Mants'o Koloko & Ano. V Clement Mapoki & 4 Others (C of A (CIV) 86/2024) [2025] LSCA 41 (2 May 2025)

1
LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO: 86/2024
CIV/A/0027/2023
CIV/T/MSU/0236/20
In the matter between:
MANTS’O KOLOKO 1ST APPELLANT
MOROESI G. TAU-THABANE N.O 2ND APPELLANT
AND
CLEMENT MAPOKI 1STRESPONDENT
‘MAMALIEHE KOLOKO 2NDRESPONDENT
MASTER OF THE HIGH COURT 3RDRESPONDENT
ATTORNEY GENERAL 4THRESPONDENT
THE LEARNED MAGISTRATE THAMAE-
MASERU 5THRESPONDENT
CORAM: MOSITO P
VAN DER WESTHUIZEN AJA
MATHABA AJA
HEARD: 17 APRIL 2025
DELIVERED: 02 MAY 2025
FLYNOTE
Civil Procedure – Appealability – Lapse of appeal – Default judgment – Ejectment – Jurisdiction of Subordinate Court –
2
Title to land – Construction of statutes – Interpretation of procedural rules – Rescission of default judgments – Harmonisation of statutory schemes.
The appellants obtained a default judgment in the Subordinate Court for the ejectment of the first respondent from a residential site and ancillary relief. The first and second respondents' attempt to uplift the bar and file a plea was refused, after which they noted an appeal to the High Court. That court set the matter down beyond the four-week timeline under rule 52(1)(a) of the High Court Rules 1980 without any application for condonation. The High Court entertained the appeal and held that the Subordinate Court lacked jurisdiction as the matter involved title to land.
Held, allowing the appeal—
Non-compliance with Rule 52(1)(a) must be condoned before the High Court may entertain the appeal. The respondents’ failure to apply for condonation deprived the court a quo of jurisdiction to proceed. Rule 52(6) explicitly requires condonation upon breach, and the discretion to condone must be judicially exercised. The absence of such application rendered the appeal irregularly entertained (paras 28–36).
A default judgment is not appealable unless it has become final. A judgment granted in default, which remains open to rescission—particularly where a jurisdictional objection is available—cannot be considered final for purposes of appeal. The respondents ought to have sought rescission under Rule 46(8) or 46(10) of the Subordinate Court Rules 1996. The court a quo erred in holding otherwise (paras 37–43).
The claim in the Subordinate Court was for ejectment, not title to land. Ejectment may be founded either on ownership or possession, and the mere pleading of ownership does not transmogrify a claim into one concerning title. Construed harmoniously, the Land Act 2010 and the Subordinate Courts Act 1988 preserve the jurisdiction of Subordinate Courts to entertain ejectment claims that do not hinge upon contested title (paras 44–53).
Appeal allowed; judgment of the High Court set aside; costs awarded to the appellants.
JUDGEMENT
3
MATHABA AJA
Introduction
[1] This is an appeal from a judgment of the High Court, (Banyane J). The matter originated from the Subordinate Court for the district of Maseru. The appellants, as plaintiffs, claimed an order that: (a) the first respondent be ejected from the estate site situated at Marakabei; (b) the sale agreement between the first and second respondents be declared unlawful and null and void; (c) the deputy sheriff demolish and remove the developments made by the first respondent on the site; (d) the first respondent bear the cost of demolishment; (e) the first and second respondents pay the costs of suit; (f) they be granted further and/alternative relief as the court may deem fit.
[2] The matter came before the learned Resident Magistrate Thamae. The first and second respondents did not file their plea on time and were barred. Following the dismissal of their application to uplift the bar and be allowed to file a plea, the appellants’ claim was upheld by default: an order for ejectment and demolishment was granted with costs.
[3] The first and second respondents noted an appeal to the High Court. The nub of their complaint was that: (a) the Subordinate Court did not have jurisdiction to grant an order for ejectment; (b) the learned Magistrate misdirected himself in cancelling the agreement of sale between the first and the second respondents at the instance of a third party without hearing them; (c) the learned
4
Magistrate misdirected himself for granting an order demolishing the first respondent’s house without notice to him to make representations or remedy the situation by removing his developments.
