CIV/APN/317/90 IN THE HIGH COURT OF LESOTHO
In the Application of:
IKETSETSENG PRIVATE SCHOOL Applicant
'MASECHELE KHAKETLA Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the 26th day of April, 1993.
The Applicant herein has moved the court for an order framed in the following terms:
"(a) Dispensing with the periods of notice required by the rules on the grounds of urgency of this application;
Committing Respondent to prison for
contempt of court;
Directing Respondent to pay the costs
of this application;
Granting Applicant such further and/or
The application was initially moved before this court
as an ex-parte urgent application. The court took the view that the committal of Respondent to prison was a serious matter which could not properly be dealt with without first affording her the opportunity to be heard. For that reason, the court declined to treat the application ex-parte in the absence of the Respondent and ordered that she be served with the motion papers. Consequently, the motion papers were served upon the Respondent who intimated her intention to oppose the application.
Affidavits were duly filed by the parties. It is common cause from affidavits that on 10th February, 1992, Applicant obtained from this court a final order, against the Respondent, framed in the following terms:
"(a) Respondent is hereby directed to handover forthwith the property of Applicant herein to Messrs R.V. Lechesa and L. Lechesa, two trustees duly appointed in terms of the constitution of Applicant;
Respondent is hereby directed to
handover forthwith the management
and/or administration of Applicant to
the executive committee duly appointed
in terms of the constitution of
Respondent is hereby directed to desist
forthwith from managing and/or
Respondent is hereby directed to pay
3/4 of the costs."
On 11th February, 1992, the Order was duly served upon
the Respondent who had, however, been present when it was granted in open court on the previous day, 10th February, 1992, and was, therefore, aware of the existence thereof. The Respondent was apparently unhappy with the order, against which she noted appeal to the Court of Appeal on 12th February, 1992. She at the same time filed, with the Registrar of the High Court, application for stay of execution pending the outcome of the Appeal. The Notice of Appeal, and the Application for stay of execution, filed by the Respondent were on the same day, 12th February, 1992, served upon the Applicant school which intimated intention to oppose the application for stay of execution and on 19th February, 1992 duly filed an answering affidavit.
However, on 24th February, 1992 and before the Respondent had filed a replying affidavit, the Applicant launched the present application for committal of the Respondent to prison on the ground that she was in contempt of the court order granted on 10th February, 1992.
As it has already been pointed out earlier, the application is opposed and affidavits have been duly filed by the parties. On behalf of the Applicant school, R.V. Lechesa deposed to affidavits in which he averred, as far as it is material, that on 14th February, 1992 he, Mrs. Kotelo and L. Lechesa went to the Respondent and demanded the handing over of the property, the management and/or
administration of Applicant in terms of the court order granted on 10th February, 1992. In response, the Respondent told them she would neither discuss anything with them nor comply with the court order. They then left her. In his submission, R.V. Lechesa averred that the Respondent had defied the order of the court, she had no legal right to do so and was, therefore, in contempt of court for which she ought to be committed to prison.
In her answering affidavit, the Respondent does not dispute that on 14th February, 1992, R.V. Lechesa and his party came to, and asked her to handover the property, the management and/or administration of the Applicant school in terms of the order which had been granted and served upon her on 10th February 1992 and 11th February, 1992, respectively. She denied, however, the averment that she told Lechesa and his party that she would not comply with the order of the court. According to her, all that the Respondent did was to avoid discussing anything relating to this case with Lechesa and his party because they had in the past behaved insolently and/or provocatively to her. She further averred that the fact that she had, on 12th February, 1992 applied to this court for leave to stay execution pending the appeal was in itself an indication that she had no intention to defy the order granted against her, on 10th February, 1992. Consequently the Respondent prayed that this application be dismissed with costs.
