Lesotho Bank v Maseretse (CIV/APN/52/2003)

Case No: 
CIV/APN/52/2003
Media Neutral Citation: 
[2004] LSHC 21
Judgment Date: 
8 February, 2004

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CIV/APN/52/2003

IN THE HIGH COURT OF LESOTHO



In the matter between:

LESOTHO BANK APPLICANT

and

MR SIXTUS TSELISO MASERETSE RESPONDENT


JUDGMENT


Delivered by the Hon. Mr Justice T. Nomngcongo on the 8th day of February 2004


This is an application for the substitution of one 'Mamots'abi Maseretse for the respondent, Ts'eliso Sixtus Maseretse. 'Mamotsabi is alleged to be the surviving spouse and heir of the late Ts'eliso Sixtus Maseretse and the admistrator of his estate.


The applicant had obtained an interim court order ex parte dispensing with normal rules of court on account of urgency and authorizing the sheriff of court to repossess immediately respondent's motor vehicle as described in the notice of motion pending finalization of the application to declare the High Purchase Agreement between


applicant and respondent cancelled. A Rule Nisi calling upon respondent to show cause why such an order should not be made final issued and was extended several times. A notice of intention to oppose was filed on behalf of the respondent, Ts'eliso Sixtus 'Maseretse.


Thereafter 'Mamots'abi Maseretse, styling herself applicant filed what she called "Notice to Raise Points of Law in limine ". Now, 'Mamots'abi had never been a party to these proceedings. She could not therefore be an applicant. She had never sought to intervene in these proceedings - she appears out of the blue, so to speak. Rule 8(5) provides as follows:


"(5) any person having an interest which may be affected by a decision on an application being brought ex parte, may deliver notice of an application by him for leave to oppose, supported by an affidavit setting forth the nature of such interest and the ground upon which he desires to be heard, whereupon the Registrar shall set down such application for hearing on the same day as the ex parte application."


Rule 8 (1) provides as follows:


  1. Save where proceedings by way of petition are prescribed by any law every application shall be brought on notice of motion supported by an affidavit setting out the facts upon which the applicant relies for relief."


'Mamots'abi has not come before this court on notice supported by affidavit. Nor has she sought leave to oppose as required by Rule 8 (5). She is thus not properly before this court.


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What the present applicant ought to have done was to have applied to have the so called notice to raise a point in limine struck out as an improper or irregular proceeding in terms of Rule 30 (1). Instead of doing so the applicant brought the present application for substitution against 'Mamots'abi Maseretse. The reason put forward by the applicant for making what it calls a formal application is that respondent is the surviving spouse of the late Ts'eliso Sixtus Maseretse and the administrator of his estate and that the respondent has filed her intention to raise points of law in limine, "that Respondent therein who was her late husband, is deceased" (paras.5 and 6 of the founding affidavit). That 'Mamots'abi is the surviving spouse and administrator of the estate of Ts'eliso Sixtus Maseretse cannot be gathered from the papers. How and when applicant came by this knowledge we do not know but certainly it does not come from 'Mamots'abi who has not filed any affidavit in that regard.


In any case even if that were true, the application was flawed for non-compliance with Rule 8 (19) of the Rules of the High Court which provides:


"When an application is made to Court, whether ex parte or otherwise, in connection with the estate of any person, deceased or alleged to be a prodigal or under any legal disability mental of otherwise, a copy of such application must, before the application is filed with Registrar, be submitted to the Master for his consideration and report. If any person is to be suggested to the court


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for appointment of curator to property such suggestion shall also be submitted to the Master for his consideration and report. There must be an allegation in every such application that a copy has been forwarded to the Master."


There is no indication in the application that a copy has been submitted to the Master nor is there any such allegation by the applicant as required by Rule 8 (19).


The application cannot succeed and it is dismissed.


Although generally costs follow the cause this patently cannot be so in this case. The respondent was improperly before this court. He cannot therefore be entitled to any costs.


It is ordered that each party must bear its own costs.


T. NOMNGCONGO

JUDGE


Ms Makhera : For Applicant

Mr Mathaba : For Respondent


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