[4] The learned Judge heard the matter on 13 May 2024 and handed down judgment on 11 November 2024 upholding the appeal on the ground that since the dispute related to land, the Subordinate Court did not have jurisdiction over the claim. It is obvious from her well-articulated judgment that the learned Judge addressed only the preliminary issues raised by the appellants and the point of jurisdiction. Given her finding on jurisdiction, she must have considered it unnecessary to address other grounds of appeal.
[4] Dissatisfied with the judgement, the appellant noted an appeal to this Court. On 11 December 2024 the learned Judge granted the certificate in terms of section 17 of the Court of Appeal Act No. 10 of 1978. It is quite appropriate at this juncture to quote from the certificate the following three questions of law referred for the determination of this Court by the learned Judge:
“(a) Whether an Appellant is entitled to set down an appeal beyond the timelines set in Rule 52(1)(a) of High Court Rules 1980 without condonation.
(b) Whether a default judgment is appealable where an application for upliftment of the bar has been refused.
(c) Whether the Appellants’ claim in the Court a quo was about to (sic) title to land.”
The facts
5
[6] Before considering the above issues, it is convenient to provide a brief overview of the events that triggered the contest between the parties. The first appellant is the son of the late Makopo and ‘Mamantso Koloko who died testate in 1990 and 2008, respectively. As the surviving spouse, the late ‘Mamantso Koloko became the heiress to their estate in terms of their Joint Will. She in turn executed a Will on 13 May 1991 appointing her daughter, ‘Masebina Letele (born Koloko), as the sole and universal heiress to her estate.
[7] After the demise of his father, the first appellant became a caretaker of his mother and her property, including the site in issue. The first appellant registered the site in his names under lease number 2837-003 on 25 February 1992. Apparently, the second appellant applied for the lease in his names on the strength of a letter from his mother authorising him to take charge of her estate including the site. The letter was addressed to the area chief where the site is situated. On 13 March 2013 the second appellant was appointed as the executrix of the estate of the late ‘Mamantso Koloko.
[8] On 9 January 2010, the first appellant’s estranged wife, the second respondent, subdivided the plot and sold a portion thereof to the first respondent. The appellants contend that the second respondent wrongfully and unlawfully purported to sell the plot without obtaining the consent of either the first appellant in whose names the plot is registered, the third respondent or the Minister of Local Government as it was the requirement under the Land Act
6
1979 or from the Commissioner of Lands in terms of the Land Act 2010
[9] The first respondent refused to vacate the plot despite demand by the second appellant. Instead, he developed the plot after the demand was made. The second appellant supports the first appellant’s claim that though her mother authorised him to apply for the lease in his names, the site fell under the administration of the estate.
Merits of the appeal
[10] I now turn to consider the appeal. Before doing so, it must be emphasised that since the appeal originated from the High Court exercising its civil appellate jurisdiction, this Court is confined to decide only the issues of law identified by the learned Judge in her certificate. To put it bluntly, there is no need for this Court to go further to look beyond the three identified issues and the record.
[11] At the appeal hearing on 17 April 2025, both learned counsel, Mr Motsohi for the appellants, and Mr Makhera for the respondents, highlighted their respective written submissions which were earlier lodged with this Court. As regard the first issue, I venture to say that it is common ground between the parties that the respondents did not comply with rule 52(1)(a) of the High Court Rules 1980, (the Rules), in setting down their appeal for hearing. Differently put, four weeks period prescribed by the rule for the respondents, the appellants then, to set down the appeal for hearing at the High Court had lapsed.
7
[12] Essentially, the learned counsel for the appellants argued that the appeal had lapsed when it was set down to be heard, hence it was erroneous for the learned trial Judge to hear the appeal without application for condonation. In support of his proposition, the learned counsel paid homage to the decision of this Court in Motlalentoa v. Monyamane.1 It is necessary to interpose momentarily to say that though the first issue from the certificate is not whether the appeal had lapsed or not, something will be said about this issue later in the judgment because counsel dealt with it extensively. They may have conflated this issue with the first issue on the certificate.
[13] The learned counsel strenuously contended that the first and second respondents should have applied for condonation for non-compliance with rule 52(1)(a). Further, the notice to apply for a date of hearing out of time was a nullity because the respondents purported to exercise a right they no longer had. He argued that the respondents did not seek condonation when it was clear they had not complied with rule 52(1)(a).