The question whether or not, on 14th February, 1992, the Respondent told Lechesa and his party that she would disobey the order granted, against her, on 10th February, 1992 is, in my view, an issue that cannot be resolved on the conflicting allegations contained in the affidavits. What is, however undisputed from affidavits is that notwithstanding the order granted against, and served upon, her on 10th February, 1992 and 11th February, 1992, respectively, the Respondent failed to comply therewith. The salient question is whether or not the Respondent's failure to comply with the order constitutes, in the circumstances, a contempt of court which justifies her committal to prison. There is no doubt in my mind that the order granted against the Respondent on 10th February, 1992 was an order ad factum oraestandum and, therefore, enforceable by committal for contempt. However, I agree with Herbstein and Van Winsen in their invaluable work The Civil Practice of the Superior Courts in South Africa 1954 (ed) where the learned authors have this to say at p. 515:
"The applicant for such an order of committal must allege and establish to the satisfaction of the court that the Respondent's failure to comply with a court's order flows from a wilful disobedience of that order. If the failure to comply is due to inability to do so, or flows from a mistake as to what was required of him or if he bone fide believed that he was not required to comply with the court's order, then a committal for contempt will not be granted. The onus of proving the absence of wilfulness naturally lies on the defaulting party since by his default he must be regarded as having
intended the natural consequences of his action viz. to bring the administration of justice into contempt."
In the present case, it is common cause that following the granting of the order on 10th February, 1992, the Respondent lodged, on 12th February, 1992, an appeal against the order and at the same time filed an application for leave to stay execution pending the appeal. It must be accepted, therefore, that when on 14th February, 1992 she was asked to handover the property, management and/or administration of the applicant in terms of the order granted on 10th February, 1992, the Respondent believed, rightly or wrongly that pending the decision of her appeal or application for stay of execution, whichever came first, she was not required to comply with the court's order. That being so, it cannot, in my finding , be held that the applicant's failure to comply with the court order was flowing from a wilful and/or mala fide disobedience of that order.
Again, it is significant to note that subrule (11) of rule 8 of the High Court Rules 1980 provides, in part:
"(11) Within seven days of service upon him of the answering
applicant may deliver a replying affidavit."
Notwithstanding the provisions of the above cited
subrule (11) of rule 8 of the High Court Rules, 1980 and before the application for the stay of execution pending the appeal could be determined by the court , the Applicant, however, launched the present application for committal on 24th February, 1992 i.e. two days before the expiration of the period within which the Respondent was allowed to file her replying affidavit. Rule 6(5) of the Court of Appeal Rules. 1980 clearly empowers the High Court with a discretion to allow or refuse an application for leave to stay execution pending the outcome of the appeal. It follows, therefore, that where the Respondent has filed, as in this case, an application for stay of execution pending the appeal, the applicant cannot, in my finding, proceed to enforce the order until the High Court has turned down the application for stay of execution or the court of appeal has dismissed the appeal, whichever comes first. To hold the contrary will, in my view, reduce to absurdity the provisions of rule 6(2) (3) (4) and (5) of the Court of Appeal Rules 1980.
Assuming the correctness of the averment that on 12th February, 1992, the Respondent filed application for leave to stay execution pending the outcome of the appeal she had lodged on the same day, it stands to reason that when, on 14th February, 1992, they went to the Respondent and demanded her compliance with the order, granted on 10th February, 1992, R.V. Lechesa and his party did so
prematurely and, therefore, irregularly. There was, in my opinion, nothing binding the Respondent to comply with the irregular demand made by the Applicant.
From the foregoing, it is obvious that the view I take is that this application ought not to succeed and it is accordingly dismissed with costs.
However, the court takes judicial notice that on 25th September, 1992, the Respondent's appeal against the order granted on 10th February, 1992 was dismissed by the Court of Appeal. That being so, it must be emphasised that there is nothing in this judgment to prevent the applicant from instituting contempt proceedings against the Respondent if despite the decision of the Court of Appeal she continues to disobey the order.
B.K. MOLAI JUDGE
26th April, 1993.
For Applicant: Mr. Pheko For Respondent: Mr. Sello.