African Methodist Episcopal CHurch Lesotho V Bohlokoa Tenei & 2 Others (LC/APN/0024/2024) [2025] LSHC 54 (7 March 2025)

IN THE LAND COURT OF LESOTHO

LC/APN/00024/2024

CIV/DLC/BRA/38/2022

HELD AT MASERU

In the matter between:-

AFRICAN METHODIST EPISCOPAL

CHURCH LESOTHO                                                  APPLICANT

and

BOHLOKOA TENEI                                         1^ST RESPONDENT

LEFULESELE NGATANE                                2^ND RESPONDENT

HIS WORSHIP MAGISTRATE MONETHI     3^RD RESPONDENT

Neutral citation:- African Methodist Episcopal Church vs Bohlokoa Tenei & 2 others [2024] LSHC LC 54  (07 March 2025)

CORAM                       :        JUSTICE M.P. RALEBESE

 HEARING DATE        :        20 FEBRUARY 2025

JUDGMENT                :        07 MARCH 2025

SUMMARY

Land - Application to remove proceeding from the District Land Court on the grounds of congested roll - Section 6 of the High Court Act - The judge to apply its discretion in the interest of justice to avoid delay and costs.

ANNOTATIONS

CASES

LESOTHO

Jaase & Others v Jaase & Others (CIV/APN 62; C of A (CIV) A) [2017] LSCA 5 (12 May 2017)

Jobo v Lenono and Others (C of A (CIV) 28 of 10) [2011] LSCA 2 (20 April 2011)

SOUTH AFRICA

ML Petersen v Road Accident Fund (6868/2020) [2024] ZAGPPHC 1352 (19 December 2024)

Smith v Wilson and Another1949 (3) SA 537  

OTHER JURISDICTIONS

Dr. Subramaniam Swamy v Ramakhrishma Hedge 1990 air 113, 1989 SCR Supl. (1) 469

STATUTES

High Court Act, No.5 of 1978

BOOKS

Neething, Potgieter, Visser, Law of Delict, 7^th Edition, Lexis Nexis.

JUDGMENT

          Introduction

1. This is an unopposed application for the removal of a case that is pending before Berea District Land Court (CIV/DLC/BRA/38/22) to the Land Court Division of the High Court in terms of section 6(b) of the High Court Act, No.5 of 1978 for that case to be determined by the latter court as the court of first instance.

2. Though the originating application is drafted in a rather muddled manner regarding who the parties are in the matter sought to be removed, it can be deduced that the applicant in casu is still the applicant in the District Land Court and so are the respondents. The originating papers before this court briefly, and without further details state that the matter concerns the conflicting claims over a piece of land situated at Ha Foso, Maqhaka in Berea.  

3. The pleadings have been closed in the lower court and the matter is ripe for hearing thereat. The applicant has outlined the history of the case since its inception in the District Land Court. That matter was instituted in the lower court on 03^rd August 2022 and an interim relief and rule nisi, which is still operative, was granted on 10^th August 2022. The matter was initially set to proceed on  30^th August 2022 but it was postponed to 12^th October 2022 firstly because one of the parties had requested further particulars a few days before the hearing date; and secondly because one of the parties, who has not been defined, had filed an application to amend. On 12^th October 2022, the matter could not proceed because the Magistrate seized with it was attending a workshop. It was rescheduled for 29^th November 2022. On that date, the matter could not proceed because the Magistrate was presiding over a criminal trial. The next hearing date was set as 9^th March 2023, but the date had to be changed because, in January 2023, the Berea Magistrate Court announced that it was going to prioritise  and proceed with criminal matters in the first half of March 2023.

4. The matter was rescheduled to proceed on 23^rd May 2023 but it did not proceed for reasons that are not stated. Though stated in an equivocal manner, it appears that the applicant obtained a default judgment on 1^st July 2024 but the circumstances under which it was granted have not been disclosed. Consequent to that, the respondent lodged a review application in this Court on 23^rd July 2024 but it was withdrawn on 22^nd October 2024 after the respondents had lodged the rescission application in the lower court. The lower court granted the rescission application on 21^st November 2024 and the matter was set down to proceed on 18, 19, and 20 November 2024. The matter did not proceed on those dates for reasons that are not stated. It was again scheduled to proceed on 24^th and 25^th February 2025 and while awaiting this date, the instant application was filed on 05^th December 2024. The instant application was heard on 20^th February 2025 and the judgment was reserved until 07^th March 2025. The applicant’s counsel reported from the bar on 07^th March 2025 that the matter did not proceed at the lower court because of this pending application. 

