IN THE LAND COURT OF LESOTHO
HELD AT MASERU LC/REV/APN/0024/2022
CIV/DLC/BRA/46/2022
In the matter between
’MATHABANG MAKAKOLE 1ST APPLICANT
MAHLAPANE MAKAKOLE BODIBA 2ND APPLICANT
MATITI MAKAKOLE KABI 3RD APPLICANT
AND
AGOGO CHARLES MAKAKOLE 1ST RESPONDENT
THABANG MAKAKOLE 2ND RESPONDENT
’MAAGOGO MAKAKOLE 3RD RESPONDENT
KANANA COMMUNITY COUNCIL D08 4TH RESPONDENT
LAND ADMINISTRATION AUTHORITY 5TH RESPONDENT
HIS WORSHIP R. MONETHI 6TH RESPONDENT
Neutral Citation: ’Mathabang Makakole & 2 Others v Agogo Charles Makakole & 5 Others [2022] LSHC 205 Civ (08 May 2023)
JUDGMENT
CORAM : BANYANE J.
HEARD : 09 FEBRUARY 2023
DELIVERED : 08 MAY 2023
Summary
Review of unterminated proceedings in the District Land Court - spoliation order granted ex parte - whether piecemeal adjudication desirable although irregularities discernible in the granting of the spoliation relief.
ANNOTATIONS:
Cited cases:
Lesotho
- Director of Public Prosecutions v Taole and others LAC (2011-2012) 11
- Khabo v Khabo C of A (CIV) 72/18
- Mohapi v Mohapi LAC (1980-1984) 193
- Komane and another v City Express Stores (Pty) Ltd LAC/CIV/A/5/2002
- Letsie v Maseru City Council LAC (2015-2016) 615
- Letsie v Ntsekhe LAC (2009-2010) 122
- Likotsi Civic Association and others v Minister of Local Government and others LAC (2013-2014) 293
- Khaketla v Malahleha & Others LAC (1990-1994)275
- Mofoka v Ntsane and others LAC (2015-2016) 159
10.Motumi v Shale and others C of A (Civ) No.32 of 2017
11.PS 2031 Investments CC t/a Kalema Tech and Hire v Metsi-a-Pula Fleet Services t/a Metsi a Pula Civil Plant Hire Rental LAC (2015-2016)395
12.Lehlohonolo Masupha v Meisi Nkoe C of A (CIV) 42/16
13.Mda and another v DPP LAC (2000-2004) 950
14.Maseko v Soere CIV/APN/242/97
15.Mbangamthi v Mbangamthi LAC (2005-2006) 295
16.Universal Engineering (Pty) Ltd v Deputy Sheriff CIV/APN/253/92
South Africa
- Engineering Union v Minister of Labour 1949 (3) SA 637 (A) @ 651 at 659
- Clegg v Priestly 1985 (3) SA 950 (W)
- Network Videos (Pty) Ltd v Universal City Studios Inc and others 1984 (4) SA 379 (C)
- Makowitz v Loewenthal 1982 (3) SA 758 (A)
- Machele and others v Mailula and others [2009] ZA CC 7: 2010 (2) SA 257 (CC)
- National Director of Public Prosecutions v Walsh and Others 2009 (1) SACR 603 (T)
- National Treasury and others v Opposition to Urban Tolling Alliance and others [2012] ZACC 18
- Rosebuch v Rosebuch 1975(1) SA 181(W)
- Zweni v Minister of Law and Order 1993 (1) SA 523 (A)
Legislation:
- District Land Court Rules 2012
- Subordinate Courts Order of 1988
Books
- Silberberg and Schoeman: The Law of Property (3rd ed)
BANYANE J.
Introduction
- This is an application for review of an order granted by the Berea District Land Court on 22 September 2022 dismissing an application for rescission of an order granted ex parte on the 1st of September 2022.
Background facts
[2] It is common cause that the 1st respondent as applicant filed an application in the Court a quo under CIV/DLC/BRA/46/22 in relation to a certain agricultural field and a commercial site situated at Ha Motumi, Thuathe in the Berea District. He therein challenged allocation of this land by the Kanana Community Council to the 2nd and 3rd applicants herein and the consequent issuance of certificates of allocation and/or proof of confirmation. He sought an order declaring such certificates null and void, an order reviewing the decision to allocate, an order declaring him as lawful owner of the disputed land as well as an order declaring a certain donation made by the 1st applicant herein, in favour of her daughters, the 2nd and 3rd applicants, as null and void.
