CIV/APN/288/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

METSEKAE
MOTOBOLI APPLICANT

AND

MANTHOMENG
MATETE 1st RESPONDENT

LESOTHO
FUNERAL SERVICES 2nd RESPONEDNT

JUDGMENT

Delivered
by the Honourable Ms Acting Justice N. Majara on the 7th July 2004

1. The
applicant herein is the widower of the deceased Limakatso Motoboli
and he resides at Maseru West. The 1st respondent is the
younger
sister of the deceased and she resides with her husband, one
Matlamukele Matete at Moshoeshoe II in the district of Maseru.

2. On
25th June 2004, applicant approached the court on an urgent basis for
an order in the following terms:

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2.1. The rules of the court pertaining to periods and modes of
service of process should be dispensed with on account of the urgency

of this matter.

2.2. A rule nisi be issued returnable on the 30th June 2004 calling
upon respondents to show cause if any why:-

1. Applicant
   shall not be declared to have burial rights to bury the deceased.

   
   

2. 1st
   respondent shall not be interdicted from interfering in any manner
   with the funeral arrangements of the deceased.

   
   

3. 2nd
   respondent shall not be interdicted from releasing the body of the
   deceased to 1st respondent pending finalisation of this
   matter.

   
   

4. 1st
   respondent shall not be interdicted from taking the body of the
   deceased from
   

   
   

2nd
respondent pending finalisation of this matter.

2.3 Prayers 1, 2 (c) and (d) operate with immediate effect.

2.4 Granting such further and/or alternative relief.

3. On the 25th June 2004, the application was moved before my brother
Honourable J.T.M. Moiloa J and the interim order was duly
granted to
applicant and was made returnable on the 30th June 2004.

4. On the
30th June 2004, the rule was extended to the 6th July 2004 by consent
of both counsels for applicant and respondent respectively.
In the
meantime respondents were ordered to file their answering papers by
the 2nd July and applicants their replying papers by
the 6th July
2004. The matter was then set down for hearing before me on the 7th
July 2004.

5. On the
7th July, 2004 both 1st respondent and her counsel Mr Phoofolo were
before the court and ready to proceed with the matter.
Neither
applicant nor his counsel, Mr Semoko made an appearance and no
explanation was offered with regard to their absence on
the agreed
date of hearing. Applicant had not filed his replying papers on the
agreed date, nor did he offer any explanation offered
either to the
respondent, his counsel or the court.

6. Mr
Phoofolo submitted that both counsel had agreed with Honourable
Hlajoane J. that the matter would proceed before this court
and they
were both advised to approach the registrar to get the date of
hearing. 1st respondent and his counsel duly did as directed
hence
why they were on that date before the court to argue their case.

7. Mr
Phoofolo submitted further that since it was applicant who had
approached the court for an interdict on an urgent basis, he
ought to
have seen to it that it reached finality as soon as possible,
especially because the deceased who had passed away on the
17th June
was still at 2nd respondent mortuary and neither party knew where
they stood with regard to making arrangements for the
funeral.
Therefore, if the rule were to be extended yet again, another week
would go by which would be unfair to

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1st
respondent and all the other interested parties in the matter.

8. It was
his further submission that applicant was deliberately delaying the
matter because he had a court interdict in his hand.
This was
especially the case when taking into account the fact that applicant
had not even bothered to file his replying papers
at that stage as
per the order of the court to demonstrate his seriousness in wanting
to bury the deceased. In addition, applicant
and his counsel did not
even bother to make an appearance before the court to seek its
indulgence with regard to their failure
to file papers nor to attend
the hearing as per the order of court. Wherefore Mr Phoofolo prayed
for the application to be dismissed
with costs or alternatively for
the court to order applicant to make an appearance before it on the
afternoon of the same day to
proceed with the matter even without
their replying papers.

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9. Upon
perusal of the court record, I indeed found that both counsel had
been ordered to have filed the papers on or before the
2nd and 6th
July respectively as well as to find out the date of hearing from the
registrar. I therefore found failure on the part
of applicant and/or
his counsel both to file the replying papers as was ordered and to
attend court on the hearing date without
offering any excuse or
explanation to be a display of loss of interest in the matter or at
best, negligence on their part.

10.
Whenever the court is approached on an urgent basis, it is because it
is understood that the matter is of such urgency that
following the
rules with regard to the normal periods and modes of service might
result in a serious miscarriage of justice. This
is why the standard
prayer in every matter of urgency is to ask the court to dispense
with such rules.

11. This
procedure cannot have been provided for simply to allow parties to be
accorded first priority over other matters which
usually have to wait
their

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turn
before they can be finalised. It is therefore imperative that
whenever the court has been approached in this manner, the applicant

should display a serious commitment to ensuring that the matter does
indeed reach its finality. It is not enough for one party
to come and
secure an order of court and then think that the matter should then
be allowed to drag on, regardless of how other
parties may be
affected by the order in question.

12. In
addition, the court should not be seen to be encouraging this kind of
attitude by appearing to be too indulgent even where
no plea for such
indulgence has been sought, nor a good reason been furnished as to
why the matter cannot proceed as has been arranged
by all parties
concerned. This is especially so in light of the fact that this
matter concerns burial of a deceased person whose
body has been
languishing in a mortuary whilst the parties are still wrangled in a
legal battle as to who has the better right
over the other to bury
the deceased.

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13.
Whilst I am cognisant of the fact that discharging the rule may
adversely affect the rights of applicant, especially since this
is
one of those cases whereby in my humble opinion, real and substantial
justice would be better served if the court could decide
it on the
merits, I at the same time feel that the court cannot be held to
ransom by applicant by his failure to file his papers
nor to make an
appearance on the date of hearing as was ordered by the court. In Ex
Parte S & U services: In Re S & U TV
Services 1990 (4) SA 88,
when dealing with the issue of discharge of a rule that was granted
to applicant therein and who had failed
to make an appearance on the
return

date,
Flemming J had this to say;

"For that reason a respondent who attends Court and hears the
discharge of the rule nisi and order which interdicted him from

certain actions would thenceforth be able to commit the prohibited
actions without being guilty of contempt of court. if the attendance

of the respondent is known to the Court, even the lapse of a very
short period may be adequate reason why the interdict should
not be
revived without notice to the respondent."

The judge
in that case based his argument mainly on the fact that there was
nothing in the rules that

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disclosed
an intent to override or detract from the rights or interests of an
opposing litigant or of a third party. Likewise, I
cannot find
anything in our rules that suggests that where a rule nisi has been
granted in urgent applications, then that rule
should be extended ad
infinitum even in circumstances where such extension would detract
from the rights or interests of respondents.
See also Herbstein &
Van Winsen, The Civil Practice of the Supreme Courts of South Africa
4th Edition p 381.

14. By
the same analogy, respondents herein have been interdicted from going
ahead with the funeral arrangements, to bury the deceased.
Therefore,
the court finds their attendance adequate enough to warrant a
discharge of the rule nisi. This is more so in light of
the fact that
applicants have not even bothered to file their replying papers, let
alone the fact that they have not even been
gracious enough to give
any excuse why they have failed to abide by the order of court, nor
why they were unable to attend court.

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15. For
the above reasons, I discharged the rule with costs to 2nd
respondent.

N. MAJARA

ACTING
JUDGE

OF THE
HIGHCOURT

For
Applicant : Mr Semoko

For 1st
Respondent : Mr Phoofolo