5. The applicant's basis for seeking removal of the case from the District Land Court to this court is that there is a necessity for the urgent disposal of the matter as the dispute between the parties is holding up the fate of the 'shopping mall development project' which the applicant had already commenced on the disputed site when the application was instituted in the lower court. The applicant contends that the shopping mall project is funded by external developers who are eager to know the fate of the case and that necessitates an urgent disposal of the matter.

6.  The applicant’s case is that an expedited hearing of the matter in the District Land Court is most unlikely because the Senior Resident Magistrate (3^rd respondent) who is seized with the matter, being the only one authorised to handle the land matters, also presides over other matters including criminal cases which are invariably prioritised  over civil matters.  It is the applicant’s case further that given the backlog of cases at Berea Magistrate Court and the fact that civil matters keep on being deferred to give way for criminal matters the disposal of the case in the lower court is most likely to be delayed.

7. The applicant argues that the matter has been postponed on several occasions and there are no prospects of it being expeditiously disposed due to the congested rolls of the 3^rd respondent. The applicant submits that the removal of the case from the lower court will afford both parties justice as it will guarantee the expeditious disposal of the matter. It is the applicant’s case that the 1^st and 2^nd respondents stand to suffer no prejudice should the matter be transferred.

The Issue

8. The issues to be determined by this court is whether a transfer of a case from the lower court of competent jurisdiction to this court is permissible on account of the congested rolls of the lower court. 

Analysis

9. Section 6(b) of the High Court Act provides that:-

“No civil cause or action within the jurisdiction of a subordinate court (which expression includes a local or central court) shall be instituted in or removed into the High Court, save—

(a)by a judge of the High Court acting of his own motion; or

(b)with the leave of a judge upon application made to him in Chambers, and after notice to the other party”

This section empowers the High Court to order the removal of a lawsuit from the lower court, but it is silent on the considerations that must be taken into account before a suit can be so removed. This means that the decision to order the removal of a case to the High Court is left in the discretion of the judge after consideration of the particular circumstances of the case sought to be removed.

10. In Jobo v Lenono and Others[1], the Court of Appeal intimated that some of the considerations by the judge in the exercise of the discretion under section 6 of the High Court Act include the interests of administration of justice, the necessity for expeditious resolution of cases and the absence of prejudice to any of the parties. The court said:-

“The proper administration of justice requires that the High Court      exercises its powers in a manner which will resolve disputes      between parties as expeditiously as circumstances permit. Where it is legitimately within his or her power to do so, a trial judge should         act in a way which will prevent unnecessary delay in the resolution     of such Disputes. Where a judge may legitimately assume   jurisdiction, and can do so without prejudice to the parties, he or    she should not hesitate to do so in the interests of the           administration of justice.”

11. In Jaase & Others v Jaase & Others[2], the Court of Appeal indicated further that avoidance of unnecessary costs for the litigants should be another consideration in the exercise of discretion under section 6 of the High Court Act.  While it endorsed the High Court's exercise of its discretion to have assumed jurisdiction in a matter that otherwise fell within the purview of the Magistrate Court, the Court of Appeal said:-

“The cause of action and the nature of the relief  sought called upon       the judge to exercise his powers and resolve the dispute between the      parties without delay and unnecessary additional costs. That, to my       mind, was a “proper and responsible” exercise of his powers under s         6(a) of the Act.”

12. The Indian court[3] while commenting on their provision on removal of cases from one forum to the other indicated that the paramount consideration must be the requirements of justice. The court stated that the mere convenience of the parties or any of them may not be enough to justify the removal. The judge should be satisfied that proceeding with the case within the chosen forum can lead to denial of justice and that the transfer is imperative in view of the demands and the ends of justice, so the court held.

