Moaki v Moaki and Others (CIV/APN/130/2004 )

Case No: 
Media Neutral Citation: 
[2004] LSHC 92
Judgment Date: 
3 August, 2004




In the matter between:








Delivered by the Honourable Mr Justice T. Nomngcongo on the 3 rd day of August 2004

On the 18th March the applicant filed the present application with the Registrar of this Court and moved it before my brother Peete J. the very following day the 19th March. He sought the following orders:

  1. That the rules of this Honourable Court pertaining to the ordinary periods and mode of service be dispensed with on account of the urgency of this matter.

  1. That a rule nisi be issued returnable on a date to be determined by this Honourable Court calling upon the Respondents to show cause (if any) why;

    1. Applicant shall not be declared the sole beneficiary and usufructuary heir to the estate of the late Paki Moaki.

    1. Respondents shall not be interdicted and restrained from interfering with Applicant's use and /or occupancy of any property forming part of the estate of the late Paki Moaki.

    1. Respondents shall not be ordered to release to Applicant all such documents relating to the estate of the late Paki Moaki as they (sic) may be in their possession at the time of the granting here of.

    1. Respondents shall not pay costs hereof.

    1. ...........................................


  1. That prayer 1 and 2 (b) operate with immediate effect as interim order. (Sic)

The Judges notes of the 19th simply record:

"Mr Thulo for applicant Prayer 1 & 2 (b) granted Rule nisi returnable on 29 March 2004"

I have no doubt that what is meant is that it was ordered that prayers 1 and

  1. (b) operate with immediate effect as prayed for under 3. Indeed such an interim order was in fact issued on the same day.

The certificate of urgency accompanying the application cites as the reason for urgency that:

"....threats delivered by the Respondents are so serious that applicant is losing customers at alarming rate. (Sic)

In her founding affidavit applicant states that on the 27th February 2004 the


Respondents entered her hotel at Butha-Buthe Township and demanded from the staff thereat several documents which they eventually obtained "and threatened the same staff." Again on the 12th March the first respondent only threatened staff and customers alleging he was closing the hotel. It does seem however that he did not close the hotel after all because the applicant concludes that:

"After this second threat by first Respondent my customers no longer attend my hotel at the rate they used to prior to such threats".

This is all that the applicant says renders this application urgent. This is against the background that prior to this at some time which applicant does not specify there had already been what she calls" "some quarrels between herself and her children", whose identity she did not disclosure, regarding the estate of the late Paki Moaki. As it turned out these children are these very respondents she is suing to-day.

The application was subsequently opposed. In their opposition raised several points such as the non-disclosure of the true relationship between


the parties and that the matter was pendente lite with an order still operating against the applicant regarding the property in dispute. These are valid points that the applicant has not met in reply. I will not dwell upon these however as the respondent's attorney pinned his masts solely on non compliance with Rule 8 of the Rules of Court which he raised in limine. Addresses were confined to this aspect of the matter. Mr. Mahlakeng has argued that there was failure to comply with Rule 8 (4) and that there was no urgency at all in the matter.

Rule 8 (4) provides.

"Every application brought ex parte shall be filed with the Registrar before noon on two court days preceeding the day on which it is to be set to be heard. If brought upon notice to the Registrar such notice shall set forth the form of order sought specifying the affidavit filed in support thereof and requesting the Registrar to place the matter on the roll for hearing. Such notice shall as near as may be in accordance with Form "J" of the First schedule hereto." {My underlining)


The present application was filed on the 18th March and heard the very following day. Clearly that was in contravention of the precise and mandatory terms of this rule which provides two clear court days before such application could be set down for hearing. It is then argued that the applicant had obtained dispensation with "the ordinary periods and modes of service". The words speak for themselves. What is dispensed with is not service at all - it is the periods and the mode on account of urgency, which brings me to the heart of the matter - whether there was an urgency at all to deviate from the ordinary. Before I deal with that I must dispose of a rather startling point made in reply that the application was not ex parte. I do not understand this because applicant approached and obtained some relief from court in the absence of and without notice to the other party. If that is not ex parte then I do not know what is. In terms of rule 8 (22) it is provided that:

"(a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure as


the court or judge may deem fit.

  1. In any petition or affidavit filed in support of an urgent application the applicant shall set forth in detail circumstances which he avers render the application urgent and also the reasons why he claims he cannot be afforded substantial relief in a hearing in due course if the periods presented by these were allowed. (My underlining.

The court therefore will only dispense with the periods provided for by the rules if the applicant:

  1. Sets forth in detail circumstances which he avers render the application urgent. It is not enough to simply pose these circumstance and rest;

  1. Gives reasons why he cannot be afforded substantial relief in due course.

Both conditions must exist together before an application qualifies as urgent. If either one of them is missing, the application must fail for want of urgency.


In the present case the circumstances that led to this application were not only long in the brewing i.e. since Paki Moaki's death, but the alleged threats are not given in any detail at all. We are given a bald statement that on certain dates respondents made threats to staff. What form these threats took is not said. How is the court to determine whether they were real or not if it does not know the nature of the threats.

As regard the second requirement the papers are completely silent. Nowhere does applicant even pose a bare allegation that if the rules are not adhered to as presents he will not get substantial relief in due course.

We were referred to the case of Mahlakeng and 55 others C of A (Civ)No.l4 of 2003 [unreported]. This case is a chronicle of this, and the Court of Appeal's (and indeed our neighbour South Africa's Court's), lamentations over the abuse of the urgency procedure of our rules. Mine are merely a drop in the Ocean. I entertain the forlorn hope that the drop


may be the straw that broke the camel's back. Forlorn indeed, because in that case the Court of Appeal awarded costs de bonis propriis but the abuse nevertheless continues.

In conclusion, this application was not urgent. I dismiss it. In doing so I do not order the costs ordered by Steyn J.A. in the Mahlakeng case simply because I did understand the judgment to mean that we should do so in every case. But the temptation to do so certainly loomed large.

The application is dismissed with costs.



For Applicant : Mr Thulo

For Respondents : Mr Mahlakeng