LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO 35/2024 CIV/A/0011/
In the matter between:
‘MANTAHLI JONATHAN APPELLANT
AND
‘MASEFALOANA JONATHAN RESPONDENT
CORAM: MOSITO P
MUSONDA AJA
HEARD: 11 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
SUMMARY
Interdict — Requirements for final interdict — Alternative remedies — Urgency and irreparable harm.
JUDGMENT
MOSITO P
[1] The background to this appeal is that the present appellant instituted an application in the District Land Court on 1 October 2018. She claimed various interdictory reliefs against the present respondents. The crux of the complaint was that the first respondent had approached the Community Council to be declared the heiress to the landed property of the appellant’s late parents.
[2] The Appellant’s application in the District Land Court was successful. The Respondents appealed to the High Court against the District Land Court’s judgment. The High Court (Nathane J) dismissed the appeal on the basis that the present appellant had not satisfied one of the requirements for an interdictory relief, namely, "no other satisfactory remedy is available", meaning the absence of similar protection by any other remedy.
[3] Consequently, the appellant appealed to this Court on a certificate from the learned judge on the grounds:
1. The Court a quo erred in law by holding that the appellant has failed to prove that she has no other satisfactory available remedy, focusing only on lodging an objection with the relevant authority to have the process of confirming the first respondent appointment halted in totally disregard of other facts placed by the appellant in her in her founding affidavit.
2. The Court a quo erred in law by holding that the appellant has not proved all the requirements of a final interdict based on a single factor while ignoring all other surrounding circumstances.
[4] Thus, collapsed into one complaint, the appellant complained that the court a quo erred in law by concluding that the appellant had not satisfied the requirements for a final interdict, focusing solely on the existence of an objection procedure with the relevant authority as an alternative remedy and disregarding the broader factual context presented in the appellant's founding affidavit, thereby overlooking other crucial circumstances necessary for the assessment. I must advert to the facts briefly.
The factual matrix
[5] The facts leading to the application in the District Land Court are not in dispute. The first respondent is the widow of the appellant’s late brother, who passed on having not yet inherited his parents’ landed property. The appellant is the daughter of the late Chief Sechaba and ‘Mamahlape Jonathan. The appellant and the first respondent’s late husband (Motšehi Jonathan) were siblings. ‘Mamahlape passed away in 1975, while her husband passed away in 1990. Chief Sechaba and Mamahlape Jonathan had amassed considerable immovable property, which is now the subject of dispute. Chief Sechaba and Mamahlape Jonathan died intestate. The appellant is unmarried.
[6] In or around March 2018, their late brother (the first respondent’s late husband) unilaterally sublet their parents’ landed property situated at Ha Ben and was collecting rentals. He refused to account for the rent money to them. They were also shocked to learn in March 2018 that their brother had applied to the Litjotjela Community Council to be confirmed as the sole heir to the estate of their late parents. The appellant’s investigation revealed that the said application to the Council was based on a decision allegedly made on 31 December 2017 by individuals who held themselves out as members of the Jonathan Family. She averred that those individuals were not members of the Jonathan Family. She wrote a letter to the Council objecting to the application. As a result, she and other siblings were called to a family meeting of the Jonathan Family, but before it could be held, her brother passed away.
[7] On 19 September 2018, she received a call from one of her sisters informing her that the first respondent had requested a family meeting with them on 23 September 2018. The local councillor had also been invited. However, to her dismay, the first respondent cancelled the meeting without explanation. After the meeting was cancelled, she went to her parents’ homestead, which she had rebuilt, and found the second respondent and his family living there without her knowledge and consent. She engaged in talks with him, during which she told him to vacate that house. The second respondent refused, arguing that the house belonged to his father (the late Motšehi Jonathan). He told her that he would only leave that house as a corpse and not otherwise.
[8] On Thursday, 27 September 2018, she received information that the first respondent had approached the Litjotjela Community Council seeking to be confirmed as the sole heir to the estate of their late parents. Realising the matter was extremely urgent, she approached the District Land Court for protection. She then alleged that she had no other alternative satisfactory remedy but to seek an interdict against the respondents.
