CIV/APN/65/91

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MAELIA
MOSELI (duly assisted by her

husband)
Applicant

and

LESOTHO
EVANGELICAL CHURCH 1st Respondent

THATO
KABELI 2nd Respondent

JUDGEMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 1st day of March,
1993.

This is
an application for the committal of the second respondent to prison
for contempt of a court order granted by this Court
on the 4th March,
1991, directing respondents to allow applicant's daughter to continue
with her schooling pending the determination
of the main application
in CIV\APN\65\91.

On the
4th March, 1991 the applicant obtained an interim order against the
respondents, prayer 1 (a) of which was to operate with
immediate
effect. -The second respondent was duly served with the said interim
order.

On the
14th March, 1991 the child returned to school. She went back to
attend her normal classes. Since her aforesaid

2

return
the child continued to defy school regulations in that she refused to
recite "Our Lord's Prayer" as required and
continued to
refuse to sing the Lesotho National Anthem as well as to sing hymns
at the assembly.

As a
result of the child's persistent defiance mentioned above, on the
19th March 1991 the applicant was invited to a meeting on
the 20th
March, 1991. The applicant duly attended the meeting. The child was
asked to explain why she behaved in the manner she
did. She explained
that her conscience did not allow her to do those things. The
applicant was called upon to comment on the behaviour
of her child.
She said she could not force the child to do what she (the child) did
not like. The child was again expelled.

Mr.
Malebanye, applicant's Counsel, submitted that for an applicant in
civil contempt proceedings to succeed, he must prove the
following
points:

1. That
   an order was granted against the respondent;

   
   

2. That
   the respondent was either served with the order or was informed of
   the grant of the order against him and could have no reasonable

   grounds for disbelieving the information;

   
   

3. That
   the respondent has either disobeyed it or has neglected to comply
   with it (Hebstein and Van Winson, Civil Practice of the

   
   

3

Superior Courts in South Africa - 3rd Ed. at p. 657).

He
further submitted that once the abovementioned points have been
proved, the onus lies , on a balance of probabilities, with the

respondent to show that the disobedience of the court order was not
mala fide (Hebstein (supra) at p. 657; Haddow v. Haddow 1974
(2) S.A.
at p. 183).

He
submitted that the second respondent cannot circumvent the order of
this Court by purporting to do the very thing which this
Court still
has to decide upon the appointed day of hearing. If the second
respondent felt prejudiced by the said order, then she
should have
anticipated the same as the Rules of Court provided. He finally
submitted that the second respondent failed to show
on a balance of
probabilities that her disobedience of the court order was not mala
fide.

Mr.
Mathe, respondent's Counsel, submitted that the respondents
mistakenly believed that it was enough of them to have admitted
the
applicant's daughter back to school after the interim order was
served upon them. They have conceded their mistake, even though
they
are not saying so, of having to expel the girl without affording her
a hearing in the main action. It did not occur to them
that they had
to wait for the finalisation of the main action before expelling the
girl for the second time. He submitted that
this was a genuine
mistake on their part. The

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respondents
genuinely believed that the Court Order had ceased to operate when
they admitted the girl back to school.

In Gold
v. Gold 1975 (4) S.A. 237 (D) it was held that a bona fide belief
that a court order had ceased to operate was a complete
answer to the
case which the respondent was called upon to answer.

Mr. Mathe
submitted that the respondents did not act wilfully in disobeying the
order. There was no mala fides on their part. If
the Court finds that
they acted unreasonably and\or negligently in not waiting until the
main application was disposed of, the
Court should not find the
respondent's unreasonableness or negligence to have amounted to an
absence of honest belief.

The
headnote in Noel Lancaster Sands (EDMS) BPK v. Theron 1974 (3) S.A.
688 (TPD) reads as follows:

"In an application for committal to prison for contempt of
Court, an applicant must, in order to be successful, prove that
the
respondent, with knowledge of the order of Court, acted in a manner
which was in conflict with the terms of the order of Court.
If the
applicant proves this, he is prima facie entitled to the relief
sought, subject to a wide general discretion of a Court.
The
respondent can, however, defend himself by showing and proving that
he did not intentionally contravene the order of Court
or, further,
that he did not act mala fide when the order was contravened. The
onus of proof in regard to the

5

existence of bona fides on the part of the respondent rests on the
respondent. The respondent also bears the onus of proving the
absence
of intention to contravene the order of Court. Unreasonableness of
conduct per se does not mean the absence of bona fide.
There are
degrees of unreasonableness and it may well happen that a
respondent's conduct was so conspicuously and blatantly unreasonable

that the Court would be prepared to reject as false on those grounds
the respondents' statement that his conduct was bona fide,
but then
the decision would go against the respondent on the basis of a
finding that he had not proved that he was bona fide, and
the
unreasonableness of his conduct would only be the method of arriving
at that result.

In an application for the respondent's committal to prison for
contempt of Court, the Court found that the respondents had
contravened
the order of Court but that first respondent's conduct
had been bona fide although very unreasonable.

Held, although no order for the respondents' committal to prison
could be granted, that the first respondent should be, ordered
to pay
applicant's costs on the attorney and client scale."

In the
present case the sequence of events tends to show that the second
respondent had a bona fide belief that the court order
had ceased to
operate. After she was served with the court order she immediately
complied with it and admitted the child back to
school. She
apparently believed that the child would obey the school regulations
after her re-admission. The child continued to
defy the rules. A
meeting was arranged between the school management and the applicant
and her daughter. The child was given a
hearing. She said she could
not do those things because they were against her conscience. The
applicant said she could not force
her child to do things which were
against her

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conscience.
As a result of this the child was expelled for the second time.

In
paragraph 9 of her founding affidavit the applicant deposed that on
the 29th July, 1991 she met the second respondent and demanded
that
she allows her daughter to attend school again but she refused and
demanded to be served with another court order before she
could allow
the applicant's child back. The applicant deposed that she told the
second respondent that the interim order still
stands but she refused
to allow the child back.

In
paragraph 5 of her answering affidavit the second respondent confirms
what the applicant has said. She goes further to say that
she
directed the applicant to go to the School Manager because she had
not received any communication that the child should be
allowed to
return to the school. I think by communication she meant the second
court order.

It seems
to me that the second respondent was under the mistaken but genuine
belief that the interim court order had ceased to operate
after she
allowed the child to continue her schooling after the court order was
served upon her. She may have acted unreasonably
or negligently by
not ascertaining the true import of the interim court order by.
consulting her attorney

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but that
is not proof of mala fides. I come to the conclusion that the second
respondent has discharged the onus placed upon her.

In the
result the application for an order committing the second respondent
to prison for contempt of court is refused.

The
general rule is that costs follow the result. In the present case I
am of the view that the general rule should not be applied.
The
applicant came to Court because of the negligence of the second
respondent in not seeking legal advice from her attorney about
the
true import of an interim court order. The second respondent shall
pay costs of this application.

J.L.
KHEOLA

JUDGE 1st
March, 1993.

For
Applicant - Mr. Malebanye

For
Respondents - Mr. Mathe.