Molapo v Molapo (CIV/APN 94 of 20) [2020] LSHC 31 (25 September 2020)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/94/20 In the Matter Between:- ‘MALEROTHOLI MOLAPO APPLICANT AND TEBATSO MOLAPO 1ST RESPONDENT STATION COMMANDER MABOTE POLICE STATION 2ND REPONDENT ATTORNEY GENERAL 3RD RESPONDENT __________________________________________________________________ JUDGMENT __________________________________________________________________ CORAM : MOKHESI J DATE OF HEARING : 25th SEPTEMBER 2020 DATE OF JUDGMENT : 25TH SEPTEMBER 2020 Summary: CIVIL PRACTICE: The applicant applying for contempt of court against the respondent for defying an order of court- Contempt of court principles re-stated and applied- The respondent found to be in contempt. Annotations: Fakie N. O v CCII Systems (PTY) Ltd 2006 (4) SA 326 (SCA) MOKHESI J [1] This is an application for contempt of court. The facts of this case are straightforward: The applicant was a plaintiff in a divorce case instituted against the respondent. A decree of divorce was issued by this court on the basis of the respondent’s malicious desertion, on the 20th February 2019, and ancillary prayers which were subject of a Deed of Settlement were made an order of court, and were to the following effect: 1. Plaintiff to retain the matrimonial home on condition that she only holds it in trust for the parties’ children and she will not dispose of it and or encumber it with debt. 2. The parties’ motor vehicle, Toyota Tazz be awarded to defendant. 3. Defendant be awarded some (not half) of the sleeping blankets together with some (not half) of the cooking pots and cutlery. [2] Since this order was issued by Makara J on the date alluded to above, the 1st respondent has refused to comply with it to date, prompting the applicant to launch this application on the 16th March 2020. In effect, the 1st respondent is refusing to vacate the house as ordered. This application was served personally on the 1st respondent on the 20th March 2020, with the Notice of Motion stating that it will be moved on the 2nd April 2020, but due to COVID – 19 Lockdown, the application could not be moved as anticipated. [3] On the 08th September 2020, the applicant served upon the 1st respondent’s counsel, a Notice of set down to the effect that the matter has been set down for hearing on the 21st September 2020. On that date (21/09/20) Adv. Mosokotso for the applicant appeared before court. There was no appearance for the respondents, and reluctant to grant the application I issued an order in terms of which I directed that it be served upon the 1st respondent personally calling upon him to appear personally to explain why he cannot be committed to jail for contempt of court. It must be stated that it was not necessary for this court to have done this, but I felt the 1st respondent being a lay person should at least appear personally before court to give an explanation. It should be recalled that he had only filed his notice of intention to oppose, two to three months after he was served with the application. Instead of the respondent appearing personally before me to explain his contempt, a second Notice of Intention to oppose was filed by Adv. M. Mphakoanyane for the 1st respondent, and attached to it was the 1st respondent’s answering affidavit, filed eight (8) months after he was served with the application. And no application for condonation for non-compliance with the rules has been made. Undoubtedly, the 1st respondent and his counsel have little or no regard for the rules, and this coming from the officer of this court is lamentable and troubling. Disregard of the rules in this matter is blatant. But these notwithstanding the I turn to consider whether the merits of this application. [3] The question to determine is whether the applicant has made out a case for contempt of court beyond a reasonable doubt. In the off-quoted decision of Fakie N. O v CCII Systems (PTY) Ltd 2006 (4) SA 326 (SCA) at para. 42 Cameron JA laid out the bases for a conviction of contempt of court as follows: “(a) The civil contempt procedure is valuable and important mechanism for securing compliance with court orders and survives constitutional scrutiny in the form of a motion court application adapted to constitutional requirements. (b) The respondent in such proceedings is not an ‘accused person’ but is entitled to analogous protections as are appropriate to motion proceedings. (c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and willfulness and mala fides) beyond a reasonable doubt. (d) But, once the applicant has proved the order, service or notice, and non-compliance, the respondent bears an evidential burden in relation to willfulness and mala fides: Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was willful and mala fide, contempt will have been established beyond reasonable doubt. e) A declarator and other appropriate remedies remain available to a civil applicant on proof on a balance of probabilities.” [4] It must be stated that failure or refusal to obey court order must be both willful and mala fide. If the alleged contemnor is merely being unreasonable, contempt will be lacking in the absence of mala fides and willfulness: “….[T]he offence is committed not by mere disregard of a court order, but by the deliberate and intentional violation of the court’s dignity, repute or authority that this evinces. Honest belief that non-compliance is justified or proper is incompatible with that intent.” (Fakie ibid at para.10) [5] Reverting back to the facts of this case, therefore, this court had issued an order in terms of which the applicant was to retain the matrimonial home and this as said earlier was a result of settlement between the parties; the 1st respondent was personally served with the court order, and has from the 20th February 2019 to date- almost eighteen months later- failed to comply with it as he still stays in the matrimonial home despite him and the applicant no longer being husband and wife. His explanation that the he did not move out of the house because the applicant has not transferred ownership of the vehicle to him is disingenuous. He kept quite all this time without any demur about the applicant’s non-compliance, only to raise it when confronted with his non- compliance. His disobedience is both mala fide and willful and not merely unreasonable. In the result, I find that the applicant has proved beyond a reasonable doubt that the 1st respondent is guilty of contempt of court. [6] Order: (a) Under further and/or alternative relief, it is declared that the 1st respondent is in contempt of court order dated 20th February 2019. (b) That the 2nd respondent is ordered forthwith to apprehend and bring the 1st respondent before court to be dealt with in accordance with the law, for his contempt. ________________________ M. MOKHESI J FOR THE APPLICANT: ADV. T. MOSOKOTSO INSTRUCTED MAAPESA MOHAU ATTORNEYS FOR THE RESPONDENTS: NO APPEARANCE 7