[9] In her answering affidavit, the first respondent denies that the appellant has satisfied the requirements for an interdict in as much as she had not satisfied the requirement of the other alternative satisfactory remedy but that she ought to have exhausted local remedies. She, however, does not aver what alternative satisfactory remedy the appellant has.
The law
[10] The requirements for obtaining an interdict are clear and well-defined, with case law providing strong guidance on the principles that govern such applications. The applicant must demonstrate a clear and legally enforceable right. This right can stem from a statute, common law, or a contractual relationship. It is insufficient to rely on a personal interest or mere expectation; the applicant must show a legal entitlement that has been or is likely to be infringed. In South Africa, the landmark case of Setlogelo v Setlogelo [1]established this principle, which has been consistently reaffirmed in subsequent cases. The second requirement is that the applicant must prove an already committed or reasonably apprehended injury.
[11] This injury pertains to any violation of the applicant's rights that the law seeks to protect. Notably, the harm need not have materialised, but the applicant must establish a reasonable apprehension of imminent injury. The South African case of Setlogelo v Setlogelo (supra), underscores the necessity for demonstrating either existing harm or a substantial threat of harm.
[12] The applicant must also show that no other satisfactory remedy is available. The courts generally prefer applicants to exhaust other remedies, such as claiming damages, before seeking an interdict, as the latter is regarded as an extraordinary remedy. In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[2], the court clarified that the alternative remedy must be adequate and capable of affording the applicant the relief they seek. An interdict will not be granted unless the applicant has no other legal remedy.
[13] The requirement that "no other satisfactory remedy is available" is crucial in granting an interdict, a form of injunctive relief in legal systems based on Roman-Dutch law. This principle underscores the exceptional nature of interdicts and reflects the courts' preference for less intrusive remedies when possible.
[13] This requirement ensures that interdicts are used as a last resort only when other legal remedies are insufficient to address the applicant's concerns. The court's rationale for this approach is multifaceted. First, it promotes the judicial economy by encouraging litigants to seek less drastic measures before resorting to court intervention. Second, it respects the principle of minimal interference, acknowledging that interdicts can significantly impact the rights and activities of the parties involved.
The case of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd provides important clarification on this requirement. The court emphasised that the alternative remedy must be adequate and capable of providing the relief sought by the applicant. This nuanced interpretation prevents a simplistic application of the rule and ensures that applicants are not denied an interdict merely because other remedies exist in theory.
[14] The adequacy of alternative remedies is assessed on a case-by-case basis. For instance, claiming damages might be considered an adequate remedy in many situations, particularly where the harm is purely financial and easily quantifiable. However, in cases involving unique property, irreparable harm, or ongoing violations of rights, damages might be deemed inadequate, thus justifying the granting of an interdict.
[15] The courts' preference for exhausting other remedies before seeking an interdict reflects a balanced approach to justice. It acknowledges that while interdicts are powerful tools for protecting rights and preventing harm, they should not be granted lightly. This approach encourages parties to attempt resolution through less confrontational means, potentially preserving relationships and reducing the burden on the court system.
[16] However, it's important to note that this requirement is not absolute. In cases of urgency or where the potential harm is severe and imminent, courts may be more willing to grant an interdict even if other remedies have not been fully exhausted. The key consideration is always whether the alternative remedies can provide effective and timely relief in the case's specific circumstances.
[17] The statement that "An interdict will not be granted where the applicant has other legal avenues available" should be understood in light of the Plascon-Evans Paints Ltd case. It is not merely the existence of other legal avenues that precludes an interdict but rather the availability of adequate and effective alternatives that can provide the desired relief. Appellate courts must carefully consider whether the lower court correctly assessed the availability and adequacy of alternative remedies. This involves a detailed examination of the case's specific circumstances, the nature of the relief sought, and the potential effectiveness of other legal avenues.
[18] The Land Act of 2010 marked a pivotal moment in Lesotho's approach to land rights, including those of widows. This legislation aimed to modernise the country’s land tenure system and promote gender equality in land ownership. The Land Act and the Land Regulations of 2011 in Lesotho have established a framework for land inheritance, including specific procedures for widows.
