CIV/APN/322/2000
IN THE HIGH COURT OF LESOTHO

In the matter between:-

'MALEHLOA 'MAKOPANO NTHO APPLICANT

and

MOKEKE NTHO RESPONDENT

JUDGMENT

Delivered by the Hon. Mr. Justice G.N. Mofolo on the 6^th
day of September. 2001.

This application came to this court on an urgent basis
on 28 August, 2000 and the same day an interim court order was issued
made
returnable on 11 September, 2000 and prayers 1 (a), (b) and (c)
of the Notice of Application were made to operate with immediate
effect.

Prayer 1 (a) reads:-

A Rule Nisi returnable on the 11^th day of
September, 2000 at 9.00 a.m. be and is hereby issued calling upon the
respondent to show cause, if any, why

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(a) the periods of notice and mode of service of
processes prescribed by the Court Rules shall not be dispensed with
on the ground
of the urgency of this application.

Prayer (b) reads:

the respondent shall not be directed to refrain
forthwith from assaulting or in any way molesting applicant.

Prayer (c) reads:

the respondent shall not be directed to desist from
chasing the applicant out of the parties' marital home.

Although the application was seemingly urgent, there
have been several postponements and extensions of the rule for
reasons that are
not immediately apparent to me though the suspicion
is that since the applicant was armed with an interim order hereafter
there was
no need to move on an urgent basis.

Several factors affecting the application have been
raised by counsel on either side and I intend dealing with these
though not necessarily
in the order in which they were raised. The
application was argued on merits. Mr. Mafisa has said though
relationships between the
applicant and respondent are now good, he
is pressing ahead with the application so that the applicant is not
assaulted

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again for the reason why there is seeming peace is
because respondent has an order against him. He says respondent's
conduct towards
the applicant is improper and respondent needs to be
restrained permanently.

Mr. Ntlhoki for the respondent has said the truth of the
matter is that applicant was not assaulted but that in the heated
atmosphere
applicant had banged herself against furniture. He says
things got out of hand and it was never the respondent's intention to
assault
the applicant. He has said by reason of the fact that
relationships are now good the order would be academic as the
application had
been overtaken by events. He says there is no need to
disturb present harmony between the parties.

Mr. Ntlhoki has said that another reason for dismissing
the application was that the application had been brought ex-parte on
an urgent
basis a long way back in August, 2000 and it had been
claimed a separate action was contemplated. The so-called separate
action had
not materialised. E.R. Sekhonyana v. LE. Church LLR1993-94
p.455 had been quoted in support. Mr. Ntlhoki has submitted another
reason
was that this was an application simplicita recognisable in
the subordinate court and could not come to this court except by
leave
of court. In support he has quoted sec. 18 (i) of the
Subordinate Court Order No.9 of 1988 as well as sec.6 of the High
Court Act,
1978. He has also said that the medical certificate is
hearsay and inadmissible in that the author has

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not filed a supporting affidavit nor is the certificate
certified. In conclusion Mr. Ntlhoki has submitted the doctrine of de
minimis
non curat doctrine applies in the case.

While in several cases courts of law have made
themselves clear on the question of urgent applications, I have not
found anything
particularly useful as to urgency in Molapo Qhobela &
Or. V. Basutoland Congress Party & Or. © of A (CIV) No.O) of
2000.

An application proceeding as urgent and with urgent
trappings is to proceed as urgent, otherwise it loses its potency
with the very
prospect of the application being dismissed on this
ground alone for being seen as an abuse of process. Even as Mr.
Mafisa has submitted
that the respondent behaves as he does because
he has an interim interdict against him, it is unfair to temporarily
interdict him,
it is unfair to temporarily interdict a person and
deprive him of his immunities when, at the end of the day, he may be
found blameless.
Proceedings against a party with an interim order
have to be expeditious so as not to have the sword of Demosthenes
hanging over
his head under the pretext of urgency. A person cannot
be punished before being found guilty; an interim order without
finality has
such an effect for it is subject to discharge at the end
of the day.

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In Lesotho National Development Corporation and Lesotho
National Development Corporation Employees and Allied Workers Union C
of A
(CIV) No.2 of 2001), the Appeal Court reiterated a number of
rules of court as to urgency and particularly Rule 22 (b) which
reads:-

'In any petition or affidavit in support of an urgent
application, the applicant shall set forth in detail the
circumstances which
he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
relief in an
hearing in due course if the periods presented by this
Rule were followed.'

The application has set forth no such circumstances or
in any way adverted to the Rule at all. In the course of its judgment
the appeal
court has found a delay of 6 months 'not in the interest
of the parties' and it would seem too long notwithstanding that 'on
the
respondents own case the matter required urgent resolution.' At
page 19 the Appeal Court has noted:

Therefore it is once again brought to the notice of
practitioners that they face punitive costs orders should they issue
certificates
or urgency and launch proceedings, whether ex-parte or
not, when the circumstances do not justify the use of extraordinary
measures
provided for in Rule 22 of the High Court Rules. The High
Court is requested to ensure that the abuse of this Rule by
practitioners
ceases forthwith.'

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I do not think the request by the Appeal Court to this
court 'that the abuse of this Rule by Practitioners' cease forthwith
ends here.
It is, in my view, an appeal to this court that abuse of
the Rule should be punishable by extraordinary costs coupled with the
dismissal
of the application on the sole ground of urgency where the
Rules have not been complied with.

As I have said above, there is nothing in the founding
papers motivating this court on the urgency of the application. The
application
was launched on 28 August, 2000, the interim rule
obtained on the same day and from here on the applicant decided to
sit on his laurels.
In view of the fact that the application was
claimed to be urgent and took almost a year to reach finality, I
cannot think of anything
more deliterious and reprobate.

But there is another thing. I do not agree with Mr.
Mafisa that the good relationships existing between the applicant and
respondent
are as a result of the interim court order for, if so, the
applicant should have proceeded urgently as claimed. The truth of the
matter is that present respondent's behaviour is a matter of
conjecture. It could well be he behaves as he does because of the
interdict
or because he is a reformed man.

This application has taken an inordinately too long a
time before finality having regard to the fact that it was only head
on 02 August,
2001, almost a year

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after it was launched; although it is not the function
of courts of law to be peace­makers their function being to
settle disputes,
it seems to this court it would be in the best
interest of the parties that the reigning peace and harmony be not
disturbed. I have
no intention of disturbing this peace for, were
violations feared, the applicant should have without much ado
finalised the application
and proceeded on a threatened action. The
threatened action has not materialised because circumstances have
changed for the better.
Quite apart from the fact that this
application was not proceeded with in terms of the Rules of court it
would seem it was overtaken
by events thus rendering it unnecessary.

The applicant having lost the initiative, this court is
of the view that this is an application which on all counts has to be
dismissed
and accordingly the application is dismissed and the rule
discharged. There will be no order as to costs.

This court has found it unnecessary to consider
implications of the medical certificate or de minimis non curat
doctrine as these
would not take the application any stage further.

G.N.MOFOLO

JUDGE
5^th September, 2001.

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For
the Applicant: Mr. Ntlhoki

For the Respondent: Mr. Mafisa