[3] The 1st respondent had, moreover sought certain reliefs which were to operate as interim orders pending finalization of the main application. He sought an order directing Mahlapane Makakole as the 4th respondent (2nd applicant herein) or her agents, to omnia ante restore to him, occupation and possession of the agricultural field and commercial site in question, an order restraining the applicants herein from interfering with his occupation of the disputed land, an order interdicting the applicants from developing and conducting any preparatory work towards development and an order restraining the Land Administration Authority (LAA) from issuing any lease to them.
[4] On the 1st of September 2022, Advocate Masoeu for 1st respondent appeared before Court and sought reliefs outlined under paragraph 3 above. The Court acceded to the request and granted the orders without hearing the respondents (applicants herein). The originating application was thereafter served on the applicants together with the interim order on the 6th of September 2022. On the 14 September 2022, the applicants herein filed and served an application in terms of Rule 56 of the District Land Court Rules 2012 seeking an order setting aside the order granted ex parte on 01/09/2022.
[5] On the 22nd of September 2022, the learned Magistrate dismissed without reasons, the Rule 56 application. Moreover, he issued an order retraining the 1st respondent herein from disposing of the property, subject-matter of the dispute, pending finalization of his main claim.
The review application
[6] Dissatisfied with this order, the applicants have approached this Court seeking an order reviewing and setting aside the orders issued on the 1st of September 2022 and 22nd of September 2022 respectively, as well as an order declaring that the District Land Court has no jurisdiction to entertain a spoliation application. Their grounds for review are that the impugned orders were irregularly granted because:
a) There was no proper service of the originating application upon them before the impugned orders were granted.
b) The District Land Court has no jurisdiction to grant a spoliation relief.
c) The Court a quo granted an order which has a final effect without giving them a hearing.
d) The Court a quo granted the spoliatory relief without hearing evidence.
The parties’ submissions
[7] Advocate Letuka for applicants argued that hearing of oral evidence before the granting of any order, interim or otherwise, is indispensable in the Land Courts practice and consequently failure by the Court a quo to hear evidence before granting the spoliation relief amounts to a reviewable irregularity. He relied on the cases of Motumi v Shale and others C of A (Civ) No.32 of 2017 and Mofoka v Ntsane and others C of A (Civ) No.71 of 2014 for this submission. He also cited the case of Likotsi Civic Association and others v Minister of Local Government and others C of A (Civ) No.42 of 2012 to submit that an originating application does not contain evidence and it is therefore imperative to hear viva voce evidence before granting any order.
[8] Regarding jurisdiction of the District Land Court to grant a spoliation order, he submitted that such a relief is obtainable in the Subordinate Court in terms of section 18 (1) of the Subordinate Courts Order of 1988 and not in the Land Courts which possess jurisdiction to adjudicate title disputes only.
[9] Advocate Masoeu for respondents conversely argued that the impugned order is not final but is simply operational until the court will have heard evidence and final argument in the main matter. He relied on the case of PS 2031 Investments CC t/a Kalema Tech and Hire v Metsi-a-Pula Fleet Services t/a Metsi a Pula Civil Plant Hire Rental C of A (Civ) 60 of 2015 where the Court instructively stated that in determining whether an order is final, it is important to bear in mind that not merely the form of the order must be considered but also, predominantly its effect.
[10] According to him the order granted a quo merely restored possession of the site to the 1st respondent, but it is not final because it was granted pending final determination of the competing claims of title to the disputed land. Moreover, a spoliatory relief is in its nature aimed at prevention of self-help hence it will be granted without dealing with the merits of the dispute or the respective rights of the parties on the disputed land.
[11] Addressing the jurisdictional issue, he submitted that the applicants did not in the court a quo raise lack of jurisdiction as a ground for their Rule 56 application but raised it in their answer to the main case. He contends on this basis that it is improper to consider an issue to which the Court a quo has not pronounced itself. He argued further that no prejudice is occasioned by the granting of the impugned order because the Court issued an interdict protective of the applicants’ rights on 22 September 2022.