[19] The inheritance rights of widows in Lesotho are primarily governed by the Land Act 2010 and further detailed in the Land Regulations 2011. The process for a widow to inherit land rights involves several steps, each backed by specific provisions in these legal documents.
[20] Firstly, Section 10(1) of the Land Act 2010 establishes the fundamental right of inheritance, stating that upon the death of the title holder, the title devolves in accordance with his or her will or, in the absence of a will, in accordance with the laws of intestate succession. This provision forms the basis for widows' inheritance rights.
[21] The process begins with the reporting of the death. While not explicitly stated in the Act, Regulation 21 of the Land Regulations 2011 implies this step by requiring a death certificate for the transfer of title upon death.
[22] Next, the widow must apply for the transfer of the land title. This is governed by Regulation 21(1) of the Land Regulations 2011, which states that an application for transfer of title upon death shall be made in Form L (Application for Transfer of Title Upon Death) as set out in Schedule I of the Regulations.
[23] According to Regulation 21(2), this application must be accompanied by: (a) The title deed of the deceased, if available
(b) A copy of the death certificate of the deceased; (c) A copy of the will of the deceased or, where there is no will, a declaration by the widow claiming inheritance rights; (d) Any other document that the Commissioner may require; The Land Administration Authority (LAA), established under Section 16 of the Land Act 2010, is responsible for processing these applications. As defined in Section 2 of the Act, the Commissioner of Lands oversees this process.
If the land was held under customary tenure, Section 6 of the Land Act 2010 recognises such rights, and the process may involve additional steps. Community Councils, established under the Local Government Act 1997 and further reinforced by the Land Act 2010, play a significant role in land administration at the local level, especially in rural areas. Their involvement in land matters, including inheritance issues, represents an interface between statutory law and customary practices.
[24] Section 92 of the Land Act specifically mentions Community Councils in relation to land allocation in rural areas. This section states that a Community Council may allocate land for residential, agricultural, commercial, or industrial use in areas under its jurisdiction. This allocation power potentially influences inheritance matters, especially in cases where land rights are not formally registered.
[25] The primary role of Community Councils in land matters is actually defined in the Land Act 2010, specifically in Part X - Allocation of Land in Rural Areas. Section 92 states that, " [a] Community Council may allocate land for residential, agricultural, commercial or industrial use in areas under its jurisdiction.‘ However, this section does not specifically mention inheritance matters.
[26] Under section 14(1) of the Land Act 2010, the power to allocate and revoke land allocations is exercised by the local council having jurisdiction in the area in consultation with the chief having jurisdiction in the area. This power is subject to subsection 2, which provides that the procedure for consultation referred to in subsection (1) shall be spelt out in the regulations.
[27] Section 14(4) of the Act further provides that the allocating authority must not exercise its power of granting title to land for commercial or industrial purposes unless it has first referred the application to the relevant District Council. Section 14(5) of the Act provides that an allocation not made per section 14 has no effect.
[28] Section 15 of the Land Act 2010 provides for the procedure for allocation in rural areas. As far as relevant in this appeal, the provisions in this section explain how land interests are managed when the person to whom the land was allocated passes away. Firstly, if the deceased was married under community of property, and there is no surviving spouse. In that case, the land interest will be transferred to the person that the deceased had specifically designated. Secondly, if this does not apply, meaning there was no designation or the circumstances differ, the family members of the deceased will come together to nominate someone as the heir to receive the land interest. Lastly, in any situation where neither of the above applies, the land will return to the ownership of the Basotho Nation, and the authority responsible for land allocations will make sure that this change is properly recorded in the relevant registry.
[30] The term "deceased allottee’s family" refers to the immediate and extended family members of the person who was allocated the land and has since passed away. This group typically includes close relatives such as spouses, children, siblings, parents, or other kin who may have a stake in or be involved in decisions about the deceased person's affairs, especially in relation to inheritance or the transfer of the land interest. In this context, the family is responsible for nominating an heir if no specific person was designated by the deceased before their passing.