[14] In relation to the second issue, the learned counsel argued that at the time the appeal was noted, the default judgment was still rescindable and therefore not appealable given the provisions of section 58(3) of the Subordinate Courts Act 1988. The contention that the default judgment was provisional was based on rule 46(8) of the Rules. The effect of the rule is that a default
1Motlalentoa v. Monyamane LAC (1985 – 89) 244.
8
judgment only becomes final when application for rescission is dismissed.
[15] On the third issue in the certificate, the learned counsel’s contention was that the learned Judge erred to conclude that the claim was for title to land. In his view, regard being had to the pleadings, the claim was for ejectment and therefore justiciable before the Subordinate Court.
[16] Conversely, in his brief argument, Mr Makhera argued that the appeal had not lapsed when it was heard, as no order was applied for in that regard. Further, the High Court has jurisdiction to mero muto hear an appeal beyond timelines in the Rules if there are compelling reasons. In casu, he argued, the compelling reason was that the Subordinate Court had determined a matter over which it did not have jurisdiction. During his oral submissions, the learned counsel conceded that the application for condonation for non-compliance with rule 52(1)(a) was not made.
[17] Arguing with reference to the second issue, the learned counsel submitted that the learned Judge correctly held that the default judgment was final and therefore appealable given that the application to uplift the bar was dismissed and thereby preventing the respondents from filing their plea. He argued that application for rescission would have been futile considering that the learned Resident Magistrate had already considered the merits of the matter at the time he considered the application to uplift the bar.
[18] In his brief, but focused submission on the last issue, the learned counsel submitted, with reference to the decisions of this
9
Court2 and section 73 of the Land Act No. 8 of 2010 (as amended), that the claim before the Subordinate Court concerned title to land, as a result of which it fell to be determined by the District Land Court and not the Subordinate Court.
Discussions
[19] It is now our duty to determine the appeal by considering the competing arguments by the learned counsel in line with the identified legal issues. In doing so, I will preface the deliberations with the relevant law and applicable legal principles. It is well to remind oneself at this stage that the learned Judge proceeded to hear the appeal without condoning non-compliance with rule 52(1)(a).
[20] The contention upon which we have heard argument and which we now have to decide is based on rule 52(1) which reads as follows:
“52. (1)(a) Where an appeal has been noted from a judgment or order of a subordinate court the appellant may within four weeks after noting of the appeal apply in writing to the Register for a date of hearing.
(b) Notice must be given to all other parties interested in the judgement appealed against that such application for a date of hearing has been delivered.
(c) If the appellant fails to apply for a date of hearing in four weeks as aforesaid, the respondent may at any time before the expiration of two months from the date of the noting of appeal set down the appeal for
2 Moletsane v. Thamae (C of A (CIV) 23 of 2017 [2018] LSCA 25 (7 December 2018); lebona Lephema v. Total Lesotho (Pty) Ltd LAC (2013 – 2014) 453.
10
hearing giving notice to the appellant and all other parties that he has done so.
(d) If neither party applies for a date of hearing as aforesaid the apeal (sic) shall lapse unless the court on application by the appellant and on good reason shown shall otherwise order.
(e) If an appeal lapses but a cross appeal has been noted the cross appeal shall also lapse unless application for a date of hearing is made to the Registrar for a date of hearing of such cross appeal within three weeks of the date of lapse of the appeal.”
[21] Given that the respondents did not apply for a date of hearing within the prescribed four weeks, the questions that falls for determination as formulated by the learned Judge is whether the respondents were thereafter entitled to set down the appeal for hearing without condonation application. I pause to remark that the learned counsel for the appellant conceded that though the respondents did not seek a date of hearing within the four weeks period prescribed in rule 52(1)(a), they sought it within the two months period prescribed in rule 52(1)(c).
[20] Undoubtedly, there had been non – compliance with rule 52(1)(a) at the time the respondents set down the appeal to be heard. It is relevant to bear in mind the purpose of rule 52(1) even before I venture to resolve the question whether the respondents ought to have applied for condonation before they set down the appeal for hearing. In Ntoetsi Tau – Tona v. Maphoka Ramoea
11
and Others3 this Court stated that section 15 of the Interpretation Act No. 19 of 1977 prescribes a purposive approach to interpretation.
