Shale v Shale (LC/APN 19) [2019] LSHC 44 (5 November 2019)

Shale v Shale (LC/APN 19) [2019] LSHC 44 (5 November 2019)

Failure by the Magistrate to hear viva voce evidence where there existed a dispute of facts amounted to a reviewable irregularity, and the applicant was prejudiced by not being afforded an opportunity to present his case.

Citation
[2019] LSHC 44
Parties
Applicant: Tumisang Shale; 1st Respondent: Mats’iu Kelebogile Gloria Shale; 2nd Respondent: Berea Magistrate Court; 3rd Respondent: Senior Clerk of Court; 4th Respondent: Attorney General
Court
High Court
Jurisdiction
Lesotho
Judgment Date
5 November 2019
Case Number
LC/APN 19
Procedural Posture
Review Application / Judgment
Outcome
Review application allowed; lower court decision set aside.
Legal Topics
Default Judgment, Jurisdiction, Inheritance, Declaratory Orders, Procedural Irregularity
Source Language
English
Land Law Civil Procedure Default Judgment Jurisdiction Inheritance Declaratory Orders Procedural Irregularity

Case Brief

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Parties

Tumisang Shale

Applicant

Mats’iu Kelebogile Gloria Shale

1st Respondent

Berea Magistrate Court

2nd Respondent

Senior Clerk of Court

3rd Respondent

Attorney General

4th Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the District Land Court had jurisdiction to grant declaratory orders and entertain inheritance issues
  2. 2 Whether the Magistrate committed a reviewable irregularity by granting default judgment without hearing viva voce evidence
  3. 3 Whether non-joinder of the Master of the High Court and executor was fatal

Ratio Decidendi

Failure by the Magistrate to hear viva voce evidence where there existed a dispute of facts amounted to a reviewable irregularity, and the applicant was prejudiced by not being afforded an opportunity to present his case.

Court Disposition

Review application allowed; lower court decision set aside.

Orders

  • The decision of the Berea District Land Court in CIV/DLC/BRA/34/18 granted on 04/06/19 is reviewed, corrected and set aside.
  • The hearing of the application should proceed in accordance with the Rules of the District Land Court.