HIGH COURT OF LESOTHO
KHOMO MOKHUTLE N.O. PLAINTIFF
(PTY) LIMITED 1ST DEFENDANT
COMMISSIONER OF LANDS AND SURVEY 2ND DEFENDANT
OF DEEDS 3RD DEFENDANT
ATTORNEY GENERAL 4TH DEFENDANT
JOYCE TSEPPE 5TH DEFENDANT
by the Honourable Chief Justice Mr. Justice J.L. Kheola on the 2nd
day of February. 2000.
an exception by the first and fifth defendants in terms of Rule 29 of
the High Court Rules 1980 to the summons of the plaintiff. The
exception is based on the following grounds:
"1.1 No basis in law or in fact is advanced for the claim that
annexure "D" was "granted and issued upon and after
false and/or incorrect 'facts'
and/or documents were submitted to second and/or third defendants by
the late 'Mamileng Mosethi Ana Mokhutli..."
allegation that the "... exact nature of the said false and/or
incorrect 'facts' and/or documents.... are not known to plaintiff'
clearly establishes the absence of any cause of action on the part of
basis in law or in fact has been advanced in support of the
allegations in paragraphs 12.3 and 12.4.
is no basis in law or in fact for the allegation in paragraph 13 that
'Mamileng Mosethi Anna Mokhutli could not have passed or transferred
any rights to the property simply because no executor has allegedly
been appointed to administer her estate.
is no basis in law or in fact advanced in support of the allegation
in paragraph 14.3 that there were no grounds or iusta cause for and
in favour of Mantebaleng Adelinah Mokhutle to obtain any rights to
the property in dispute and that 3rd defendant could not, in
consequences, register a lease in her favour.
is no basis in law or in fact advanced in support of the allegation
in paragraphs 14.4 and 14.5 that because no executor has allegedly
been appointed to administer her estate the late Mantebaleng Adelinah
Mokhutle could not have passed or transferred any rights to the
property in dispute and that the lease of the same to 1st defendant
is unlawful or flawed.
particulars of claim the plaintiff states that he is a citizen of
Lesotho. His father is the late Frank Moeti Mokhutle who died on the
18th January, 1969. On the 19th June 1968, the third defendant duly
registered a binding and proper certificate of title to occupy and
certificate of registered title to immovable property with reference
number 5601 A to and in favour of Frank Moeti Mokhutle (the deceased)
in respect of certain immovable properties situated and known and
described as site numbers 36 and 37 Cathedral (Pitso Area) Maseru.
common cause that on the 1st July, 1998 the plaintiff was appointed
executor of the deceased estate of the late Frank Moeti Mokhutle. The
plaintiff has stated that before his appointment as executor of his
late father's estate no
executor was ever appointed. He alleges that as the eldest son of the
late Frank Moeti Mokhutle he is the heir. He sues in his capacity as
the executor and heir of the property in question. He alleges that
because no executor was ever appointed before his own appointment as
such, the distribution of the deceased estate could never have been
common cause that on the 22nd May, 1984 the second defendant issued a
lease in terms of the Land Act of 1979, in respect of the same
property in favour of a certain 'Mamileng Mosethi Anna Mokhutle. The
lease was registered by third respondent as lease NO. 13283-232.
Plaintiff alleges that as far as he can ascertain no executor has
been appointed to wind up the deceased estate of 'Mamileng Mosethi
Anna Mokhutle who died a few years ago.
plaintiff alleges that the said certificate of lease was granted and
issued upon and after false and/or incorrect facts and/or documents
were submitted to second and/or third defendants by the late
'Mamileng Mosethi Anna Mokhutle in order to move and convince second
and/or third defendants to issue and register the said lease
agreement in respect of the said property to the said 'Mamileng
Mosethi Anna Mokhutle.
plaintiff alleges that the exact nature of the said false and/or
incorrect facts and/or documents which were submitted to second
and/or third defendants in order to convince them to grant the said
rights and register the said lease are not at this time known to
plaintiff. There were consequently no grounds or iusta causa for and
in favour of the late 'Mamileng Mosethi Anna Mokhutle to obtain any
rights to the relevant property and the only lawful rights to the
property vest in the estate of the deceased's estate and now, in the
plaintiff in his capacity as executor of the deceased's estate.
27th September, 1996 and after the death of 'Mamileng Mosethi Anna
Mokhutle a certain 'Mantebaleng Adelinah Mokhutle entered into a
written agreement of sublease with the first defendant in the present
case in respect of the relevant property. Second defendant consented
to the above sublease on the 20th March, 1997 whilst third defendant
registered the sublease agreement on the 2nd June, 1997 under
v. Borehole Drillers, 1949 (2) S.A. 366 (A) 374 it was held that "It
is the duty of the Court, when an exception is taken to a pleading,
first to see if there is a point of law to be decided, which will
dispose of the case in whole or in part. If there is not, then it
must see if there
embarrassment, which is real and such as cannot be met by the asking
of particulars, as the result of the faults in pleading to which
exception is taken. And, unless the excipient can satisfy the Court
that there is such a point of law or such embarrassment, then the
exception must be dismissed."