[22] From the rule, it can easily be seen that there is an obligation cast on both the appellant and the respondent to set down the appeal for hearing within a specified period. Thus, the purpose of the rule is to ensure expeditious disposal of appeals by preventing parties from resorting to dilatory tactics but avail their legal remedies swiftly. The rule is consistent with public policy requirement that there must be an end or finality to litigation. Those who note frivolous appeals with a view to slowing the wheels of justice do so at their own peril.
[23] Obviously, if parties elect to obtain a date of hearing at their own convenience, it would be pointless and meaningless to prescribe the period within which a date of hearing must be obtained. Appellants would resort to dilatory tactics and an end to litigation will not be achieved. Respondents will never know when judgments from subordinate courts in their favour are beyond challenge – chaos will prevail.
[24] I now turn to consider the question whether the respondents were entitled to set down the appeal for hearing without condonation application. The answer does not lie in the rule being peremptory as Mr Motsohi sought to argue relying on
3 Ntoetsi Tau – Tona v. ‘Maphoka Ramoea & 3 Ors (C of A (CIV) 23/2023 [2023] LSCA 12 (17 November 2023).
12
the decision of this Court in Motlalentlo v. Monyane.4 I digress to remark that contrary to Mr Motsohi’s assertion that the case is on all fours with the instant case, it is not. Appeal in that case had lapsed due to appellant’s complete inaction after noting the appeal. There is not even a single reference to rule 52(1)(c) and (d) in the judgment because it was common cause that the appellant took no further steps to prosecute the appeal after noting it.
[25] In casu, the appellant applied for a date of hearing within the two months period. I cannot fault the learned Judge’s reasoning and conclusion that in terms of rule 52(1)(d), the appeal is deemed to have lapsed when neither the appellant nor the respondent applies for a date of hearing within the prescribed time. The interpretation that the appeal lapses immediately the appellant fails to set it down for hearing within the four weeks period in rule 52(1)(a) disregards rule 52(1)(c). The latter entitles the respondent to set the appeal down for hearing within two months in the event of the appellant failing to do so within the four weeks period. If it is so that the appeal lapses immediately the appellant fails to set it down within the four weeks period, a rhetorical question arises - which appeal then is the respondent entitled set down for hearing within the two months period in terms of rule 52(1)(c)? Herein lies the absurdity of the proposed interpretation by Mr Motsohi.
[26] In light of unambiguous language used in rule 52(1)(d), and the fact that a date of hearing was obtained within the two
4 Supra – Footnote 1.
13
months period, albeit by the appellant, the learned Judge’s conclusion that the appeal had not lapsed is unassailable. The decision of this Court in Joel Lechesa Mathealira v. Pontso Seoehla Mathealira5 puts the issue beyond doubt. Given the provisions of rule 52(1)(d), the Court found that the appeal had not lapsed where the appellant had similarly set it down for hearing after the four weeks period prescribed in rule 52(1)(a) but within the two months period prescribed in rule 52(1)(c).
[27] I conclude the discussion on this issue with a caution that rule 52(1)(d) is a deeming provision. Therefore, whenever the rule is applicable, it is necessary to have regard to how deeming provisions in legislation and rules are dealt with before a conclusion can be drawn that the appeal had indeed lapsed. The decision of the Supreme Court of Appeal of South Africa in Eastern Cape Parks and Tourism Agency v. Medbury (Pty) Ltd t/a Crown River Safari6 is instructive in that regard. However, the deeming provision finds no application in the instant matter given that the appeal was set down to be heard within the two months period prescribed in rule 52(1)(c). Consequently, it is unnecessary for our present purposes to embark upon the exercise proposed in Medbury (Pty) Ltd (supra).
[28] I revert to the cardinal question whether given non-compliance with rule 52(1)(a), the appellants (the respondents
5 Joele Lechesa Mathealira v. Pontso Seoehla Mathealira and Others (C of A No. 42/2021) [2022] LSCA 10 (13 May 2022).
6 Eastern Cape Parks and Tourism Agency v. Medbury (Pty) Ltd t/a Crown River Safari 2018 (4) SA 206 (SCA) at paragraphs [29] to [34].
