HIGH COURT OF LESOTHO
CITY COUNCIL APPLICANT
by the Honourable Mr. Justice MM. Ramodibedi On the 12th day of
no doubt be convenient if I start this judgment by stating at the
outset that the instant application which is brought on a certificate
of urgency and which principally involves an interdict is flawed in
many ways than one as will become clear in the course of this
judgment. Suffice it to say at the outset that there are no averments
in the founding affidavit to set out the basic facts such as the
locus standi and full particulars and identity of the Applicant as
well as whether it has a clear right to sue. Indeed no attempt is
made to describe the Applicant at all and to show that it is capable
or being sued in its own name. The founding affidavit is indeed so
and lacking in essential detail that it must reflect badly on the
legal practitioner who drafted it and in that regard it is convenient
, I think, to reproduce it in full. It simply reads:-
PAUL 'MATLI QOBO
make oath and say,
I am the
Town Clerk and Chief Executive of Maseru city Council currently
appointed as an Interim Town Clerk in terms of the urban government
Act of 1983.
deposed to herein are within my personal knowledge and are, unless
the context otherwise indicates, to the best of my belief and
recollection true and correct.
respondent is a certain Company called DLAMINI HOLDINGS (PTY) LTD
belonging to one Mr. Makhoza Dlamini of Lithabaneng Ha Keiso Maseru
that around the end of July or thereabout the Respondent started
digging trenches within the road reserve area at Lekhaloaneng next to
the Thamae / Lekhaloaneng robots.
also that the Respondent does not have a planning permit, a building
permit or a lease for this particular area it is developing.
unacceptable and contrary to the laws of this land: One cannot just
grab vacant (sic). Land and use it the way he pleases.
the fact that the building authority reprimanded Dlamini Holdings by
the letter of the 4th of August, 2000 and the roads Branch also did
the same on the 10th August, 2000 the Respondent is still continuing
to carry on with the works on (sic) this area. (See annexure marked
MC1 and MC2).
making this affidavit in support of the prayers outlined in the
notice of motion.
the Respondent has raised the following points in limine, inter alia
(in view of the conclusion at which I have arrived hereunder it is
strictly not necessary to traverse all the points):-
of urgency shown in the affidavit;
of fact relating to the alleged digging of trenches at the time of
of clear right shown for an interdict.
hearing of the matter before me on the 7th November 2001 I directed
that the points in limine be argued together with the merits of the
application more especially as the point relating to a clear right in
effect involves the merits of an application for an interdict in the
normal course of events. It is an essential requisite which must be
established before an interdict may be granted.
leading case of Setlogelo v Setlogelo 1914 A.D. 221 at p 227.
apparent from the founding affidavit no attempt was made at all to
show that the application was one that called for urgent relief.
This, it must be said, is in total disregard of the peremptory
provisions of Rule 8 (22) (b) of the High Court Rules which provides
"ln any petition or affidavit filed in support of an urgent
application, the applicant shall set forth in detail the
circumstances which he avers render the application urgent and also
the reasons why he claims that he could not be afforded substantial
relief in an (sic) hearing in due course if the periods presented by
this Rule were followed."
follows from a proper reading of the above quoted Rule that the
Applicant in an urgent application is obliged to disclose in his
founding affidavit the circumstances upon which he relies as
rendering the application urgent and also the reasons why he claims
he cannot be afforded substantial redress at a hearing in due course.
This was not done and I consider that in the particular circumstances
of the case the omission must be fatal. The Rule was in my view
clearly abused. On this ground alone this application stands to be
Applicant must count itself lucky that it fortuitously managed to
obtain a Rule Nisi or an ex parte order at all in the first place on
such sketchy and/or indeed totally inadequate papers as these. In the
process the Applicant was unfairly allowed to jump the queue of
litigants awaiting disposal of their cases. Thus I perceive prejudice
in a number of ways.
next with the point relating to a dispute of fact about whether the
Respondent was digging trenches as the Applicant alleges at the time
when the application was launched. It will be recalled that this
allegation is contained in paragraphs 4 and 7 of the founding
affidavit of Paul 'Matli Qobo as fully set out above. Now that
allegation is hotly disputed in paragraphs 6 and 8 of the opposing
affidavit of Makhoza Malunga Dlamini who avers that by the time the
application was launched the digging of the trenches had "long
ceased" or stopped in July 2000.
of addressing issuably the Respondent's averment that the digging had
long ceased at the time of the launching of the application the
Applicant merely stated the following in paragraph 2 of the replying
affidavit of Paul 'Matli Qobo:-
"If the digging of trenches or works on the site had long ceased
why is this application being opposed?"
thus come to the conclusion that the Respondent's averment in this
regard is not seriously disputed and I accordingly proceed on the
basis of the correctness thereof. There is a wealth of authority in
support of this approach.
example Plascon-Evans Paints v Van RiebeeckPaints 1984 (3) SA 623
A.D. at 634-635.
University of Lesotho Students Union v National University of Lesotho
and Others 1993-1994 LLR-LB 87 at p. 108.
Furnishers (Pty) Ltd. & Another v Letlafuoa Hlasoa Molapo
1995-1996 LLR-LB 377 at p. 381.
arrived at the conclusion that by the time the application was
launched the Respondent had long ceased or stopped the trenches as I
hereby do the question therefore becomes: was the Applicant justified
in bringing the application at the time when it did and more so on
the basis of urgency? In my view the answer must be in the negative.