[31] Regulation 43 of the Land Regulations 2011 specifies the process when an allottee (landholder) dies. The nearest relative or person in control of the land after the deceased's death must notify the allocating authority within six months of the death.
[32] In terms of Regulation 44(1) of the Land Regulations 2011, upon receipt of the notice referred to in regulation 43(1), the Chairperson of an allocating authority having jurisdiction must publish the notice in such manner as he may consider reasonably adequate and most effective including the posting of the notice on the allocated land affected to bring it to the attention of all persons who may have claims or objections to claims and must record the manner of such publication in records of the allocating authority.
[33] In terms of Regulation 44(4), an interested person may be given a reasonable opportunity to be heard, called, and adduce evidence before the allocating authority. Such a person may be heard either personally or through his agent deputed in writing for that purpose.
[34] In terms of Regulation 44(5), The Chairperson of the allocating authority must publish the decision within seven days of its determination and cause the register of allocations to be endorsed accordingly. In the case of land held under a lease, the allocating authority must forward its determination to the Commissioner for issuance of a lease in accordance with the determination and subsequent forwarding to the Registrar.
Consideration of the appeal
[35] I now turn to consider the grounds of appeal. The appellant's primary contention rests on the assertion that the court a quo erred in its determination, specifically in failing to consider all the necessary legal requirements for granting a final interdict, particularly the alternative remedy. After a detailed review of the case and its supporting legal framework, I am of the firm view that the appellant’s appeal ought to succeed.
[35] The law governing the issuance of a final interdict is well settled. The requirements are clear: the applicant must establish a clear right, demonstrate an apprehension of harm, and show that no other adequate or satisfactory remedy exists. In this instance, the appellant has successfully demonstrated the first two elements—a clear right to the property in question and a real apprehension of harm stemming from the respondent’s attempts to assume rights over the property. The crux of the matter revolves around whether the appellant had any other adequate remedy available and whether the court a quo rightly found that the mere existence of an objection process before the relevant local authority sufficed as such a remedy.
[36] The court a quo, in its judgment, focused singularly on the appellant’s supposed failure to pursue the objection procedure before the relevant authority as the primary alternative remedy. However, this approach is flawed for several reasons. First and foremost, it disregards the broader factual matrix set out in the appellant’s founding affidavit. The appellant, faced with the imminent threat of having the first respondent declared heir to her late parents’ property, sought immediate judicial intervention to prevent a significant and irreparable encroachment on her rights. It is clear that the objection process, while technically available, could not provide the timely and effective relief required in the circumstances.
[37] As was established in the landmark case of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd (supra), the adequacy of an alternative remedy is not determined solely by its theoretical availability. Rather, the court must consider whether the remedy can afford the applicant the specific relief sought effectively and timely. In the present case, the appellant was faced with the possibility of the respondent securing a confirmation of inheritance. This decision would likely be difficult, if not impossible, to reverse once made. It is my considered view that the objection process, being protracted and uncertain, could not provide an adequate remedy. The court a quo failed to appreciate this critical point, thus erring in its application of the law.
[38] Further, the court a quo did not give due consideration to the remaining circumstances of the case, particularly the pressing nature of the harm and the immediacy with which the appellant sought to avert it. It is axiomatic that an interdict serves as a protective mechanism when the law's ordinary processes might be insufficient to forestall irreversible harm. The appellant, rightly apprehending such harm, was entitled to seek the court's protection in the form of an interdict. The alternative remedy postulated by the court was not, in my view, satisfactory under the circumstances, as it did not address the immediacy and gravity of the threat posed.
Disposal
[40] In conclusion, the appellant has adequately satisfied all the requirements for a final interdict, and the decision of the court a quo is unsustainable. The appeal must, therefore, be upheld, and the appellant must be granted the relief she seeks.
Order
[41] In the result:
The appeal is upheld with costs.
________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
____________________
P MUSONDA
ACTING JUSTICE OF APPEAL
I agree
____________________________
VAN DER WESTHUIZEN AJA
ACTING JUSTICE OF APPEAL
For the Appellant: Adv. P. C Ntšihlele
Respondent: Adv K.D. Mashaile