Wessels submitted that the plaintiff has primarily sued in his
capacity as executor in the deceased estate of his late father. It is
his duty to take custody of the property of the deceased in respect
whereof he has been appointed and "the executor has the same and
no greater right to repossession than the deceased himself had".
D. Meyerrowitz: The Law and Practice of Administration of Estate, 5th
Edit., p. 108.
submitted that the plaintiff also has an interest and vested right in
the relevant property.
position under our modem system of administering deceased estates is
that when a testator bequeaths property to a legatee, the latter does
not acquire the dominium in the property immediately on the death of
the testator, but what he does acquire is a vested right to
from the testator's executors' at some future date, delivery of the
legacy, i.e. after confirmation of the liquidation and distribution
account in the estate of the testator. If, for instance, immovable
property is bequeathed to a legatee, he acquires a vested right at
the death of the testator but he does not acquire the dominium in
that property until it is transferred to him by the executor."
See Greenberg and Others v. Estate Greenberg, 1955 (3) S A 361 A.D.
at 364 G.
v. Borehole Drillers - supra - it was held that "it is the duty
of the Court, when an exception is taken to a pleading, first to see
if there is a point of law to be decided which will dispose of the
case in whole or in part." It is now pertinent to consider
whether in the present case there is such a point of law.
35(3) of The Land Act 1979 provides that -In the event a lessee dying
the lessee qualifies thereunder the disposition of his estate shall
be governed by the written law relating to succession; or
the lessee does not qualify under paragraph (a), section 8(2) and
(3) shall apply as if he were an allottee and the Commissioner
thereupon request the Registrar of Deeds to endorse any registered
lease or other registered document of title accordingly."
(2) reads as follows:
Notwithstanding subsection (1), where an allottee of land dies, the
interest of that allotted passes to,
there is a widow - the widow is given the same rights in relation to
the land as her deceased husband but in the case of re-marriage the
land shall not form part of any community property and, where a
widow re-marries, on the widow's death, title shall pass to the
person referred to in paragraph (c);
there is no widow - a person designated by the deceased allottee;
paragraphs (a) and (b) do not apply - a person nominated as the heir
of the deceased allottee by the surviving members of the deceased
Wessels submitted that the plaintiff's claim is simple. He alleges
that, since the deceased became the registered owner of the immovable
property, had been such at the time of his death and since no
executor had been appointed for his estate, the rights which he had
obtained and possessed at the time of his death, could not, lawfully,
have been passed to the relevant persons, in particular, 'Mamileng
Mosethi Anna Mokhutle; therefore and since the later deed was issued,
the later deed must have been obtained, granted and issued upon and
after false and/or incorrect facts and/or documents were submitted to
second and/or third defendants.
Wessels seems to be under the impression that unless an executor is
appointed immovable property/land which forms part of a deceased
estate, cannot be distributed or transferred. This perception is not
in accordance with the law. Section 35 (3) of The Land Act 1979 makes
it clear that if the lessee qualifies the disposition of his estate
shall be governed by the written law relating to succession. The law
of succession appears in Section 8 (2) of The Land Act as stated
above. Under Section 8 (2) (a) when the allottee dies the interest in
the land passes to the widow. In the present case we know that the
mother of the plaintiff was divorced before the deceased died. For
that reason there was no widow when the deceased died. Under Section
8 (2) (b) it is provided that where there is no
the land shall pass to a person designated by the deceased allottee.
plaintiff has not made any proper inquiries at the Law Office to find
out under what circumstances the title to the property in question
was transferred to 'Mamileng Mosethe Anna Mokhutle. Was 'Mamileng not
designated by the late father of the plaintiff? Such information is
readily available at the Law Office (Deeds Registry Section). Section
8 (2) (c) provides that where 8 (2)(a) and 8(2)(b) do not apply the
property shall be transferred to a person nominated as heir of the
deceased allottee by the surviving members of the deceased allottee's
family. There is no indication whatsoever that the plaintiff was so
to me that after the death of his father the plaintiff disinherited
himself or failed to claim his right for about thirty years. In 1992
the Land Act 1979 was amended by Order No. 6 of 92 which provides
that where there is a widow the rights of the deceased allottee pass
to her, where there is no widow the rights pass to a person
designated by the deceased allottee. Where there is neither a widow
nor a person designated by the allottee the rights pass to a person
nominated as the heir by the surviving members of the deceased
allottee's family. It is most probable that 'Mamileng Mosethi Anna
Mokhutle was so nominated.
ground for the exception is that
"no basis in law or in fact is advanced for the claim that
Annexure "D" was granted and issued upon and after false
and/or incorrect facts and/or documents were submitted to second
and/or third defendants by the late 'Mamileng Mosethi Anna Mokhutli."
already stated above that the availability of documents supporting
the issue or granting of Annexure "D" is not a problem
because they are kept by the Law Office. The plaintiff would have no
difficulty to obtain them. He would not be speculating that false or
incorrect documents were submitted to second and/or third defendants
by 'Mamileng before Annexure "D" was issued. The question
is whether without the production of such documents it can be said
that the plaintiff's particulars of claim disclose a cause of action.
