HIGH COURT OF LESOTHO
INVESTMENT (PTY) LTD - APPLICANT
- FIRST RESPONDENT
MINISTER OF HOME AFFAIRS - SECOND RESPONDENT
by the Honourable Mrs. Justice K.J. Guni on this day of 26th
applicant is ENTERPRISE INVESTMENTS (PTY) LIMITED Company. (hereafter
referred to as the company.) It is incorporated with limited
liability in accordance with the company Laws of this kingdom. It's
principal place of business is at 28 B MARKET STREET, BUS STOP,
MASERU. Property development is their main business.
respondent is the AFRICAN METHODIST EPISCOPAL CHURCH, (hereafter
referred to as the Church). It is a universitas personarum with a
written constitution. As such it is a person capable of suing and of
being sued. The second respondent was at that time the minister
responsible for the administration of the LAND ACT 1979 AS AMENDED.
The second respondent has no interest in this application because the
dispute is between the church and the company who are parties to the
contract which is the subject matter of this application. No papers
were filed on behalf of the second respondent.
contract which is the subject matter of this application, was
concluded between the church and the company on the 26th NOVEMBER
1991 (SEE "ANNEXURE AS3 "
31 of the record). In this contract the church agreed to sell its
interest on the land described in that sale agreement as A portion of
site N0.36 MASERU Central, MASERU Reserve measuring 82m x 55m. This
portion is situated at the extreme right hand corner of site N0.36.
(The diagram where the site is indicated is attached to the DEED OF
document - AS 3B at page 36 of the record.). It is marked site
agreement of sale was signed on the 26th NOVEMBER 1991, by the duly
authorised representatives of the parties. The church was represented
by Bishop Richard Alien Chappelle SR. MR. Anver MAHOMED SAYANVALA
signed on behalf of the company. The church is the seller. The
company is the purchaser. (Refer to the Deed of sale -"Annexure
AS 3B"- Page 31 of the record.
purchase price of that property is two hundred and fifty thousands
maloti (M250 000.00). The parties stipulated the terms of payment of
the said amount. Those terms have been fully complied with by the
company. At the time this proceedings were instituted the company had
fully paid up the purchase price for the property sold to it by the
contract entered into by the church and the company was conditional
grant to the Seller of a Lease as contemplated by Section 29 (1) of
the Land Act, 1979;
grant of consent, as contemplated by Section 35 (1) (b) (i) to the
transfer of the Seller's Lease to the Purchaser."
the clause 1 paragraph (a) and (b) DEED OF SALE at page 31 of the
of the contract provides that the occupation of the property
purchased shall be given to the purchaser immediately upon signature
of the contract. (My underlining). At no time was the occupation of
the property sold given to the purchaser. The physical occupation
remained with the tenant -Lesotho Ads who carries on the printing
business on those premises. Attempts to have the tenant pay the
rentals to the purchaser were not successful.
parties nevertheless continued to perform their duties in terms of
their contract, e.g. the company continues to pay instalments of the
purchase price as agreed even though it had not been given the
occupation of the property. The church continued to receive and
accept the said payments up to the very last instalment. Bishop
Richard Allen Chappelle SR gave a power of attorney to O.K. MOFOLO &
CO who were at the time acting on behalf of the church.
attorneys were empowered and authorised in that power of attorney to:
for a lease on behalf of the African Methodist Episcopal Church with
respect to 82m x 55m (4,510 sm) of site N0.36 MASERU Central, MASER
Reserve and do all that may be necessary to process such lease
sign all Relevant documents on our behalf for the due processing of
draw all relevant transfer documents for the transfer of said 82m x
55m (4,510 sm] of site N0.36, MASERU Central, MASERU Reserve from
the AFRICAN METHODIST EPISCOPAL CHURCH to ENTERPIRDSE INVESTMENT
sign all relevant documents as may be necessary on our behalf for
due processing of the transfer.
sign the application for a building permit and all other documents
pertaining to the development of the site 82m x 55m (4, 510 sm) of
site N0.36) wheresoever we may be required to do in order to enable
Messrs ENTERPRISE INVESTMENT (PTY) LTD to develop 82m x 55m (4, 510
sm) of the site N0.36, MASERU Central, MASERU Reserve."
attorneys applied for a Land Act lease for the new site N0.36A. The
church was already a title holder to that land comprising sites
numbers 36 and 37 MASERU Central. The procedure followed when making
the said application is prescribed in Section 29 (1) LAND ACT 1979.