[12] A final argument advanced on behalf of the respondents is that the mere fact that the order was granted ex parte does not justify its challenge in review proceedings as the applicants seek to do. Absent prejudice, this court ought not interfere at this stage. He concluded that this is not a proper case for this court to interfere with unterminated proceedings of the court below.
Discussion
[13] It is common cause that the 1st respondent herein approached the Court on urgent basis and without notice to the applicants, seeking restoration of status quo and an order preventing transfer and registration of rights over the disputed land. The applicants have raised several grounds for setting aside the order before this Court. The issues arising for determination are; a) whether the District Land Court possessed jurisdiction to grant a spoliation order; b) whether a spoliation order is final; c) whether the impugned orders were regularly granted without notice to the applicants herein and d) lastly whether this Court must interfere with unterminated proceedings in the Court a quo. I deal with them seriatim.
Jurisdiction of the District Land Court to grant spoliation.
[14] Based on section 18 of the Subordinate Courts Act of 1988, Advocate Letuka for applicants argued that the spoliatory relief falls within the jurisdiction of the Magistrate Court and not the District Land Court. Mr. Masoeu on the other hand argued that the issue of jurisdiction is yet to be decided by the Court below because it has been raised by the applicants in their answer. The point may however, be briefly disposed of based on the authorities discussed below.
[15] It has been held that jurisdiction of the Subordinate Courts over spoliation proceedings is subject to monetary limits set out in sections 18(1) and 17(1) of the Subordinate Courts Act of 1988. In Letsie v Ntsekhe C of A (CIV) No. 27 of 2009, Scott JA said:
“while it is true that the Subordinate Court had jurisdiction to adjudicate spoliation disputes in terms of section 18(1) of Act No 9 of 1988, such jurisdiction is limited to the value of the despoiled property as provided for in section 17(1)(b) of that Act”.
[15.1] Similarly, in Letsie v Maseru City Council C of A (CIV) 12/2016, the Court stated that the legislature monetarily limited jurisdiction of the Subordinate Court in section 17(1) (b). It held that the value of the despoiled property must therefore be proved.
- In the instant matter, no argument was advanced regarding the value of the disputed property. It follows that if the value of the despoiled property is in excess of the value prescribed for the Subordinates Courts’ jurisdiction, an argument based on section 18 of the Act cannot be sustained and must be rejected.
Is spoliatory order final?
- I turn to consider the question whether spoliatory relief is final. The Court a quo issued a spoliation order and the interdict operating until finalization of the title dispute between the parties. According to Mr. Letuka for the applicants, the spoliation order is final and thus susceptible to review or appeal, while Mr. Masoeu for respondents contends otherwise.
- The law which governs the nature and purpose of spoliation proceedings is trite. Mandament van spolie is a possessory remedy whose purpose is to prevent people from taking the law into their hands and to restore possession. possessory in this context is said to mean the protection of possession separate from the right of ownership. The court hearing a spoliation application does not concern itself with the rights of the parties, lawfulness of possession or the question of ownership. Consequently, if a person without being authorized by a judicial decree dispossesses another, the court, without inquiring into the merits of the dispute, will summarily grant an order for restoration of possession to the applicant as soon as he has proved two facts, namely that he was in possession and that he has been despoiled of possession by the respondent. A spoliation order is the final determination of the immediate right of possession. Because it is a final order, it is not enough to make out a prima facie case. The entitlement to the order must be proved on a balance of probabilities. Discretion and considerations of convenience do not enter the question. It is available to a person who is making physical use of the property to the extent that he derives a benefit from such use; and b) is deprived of such use and benefit by a third person. Mohapi v Mohapi LAC (1980-1984) 193 at 195 B-E, Mbangamthi Mbangamthi & Others LAC (2005-2006) 295 at 301, Khabo v Khabo C of A(CIV) 72/18, Makowitz v Loewenthal 1982 (3) SA 758 (A), Rosebuch v Rosebuch 1975(1) SA 181(W) at 183A-B.
- In Universal Engineering (Pty) Ltd v Deputy Sheriff CIV/APN/253/92 it was held that once the Court is persuaded that the party complaining of having been despoiled has made out its case, the order that ensues thereon is final and there is no procedure whereby the rule or an order granted can be subject to further application by way of what happens in ordinary motion proceedings in which case the order given there is in the nature of an interim order which would be subject to subsequent hearing before finality is reached. In spoliation, once the party bringing spoliation proceedings has made a good case, that is the end of the matter, so as party who is aggrieved by an order given under such circumstances, has got only one option, to sue.
