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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO 53/2024 CIV/APPEAL/0006/2024
In the matter between –
NYEFOLO JOHANNES ALOTSI 1ST APPELLANT
BRIGHT LIGHT COMPANY (PTY) LTD 2ND APPELLANT
and
LESOTHO NATIONAL DEVELOPMENT
CORPORATION 1ST RESPONDENT
SSM PROFESSIONAL SECURITY
COMPANY 2ND RESPONDENT
CORAM: DAMASEB, AJA
MUSONDA, AJA
VAN DER WESTHUIZEN, AJA
HEARD: 10 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Spoliation – Standing – Deregistered company – Access to land – Whether value of despoiled property limits jurisdiction of subordinate court – Whether individual director had standing to sue in personal capacity – Whether refusal of leave to appeal was correct
The appellants sought relief through the management van police after being denied access to premises formerly sublet to them by the first respondent. The Magistrate’s Court dismissed the application on the grounds that it lacked jurisdiction due to the value of the property and that the applicants lacked standing. The High Court upheld this decision and refused leave to appeal.
In the Court of Appeal, the appellants sought leave to appeal, arguing that the monetary value of the property was irrelevant in spoliation proceedings and that the first applicant, as an individual, had standing.
Held: Application for leave to appeal dismissed with costs.
Per Van der Westhuizen AJA (Damaseb and Musonda AJJA concurring) –
1.
The deregistered company lacked legal personality and hence could not litigate.
2.
The first applicant did not adequately challenge the High Court’s finding on standing nor frame it as a ground of appeal.
3.
Without standing, the question of jurisdiction became academic.
4.
The special nature of spoliation proceedings does not override statutory jurisdictional limits of subordinate courts, as affirmed in Letsie v Ntsekhe and Jaase v Jaase.
The appellants having failed to demonstrate any prospects of success on appeal, the Court dismissed the application with costs.
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JUDGMENT
J VAN DER WESTHUIZEN, AJA:
Introduction
[1] Allowing people to take the law into their own hands to restore a perceived or real injustice would result in a society’s slide into violent chaos, to which the law would be an irrelevant bystander. As far as deprivation of possession of property is concerned, the mandament van spolie is a remedy to stop self-help in its tracks. It is available in countries with a Roman-Dutch private law tradition, including Lesotho. The purpose of a spoliation application is not to determine the legal position regarding the ownership or even lawfulness or otherwise of the possession, but simply to restore the status quo, until a dispute could be properly resolved through the appropriate legal mechanisms.
[2] It is a simple, straightforward and quick legal tool. For example, in a spoliation application ownership does not have to be proven by the applicant. It is often stated that even a thief may use the mandament in certain circumstances.
[3] The question underlying this matter is to what extent the normal requirements for an application before a court can be done away with or stretched in a spoliation application. This includes the interpretation of the statutory limitation of a court’s jurisdiction.
Background
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[4] A piece of land was sublet by the Lesotho National Development Corporation (the first respondent before this Court) to Bright Light Company (Pty) Ltd (the second applicant). The sublease expired, whereafter the second applicant was denied access to the property by SSM Professional Security Company (the second respondent), the provider of security services to the first respondent. Mr N J Alotsi (the first applicant before us) is director and shareholder of the applicant.
[5] On the basis of spoliation, the applicants approached the Maseru Magistrate’s Court. The application was dismissed. The Court was of the view that it had no jurisdiction, because the monetary value of the property exceeded the statutory limit on its jurisdiction. The applicants’ lack of locus standi (standing) was also raised in the Magistrate’s Court, according to the judgment of the High Court, made available to this Court.
The High Court
[6] The appellants appealed against the finding of the Magistrate’s Court to the Commercial Division of the High Court. Mokhesi J dismissed the appeal. He furthermore refused leave to appeal to this Court, on the basis that there were no prospects of success on appeal. The Court’s view was based on two findings.
(7) The first was the fact that the value of the property at the heart of the spoliation application exceeded the M25 000.00 limit of the Magistrate’s Court’s jurisdiction. (In the High Court judgment the value is stated as “at least M30 000.00”, but – perhaps mistakenly - also as M30 000 000.00. Both amounts would take the matter out of the Magistrate’s Court’s jurisdiction.)
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(8) The second finding was that the appellants did not have standing to bring the application. The second appellant had been deregistered as a company “for failure to comply with the prescripts of the Companies Act 2011”. The High Court stated that it was “trite that a deregistered company cannot sue or be sued. It ceases to have a separate legal personality”. According to the Court, “the 1st applicant … has no business joining in the proceedings in which the company is suing to protect its interests”.
In this Court
[9] In terms of this Court’s Rules, the applicants approached this Court for leave to appeal against the High Court’s refusal of leave. As such, the overriding question is whether there are prospects of success on appeal. Two issues were debated in this regard, namely jurisdiction and standing.
[10] As to jurisdiction, it was argued on behalf of the applicants that the monetary value of the property was irrelevant with regard to the jurisdiction of a court hearing a spoliation application. The claim was not for money, but for restoration of possession – in this case allowing access to the property. The special nature of spoliation was relied on.
[11] Counsel for the first respondent referred to Letsie v Ntsekhe (C of A (CIV) 28/2010), where Scott AJA stated that “jurisdiction was limited to the value of the despoiled property”, as far as subordinate courts were concerned. (It was also stated that the High Court had unlimited discretion to assume jurisdiction in any matter.) Reference was also made to the statement in Jaase v Jaase (C of A CIV/A/62/2017) “… that the magistrate’s power to
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grant interdicts is circumscribed … a magistrate may grant certain orders, including (mandamenten van spolie), subject to the limits of jurisdiction prescribed by the Act”.
