IN THE HIGH COURT OF LESOTHO
In the Matter Between:
'MATABETA MOSHOESHOE (Nee MAKUME) Applicant
MAKHABANE MAJOROBELA MOSHOESHOE 1st Respondent
MATHE MOSHOESHOE 2nd Respondent
MALUKE MOSHOESHOE 3rd Respondent
LITSOANELO MOSHOESHOE 4th Respondent
MASTER OF THE HIGH COURT 5th Respondent
Ruling Delivered by the Honourable Mrs Justice A. M. Hlajoane on 4th March, 2003.
This is an application, wherein applicant had approached this Court for a declaratory order and also for an interdict. She is seeking for an order declaring her to be the guardian of second, third and fourth Respondents in the absence of their biological mother, and also declaring the estate of the late Sekete Moshoeshoe devolve intestate under common law. Applicant has further sought for an interim
interdict restraining the first Respondent from claiming and receiving/ or utilizing payments due to the estate of the late Sekete Moshoeshoe and from purporting to act as guardian of the second, third and fourth Respondents pending the finalisation of this Application.
I have already made two rulings in the matter, first on the application to strike out in terms of Rule 29 (5) of the High Court Rules, and have dismissed that Application. The second ruling was two-pronged as it touched on both the admissibiltiy of a document-labelled "LTM" and reference to an Application, CIV/APN/474/2000. On the admissibility of the document "LTM", by invoking the provisions of Rule 8 (14) of the High Court Rules, I ordered that the author of that document be called to come and give oral evidence on that document. But on the date of hearing that piece of evidence counsel for Respondent showed that he was abandoning that issue of the validity of the marriage as he had discovered that in fact there had been no marriage between Applicant and a certain 'Matli Mahlelehlele before Applicant got married into the Moshoeshoe family.
On reference to CIV/APN/474/00 the Court ruled that the Application appeared to be very relevant as it appeared would assist the Court in determining how Applicant related to the minor children of the deceased, whom she applied for their guardianship. The Application even revealed that custody of the minor children, being 2nd, 3rd and 4th Respondents had been awarded to their divorced mother.
The other points in limine by the Respondents which the Court is now being
asked to make a ruling concerned the following: -
Combination of both ordinary and urgent Application
Dispute of fact.
First Respondent is saying that second, third and fourth Respondents have no Locus standi to be sued on their own unassisted as they are still minors. In response to that, the Applicant showed that the three minor children are interested parties and that their having been joined in the proceedings was to their benefit and no relief was being sought against them.
When one looks at the prayers sought, Prayer 6, Applicant is asking the Court to direct 2nd and 3rd Respondents to restore to her a car which had according to her, forcefully been taken from her by 2nd and 3rd Respondents. The 2nd and 3rd Respondents have also been asked to pay costs of the Application in the event of opposition.
In her founding affidavit, Applicant at Paragraph 2 has clearly shown that the three Respondents 2nd, 3rd and 4th are still minors but there has been no indication that they were being assisted. Like married women under our law minors cannot sue or be sued unassisted, see Thaanyane v De Goveia 1979 (1) LLR 123. There are certain instances where a minor may litigate unassisted by his/her guardian or a
curator ad litem, but this is not one such an instance. Because there was no guardian assisting the three minor children a curator ad litem was necessary. But the Court may on Application ratify steps taken ex post facto if it is to the minors' benefit but in our case is to the minors' disadvantage.
It is the First Respondent's contention that because Applicant had not joined parties who have an interest in the matter and would be adversely affected by the outcome of these proceedings, that the Application be dismissed. Parties which have not been joined are the 2nd, 3rd and 4th Respondents' mother and their paternal grandmother who is the minors' guardian with whom they are now staying. They are necessary partiess who have a direct and substantial interest and as such would be adversely affected by an order of this Court.
According to annexure "DO1" of the opposing affidavit, the three minor children's a mother was allowed interim custody in the divorce proceedings with the deceased. Also at Paragraph 6. 1 of her founding affidavit, Applicant has shown that the three minor children have since 1996 been staying with the deceased's mother, which therefore makes the minors' paternal grand-mother an interested party. As such her interest cannot only be of a financial nature but a direct and substantial interest in the right, subject matter of litigation. In Masupha v 'Mota LAC 1985-89 at 58 the Court took the point of non-joinder mero motu and set aside the High Court Order which had annulled a marriage where the woman whose marriage was at issue had not been joined as a party.
