IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/318/2008
In the matter between:
IRENE TEBOHO MAKAMOLE APPLICANT
AND
MOTABO MAKAMOLE 1ST RESPONDENT
COMMISSIONER OF POLICE 2ND RESPONDENT
ATTORNEY-GENERAL 3RD RESPONDENT
JUDGEMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 7th June, 2011
This is a case which arises out of a divorce decree in which although the Plaintiff has asked for forfeiture of the join estate the court nevertheless granted division of the joint estate and consequence thereupon a Liquidator was appointed and a Liquidator’s Report was made. When, however an attempt was made to distribute the property, 1st Respondent obstructed the move claiming the property could under no circumstances be released to Applicant adding it could only be distributed “over his dead body” making the Deputy Sheriff apprehensive the Respondent will obstruct the implementation of the Court Order and hence the present Notice of Motion in which the Applicant prays for a Court Order as follows:
1. Ordering the 2nd Respondent to assist the Deputy Sheriff in implementing the Court Order in CIV/T/540/2005 dated the 14th November, 2007, and using force if necessary;
2. Restraining and interdicting 1st Respondent from obstructing the distribution o the said property;
3. Ordering 1st Respondent to pay the costs of this application only in the event of opposing this application.
Applicant’s Founding Affidavit is supported by the Liquidator Ms Moroesi Gertrude Tau-Thabane and the Deputy Sheriff Lebese Mohoang and Lebohang ‘Mika.
The application is opposed 1st Respondent having taken a number of points in limine, namely:
2.1. The application is irregular and/or defective in that the Applicant has not complied with the peremptory requirements of Rule 8(8) in that the Applicant has not set forth a day not being less than five days after service on the Respondent on or before which the Respondent is required to notify the Applicant in writing whether he intends to oppose application.
2.2. The application is defective and/or irregular for non-compliance with the peremptory requirements of Rule 8(8) in that the Applicant has not stated that such notification is given the application will be set down for hearing on a stated day.
2.3. The affidavit filed in support of the application is defective and/or irregular, and thus no affidavit for non-compliance with the peremptory requirements of Regulations of Oaths and Declarations in that the address and description of the deponent has not been given.
In his Replying Affidavit (para.4) has denied non-compliance with Rules in that the so-called technical points in limine can only be entertained where they are prejudicial to Respondent’s cause. He has also denied knowledge of affidavit claimed to be defective and/or irregular and not in compliance with requirements of Regulation 4 of Oaths and Declarations Regulations and it will be notice there is no reference to the year of the so-called Regulation 4. It will also be noticed 1st Respondent has filed his “intention to oppose” the application and the application was in due course set down to be heard on a specific day.
In his Heads of Argument, Applicant’s Counsel has argued although provisions of Rule 8(8) are peremptory, this is a case where use of a wrong form should be condoned in that in Nynhardt v Nynhardt, 1986 (1) SA 456 the court also highlighted one of the principal rules in administration of justice, namely that the court has a wide discretion to condone non-compliance with the Rules provided that no interested is prejudiced thereby.
This is not a case where an order affecting rights of the 1st Respondent was granted in his absence and any non-compliance with the Rules of Court is condoned in that the 1st Respondent was not prejudiced thereby.
In the result the application is granted save that there will be no order as to costs.
G.N. MOFOLO
PUISNE JUDGE
For the Applicant : Mr. Makhaketso
For 1st Respondent : Mr. Thantši