- It is clear therefore that spoliation is by its nature a final order on the question of immediate possession. The next issue to be addressed is whether it was proper to issue such a final relief as well as the interim interdicts without notice to the applicants. Before I do so, it is important to first outline the nature, scope, purpose and procedure for granting of interim reliefs.
The Object and Scope of interim interdicts
[21] The immediate objective of an interlocutory or interim interdict is to obtain an order preserving or maintaining the status quo pending the final determination of the rights of the parties or the principal dispute between the parties. In other words, an interlocutory relief is a remedy which aims to preserve the status quo by freezing the position until the final determination of the rights of the parties or by preventing one party from doing or continuing with prejudicial conduct pending finalization of the main case between the parties. It is generally sought where there is a risk that a party to a dispute will do something calculated to cause prejudice to the other party. See Prest: Interdicts, p2. In applications for an interdict pedente lite, the court has a discretion whether to grant the application. This discretion is exercised upon consideration of all the circumstances. One such consideration is the nature of the injury which the respondent on the one hand will suffer if the application is granted should he ultimately turn out to be right, and that which the applicant, on the other hand, will suffer if the application is refused and he should ultimately turn out to be right. Where the action is a vindicatory one, an interim interdict may be granted if no damage will thereby be occasioned to the respondent. Prest: p234-235.
[22] Prest states that an interlocutory interdict is sought by way of an application. The relief that is usually sought in the application is;
- For interim interdict pending the final outcome of an action instituted or to be instituted; or
- For an interim interdict pending the final determination of the application; or
- For an interim interdict as an adjunct to a rule nisi calling upon the respondent to show cause upon the return day why the interim interdict should not remain in force pending the outcome of the main application or action (LAWSA XI para 322).
The District Land Court Rules
[23] Rules 22 up to 25 of the District Land Court Rules 2012 outline the procedure for application and granting of interim reliefs. Rule 22(1) allows the Court in certain situations to issue the order without notice to the other party. It provides that the court may grant an interim relief to one party until such time as the other party or parties may be heard. Its sub rule 2, however, is clear that if the circumstances of the case do not warrant an order ex parte, the other party must be given at least two days’ notice. It reads:
“22 (2) notwithstanding sub rule (1), the court shall give a short notice of not less than two days to the other party in matters where the court thinks that the circumstances do not warrant interim relief ex parte.
[23.1] My understanding of rule 22(1) is that an interim relief may be obtained ex parte to last for a very short amount of time or few days until the other party against whom it is issued, appears before Court and present argument for or against it.
[24] Rule 23 sets out the procedure for obtaining interim relief. It reads:
“23 (1) an application for interim relief shall be made in writing and concisely state the reason why the interim relief is sought as a matter of urgency.
(2) Applications for interim relief on matters arising before filing originating applications shall be included in the originating application for final relief.
(3) Applications for interim relief on matters arising after the filing of originating applications or appeal shall be made in writing and submitted to the registry of the court.”
[25] Rule 24 deals with the interlocutory relief and permits the Court to grant an interlocutory relief pending its final decision. Rule 25 (4) enjoins the Court to hear applications for interlocutory relief on more than 7 days’ notice, or as the Chief Justice may direct.
[26] It is implicit in rules 22 (2) and rule 25 (4) that due to the onerous nature of interlocutory interdicts and their serious consequences, an applicant is generally required to give notice to the other side to ensure fairness to both sides.
Issuing the order without hearing the applicants
[27] It is a fundamental principle of our law that the Court will not make a final order that may prejudice the rights of a person without notice to him. In Khaketla v Malahleha & Others LAC (1990-1995) 275 at 280, Ackermann JA frowned upon the practice of seeking and granting orders without notice to the opposing party, and stated that this principle of procedural justice (audi alteram partem) may be departed from in exceptional cases such as where there is a reasonable likelihood that notice to the opposing party would enable him to defeat or render nugatory the relief sought or precipitate the very harm which the applicant is seeking to avert. See also Network Videos (Pty) Ltd v Universal City Studios Inc and others where De Kock AJP (then) puts it as follows:
“It is a fundamental principle of our law that a court will not normally grant an order which may directly affect the rights of a person and involve far- reaching consequences to him without giving that person an opportunity of
being heard.”