14
herein) were entitled to set down the appeal for hearing without condonation application. There is a litany of cases providing guidance as to what should happen in the event of non-compliance with the rules. In Zainab Moosa and Others v. Lesotho Revenue Authority7 this Court said that:
“[18] An application for condonation is not a mere formality. It is triggered by non-compliance with the Rules of Court. Accordingly, when there has been non-compliance, the applicant should, without delay apply for condonation and should give cogent reasons for non-observance with the Rules initially…”
[29] The above principle was reaffirmed countless times by this Court. For instance, the following is stated in Christoffel Smith v. Tsepong Proprietary Limited:8
“[61] Condonation is not a right but an indulgence which the court grants on good cause shown. It is elementary that condonation must be sought as soon as the non-compliance becomes apparent…”
[30] Doubtless, there had been non-compliance with rule 52(1)(a) though the appeal had not lapsed. In keeping with the above-mentioned authorities, the inescapable conclusion I arrive at is that the respondents were supposed to apply for condonation for failure to comply with the rule. I accept that dogmatically rigid enforcement of the rules, just like non-compliance, may be counterproductive and courts should be wary of it. That said,
7 Zainab Moosa and Others v. Lesotho Revenue Authority (C of A (CIV) 2 of 2014) [2015] LSCA 36 (6 November 2015).
8 Christoffel Smith v. Tsepong Proprietary Limited C of A (CIV) 22 of 2020) [2021] LSCA 11 (14 May 2021).
15
justice system is already struggling to maintain its credibility, hence allowing litigants to disregard time frames in the rules will send a bad signal and spawn chaos and anarchy.
[31] As I see it, rule 52(6) also fortifies my view that it was non-optional for the respondents to apply for condonation. The rule provides as follows:
“(6) The court on application by any party may in its discretion condone any breach of the provisions of this Rule. The provisions of Rule 8 shall apply to such application unless the court at the hearing of the appeal or cross- appeal condones such breach on application made orally. The court, if it condones or refuses to condone such breach may make any order as to costs which it considers just”.
[32] The respondents ought to have formally applied for condonation following rule 8 of the Rules or orally on the date of hearing. Condonation must have been addressed as a preliminary issue before the appeal was heard. Since no application for condonation was made in casu, the learned Judge ignored the non-compliance without exercising her mind judiciously whether to condone it. Absent application for condonation, there was no basis for the learned Judge to loosen the proverbial knot of non-compliance on the respondents’ neck.
[33] I however disagree with the proposition that the notice applying for a date of hearing in casu was a nullity simply because it was filed out of time. The notice is not being impugned based on its form, substance, inadequacy or other flaw. Once a court has a discretion to condone non-compliance, it follows inescapably that
16
it was not intended that a breach of the rule should necessarily be visited with nullity.9
[34] I accept that since the notice was filed out of time, that raises questions of its validity which was, in any event, condonable in terms of rule 52(6). It bears repeating that it is not necessarily a question of whether rule 52(1)(a) is peremptory or mandatory or whether there has been substantial compliance or not given that subrule (6) empowers the court to “condone any breach of the provisions” of Rule 52.
[35] While it is true that the notice requesting a date of hearing was not a nullity and cannot be classified as a foundational pleading, setting down the matter out of time amounted to non-compliance. It still required condonation application to cure the irregularity and for the court to have legal basis to entertain the appeal. It was not necessary for application for condonation to precede the notice requesting a date of hearing since condonation can even be applied for orally on the date of hearing in terms of rule 52(6). However, this does not necessarily detract from the requirement to apply for condonation once non-compliance is detected.
[36] In view of the aforesaid, it was not prudent for the learned Judge to disregard the non-compliance with rule 52(1)(a) and determine the appeal before the question of the validity of the notice requesting a date of hearing was addressed and non-
9 Northen Assurance Co LTD v. Somdaka 1960 (1) SA 588 (A) at 595.
17
compliance was condoned. The appeal ought to have been removed from the roll.
[37] I turn to consider whether the default judgment was appealable. In terms of rule 46(8) of the Rules, the default judgment becomes final when an application for rescission impugning it is dismissed or when it is no longer rescindable due to effluxion of time. It is obvious from her critical analysis in the judgment that the learned Judge was not oblivious to the fact that the default judgment was susceptible to rescission. Nonetheless, she concluded that the default judgment was final in effect given that the respondents were barred from pleading, and their application to uplift the bar was dismissed. Apparently, the motivation of this approach was that the rescission application was going to be an exercise in futility even if it were to succeed.