The answer is obviously in the negative. These documents form the
very basis of the plaintiff's case and without them it cannot be said
that his particulars of claim disclose a cause of action. He actually
confesses that the exact nature of the said false and/or incorrect
facts and/or documents are not known to plaintiff. I agree that this
clearly establishes the absence of any cause of action on the part of
something in this action which needs an explanation but the
has decided not to give such an explanation. His father died on the
18th January, 1968. The plaintiff did not do anything to
claim his title to the property for more than thirty years until the
1st of July, 1998 when he was appointed the executor and authorised
to administer the estate of his late father. (See Annexure "A").
I find it very strange that for thirty years after the death of his
father the plaintiff just lay low and did nothing to have himself
appointed as the executor of the deceased estate. In the mean time on
the 22nd May, 1984 'Mamileng Mosethi Anna Mokhutle was granted a
lease over the same property now in dispute. The lease was granted in
terms of section 29 of The Land Act 1979. The lease was registered
under No. 13283-232 in the Deeds Registry under the Deeds Registry
Act 1967. Section 29 reads as follows:
(1) Whenever a person to whom section 28(1) or (3) applies is
desirous of granting or creating any interest in the land held by him
or whenever section 30 or 31 applies to that person, he shall apply
to the Commissioner for the issue of a lease and shall produce with
his application: -
that he is qualified to hold land under section 6;
description of the boundaries of the land in question (by reference
to a plan or otherwise); and
one of the following documents: -
registered certificate of title issued by the Registrar of Deeds
under the Deeds Registry Act 1967;
registered deed of transfer or a certified copy thereof if the
registered deed is lost;
affidavit by the Chief or other proper authority that the applicant
lawfully uses or occupies the land;
affidavit by three persons resident for over 30 years in the
locality in which the land is situated to the effect that it is to
their personal knowledge
applicant and his predecessors have been occupying and using the land
for a period of at least 30 years.
(va) a certificate of verification of title issued by the
Commissioner or an Allocating Authority in the form "CC2"
as prescribed in the Third Schedule."
(vi) any other official document evidencing that the applicant is in
lawful occupation of the land.
upon examination of the documents produced under subsection (1), the
Commissioner is satisfied of the bona fides of the applicant, he
shall so inform the Minister and, shall cause a lease to be prepared
for issue to the applicant."
to me that the Commissioner of Lands was satisfied of the bona fides
of 'Mamileng Mosethe Anna Mokhutle that she was entitled to the grant
of a lease for the property in question. She must have produced some
of the documents prescribed in section 29. If she had failed to
produce the necessary
documents no lease would have been issued. The plaintiff in the
present case has made no attempt to obtain those documents from the
Deeds Registry but merely speculates that those documents must be
false. That speculation does not disclose any cause of action.
second ground in support of the exception is that there is no basis
in law or in fact for the allegation in paragraph 13 that 'Mamileng
Mosethe Anna Mokhutli could not have passed or transferred any rights
to the property simply because no executor has allegedly been
appointed to administer her rights. Earlier in this judgment I
pointed out that in terms of section 8 (3), 28, 29 and 35 of The Land
Act 1979 there is no need for an appointment of an executor when land
has to be transferred to a person who has to inherit the estate of a
deceased person. In other words there was no need in law that an
executor ought to have been appointed when 'Mamileng Mosethe Anna
Mokhutli died. After her death the property was passed or transferred
to one Adelina 'Mantebaleng Mokhutle who entered into a sublease
agreement with the first defendant. In that sublease agreement it is
alleged that she holds title to the property.
plaintiff confesses that he could not establish whether third
defendant registered a deed of lease in respect of the property in
favour of 'Mantebaleng
Mokhutle, but in the event this being so, it is alleged that, having
regard to the allegations set out above, third defendant could not
have registered such a lease as there were no grounds or iusta causa
for and in favour of 'Mantebaleng Adelinah Mokhutle to obtain any
rights to the relevant property. This is again mere speculation
because in the sublease it is stated that 'Mantebaleng Adelinah
Mokhutle held title to the property. Although it is not stated what
kind of title she held it can be reasonably assumed that it must have
been a lease in terms of section 28(1) of The Land Act 1979.
reasons stated above the exception is upheld. The action is dismissed
Applicant - Mr Sello
Respondent - Mr Wessels
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