[28] This principle has found expression in a rule of practice that in ex parte applications brought without notice the court will order a rule nisi to issue where the rights of other persons may be affected by the order sought. The matter is put thus in Herbstein and Van Winsen the Civil Practice of the Superior Courts of South Africa 3rd ed at 89:
“It has already been pointed out that where an application is brought ex parte, but the rights of other persons may be affected by the order, the Court will not make out an order but will grant what is called a ‘rule nisi’…. This is an order directed to a particular person or persons calling upon them to appear in court on a certain fixed date to show cause why the rule should not be made obsolete; or in other words, why the court should not grant a final order in a proper case, e.g. on application for an urgent interdict, the court may grant interim relief by ordering that the rule nisi shall operate as a temporary interdict.”
[29] See also Clegg v Priestly 1985 (3) SA 950 (W) at 954. And also Maseko v Soere CIV/APN/242/97 where it was held that it is not competent for the applicant to obtain a final order of restoration without seeking a rule nisi to afford hearing to the respondent.
[30] Silberberg and Schoeman in their work: The Law of Property (3rd ed) p134 also state that the mere fact that the matter is one of spoliation does not render it urgent. They stated that:
“The expeditious nature of the mandament must however, not be seen out of context. The mere fact that the application is one of mandament does not automatically imply that the matter becomes one of urgency. A final order will not be granted ex parte. The respondent will be served with a rule nisi ordering him to show cause why he should not be ordered to restore possession at a future date. Usually, the rule is made to operate as an interim interdict restraining the respondent from alienating the thing.”
[31] In National Director of Public Prosecutions v Walsh and Others 2002 (1) SA CR 603 (T) the Court stated that a rule nisi is an unusual indulgence to the applicant as it permits him/her to exceptionally condemn the unheard respondent in their absence. Because such practice goes against the general grains of fairness in the Judicial process, the orders of this nature should be strictly temporary and for a fixed limited duration.
[32] It seems to me that although rule 22 of the District Land Court Rules permits the Court to grant immediate relief even though other persons may be affected by the order, the order must be temporary in nature and for a fixed period to afford hearing to the respondent. The rule of practice discussed above should therefore be followed and applied where orders are sought ex parte.
Granting a final order without hearing evidence
[33] I turn now to consider to the applicant’s contention that an originating application does not contain evidence and for this reason, the court irregularly issued a final order without hearing evidence. Advocate Letuka relied on Motumi v Shale (supra), Likotsi Civic Association and others (supra), Mofoka v Ntsane (supra) for this proposition. To address the validity of this argument, it is perhaps necessary to briefly discuss these cases.
[34] In Mofoka v Ntsane(supra) the Court held that it is not appropriate to enter default judgment without hearing evidence. This conclusion was based on the Court’s interpretation of rule 22 of the Land Court Rules which permits the court to grant default judgment for the applicant where the respondent fails to appear. It read this rule in conjunction with rules 71 and 72 which require the leading of sworn evidence in respect of facts contained in the originating application, the answer as well as the annexures or list of witnesses that may have been attached to the originating application.
[35] In Likotsi Civic Association points in limine were raised including lack of locus standi. Without hearing evidence, the Land Court summarily on the papers upheld the points and dismissed the application. The Court of Appeal disapproved the approach, stating that it undesirable to summarily deal with the points in limine where a dispute of fact on issues such as whether a person has title to land is discernible. It stated that the procedure contemplated in Rule 64 must be followed because it is at the first hearing that any dispute of fact may be detected.
[36] In Motumi v shale, the Land Court there granted reliefs set out in the originating application without hearing evidence. The Court of Appeal endorsed the approach adopted in the two other cases mentioned above. It held that summary dismissal of cases in the Land Courts, without trial, is not contemplated by the Rules of this Court because the proceedings before this Court are sui generis and inquisitorial as stated in Lehlohonolo Masupha v Meisi Nkoe C of A (CIV) 42/16.