[12] On standing it was submitted on behalf of the first respondent that an unregistered or deregistered company has no legal personality and thus no standing to approach a court. In support of this submission counsel referred to Lesotho Revenue Authority and Others v Olympic Offsales (LAC (2005-2006) 13/2006).
[13] Counsel for the first respondent pointed out that according to section 77(1) of the Companies Act of 2011 a shareholder or director of a company may apply to a court for leave to bring proceedings in the name and on behalf of a company. The first applicant did not show that he had obtained leave. He furthermore established neither his interest in the proceedings, nor the prejudice he would suffer if not joined in the spoliation application.
[14] On behalf of the applicants it was submitted during oral argument – and in response to questions from the Bench - that whereas the second appellant indeed had no standing, the first appellant as an individual did have, as he was also denied access to the property.
Adjudication
[15] On the standing issue there seems to be consensus that the deregistration of the company rendered it not to be a juristic person with the capacity to litigate. The dispute is about the position of the first applicant. Did he approach the Magistrate’s Court on behalf of his company, or based on his personal possession, or both?
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[16] This Court was not placed in possession of the papers leading up to this application. The record contained the High Court judgment dismissing the application for leave to appeal to this Court, delivered on 5 August 2024; grounds of appeal of March 2024 regarding the appeal to the High Court against the Magistrate’s Court; and the notice of motion plus the affidavits in connection with the application for leave before this Court. Both sides submitted heads of argument.
[17] In the notice of motion and founding affidavit in this application for leave to appeal the reference is made to “the applicant”, as well as “the applicants”. The first appellant mostly refers to himself as the applicant and - in some detail - explains his expenses in developing the land in question. This he did within the context of jurisdiction.
[18] In its answering affidavit the first respondent states that the consequence of the second applicant having been struck off the roll of companies is that both the first and second applicants have no standing. According to the first respondent it is clear from the applicants’ notice of motion that there is no intention to appeal against the High Court’s finding on standing.
[19] In the applicants’ replying affidavit it is submitted:”I seek leave to appeal the very issue of jurisdiction …the issue of locus standi was not an issue (sic) in the Magistrate Court for the reason that it is accepted that I was in occupation”. The same paragraph then continues to address jurisdiction and the nature of spoliation proceedings, yet again.
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[20] Neither in the appellants’ grounds of appeal of March 2024, nor in their heads of argument, is the substance of their standing addressed. The grounds were of course drafted before the High Court’s judgment and their relevance is unclear.
[21] In one paragraph of the applicants’ heads of argument it is stated that the only issue for determination was jurisdiction and that standing was not an issue. This was the only place where standing was addressed to which counsel for the applicants could point this Court in oral argument, again in response to a direct question from the Bench.
[22] What the applicants continue to ignore, if not avoid, is the fact that the High Court’s refusal of leave to appeal, against which they seek leave to appeal from this Court, was expressly based on both the jurisdiction and standing issues (as indicated in [6] to [8] above). The emphasis was on the jurisdiction, but a lack of standing is fatal for a litigant, even before a court’s jurisdiction is questioned. A court’s first question to a purported litigant would be: “Who are you? Who sent you here?” Thereafter the question concerning the correct forum (“Are you in the right place?”) may come up. Someone who, in the first place, has no right to approach a court, could not debate the jurisdiction of a particular court in that very court, or indeed any court.
[23] In short, the applicants have not mentioned that they wish to appeal against the High Court’s conclusion on their standing. Stated differently, they do not regard it as a material error or misdirection on the part of the Court. At least, they do not indicate why it is wrong, as they do at length on the jurisdiction finding.
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[24] As shown in [19] above, the first applicant, in replying to the first respondent’s mentioning of the High Court’s reliance on the lack of standing (in [18] above) and the averment that the applicants’ clearly do not intend to appeal the finding on standing, the first applicant makes a bald statement: He seeks leave to appeal “the very issue of jurisdiction”. This actually confirms the absence of an intention to appeal on the standing issue.
[25] The above leads to the conclusion that there is no application for leave to appeal against the High Court’s finding on standing before this Court.
[26] On jurisdiction the applicants’ counsel argued: ”[f]or the reason that there is no judgment that specifically lays down an authority for the proposition that the exercise jurisdiction of the Magistrate court in respect of spoliation over immovable property or premises is dependent on the value of the premises or a dwelling place, the applicants have an arguable case before the Court of Appeal (sic).” As indicated in [11] above, counsel for the first respondent referred to case law in support of the conclusions of the High Court and Magistrate’s Court on jurisdiction.
[27] This Court’s conclusion on standing (in [25] above) means that the prospects of a successful appeal on jurisdiction alone is of little or no relevance. It does not have to be conclusively decided. The first applicant’s lengthy explanation regarding his expenses with the upgrading of the property and its increase in value may be relevant in a claim for compensation, on another legal basis.
[28] There are no prospects of success. The application for leave to appeal must fail.
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Costs
[29] The High Court dismissed the application for leave to appeal with costs. There is no reason why costs should not follow the result in the application before this Court.
Order
[30] In view of the above, the application is dismissed, with costs.
______________________________ J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
I agree:
__________________________
PT DAMASEB AJA
ACTING JUSTICE OF APPEAL
I agree:
_____________________________
P MUSONDA AJA
ACTING JUSTICE OF APPEAL
FOR THE APPELLANTS: ADV LA MOLATI
FOR THE 1ST RESPONDENT: ADV MG MAKARA