Mothuntsane v Mothuntsane and Another (CIV/APN/67/2003)

Case No: 
Media Neutral Citation: 
[2004] LSHC 159
Judgment Date: 
17 December, 2004




In the matter between:






Delivered by the Honourable Ms Acting Justice N. Majara on 17th December 2004.

Applicant approached this court for relief in the following


  1. Restraining 1st respondent from holding himself out to the general public as the headman of Damaseka in Linakeng area.

  2. Restraining 2nd respondent from recognizing 1st respondent as the headman of Damaseka in Linakeng area.

  3. Restraining 1st respondent from exercising any powers of chief or headman of Damaseka in Linakeng area.

  4. 1st respondent to pay costs of suit.

  5. Further and/or alternative relief.


On the date of hearing counsel for applicant, Ms Sehapi, filed her Heads of Argument on the points that she raised in limine. The said points were that:

  1. 1st respondent filed an Answering Affidavit that has not been attested to by a Commissioner of Oaths.

  1. 1st respondent filed a Supporting Affidavit that has no date of attestation by a Commissioner of Oaths.

It was applicant's case that 1st respondent had not complied with the provisions of Sections 3 and 4(5) of the Oaths and Declarations Regulations of 1964. It was Ms Sehapi's

submission that on the face of it, 1st respondent's Answering Affidavit fails to comply with the above regulations as well as Regulation 5 (2) (b) thereof.

She submitted further that the Supporting Affidavit of one Malefetsane Moleleki also does not comply with Regulation 5 (2) (b) of the Regulations for the reason that it has not been dated by the Commissioner of Oaths as per the requirements of this section.


Ms Sehapi submitted that the defects are fatal and as such render the two affidavits nugatory and that respondents should be regarded as having failed to file any affidavits before the court and that as a result, the prayer in the Notice of Motion should be granted with costs.

In response, Mr Molefi, counsel for respondents argued that even if the affidavit was not attested to by the Commissioner of Oaths, the deponent made the affidavit on oath and signed it. He argued further that deponents deposed to the facts as being true and correct and within their personal knowledge in the presence of the Commissioner of Oaths. His submission was that Regulation 3 had thus been complied with.

Mr Molefi conceded that with respect to the Supporting Affidavit, the date of attestation is absent but argued that that factor alone does not invalidate the whole affidavit. He submitted that the absence of date did not prejudice the applicant in anyway.

He prayed that should the court find the absence of the dates as fatally defective, respondents should be afforded the opportunity to regularize them especially because applicant would not suffer any prejudice by such a ruling because as per his contention, the point raised does not go to the root of the case.


He asked the court to take into account the fact that 1st respondent has shown his intention to oppose the application and that even if the affidavits are struck out, respondent would still have to argue his case on the basis of applicant's papers.

I now proceed to deal with the points of law raised.

Regulation 3 of the Oaths and Declarations Regulations of 1964 provides as follows:

"Except where otherwise provided by any other law an affidavit shall (my underlining) be made on oath unless the person desiring to make the same is not able to understand the nature or recognize the religious obligation of an oath..."

The Answering Affidavit of 1st respondent is couched in the following terms: "I

The undersigned

SELOMO MOTHUNTSANE Do hereby make oath and say,..."

From the wording of this affidavit, it is incorrect for applicant to contend that 1st respondent's affidavit does not comply with


this regulation. It is clearly made on oath and as such, complies with the requirements of Regulation 3. I therefore reject this argument in so far as the provisions of Regulation 3 are concerned.

Regulation 4 (5) in turn provides as follows;

"The deponent shall, after making the oath or affirmation, affix his usual signature in his own hand writing on the affidavit in the presence of the commissioner of oaths."

At the end of his answering affidavit, 1st respondent has appended his signature, below which is the signature of the commissioner of oaths, his capacity, area as well as his official stamp.

In the light of this, applicant has not been able to show the court why she contends that 1st respondent has not complied with the requirements of the above regulation. She has simply alleged the defect without pointing out what exactly it is that she avers is lacking. It is therefore not clear to the court whether applicant is challenging the appended signature as not being that of 1st respondent or whether she is alleging that it was not appended in the presence of the commissioner of oaths whose signature has also been appended on the affidavit. In the court's opinion, ex facie the affidavit, the


regulation has been complied with. This point is therefore also rejected.

Regulation 5(2) (b) in turn provides as follows:

"Before attesting an affidavit the commissioner of oaths shall ask the deponent whether he knows and understands the contents of the affidavit and if his answer is in the affirmative the commissioner of oaths shall (my underlining) — thereafter set forth, in writing, the manner, place and date of attestation of the affidavit; ...."

But for the signature, capacity and area of the commissioner of oaths, 1st respondent's answering affidavit does not anywhere reflect that the requirements of the above regulation were complied with in that it does not set out the manner, place and date of attestation of the affidavit which are usually stated in the following or as near as possible standard terms:

Thus signed and sworn to before me at-----------this —Day of —

200- the deponent having acknowledged that he knows and understands the contents of the affidavit.

The absence of this attestation therefore renders the affidavit non-compliant with the requirements of Regulation 5(2)(b).