[37] It is implicit in these authorities that summary dismissal of cases where a dispute of fact is real is not sanctioned by the Land Courts’ rules. The matter must proceed to trial. It has been further held in Motumi v Shale that the procedures in the Land Court are similar to those of the Labour Court. The originating application in both courts is the equivalent of a notice of motion and a declaration. The originating application and the answer are pleadings, by definition of their purpose. In Komane and another v City Express Stores (Pty) Ltd LAC/CIV/A/5/2002 Mosito P (then AJ) describes the nature of the originating application as follows:
“[6] Although the Labour court Proceedings have been held not to be a civil cause or civil action, the originating application in the Labour Court is the equivalent of summons and declaration in trial action or notice of motion and founding affidavit in motion procedure, while the answer is the equivalent of a plea in trial action or an answering(opposing) affidavit in motion procedure. The originating application in fact doubles up as both summons and declaration, and a notice of motion and founding affidavit”.
[38] In light of these authorities, the learned Magistrate clearly committed an irregularity by issuing a final order(spoliation) without hearing the applicants herein. Had notice been given to the applicants or at least a rule nisi issued, they could have placed their views for or against the granting of the impugned order. I cannot, however, determine the correctness of the decision or whether the requirements of spoliation were proved on a balance of probabilities as required by law because before me is not an appeal against the spoliation order.
[39] What therefore remains is the question whether based on the procedural irregularities stated above, this Court must interfere with the proceedings a quo.
Should this court interfere with unterminated proceedings?
[40] It will be recalled that the spoliation relief was clubbed together with the interim interdicts against registration of the disputed land by applicants herein as well as its disposal. It follows that the principles governing appealability and revivability of interim orders also come into play. The question to be decided is whether piecemeal adjudication of the matter/dispute between the parties is desirable.
[41] It is trite that for an order to be susceptible to appeal, “the decision must be final in effect and not susceptible to alteration by the court of first instance, it must be definitive of the rights of the parties, and it must have the effect of disposing of at least a substantial portion of the relief claimed in the proceedings”. See Zweni v Minister of Law and Order 1993 (1) SA 523 (A) where the Supreme Court of Appeal held that in determining whether to grant leave to appeal, the court must consider whether allowing the appeal would lead to piecemeal adjudication and prolong the litigation leading to wasteful use of judicial resources.
[42] It has further been held that the interests of justice are paramount in assessing the appealability of an interim order. In National Treasury and others v Opposition to Urban Tolling Alliance and others [2012] ZACC 18; 2012 (6) 223 (CC), the Constitutional Court of South Africa held that although it is important to consider whether an interim order has a final effect or disposes of a substantial portion of the relief sought in a pending review, it is just as important to consider whether the “harm that flows from the interim order is serious, immediate, ongoing and irreparable”.
[43] Our courts have, in numerous cases, also held that the court will only interfere in pending proceedings in the lower courts in cases of great rarity, where grave injustice threatens, and where intervention is necessary to attain justice. See Director of Public Prosecutions v Taole and others LAC (2011-2012) 11, Mda and another v DPP LAC (2000-2004) 950.
[44] The ‘interests of justice’ standard will inevitably involve a consideration of irreparable harm. As it was held in Machele and others v Mailula and others [2009] ZA CC 7: 2010 (2) SA 257 (CC) to appeal an interim order successfully, an applicant will have to show that it will suffer irreparable harm if the interim appeal is not granted. Farlam JA stated in DPP v Taole(supra) that it is not in the interests of justice for the appellate court to exercise any power upon the unterminated course of criminal proceedings except in rare cases where grave injustice might otherwise result or when justice might not by other means be attained.
Conclusion
[45] All things considered, I conclude that although the applicants ought to have been heard before the granting of the impugned orders, no irreparable harm or grave injustice is likely to occur should the orders remain unaltered until the title dispute between the parties is determined. The interests of justice would not be served by allowing partial review of the spoliation order. It is undesirable to single it out from the other reliefs granted in the Court below and set it aside to be considered afresh by that Court. To do so would amount to piecemeal adjudication of orders, an approach that is not only expensive to the parties but will also prolong the litigation resulting in wasteful use of judicial resources. I therefore conclude that this is not one of those rare cases where grave injustice would result or where unusual circumstances call for intervention of unterminated proceedings.
Order
[46] In the result, the application is dismissed with no order of costs.
______________________
P. BANYANE
JUDGE
For Applicants : Adv. Letuka
For Respondents : Adv. Masoeu