It is also the first Respondent's case that Applicant has failed to join the office of the Attorney-General as the legal representative of the Government in all civil matters. He is saying this because of the inclusion of the Master of the High Court as fifth Respondent. Since the 5th Respondent had been cited in her official capacity, the Attorney-General therefore ought to have been included as the sixth Respondent in terms of the Government Proceedings and Contract Act 1965. It follows therefore that by failing to join other interested parties in these proceedings the Respondents have been non-suited and on that ground alone the Application falls to be dismissed with costs. Chele v Makhuba & Another 1979 (1) LLR 79.
It is contented by the first Respondent that this Application should be dismissed on failure by the Applicant to make a full disclosure of all facts material to the issues in dispute. Issues for determination being whether the Applicant can safely be declared guardian of the three minor children, 2nd, 3rd and 4th Respondents in this case. Also whether the estate of the deceased would devolve intestate under common law or customary law.
It is trite law that in ex-parte Applications utmost good faith on the part of Applicant becomes a necessary requirement. So that a party who approaches Court on urgency and fails to make a full disclosure of all facts material to the issues in dispute runs the risk of having his Application dismissed with costs, Papashane v Andre 1979 (1) LLR J. The same principle was stated in Ntsolo v Moahloli C of A (civ) No8 of 1987, that all material facts must be disclosed which might influence
the Court in coming to a decision. Great care must therefore be taken by the Applicant in drawing his affidavit in instances where an ex-parte relief is sought.
First Respondent has in his opposing papers attached a CIV/APN/474/00 which was an Application where the two minor children of the deceased, Sekete Moshoeshoe were cited as 4th and 5th Respondents respectively. In that Application the present Applicant had sought to eject those two minor children and other members of the Moshoeshoe family. Third Respondent in that case was the deceased's divorced wife and mother to 4th and 5th Respondents.
On the other hand, the Applicant in this case says that that Application for ejectment involving the minor children bears no relevance to this case, hence the reason why she did not make any mention of it in her papers before this Court. In this Application, as already mentioned earlier in this ruling, the Applicant is seeking for an order declaring her as legal guardian of the three minor children of the late Sekete Moshoeshoe. These are the same minor children whom the Applicant in that other Application sought to eject from their home.
The High Court being an upper guardian of all minors has to be told everything involving the welfare of the minor children in order to enable it to decide on what is really in the best interest of those minors. A mention of CIV/APN/474/00 would help to shed some light to the Court on how the Applicant relates to the children of the deceased. It has been mentioned by the Applicant himself that the children had all along been staying with their grand-mother, whilst Applicant herself had her own two children staying with her fathered by another man not the deceased, Sekete
If the other Application had been made known to the Court the picture would have been made even more clearer on how the Applicant and the minor children relate to each other, the very same minor children whom Applicant now seeks to apply for their guardianship. That Application is also relevant in that the Court is made aware that. in fact the mother of the minor children was allowed interim custody which fact makes her an interested party. By and large, the balance of convenience does not favour the Applicant as the proper person to look after the minor children to the prejudice of other interested parties not mentioned in these proceedings.
Combination of Both Ordinary and Urgent Application
First Respondent is asking the Court to dismiss the Application as a combination of both an ordinary Application on notice and an urgent Application, and goes further to say that the interim order was not granted. In fact when this Application was moved on the 21st May, 2002 notice of intention to oppose was already filed as the Respondents had first been served. Both parties were allowed time within which to file their necessary papers. None of the parties ever alleged to have suffered any prejudice, and because no prejudice was suffered by reason of the combination by either side, argument on this point is without merit.
Dispute of Fact
Respondents allege that there are serious dispute of facts and as such Applicant ought not to have proceeded by way of motion proceedings. To quote but some such dispute of facts:
the issue of how the deceased's vehicle was removed from
Maseru to Thaba-Bosiu
also regarding where the three minor children have been staying since 1996 and prior to 1998 when Applicant arrived to the present.
Clearly these issues cannot be decided on paper without the calling of viva voce evidence.
Rule 8 (14) of the High Court Rules gives the Court the discretion of dismissing the Application where it considers that the matter cannot be decided on affidavits. These being motion proceedings designed to secure a final relief, the version of the Respondents have to be accepted, Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) S. A. 623, and on that ground alone the Application has to be dismissed. It is impossible on affidavit to decide disputed facts or questions, and the fact that a matter is urgent should not justify a departure from the general rule that a final relief should not be granted on motion, Helleke v Levy 1946 (1) AD 214.
In the exercise of my discretion under Rule 8 (14) of the High Court Rules I dismiss the Application. The Respondents having succeeded in almost all of the points in limine they had raised, the Application is dismissed with costs.
For Applicant: Mr Lichaba
For Respondents: Mr Makholela