This appeal arose from a rule nisi application that required the appellant to justify why an interdict should not be issued against him for the unlawful use of the respondent’s property.
The respondent instituted interdict proceedings when the appellant continued to use the disputed property after a default judgment that reinstated a previous judgment in his favor.
The court noted that interdict applications require proof of a clear right, an injury and the absence of any other satisfactory remedy.
The appellant submitted that the respondent had alternative remedies in contempt proceedings and a writ of execution. The court noted that the real issue was whether the alternative remedies would afford adequate protection from the continuing mischief. The court held that contempt proceedings are entirely unsatisfactory, where the injury has already started and is continuing. It was also held that a writ of execution was unsatisfactory for immovable property such as land.
The appellant claimed that service by postal service did not constitute proper service of summons as per rule 44 of Central and Local Courts (Practice and Procedure) Rules; and that this affected the validity of the default judgment. However, the court noted that the service was properly effected. It was also held that the validity of a default judgment was not affected by service of summons so, it was valid unless set aside lawfully.
Accordingly, the appeal was dismissed with costs.
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
PHILLIMON NTSOLO Appellant
'MUSO MOAHLOLI Respondent
Delivered by the honourable Mr. Justice J.L. Kheolo
on the 31st day of August, 1987
This is an appeal against the judgment of the Resident
Magistrate of Butha-Buthe dated the 15th November, 1985 in which she
the interdict granted on the 29th June, 1984. The
respondent (applicant in the lower court) had applied for an order in
"(a) Rule Nisi be issued calling upon the
respondent to show cause why:
He should not stop with immediate effectreaping the
field which he ploughed and sowedafter the judgment was passed.
He should not be directed to allow the applicant
to reap the fields for his own use.
He should not be directed to stop cutting the
trees from the forests which were in issue in the case
Pay Applicant the sum of R400.00 for damagessuffered
by the Applicant for the huts destroyed,
Costs of the suit."
The rule was confirmed except prayer (e) which was
discharged on the ground that the respondent had failed to prove it.
The appellant is now appealing to this Court on a number
of grounds; but before considering the grounds of appeal I propose to
a short,summary of the facts of the case. The case which gave
rise to the application before the magistrate's court was first heard
at khukhune Local Court on the 13th September, 1983. The respondent
claimed two houses, one yard, three fields, and three forests
property and alleged that appellant was using the property
unlawfully. At the end of the day the court gave judgment in favour
of the respondent. Appellant appealed to Hololo Central Court. The
President of Hololo Central Court remitted the case to Khukhune
Court with the order that the appellant be given the opportunity to
hand in a family document as an exhibit which would prove
property which is the subject matter of this dispute was given to him
by the family.
The case was set down for this purpose on the 7th
February, 1984. The appellant was served by post and the letter was
posted to him
on the 7th December, 1983. The applicant failed to
appear on the 7th February, 1984 but the respondent attended. On the
1984 the Local Court president wrote a letter to the
Central Court President in which he stated that he was reinstating
judgment because nothing new had come up. After this
second judgment was announced and communicated to the Central Court
the respondent was continuing to use the property in
question. It was as a result of the appellant's ignoring and defiance
judgment that the respondent instituted the interdict
proceedings in the magistrate's court.
The requirements for an interdict are;
/(a) A Clear
A clear right on the part of the applicant.
An injury actually committed or reasonablyapprehended.
The absence of any other satisfactory remedyavailable
to the applicant.
The first ground of appeal is that there were other
satis-factory remedies available to the respondenti Mr. Matsau,
counsel for the appellant submitted that respondent ought to have
instituted contempt of court proceedings in the local court in
of section 15 (a) of the Central and Local Courts Proclamation Nc.62
of 1938. In the alternative it is argued that the respondent
have executed the purported judgment in terms of Rule 45 of the
Central and Local Courts (Practice and Procedure) Rules,
Notice No.21 of 1961. I agree that there were other remedies
available to the respondent, but the question is whether
or not they
were as satisfactory as an interdict, in other words whether the
other remedies would afford any adequate protection
from the mischief
which was continuing. The answer must be in the negative. The
institution of contempt of court proceedings
is a very long
process. The judgment creditor must go to the court and lodge his
complaint and at the same time give the names of
his witnesses. The
public prosecutor will then issue the summons and the subpoenae after
he has obtained a date from the Court President.
By the time the
trial is over the harm which the respondent wished to stop could have
long been completed.
From what has been said above it is quite clear that
contempt of court proceedings are entirely unsatisfactory where the
already started and is continuing. In the same way a writ
of execution is also unsatisfactory whore immovable property such as
and trees is concerned. In the case of movable property
execution is effective because the property is removed from the
and handed over to the judgment creditor. With regard
to immovable property execution does not mean much, the messenger of
puts the judgment creditor in occupation and ejects the
judgment debtor. If the judgment debtor re-occupies the land or cuts
trees again after he has been ejected, then contempt of court
proceedings must be instituted.
the remedies referred to by Mr. Matsau are
totally unsatis-factory and could not afford adequate protection from
the mischief which was continuing. The suggestion that
did not apply to the Resident Magistrate to exercise her revisionary
powers under section 26 of the Central and Local
No.62 of 1938 is completely untenable. The respondent had a judgment
in his favour and all what he wanted was to
interdict the appellant
from using property awarded to him (respondent) by a judgment of a
court of law. If there were any need for
the parties to apply to the
Resident Magistrate for review, it is the appellant who had to do
that inasmuch as the judgment of Khukhune
Local Court was against
him. However, instead of applying for review or apealing against that
judgment the appellant decided to use
the property in defiance of a
judgment of a competent court.
Mr. Matsau submitted that because the rules of
procedure of the Central and Local Courts do not provide for service
by post, this Court must
rule that there was no proper service of the
summons and that the matter should be remitted to Khukhune Local
Court. Rule 44 of Central
and Local Courts (.Practice and Procedure)
Rules reads as follows:
"(1) Subject to the provisions of Sub-rules (2)
and (3), any plaintiff or defendant who, after proper
notice of the time and date set down for the hearing of a case, fails
reasonable excuse to attend the Court to prosecute or defend
his case may, at the discretion of the Court, have a default judgment
with costs entered against him.
Any judgment entered under Sub-rule (1) shall
notbecome absolute until the expiration of thirty daysfrom
the date on which the default judgment wasgiven.
If within thirty days from the date on which
defaultjudgment was given, the defaulting party, after
havingserved notice upon the other party of his
intention,appears before the Court and shows good and
sufficientreason for his default, the Court may rescind
suchjudgment and reopen the case and proceed to try the same."
In the instant case the appellant was given notice of
the time and date set down for the hearing of the case. He failed to
and has decided not to apply for rescission of the default
judgment. It may be that it is correct that the rules do not provide
service by post but rules 44 refers to a notice and I am
convinced that the appellant was given proper notice but ignored it.
if there was no proper service that will not affect the default
judgment. It will remain a valid judgment until such time that it
shall be set aside in accordance with proper rules of procedure.
It was argued on behalf of the appellant that Annex "C"
is not a judgment but a letter written by the Khukhune Local Court
President to the Hololo Central Court President. This argument is
untenable. In that letter he informed the Central Court President
that he was reinstating his previous judgment because nothing new had
come up. In other words the previous judgment which had been
aside by Hololo Central Court was restored and made valid again.
For the reasons stated above the appeal was dismissed
1st October, 1987.
For the Appellant - Mr. Matsau For the Respondent
- Mr. Maqutu
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