This being the case, the question that this court has to determine is whether this non-compliance is fatal which would in turn render the affidavit nugatory.

Ms Sehapi submitted on behalf of for applicant that the affidavit should be struck out for reason of the said non-compliance whereas Mr Molefi submitted that the defect was not fatal as it does not prejudice applicant in any way.

It has been emphasized time and again that under any rule/regulation, the use of the word shall, indicates that such rule/regulation is mandatory and as such has to be complied with. This therefore places responsibility on any legal practitioner to make sure that when he comes to court he is well prepared and has not been negligent in the preparation of his client's case. Rules/regulations are there for a purpose and should not be regarded as being of cosmetic value only. This is the situation regardless of whether or not such non-compliance is prejudicial to the other party. See the case of Hajee Haroon Asman and His worship Chief Magistrate-Molefi Makara and Others CIV/APN/466/2004 wherein I held that mandatory rules are not just enabling which makes it imperative that they be followed to the letter.


See also the case of Moletsane v Moletsane CIV/APN/475/9

wherein Ramodibedi J (as he then was) quoted with approval the remarks of Schutz P in Matime and two others v Moruthoane and Another C of A (CIV) NO.4 of 1986. In the

latter two cases, the court did not consider the issue of prejudice to the other party at all. In both cases it was simply stated that mandatory rules/regulations have to be complied with and failure to do so will render a pleading fatally defective. The same therefore applies in casu. This therefore means that 1st respondent's affidavit is fatally defective because it failed to comply with the mandatory requirements of the regulation.

It was also Ms Sehapi's contention that the Supporting Affidavit of Malefetsane Moleleki has not been dated by the commissioner of oaths and thus does not comply with

Regulation 5(2)(b) of the Regulations.

The regulation has already been quoted above and as I have already pointed out, its provisions are mandatory and as such make it imperative for any party to comply with them.

Upon scrutinizing the said affidavit, the court found that although it has been attested, it does not bear the date of attestation but does however bear the month and year of attestation being March 2003.


The next question for consideration by this court would therefore be whether where an affidavit contains the month and year of attestation, but lacks the actual date, in other words, where it is partially defective, such defect is so serious as to render it fatal on the basis of which the affidavit should be thrown out.

In my opinion, although the actual date has been left out of the affidavit, the fact that both the date and the year are present somewhat lessens the seriousness of this omission. In other words, the court finds that with regard to this particular affidavit there has been partial compliance on the basis of which respondents should not be punished by the court throwing out the affidavit. This court will overlook this particular omission in this particular instance for the reason that it is a small aspect that has been overlooked and/or omitted. It should however be noted that this court is not by any means saying that it will condone non-compliance of rules/regulations as a general rule.

Mr Molefi prayed that should the court find that the affidavits do not comply with the regulations, condonation be granted so that the defect can be cured. His grounds were that if such condonation is granted applicant will not suffer any prejudice.


Ms Sehapi opposed the application on the grounds that it was made from the bar and that in any event respondents have no prospects of success.

Before addressing the above issue, I wish to point out that it is trite law that each and every case should be treated according to its own merits. The reasons for this position are many but suffice it to say it allows the court to exercise its discretion judiciously having considered all the important circumstances of each particular case before it.

In casu, the subject matter is the headman-ship of a village. Experience has shown that in the interests of justice and those of the community, issues of this nature should not be treated lightly by the courts. I am saying this because this

court is fully aware that it has happened where issues of

either chieftaincy and/or boundaries are concerned serious conflicts have occurred usually culminating in bloodshed. This is because these issues go to the root of communities' identifying with and giving allegiance to the headmen/chiefs who govern them. As a result, they have been known to take sides with those contesting the title, usually culminating in them taking up arms against each other which more often than not, has resulted in loss of lives.


As a court that dispenses justice, and on the basis of the above reasons, it is my opinion that in this case, the dictates of justice are such that this court has the duty to prevent such possible carnage and should therefore entertain and decide this case on the merits to avoid the possible occurrence of bloodshed or hostility in the village.

True enough, this court has found that respondent's founding affidavit is defective for its non-compliance with regulations. However, for the reasons stated above, I am going to allow respondents to cure this defect and file properly dated and attested affidavits in the interests of real and substantial justice. I do not think that this decision will in anyway prejudice applicant. As I had stated in Osman's case (Supra) p10;

"Courts therefore have a duty to ensure that rules are followed and should not lightly condone deviation thereof unless there are compelling circumstances to so condone."

In addition, Rule 59 of the High Court Rules does make provision for the court to condone any proceedings in which the provisions of the rules have not been complied with if it considers it to be in the interests of justice (my underlining). I do not think that at this stage I should consider the issue of


whether or not respondents have prospects of success in the main as Ms Sehapi had submitted. That issue will be dealt with when the court makes a determination of the matter in its totality.

For these reasons, although the court does uphold some of the points in limine raised by the applicant, respondents are nevertheless granted condonation to go and cure the defective affidavits. Respondents are however ordered to pay the costs of

the day.



For Applicant : Ms Sehapi

For Respondents : Mr Molefi