CIV/APN/130/2005

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAPULE
MOSHABESHA 1ST APPLICANT

MOKHANTSO
MOSHABESHA 2nd APPLICANT

and

BETTY
MAMPOLOKENG CHABANE RESPONDENT

RULING

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 9th June, 2005.

This is
an application for rescission of an order granted by this Court on
the 22nd March, 2005. It is a sequel of Application 615
of 2004
(CIV/APN/615/04) where the present Applicants were Respondents and
the present Respondent the Applicant. That application
was granted in
the absence of the Applicants/Respondents

2

and the
Respondent/Applicant led evidence alleging that there was marriage
between his late son and the first Applicant in this
case. In that
CIV/APN/615/04 the custody of the minor child belonging to the 1st
Respondent in this case was awarded to the present
Respondent as the
mother -in - law to the 1st Respondent. The Respondent in this case
also having been appointed curator bonis
and curator at litem for the
1st Applicant's minor child Ipatleleng.

This
application is being opposed and the Respondent has raised some
preliminarily points of law in her opposing affidavit. She
is saying
that counsel for the Applicants ought not to have deposed to any
affidavit as it appeared as though she was the one who
has brought
this application. In answer to that counsel showed that she is the
mouth piece for her client and as such entitled
to depose to an
affidavit.

In this
case it appears that the issue for determination would be whether or
not there was or had been a valid marriage between
the late
Respondent's son and the 1st Applicant. The Court gave the order that
it gave in CIV/APN/615/2004 because it was made
to believe that in
fact there was a valid marriage between 1st Applicant and the
Respondent's son. Applicants are saying there
was no such marriage.

3

In
Mthembu v Igbala 1980 (2) S.A 510 Rooney J ( as he then was) had this
to say that;

"Where a judgment obtained is regular it is an inflexible rule
that an application to set it aside the Defendant must file
an
affidavit disclosing a bona fide defence whereas the judgment which
has been irregularly obtained will, on application be set
aside
without the filing of an affidavit disclosing bona fide defence,
because it is an invalid judgment which the Plaintiff ought
not to
have obtained"

Counsel
for the Applicants therefore being their mouth piece was quite
entitled to depose to an affidavit.

On the
question of absence of urgency the Court feels that where the
interests of a minor child are concerned we can never say that
such
matter is not urgent. It is true that the minor child was removed
from its mother by order of this Court, but once there appeared
to be
serious dispute concerning the child's legitimacy surely that calls
for urgency. The best interest of the minor child should
always rank
number one as they are of paramount importance to such a minor.

4

The other
point is non compliance with requirements for rescission. Respondent
is saying that Applicants have not shown that they
have a bona fide
defence. Counsel for Applicants has shown in her papers why she was
not in attendance when the order was made
by default. It would appear
that there had been some communication break down concerning that
date when the order was eventually
given. One is saying they were
agreed that, that date was supposed to have been just for
postponement till after Easter holidays.
The other one is saying they
were agreed that it was the date for hearing of the matter and also
that Counsel for Applicants was
contacted by telephone only to find
that he was not available.

But at
the end of it all what is to be remembered is that we are here
protecting the interests of a minor child so that everything
else
should be decided in favour of protecting such rights.

Applicants
have shown what their defence is by denying that there was marriage
between 1st Applicant and Respondent's son who is
late. On hearsay
evidence, I have already shown that Applicant as the legal
representative for the Applicant was quite entitled
to depose to an
affidavit on behalf of her clients. That is why a client is always
made to

5

suffer
even on account of his Counsel's negligence.

I do not
see why the Respondent is saying that there has been non compliance
with Rule 27, (b) the High Court Rules because though
this
application was moved ex- parte, it was not moved on the same day
that it was filed. This point is a non-starter. Even if
that was the
case the Court in dealing with matters concerning the interests of
minor children would always condone non-compliance
with the Rules of
Court, but would be inclined always to safeguard the best interests
of the child

The
Respondent is also saying that the application is fatally defective
for non-compliance with High Court Rule 27 6(b) which provides
for
payment of security before application for recission could be
entertained. In answer to that the Applicants are saying because
the
application has been brought under Rule 45 of the High Court Rules
and not under Rule 27 of the Rules, the filing of security
under Rule
45 does not apply. They say that Rule 45 does not say anything about
filing of security for costs.

I would
not agree with the argument advanced by the Applicants

6

because
in both instances the costs will be incurred and there has to be
provision for such cost in rescission applications. But
the Court
under the circumstances of this case is exercising it's judicial
powers by condoning that non-compliance with the filing
of security,
but because the Court is going to order hearing of oral evidence on
the question of the validity of the marriage as
shown earlier such
costs must have been paid before the hearing of such oral evidence.

By
ordering oral evidence on marriage I have already decided on the
question of rescission of the order of the 22nd March, 2005
in
CIV/APN/615/0 4 relying on the provisions of Section 45 (a) of the
High Court Rules. I am relying on the Section because it
has been
obvious from affidavits filed by both parties that there was a
mistake or misunderstanding concerning the date. I have
not been
persuaded to consider for certain that Applicants' Counsel was aware
of the date of hearing. The affidavits show that
Applicants Counsel
was contacted by cell phone but was never found and never returned
the call, she also never met the second Counsel
in the same matter
till the case was argued before Court.

7

As a
result therefore, the points raised in limine fail and the
application for rescission succeeds with an order that a date be
set
for oral evidence on the question of marriage between 1st Applicant
and Respondent's son.

1. M.
   HLAJOANE

   
   

JUDGE

For
Applicants: Mrs. Mophethe

For
Respondents: Ms. Mochaba