[38] To underscore the point that the default judgment was final and therefore appealable in the circumstances of this case, the learned Judge made reference to the decision of the Supreme Court of Appeal of South Africa in Iglosstrakh v. Global Aviation Investments (Pty) Ltd and others10. The court stated as follows in paragraph 13 of the judgment on which the learned Judge placed reliance:
“[13] In the present case, the practical effect of the court a quo’s order is that the parties’ respective applications are in limbo. In refusing to grant default judgment, the court a quo alluded to the fact that the issues between the parties needed to be ventilated in a trial. However, in the same breath, it dismissed Ingosstrakh’s application for the upliftment of the bar, thus effectively closing avenue for a
10 Iglosstrakh v. Global Aviation Investments (Pty) Ltd and others 2021 (6) SA 352 (SCA).
18
trial. The result is that Ingosstrakh is unable to enter the main case, because it is under bar, while Global is unable to obtain default judgment against Ingosstrakh.”
[39] A careful consideration of the decision reveals that both parties were aggrieved by the orders declining application to uplift the bar and the one for default judgment. Thus, they were appealing the orders with leave of court a quo. The court held that the interest of justice required its intervention to resolve the impasse and, on that basis, concluded that the matter was appealable. The court’s view that the interest of justice required its intervention was also informed by the length of time the case had taken.
[40] Relevant principles emerge in the judgment, but the case is not on all fours with the instant matter. In casu, the application for upliftment of the bar was refused and the one for default judgment granted. Consequently, both applications are not in limbo. In Pitelli v. Everton Gardens Projects,11 the Supreme Court of Appeal of South Africa expressed the principle as thus regarding appealability of a default judgment: “[25] Those oddities arise because once the orders were made by the court below the proceedings in that court were not complete, notwithstanding that the orders took full effect. They were not complete because the orders were still susceptible to being revisited and rescinded by the court that granted them. Had the court rescinded the orders the proceedings would then have proceeded to their ordinary completion by a final judgment. [26] On the other hand, had the court below refused to rescind its orders, as it did, that would clearly have been
11 Pitelli v. Everton Gardens Projects (191/09) [2010] ZASCA 35 (29 March 2010).
19
appealable, because it would have brought the proceedings to completion in the court of first instance. And had this court then upheld the appeal the matter would have been remitted to that court to bring the proceedings to completeness in the manner I have described. [27] An order is not final, for the purposes of an appeal, merely because it takes effect unless it is set aside. It is final when the proceedings of the court of first instance are complete and that court is not capable of revisiting the order. That leads one ineluctably to the conclusion that an order that is taken in the absence of a party is ordinarily not appealable (perhaps there might be cases in which it is appealable but for the moment I cannot think of one). It is not appealable because such an order is capable of being rescinded by the court that granted it and it is thus not final in its effect. In some cases an order that is granted in the absence of a party might be rescindable under rule 42(1)(a), and if it is not covered by that rule, as Van der Merwe J correctly found, it is in any event capable of being rescinded under the common law.” (Footnotes omitted).
[41] I entirely agree with the above decision. It is evident therefrom that a default judgment is not final for purposes of appeal merely because it takes effect unless it is set aside. Rather, it is final when the proceedings from which it emanated are complete and the court that issued the order is not capable of revisiting it. There is considerable force in Mr Motsohi’s argument that given that the respondents are also contesting jurisdiction of the Subordinate Court, the default judgment was also rescindable under rule 46(10) of the Rules. The rule provides as thus:
“(10) Where rescission or variation of a judgment is sought on the ground that it is void ab origine or was obtained by fraud or mistake, application may be made not
20
later than one year after the applicant first had knowledge of such voidness, fraud or mistake”.
[42] It is instructive to state that the applicant who is seeking rescission of a default judgment on the ground that the judgment is void ab origine is still required to comply with rule 46(2) by explaining his default as well as setting out his bona fide defence12. The argument that the default judgment was still rescindable and therefore not appealable is impregnable. The defence of lack of jurisdiction would not have required the learned Resident Magistrate to rehear the merits of the claim as Mr Makhera contended. The remedy of rescission which the respondents had was not only theoretical given the point regarding lack of jurisdiction. I am not necessary saying the point was going to succeed, but it was arguable.