The relevant portion to this matter reads as follows:-
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 applied to that person, "he shall
apply to the Commissioner for the issue of a lease " and shall
produce with 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:-
(i) a registered certificate of title issued by the Registrar of
Deeds under the Deeds Registry Act 1967;"
(ii) that the applicant and his predecessors have been occupying and
using the land for a period of at lease 30 years;
(iii) any other official document evidencing that the applicant is in
lawful occupation of the land.
were various disputes within the church amongst its congregations and
bishop Richard Allen Chappelle SR. Various factions of the
congregations were each claiming title and control over the
properties of the church. Various legal actions were instituted
against Bishop Richard Allen Chappelle SR by some of the church
congregations. The legal action slightly relevant to the present
application is CIV/APN/440/92. In this application some members of
the church opposed to the sale of this property to this company sued
Bishop Richard Allen for the
of stopping that sale. It will suffice merely to indicate that he was
the successful litigant. The applicants in that matter were found by
the court to have NO LOCUS STANDI. The bishop as the head of the
church was the "church."
29 (1) placed a duty on a person who holds title to the land on which
he is desirous of granting or creating any interest in that land to
apply for a lease. The church is obliged to apply to the Commissioner
of Lands for the issue of a lease in respect of site N0.36 A in terms
of this provision, once it had that desire to grant the interest to
the company on the land held by it. By instructing and giving a power
of attorney to O.K. MOFOLO & Co. to apply for both the lease and
its transfer the church was on route towards full compliance with the
terms of the contract. It was also following the route which was
prescribed by the provisions of section 29 (1) LAND ACT 1979. By
taking those steps, the church was demonstrating its intention to
pass over to the company its right or interest in the
piece of land.
process of fulfilling the conditions of that contract of sale of that
piece of land, was not a short one. While the application for a land
act lease for site N0.36A was still under the consideration by the
Commissioner of Lands, bishop Richard Allen Chappelle SR, wrote a
letter to O.K. MOFOLO & CO. (see Annexure AS8 page 43 of the
record ) whom he had instructed to make that application. He sounded
worried now that he had not been advised of the progress made so far
in the obtaining of the said lease for the church in respect of site
N0.36A. He pointed out that there is a bit of discussion about the
sale of the property. He was in The United Stated of America at St.
Louis when he wrote this letter. But he did not mention where the
discussion, about the sale of the property was taking place.
Presumably it was here in Maseru. He then pointed out that that
property belongs to the church and as the head of that church he sold
the property. (My underlining). He appears to be justifying or
defending the sale of that property or himself for selling it.
the bishop indicated in his letter of 21/04/92 to O.K. MOFOLO &
CO. that news have reached him that proper papers have been filed
presumably with the Commissioner of Lands for the purpose of
fulfilling the condition of sale of that property, he expressed fears
that some members of EMANUEL AFRICAN METHODIST EPISCOPAL Church who
have access in various government offices have capacity to alter,
revise, or delete almost anything they desire. One gets the
impression that the bishop was worried that those people might
disrupt or prevent the issuing of a lease in respect of site N0.36A
which he had instructed O.K. MOFOLO & CO to obtain.
the bishop's endeavours to obtain the same, that lease was never
issued. The years passed and the disputes regarding the contract and
ownership of this property between the company and the church and
amongst various church congregations went on. The bishop withdrew the
power of attorney he had given to O.K. MOFOLO & CO on the 4th
November 1994. O.K. MOFOLO & CO's mandate to obtain that
lease on behalf of the church for site N0.36A was therefore
terminated before the issuance of the said lease for site N0.36A
MASERU CENTRAL. The church now represented by a different firm of
attorneys, their present attorneys of record dealt with this matter
with WERKSMANS - a firm of attorneys in Johannesburg, who were at
that time engaged by the company. They still failed to resolve the
matter. The company engaged the firm of O.K. MOFOLO & Co. to
pursue the application for the issuing of that land act Lease to the
church and its transfer to itself. A lot of correspondence went on
between various attorneys representing various church factions and
the Commissioner of Lands. There was no resolution of the dispute
this application was filed by the company. It's main prayers are
agreement of sale entered into by it and the church be declared
church apply within 10 days of service of the order upon it, to the
Commissioner of Lands for the Land Act lease. (This would be
resumption of the processing of that application for the issue of
lease for site N0.36A - which was submitted by O.K.
CO on behalf of the church in 1991).
church should then apply for ministerial consent to have the lease
transferred to the company.
church is now opposed to this application. The defences raised are
that the contract between the parties is invalid and therefore
unenforeceable. The church seems to question the company's
qualifications to hold title to land in this kingdom. Right at this
juncture I must point out that the qualifications of the company to
hold title to land is the matter to be determined by the authority
empowered to issue such titles, not the church. The company 's
shareholding entitles it to the issue of Land act Lease because it
complies with the requirements set out in section 6 of the Land Act
1979. Another defence seems to be the denial of the existance of site
N0.36A. In the deed of sale agreement the boundaries of the portion
sold are clearly marked on the diagram annexed to the agreement. The
size is stated with precission in the application for lease by O.K.
MOFOLO & CO. as gleaned by them from the terms used in the
agreement and the diagram attached thereon. The fax sent to O.K.
MOFOLO & CO. by bishop Richard Allen Chappelle has a diagram
the properties of the church encompassing sites numbers 36 & 37.
He made a rough but very clear sketch of the proposed sale parcel.
