Hoohlo v Kimane and Another (CIV/T 471 of 89) [1991] LSCA 27 (19 February 1991)

CIV/T/471/89 IN THE HIGH COURT OF LESOTHO In the m a t t er b e t w e e n :- MACHANGELA LEONORA HOOHLO Applicant and CONSTANTINUS TOLOKO KIMANE EUSE8IA 'MAITUMELENG NTLHABO 1st Respondent 2nd Respondent J U D G M E NT Delivered by the Honourable M r. Justice J. L. Kheola on the 19th day of February, 1991 In terms of subrule 21 of Rule 8 of the High Court Rules 1980 I am satisfied that in interlocutory and other applications incidental to pending proceedings the applicant is not required to u se Form "J" prescribed in subrule 7 of Rule 8 which requires that t he applicant must set forth an address within 5 kilometres of the Registrar at which he will accept notice and service of the p r o c e s s; and that if the respondent intends to oppose the a p p l i- cation he must notify applicant's attorney and also file his - 2 - opposing affidavits within specified p e r i o d s. He m u st also appoint an office within 5 kilometres of t he office of the Registrar. (See Yorkshire Insurance v. Reuben, 1967 (2) S. A. 263 (W. L. D.) ... What subrule 21 of Rule 8 requires is that in interlocutory and other applications incidental to pending proceedings t he application may be brought on notice accompanied by affidavits and set down at a time assigned by the Registrar or as directed by a J u d g e. The respondent is not required to f i le any answering affidavits w i t h in any specified period. The reason for not requiring t he respondent to filed any answering affidavit is that in some applications the position token by him may be very c l e ar from the parpers in the main a c t i o n. In the present application the respondents' attitude is that t he further particulars sought by the applicant constitute matters for evidence and a re interrogatory in n a t u r e. Under the circumstances there was no need for the respondent to file an answering a f f i d a v i t. In some cases t he respondent may feel that he w a n ts to clarify certain things and may file an answering a f f i d a v i t; but there is no need for him to indicate in advance that he intends to oppose the application. It is significant t h at in the present proceedings the applicant did n ot use Form "J" because in interlocutory and applications incidental to pending proceeding it (Form "J") -3- is never used for the reasons I have stated above. The attorneys involved in this applications have already addressed me on the merits as to whether the applicant is entitled to the particulars sought. 1 am convinced that the applicant is entitled to some particulars she seeks. In paragraph 1 (a) the applicant wants to know the nature of the provocation whether she did anything or said anything. It is like saying 'you assaulted me'. The applicant is entitled to know the nature of the assault, whether the respondent was hit with a stick or merely threatened with violence. Provocation may consist of insulting words or assault in all its forms. In paragraph 1 ( b ): (i) the respondents are ordered to supply those particulars. (ii) and (iii) those are matters for evidence. (iv) the respondent is ordered to supply those particulars. In paragraph 2 (a) the order similar to the above order is made. (b) the respondent has already fully complied with the request. /In the - 4 - In the result, the application to compel is granted with c o s t s. The respondent must comply with this order within seven (7) days from the date of this j u d g m e n t. J. L. KHEOLA JUDGE 19th February, 1991. For the Applicant - M r. Sello For the Respondents - M r. Redelinghuys.