[43] All said and done, the key question is whether the default judgment was susceptible to being revisited and rescinded by the Subordinate Court at the time the appeal was noted. The answer must be in the affirmative given the provisions of rule 46(8) which are clear that a default judgment is final when it is no longer rescindable. Accordingly, the default judgment was not appealable despite the respondents having been barred from pleading.
[44] I now proceed to deliberate on whether the appellants’ claim in the Subordinate Court was about title to land. Obviously, the question requires consideration of two pieces of legislation, the Land Act 2010 (as amended) and the Subordinate Court Act
12 Leo Manufacturing CC v. Robor Industrial (Pty) Ltd 2007 (2) SA 1 (SCA). The Court was interpreting a provision analogous to Rule 46.
21
1988 (as amended) to determine in which court ejectment claims are justiciable between the Land Courts (both Land Court and District Land Court) and Subordinate Courts. As I embark on this exercise, I seek inspiration from the judgement in Independent Institute of Education (Pty) Limited v. Kwazulu – Natal Law Society and Others13 where the Constitutional Court of South Africa stated the following: “[38] It is a well-established canon of statutory construction that “every part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature”. Statutes dealing with the same subject matter, or which are in pari materia, should be construed together and harmoniously. This imperative has the effect of harmonising conflicts and differences between statutes. The canon derives its force from the presumption that the Legislature is consistent with itself. In other words, that the Legislature knows and has in mind the existing law when it passes new legislation, and frames new legislation with reference to the existing law. Statutes relating to the same subject matter should be read together because they should be seen as part of a single harmonious legal system. [39] This canon of statutory interpretation was expressly recognised and affirmed by this Court in Shaik. In that case it was held that the words “any person” in section 28(6) of the National Prosecuting Authority Act, despite their wide ordinary meaning, should be construed restrictively to avoid a clash with a provision in another statute. [40] More recently, this Court in Ruta interpreted provisions of the Immigration Act together and in harmony with those of the Refugees Act. In a unanimous judgment, this Court noted that “[w]ell-established interpretive doctrine enjoins us to read the statutes alongside each other, so as to make sense of their provisions together.” (Footnotes omitted) [45] Section 17(1)(c) of the Subordinate Courts Act 1988 confers jurisdiction on Subordinates Courts “in any action of ejectment against the occupier of any house, land or premises within the
13 Independent Institute of Education (Pty) Limited v. Kwazulu – Natal Law Society and Others (CCT68/19) [2019] ZACC 47; 2020 (2) SA325 (CC); (2020) (4) BCLR 495 (CC) (11 December 2019).
22
district;” On the other hand, section 73 of the Land Act 2010 as amended by Land (Amendment) Act 2012 confers jurisdiction on Land Court and District Land Court to “hear and determine all disputes, actions and proceedings concerning land”. [46] This Court had an occasion to interpret the words relating to or concerning land in the matter of Lephama v. Total Lesotho (Pty) Ltd and Others14 and said the following at para [22]: “In regard to the jurisdiction issue the enquiry as to what the expressions ‘relating to land’ or ‘concerning land’ mean, must therefore focus on the provisions of the Act. It is clear, in my view, that the Act is concerned (apart from the presently irrelevant matter of allocations unaccompanied by the grant of title) with title to land, derogations from title and rights which override title. The dispute raised by Lephema’s application, for example, unquestionably relates to or concerns property but it is common cause that it is not a dispute ‘relating to’ or ‘concerning’ land within the meaning of the Act. Those expressions are of wide and general import but they must be interpreted within their context so that the disputes to which they refer are disputes involving claims to title, claims relying on derogations from title or claims to rights overriding title.” [47] The interpretation which this Court provided in Lephama (supra) is proving to be invaluable in preserving the efficacy and ensuring harmonies co-existence of these two pieces of legislation. It is in consonance with the fundamental notion that “every part of a statute should be construed so as to be consistent, so far as possible, with every other part of that statute, and with every other unrepealed statute enacted by the Legislature”.
