salaries
whilst the other
was in respect of the application for committal to prison for
contempt of court. The Replying affidavits were
also filed by the
applicants on 11th April, 1991.
the second document filed by the Respondent on 10th April, 1991
purported to be an answering affidavit to the founding
filed by the applicants in support of their application for committal
the contents of the so-called answering affidavit
firstly related to
nothing but a criticism of the orders granted by the court and
secondly an "application" that I should
recuse myself in
this case on the grounds that were somewhat
viz. that in granting the orders I had acted arbitrarily with
ulterior motives. I decline to recuse myself and the
following are my
reasons for so doing.
already pointed cut that in granting the orders, the court based
itself on the facts disclosed by the papers that were
available before it. That was permissible under the High Court Rules
1980 of which subrule (6) of rule 8 clearly provides,
" (6) On the hearing the court may grant or dismiss .... such
application as the case may require ......"
instant case the Respondent is represented by a counsel of many years
experience. He ought to have known better and accordingly
Respondent as to what remedy was open to her under the law if
anything were wrong with the orders granted by the court.
I found it
totally unacceptable for the Respondent and/or her counsel to tell a
judicial officer in facie curae, that in granting
orders in execution
of his official duties he was bias and acted with ulterior motives.
"application" (if any at all) for recusal of the judicial
officer was just an affidavit with no notice of motion.
Rule 8(1) of
the High Court Rules clearly provides:
"8(1) Save where proceedings by way of petition are prescribed
by any law, every application shall be brought on notice of
supported by an affidavit setting out the facts upon which the
applicant relies for relief."(My underlining)
underscored the word "shall" in the above cited rule to
indicate my view that the provisions thereof are imperative.
to bring the application on notice of motion was a serious
irregularity. On that point alone the so-called "application"
for recusal could not be allowed.
as it is relevant the facts disclosed by affidavits relating to the
main application, i.e. for payment of salaries, are
applicants are teachers at Iketsetseng Private School of which
ownership or control is the subject of a dispute between
Respondent and the management committee in CIV/APN/317/90 still
pending before this court. The parents of the pupils at the
contribute money out of which the salaries of the applicants as
teachers are to be paid. The money is under the control
January, 1991 the Respondent purported to suspend applicants and
instituted, before a magistrate court, an application in which
moved the court for an order restraining them, Inter alia, from going
on to the premises of the school with a view to conducting
educational instructions thereon. Her application was however,
dismissed and the Respondent appealed against the decision.
February, 1991 and whilst the appeal was still pending, the
Respondent wrote a letter by which she informed the parents
pupils that some people were disputing, with her the ownership of the
school and interfering with her administration thereof.
therefore, closing down the school. On the directive of the Ministry
of Education it was, however, re-opened and according
to them the
applicants are still teaching the pupils at the school.
Respondent refuses/neglects to pay the salaries of the applicants on
the grounds that they had not been discharging any duties
pupils and were not bound to do so, presumably because she had
allegedly suspended the applicants and closed down the
Consequently the applicants instituted these proceedings for an order
significant that the Respondent has made no attempt to gainsay the
applicants' averment that following her purported closure
school, on 14th February, 1991, it was re-opened on the directive of
the Ministry of Education. The applicant's averment
in this regard
must, in my finding, be accepted as the truth.
the correctness of my finding and the fact that the Respondent's
application to have the applicants restrained from
the school was turned down by the Magistrate court, it seems to me
likely that the applicants did continue to teach
and are still
the pupils at the school. I reject as false and, therefore, untenable
and grounds on which the Respondent refuses/neglects
to pay the
salaries of the applicants out of the money contributed by the
parents of the pupils for that purpose.
of proof rests on the applicants. I am satisfied that they have, on a
balance of probabilities, discharged that onus.
accordingly confirm the rule as prayed in the main application.
ordered that the amount of money which was paid into court as the
equivalence of the applicants' salaries be paid to them
As it has
already been pointed out earlier, the second application, i.e. for
committal of the Respondent, is based on the facts
that on 25th
March, 1991 the Respondent was ordered to Day the salaries of the
applicants. The order was to operate with immediate
Notwithstanding service upon her on 27th March, 1991 the Respondent
refused/neglected to comply with the order. In the
contention of the
applicants, the Respondent was in wilful contempt of court for which
she was liable for arrest and committal
Respondent denied to have committed contempt of court. Even if it
were held that she had. it was not the kind of contempt for
could be committed to prison.
affidavits before me there is no doubt that on 25th March, 1991 the
Respondent was ordered to pay, with immediate effect
the salaries of
the applicants. Despite service of the order upn her on 27th March,
1991 she did not comply with the order. She
had wilfully disobeyed
the order and, therefore, committed a contempt of court. I
accordingly reject her contention that she has
not committed contempt
question for the determination of the court is whether or not the
contempt of court committed by the Respondent is the
kind for which
she can be arrested and committed to prison. Ordinarily, orders that
are enforceable by committal to prison are
orders ad factum
praestandum i.e. not orders ad pecuniam solvendam. In the present
case the Respondent was ordered to pay sums
of money constituting the
monthly salaries of the applicants. That, in my view, was an order ad
pecuniam solvendm Which was enforceable
by a writ of execution and
not committal to prison -vide P.514 of The Civil Practice of the
Superior Courts in South Africa (1954
ED.) bv Herbstein and Van
worth noting that subrule (2) of rule 7 of the High Court Rules 1980
"(2) In all cases where any person may be arrested or brought to
bail the process shall be by writ of arrest addressed to
or his depty and to the officer commanding the prison and signed as
is required in the case of
summons and shall as near as may be, be in accordance with Form "F"
of the first schedule hereto".(My underlining).
underscored the word "shall" in the above cited subrule to
indicate my view that the provisions thereof are mandatory.
present case the writ by which the Respondent was to be arrested in
no way resembles form "F" of the first schedule.
It is also
worth noting that in drafting the writ the wording of of prayer (a),
as granted by the court, has been altered by the
addition of the word
"and" between the words "her" and "have"
so that prayer (a) now reads, in part:
"...... safely keep her and have her before court at 9 O'clock
in the morning of the day of Monday the 8th April, 1991..."
Registrar of the High Court ought not to have signed the writ which
contained alterations not authorised by the court. Failure
the writ of arrest in accordance with form "F" of the first
schedule has also resulted in the Deputy Sheriff
bringing the Respondent before the court on 5th April, 1991 instead
of taking her to the officer commanding gaol.
foregoing it is obvious that the view that I take is that the main
application, i.e. for payment of salaries, succeeds
and the rule is
confirmed with costs. However, the second application i.e. for
committal of the Respondent ought not to
It is accordingly dismissed with costs.
Applicant : Mr. Maqutu
Respondent : Mr. Sello
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