13. In the South African case of Smith v Wilson and Another[4] the applicant who was similarly circumstanced as the applicant in casu applied for the removal of his case from the Durban and  Coastal Local Division to the Provincial Division on the grounds that the roll in the Local Division was full with the result that it was not possible for the case to be heard earlier than March of the following year whereas the transfer meant the case could be enrolled in August the same year. The application was opposed, amongst others, on the grounds that the removal was inconvenient to the respondents and the witnesses in terms of the logistics and costs implications. In permitting the removal, the court reasoned that prompt settlement of the dispute was in the best interest of the parties and that it was in the interest of the State that litigation be expeditiously brought to finality.  The judge stated that it would require very strong considerations of inconvenience and expense to deny a matter to be heard in August and hold it over to be heard in March the following year.

14.  In another South African case of ML Petersen v Road Accident Fund[5] the applicant sought to have a matter removed from that court and transferred to another on account of a congested roll. The judge denied the application and held that transferring a case simply based on congested rolls cannot be a solution. While the Judge acknowledged that it was in the interest of justice that cases should not be outstanding for unreasonably long periods, he cautioned against attempting to resolve fundamental human resource problems like shortage of judges by allowing transfer of cases because if that was to be done based simply on congested rolls, then the court they were seeking to move to could also get congested. The judge therein emphasised the convenience of the court, the parties, and the witnesses, as well as the general disposal of litigation as important considerations in deciding whether to transfer a case. 

15.  Following the foregoing discussion, it is safe to say that the decision to transfer a matter in cases such as the one at hand ultimately requires a judge to exercise judicious discretion after weighing all the relevant considerations. The court should consider the peculiar facts of the case before it and avoid any potential prejudice that the parties might suffer from having the case heard in an initially chosen forum. The court should endeavour to further the interests of justice, which are served by, among other things, efficient and speedy resolution of disputes.

16. An application to remove a case to this court should not be  made apropos of nothing. It must be grounded upon an acceptable, relevant and material factual matrix justifying the requested removal and transfer.

Disposition

17. I agree with the learned judge in ML Petersen v Road Accident Fund[6] that simply granting the transfer of a case due to a congested roll cannot be the ultimate solution. That practice can have dire consequences in the long run because it can lead to the lower courts abdicating the responsibility to efficiently manage the congested rolls with the hope that matters will invariably be removed to the High Court. Within the context of the instant case, the request for removal premised solely on the congested roll of the District Land Court can eventually burden the Land Court which is already inundated with a huge roll. The Magistrates manning the District Land Courts should bear in mind that the purpose for which the specialised land courts were established was, amongst others, to ensure the efficient and speedy resolution of land disputes. While it is true that these Magistrates also preside over other criminal and civil cases, they should plan and manage the generalised rolls while bearing in mind that land matters should be prioritised.

18.  The case sought to be transferred in casu is uniquely circumstanced as its determination is holding up the fate of the shopping mall project whose preparations had already commenced but were halted pending finalisation of the dispute between the parties. The project is funded by third party investors who have already secured loans for that purpose. That the case should be expeditiously resolved cannot be overemphasised. The case sought to be transferred was instituted as far back as August 2022.  Given the history of that matter from the time it was instituted, it is my considered view that denying the application and leaving the matter to be heard by the lower court will not only cause further delays to its disposal, but will further burden the parties with costs.  In view of the peculiar circumstances of the case at hand, and the need for its urgent resolution, leaving it to be resolved by the District Land Court will not serve the ends of justice. By this decision, I should not be understood  to say that cases can be transferred from the lower courts to the High Court solely on the grounds of congested rolls. A party seeking the transfer and removal of a case to the High Court must put forth facts and circumstances to make a proper case justifying the removal and transfer. The case now under consideration is holding up the fate of a shopping mall project and this calls for its expeditious resolution. Given the history of this case and how it has been dragging, it will not be in the best interest of justice to leave it to be determined by the court that is currently seized with it, as there is a high likelihood of its delayed disposal. 

19.  It is on the foregoing considerations that I exercise my discretion, in the interest of the speedy resolution of the dispute at hand and allow the removal of CIV/DLC/BRA/38/2022 to this court.   

______________________

RALEBESE J.

For Applicant:  Mrs. Phafane

For the Respondents: Advocate Mafatle