14 Supra – Footnote 2.
23
[48] It is quite clear in my view that the Subordinate Courts still retain subject matter jurisdiction in ejectment cases while Land Court and District Land Courts entertain disputes involving claims to title, claims relying on derogation from title or claims overring title. Not all disputes connected to land fall into these three categories. Thus, the provision of the Land Act 2010 cannot be interpreted to exclude jurisdiction of Subordinate Courts in cases of ejectments. The doctrine of implied repeal does not even find application as the two pieces legislation can still be read together. [49] The apt question that remains is whether the Subordinate Court had jurisdiction to entertain the claim in issue. It is trite and requires no authority that jurisdiction is the power or competence of a court to hear and determine a claim between contesting parties. The learned Judged called in aid several relevant decisions from South Africa as well as from this jurisdiction in resolving the issue. What matters most is their application. I find useful to quote the following passage in the decision of this Court in Moletsane v. Thamae,15 which the learned Judge relied on as well: “Whether the claim is good or bad in law is immaterial to the jurisdictional enquiry. But if a claim, as formulated by the party, is enforceable in a particular court, the applicant is entitled to bring it before that court. Thus, if a claim involves a dispute, the first (question) is whether, as in casu, the party was an allottee or not. From that arises the second feature, whether the party may assert a land right or interest. The third is that the party may assert a right or interest that arises outside the terms of the Land Act. I do not say whether, the party necessarily
15 Supra – Footnote 2.
24
has the right that is asserted. I say only that he or she asserts that right or interest. That right or interest in each case may be either the right at common law to exact performance of a contract or a constitutional right, etc.” [50] With specific focus on the issue before us, examination of the pleadings reveals that the second appellant is executrix of the estate of ‘Mamantso Koloko. Thus, she is vested with the administration of the estate. The first appellant recognises that though the site in issue is registered in his names, it belongs to the estate of his late mother. [51] The second appellant wants the first respondent to be ejected from the site on the basis that he is in unlawful possession thereof. It is trite that ejectment can be claimed by virtue of ownership or possessory rights16. Thus, the remedy of ejectment is aimed at protection of possession (which includes more than just juridical possession) than protection of ownership.17 Therefore, the central issue the Subordinate Court was called upon to settle was that of possession not necessarily ownership or titled to land. There is no way that the appellants could have pleaded their case without pleading either ownership or possessory rights. That does not change the character of their claim. [52] It is manifest that the second appellant is asserting her right through a common law remedy of ejectment to take charge of the estate including the site in issue. Looking critically at the pleadings
16 Tlali Phakisi v. Motlatsi Charles Tlapana (CIV/APN/A 30 of 30) [2014] LSHC 34 (26 March 2014) at para 18.
17 Pretoria Stadsraad v. Ebrahim 1979 (4) SA 193 (T) at 195.
25
without getting into the merits of the matter, it admits of no doubt from the nature of the dispute that the claim does not concern title to land. [53] I am satisfied that Subordinate Court jurisdiction to hear ejectment claims is not circumscribed unless the core issue concerns title to land, derogation from title and rights which override title. The ineluctable conclusion I arrive at is that the Subordinate Court had jurisdiction to hear the appellants’ claim for ejectment. Disposition [55] In the light of the above, this Court finds that the judgment of the court a quo cannot stand. The learned Judge erred in disregarding non-compliance with rule 52(1)(a) of the High Court Rules, 1980 and hearing the matter without having judicially exercised her mind whether to grant condonation. The issue of the validity of the notice securing the date of hearing was left hanging and non-compliance not cured through condonation. The best option would have been to remove the matter from the roll if the respondents did not apply for condonation. [56] Tellingly, the default judgement was still rescindable in terms of rule 46(8) of the Subordinate Court Rules, 1996 and therefore not appealable. Moreover, the claim did not concern title to land though the appellants had to plead and prove either ownership or possessory rights. That is in the nature of ejectment claims and
26
does not change the substance and the character of the claim. In the circumstances, there is no basis to uphold the judgment of the court a quo. Costs shall follow the event. Order [57] Accordingly, (a) The appeal succeeds. (b) The first and the second respondents shall pay the costs of appeal. (c) The judgment and order of the High Court in CIV/T/MSU/0236/20 delivered on 11 November 2024 are set aside and replaced with the following order: “The application is dismissed with costs.”
______________________________
R. MATHABA
ACTING JUSTICE OF APPEAL
I agree
_______________________________
K.E MOSITO
PRESIDENT OF THE COURT OF APPEAL
27
I agree
______________________________
VAN DER WESTHUIZEN AJA
ACTING JUSTICE OF APPEAL
FOR APPELLANTS: Mr. U. J. Motsohi
FOR 1ST AND 2ND RESPONDENTS: Adv. N.E. Makhera