On this ground alone the application falls to be dismissed.
requisites of an interdict as stated in Setlogelo v Setlogelo. supra,
per Innes J.A., at p. 227 are a clear right, injury actually
committed or reasonably apprehended , and the absence of similar
protection by another ordinary remedy.
As I read
the sketchy founding affidavit of Paul 'Matli Qobo I am driven to the
inevitable conclusion that no attempt was made to establish the
Applicant's clear right for an interdict. The result is that the
Applicant, in my view, has not discharged the onus of establishing
its entitlement for an interdict by virtue of its failure to show
that it has a clear right.
Mohlomi for the Applicant has argued the case before me apparently on
the assumption that the Court knows the jurisdictional limits of the
Applicant. That is not a correct approach. Being a creature of
statute the onus is obviously on the Applicant to prove the extent of
its area of jurisdiction. That can never be the task of the Court and
even though I was referred to Legal Notice No.76 of 1987 which
defines the area of jurisdiction of the Applicant nowhere is mention
made in the Legal Notice about the area where the trenches were dug
be noted that the Legal Notice No. 76 of 1987 referred to above was
itself passed in exercise of the powers conferred on the Minister of
Local Government by Section 4 (1) (c) of the Urban Government Act
1983 which reads as follows :-
(1) Subject to this section, the Minister may, by notice in the
the boundaries of any municipality and alter such boundaries."
clear, in my view therefore, that a municipality cannot claim
jurisdiction over the whole country but is confined to boundaries
defined by the Minister. Accordingly it is salutary, in my view, for
a party claiming jurisdiction in a municipality to establish that it
falls within the area defined as such by the Minister. This the
Applicant failed to do. I consider that this is fatal in the
circumstances of this case.
it is strictly not necessary to go further, it is nevertheless useful
to point out that planning and building permits are governed by the
Town and Country Planning Act 1980. In this regard, although the
Applicant complains that the Respondent does 10 not have a planning
permit, a building permit or lease for the area in question it must
be noted that the Town and Country Planning Act 1980 only applies to
an area designated by the Minister by notice in the Gazette. This is
so in terms of Section 2 of the Act which provides as follows :-
"2 This Act shall apply to any area designated by the Minister
by notice in the Gazette." (Emphasis added).
Now as I
read the founding affidavit of Paul 'Matli Qobo as fully set out
above, I can find nothing even remotely suggesting that the area of
Lekhaloaneng was designated by the Minister for the purposes of town
and country planning within the meaning of the Town and Country
Planning Act 1980.
the Applicant's locus standi to deal with town and country planning
issues reliance was made in argument before me on legal notice No. 53
of 1994 which was issued by the acting Commissioner of Lands in his
capacity as the Planning Authority in the following terms:-
NOTICE NO. 53 OF 1994
Delegation of Development Control Functions
to the Maseru City Council Notice 1994
to section 11(4) of the Town and Country Planning Act 1980, I
Commissioner of Lands hereby delegate to Maseru City Council my
functions under section H(1) of the Act within the gazetted Maseru
Planning Area. These functions consist of power to grant plannig
(sic) permission for the development of land within the designated
Planning area or refuse consent.
powers are granted subject to the condition that a computerized
planning register be maintained.
Acting Commissioner of Lands."
underlined the words "within the gazetted Maseru Planning Area"
to indicate my view that the delegation that was conferred on the
Applicant was confined to the "gazetted" Maseru Planning
Area. It was not an unlimited delegation covering the whole country.
Accordingly it was imperative for the Applicant to show in its papers
that the disputed area fell within the gazetted Maseru Planning Area
and hence under its jurisdiction.
Similarly Section 18(1) of the Building Control Act 1995 on which the
Applicant further sought to rely is of no assistance to it in the
absence of proof of jurisdiction as fully set out above. That section
reads as follows:-
(1) No person shall, without the prior approval in writing of the
building authority in question, commence any building."
11 of the Act in turn defines the term "buiding authority"
in the following words :-
"11. (1) The Minister may, by notice in the Gazette, appoint as
a building authority in relation to an area,
local authority; or
there is no local authority, any department of Government or any
notice of appointment referred to in subsection (1) shall also
areas of jurisdiction for each building authority,
powers of building authorities to make building bye-laws, which
shall not be inconsistent with regulations made under section 39;
powers which the Minister may decide not to delegate to prescribe
from the fact that the Applicant has failed to show in the founding
affidavit of Paul 'Matli Qobo that it has been appointed by the
Minister as a building authority at all it has also significantly
failed to show that the disputed area falls within the area of
jurisdiction for the building authority in question. All this goes to
show, in my judgment, that the Applicant failed to establish a clear
right for an interdict in the matter. Regrettably this failure to
appreciate the legal principle involved in a matter of this nature
namely an interdict is a reflection upon the Applicant's counsel
himself who has made the following startling submission in paragraph
2.5 of his Heads of Argument:-
"The establishment of a so called "clear right" is
irrelevant in these proceedings."
respect to counsel I am constrained to say that nothing can be
further from the truth. The establishment of a clear right is a
prerequisite for entitlement to an interdict and anyone who ignores
this principle does so at his own peril as the Applicant and its
counsel are about to discover.
all of the aforegoing considerations I have come to the conclusion
that the application cannot succeed and it is accordingly dismissed.
The Rule is discharged with costs.
Applicant: Mr. Mohlomi
Respondent: Mr. Mphalane
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