Motoboli v Matete and Another (CIV/APN/288/04)

Case No: 
Media Neutral Citation: 
[2004] LSHC 85
Judgment Date: 
7 July, 2004




In the matter between:






Delivered by the Honourable Ms Acting Justice N. Majara on the 7th July 2004

1. The applicant herein is the widower of the deceased Limakatso Motoboli and he resides at Maseru West. The 1st respondent is the younger sister of the deceased and she resides with her husband, one Matlamukele Matete at Moshoeshoe II in the district of Maseru.

2. On 25th June 2004, applicant approached the court on an urgent basis for an order in the following terms:


2.1. The rules of the court pertaining to periods and modes of service of process should be dispensed with on account of the urgency of this matter.

2.2. A rule nisi be issued returnable on the 30th June 2004 calling upon respondents to show cause if any why:-

  1. Applicant shall not be declared to have burial rights to bury the deceased.

  1. 1st respondent shall not be interdicted from interfering in any manner with the funeral arrangements of the deceased.

  1. 2nd respondent shall not be interdicted from releasing the body of the deceased to 1st respondent pending finalisation of this matter.

  1. 1st respondent shall not be interdicted from taking the body of the deceased from

2nd respondent pending finalisation of this matter.

2.3 Prayers 1, 2 (c) and (d) operate with immediate effect.

2.4 Granting such further and/or alternative relief.

3. On the 25th June 2004, the application was moved before my brother Honourable J.T.M. Moiloa J and the interim order was duly granted to applicant and was made returnable on the 30th June 2004.

4. On the 30th June 2004, the rule was extended to the 6th July 2004 by consent of both counsels for applicant and respondent respectively. In the meantime respondents were ordered to file their answering papers by the 2nd July and applicants their replying papers by the 6th July 2004. The matter was then set down for hearing before me on the 7th July 2004.

5. On the 7th July, 2004 both 1st respondent and her counsel Mr Phoofolo were before the court and ready to proceed with the matter. Neither applicant nor his counsel, Mr Semoko made an appearance and no explanation was offered with regard to their absence on the agreed date of hearing. Applicant had not filed his replying papers on the agreed date, nor did he offer any explanation offered either to the respondent, his counsel or the court.

6. Mr Phoofolo submitted that both counsel had agreed with Honourable Hlajoane J. that the matter would proceed before this court and they were both advised to approach the registrar to get the date of hearing. 1st respondent and his counsel duly did as directed hence why they were on that date before the court to argue their case.

7. Mr Phoofolo submitted further that since it was applicant who had approached the court for an interdict on an urgent basis, he ought to have seen to it that it reached finality as soon as possible, especially because the deceased who had passed away on the 17th June was still at 2nd respondent mortuary and neither party knew where they stood with regard to making arrangements for the funeral. Therefore, if the rule were to be extended yet again, another week would go by which would be unfair to


1st respondent and all the other interested parties in the matter.

8. It was his further submission that applicant was deliberately delaying the matter because he had a court interdict in his hand. This was especially the case when taking into account the fact that applicant had not even bothered to file his replying papers at that stage as per the order of the court to demonstrate his seriousness in wanting to bury the deceased. In addition, applicant and his counsel did not even bother to make an appearance before the court to seek its indulgence with regard to their failure to file papers nor to attend the hearing as per the order of court. Wherefore Mr Phoofolo prayed for the application to be dismissed with costs or alternatively for the court to order applicant to make an appearance before it on the afternoon of the same day to proceed with the matter even without their replying papers.


9. Upon perusal of the court record, I indeed found that both counsel had been ordered to have filed the papers on or before the 2nd and 6th July respectively as well as to find out the date of hearing from the registrar. I therefore found failure on the part of applicant and/or his counsel both to file the replying papers as was ordered and to attend court on the hearing date without offering any excuse or explanation to be a display of loss of interest in the matter or at best, negligence on their part.

10. Whenever the court is approached on an urgent basis, it is because it is understood that the matter is of such urgency that following the rules with regard to the normal periods and modes of service might result in a serious miscarriage of justice. This is why the standard prayer in every matter of urgency is to ask the court to dispense with such rules.

11. This procedure cannot have been provided for simply to allow parties to be accorded first priority over other matters which usually have to wait their


turn before they can be finalised. It is therefore imperative that whenever the court has been approached in this manner, the applicant should display a serious commitment to ensuring that the matter does indeed reach its finality. It is not enough for one party to come and secure an order of court and then think that the matter should then be allowed to drag on, regardless of how other parties may be affected by the order in question.

12. In addition, the court should not be seen to be encouraging this kind of attitude by appearing to be too indulgent even where no plea for such indulgence has been sought, nor a good reason been furnished as to why the matter cannot proceed as has been arranged by all parties concerned. This is especially so in light of the fact that this matter concerns burial of a deceased person whose body has been languishing in a mortuary whilst the parties are still wrangled in a legal battle as to who has the better right over the other to bury the deceased.


13. Whilst I am cognisant of the fact that discharging the rule may adversely affect the rights of applicant, especially since this is one of those cases whereby in my humble opinion, real and substantial justice would be better served if the court could decide it on the merits, I at the same time feel that the court cannot be held to ransom by applicant by his failure to file his papers nor to make an appearance on the date of hearing as was ordered by the court. In Ex Parte S & U services: In Re S & U TV Services 1990 (4) SA 88, when dealing with the issue of discharge of a rule that was granted to applicant therein and who had failed to make an appearance on the return

date, Flemming J had this to say;

"For that reason a respondent who attends Court and hears the discharge of the rule nisi and order which interdicted him from certain actions would thenceforth be able to commit the prohibited actions without being guilty of contempt of court. if the attendance of the respondent is known to the Court, even the lapse of a very short period may be adequate reason why the interdict should not be revived without notice to the respondent."

The judge in that case based his argument mainly on the fact that there was nothing in the rules that


disclosed an intent to override or detract from the rights or interests of an opposing litigant or of a third party. Likewise, I cannot find anything in our rules that suggests that where a rule nisi has been granted in urgent applications, then that rule should be extended ad infinitum even in circumstances where such extension would detract from the rights or interests of respondents. See also Herbstein & Van Winsen, The Civil Practice of the Supreme Courts of South Africa 4th Edition p 381.

14. By the same analogy, respondents herein have been interdicted from going ahead with the funeral arrangements, to bury the deceased. Therefore, the court finds their attendance adequate enough to warrant a discharge of the rule nisi. This is more so in light of the fact that applicants have not even bothered to file their replying papers, let alone the fact that they have not even been gracious enough to give any excuse why they have failed to abide by the order of court, nor why they were unable to attend court.


15. For the above reasons, I discharged the rule with costs to 2nd respondent.




For Applicant : Mr Semoko

For 1st Respondent : Mr Phoofolo