CIV/APN/489/2003

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

ROSA
KEKELETSO SELLO Applicant

And

KATISO N.
SELLO 1st Respondent

PALESA
THOOLA 2nd Respondent

Ruling On
Contempt

Delivered
on 5th December, 2005 by the Hon. Mrs Justice A.M. Hlajoane

Applicant
had filed papers on notice of motion requesting the Court to direct
the first Respondent to maintain her and their minor
children Mokete
and Kelebone. The other prayers were for custody of the minor
children, maintenance of their matrimonial home at
Lithabaneng,
interdicting first Respondent from threatening Applicant with
violence and to throw Applicant out of the matrimonial
home and
providing Applicant with transport with

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the
driver. All these were pending finalization of parties' divorce
proceedings.

All the
necessary affidavits were filed and a day was allocated for the
hearing of the Application. By agreement of both parties
all the
prayers were granted on the 8th March 2004 safe the prayer for
transport and driver. The matter was then postponed to the
29th March
2004 to deal with the remaining prayer, but the Respondents never
made any appearance on that day despite service on
them. The Court
therefore granted also that remaining prayer.

The
Applicant has now approached Court still on notice, for contempt of
Court. She is saying that Respondents are in contempt as
there has
been non-compliance with the prayers that were granted by consent.
The Respondents are not saying they are or are not
in contempt, but
what they are saying is that they are not aware of any such court
order as they were never served with any.

What the
Respondent is exactly saying is that since the order was never made
and signed by the Registrar they cannot be heard to
say they are in
contempt of an order that never existed. But surprisingly, the first
Respondent started paying maintenance

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following
the order that was granted, showing, he was quite aware of the order.

The Court
of Appeal in Sefeane v Sefeane C of A (CIV) No. 15/2005 set out the
requisites for granting an order of committal from
Herbstein and Van
Winsen, The Civil Practice of the Supreme Court of South Africa, 4th
ed. (1997) at 825 as

follows:-

"An Applicant for an order of committal must show-

1. that
   an order was granted against the respondent;

   
   

2. that
   the respondent was either served with the order or informed of the
   grant of the order against him and can have no reasonable
   ground for
   disbelieving that information, and

   
   

3. that
   the respondent has either disobeyed the order or neglected to comply
   with it."

   
   

That
Court went further to show that, once it is shown that an order was
granted and that the Respondent has disobeyed or neglected
to "comply
with it, willfulness will normally be inferred -Consolidated Fish
Distributors (Pty) Ltd v Zive and Others 1968
(2) S.A 517 at 522E to
H.

The
Applicant has thus satisfied all the requirements as the order was
granted by agreement of both sides and that is borne out
by the
Court's file. Even if not served with the order, the Respondents were
informed of the grant of the order and would

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have no
reasonable ground for disbelieving that information as both Counsel
were before Court when the agreement was made.

The first
Respondent has disobeyed the order by failing to maintain the
matrimonial home at Lithabaneng. Second Respondent has disobeyed
the
order by interfering and associating with the minor children Mokete
and Kelebone.

As a
result, the Respondents are ordered to purge their contempt of Court
by complying with the order of the 8th March, 2003 failing
which to
come before Court on February 2nd 2006 and be dealt with according to
law.

1. M.
   HLOAJOANE

   
   

JUDGE

For
Applicant: Mr Molapo

For
Respondents: Mr Klaas

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