The Land Act does not prohibit the creation of further or new
interests on the land on which the party already holds title. (Refer
to Section 29(1) LAND ACT 1979). The piece of land sold by the church
to the company is clearly identified and demarcated.
question for determination seems to me to be whether or not that
contract the parties entered into on 26th November 1991 is valid or
not. The conditional contract is not invalid per se. It becomes
invalid only when the condition fails to happen. The bishop accepted
and acknowledged the fact that he sold the church property. He
admitted this much in his affidavit in defence of his actions in
CIV/APN/440/92. He intimated to O.K. MOFOLO & CO. that he was
going to send them more ammunition to be in a position to defend
adequately the position of the church for the sale of the property to
the company (refer to "Annexure As 8" at page 43 of the
record). The bishop had no doubt whatsoever in his mind that he had
sold that piece of land to the company. He was convinced that as a
had authority to sell the property of the church on its behalf and he
had successfully defended his actions in CIV.APN/440/92 where his
authority to do so was confirmed. The church's intention to sell that
property is in no doubt.
actions of both parties - (The church and the company) at all
material time demonstrated their intention to be bound by this
agreement. They endavoured to fulfil the conditions of the sale until
in November 1994 when Bishop Allen Chapelle withdrew the power of
attorney he had given to O.K. MOFOLO & CO. in order to obtain a
lease on behalf of the church and obtain the ministerial consent to
transfer the same to the company. It is by the church's own action of
discontinuing to pursue its initial application for the issuing of a
lease to the church in respect of site N0.36A that will bring about
the failure of the fulfilment of the condition of sale. The church
cannot rely on the breach of its duty to apply for the land lease
because it was its desire to grant or create the interest on that
land held by it which it sold to the company. It cannot now after so
many years of enjoyment of the proceeds of the sale of that property
turn away as if it was
money from the company by false pretences. The church and the
churchmen are all honourable. The real honour. Not of the same kind
as the one which Mark Antony in his speech at the funeral of Ceasar
bestowed on Brutus and those who murdered Ceasar. The intention of
the church was to be bound by the terms of this contract. Therefore
it remains bound and must honour those terms. It has been argued on
behalf of the church that the bishop was free to give and withdraw
that power of attorney. I agree. It is his right to make choices
freely. But in this case did he persist in his action to obtain a
Land Act lease for site 36A after withdrawing that power of attorney?
While exercising his right of free choice, he should not prejudice
others in their rights. By his free will, he created an interest and
passed a right to the company with respect to its site N0.36A. (JULIA
MONYANE V. THE MANAGER - MAFETENG LESOTHO EVANGELICAL CHURCH PRIMARY
SCHOOL AND ANOTHER CIV/APN/216/97). By his actions he cannot prevent
the fulfilment of the condition and then rely on such none fulfilment
as a ground for his failure to comply with the terms of the contract.
(Re sisto Dairy (Pty) Ltd V. Anto Protection Insurance Co.Ltd 1963
(1) SA 632 A).
to a conditional contract, cannot be permitted to stop the fulfilment
of the condition of that contract for the purpose of taking an
advantage to resile from the said contract. The church's right to do
as it pleases with that particular piece of land is now limited by
the right it passed to the company when it sold the said piece of
property to the company. The church is not entitled to change its
mind and discontinue to pursue its application for the issue of a
land act lease for site N0.36A. The change of mind should not be
permitted to prejudice the right of the company to the said property.
There is a duty imposed on the church by both the terms of the
contract and the provision of section 29 & LAND act 1979.
church has even gone further, by obtaining as shown by the deponent
of the opposing affidavit, that Land Act lease but not for site
N0.36A as was initially intended in the application submitted in 1992
by O.K. MOFOLO & Co. This confirms without a doubt the fears of
changes, delitions, variation, and/or alterations that were expressed
by the bishop in his letter to O.K. MOFOLO & CO. impossibility to
perform on behalf of the church is being pleaded, reliance being
the church's own actions of obtaining the said lease for the whole
undivided site N0.36 instead of only that portion of it, that is
N0.36A as initially intended. Bishop William DE VEAUX Avers in
paragraph 7 of his affidavit that Land Act lease under NO. 12284-203
was issued to the church on the 21st April 1995. This is for the
whole site NO.36, including even that portion designated site N0.36A.
It is claimed that the site is not divided and cannot be divided. Was
this lease obtained in order to frustrate that Deed of Sale agreement
entered into on the 26th November 1991 between the church and the
company. This was done may years after the church had commenced
enjoying the proceeds of the sale. It continues to enjoy both
proceeds of the sale of the property and the rentals from the
property it sold long time ago.
issuing of this land Act lease for the whole site N0.36 according to
the attorneys of the church will make it impossible to comply with
the terms of the contract. This court will not allow the party to
enter into a contract and then commit acts which directly cause the
conditions of the contract not to be fulfilled. Why did the
obtain the land act lease for the whole site with the full knowledge
that portion of that same site has been sold to the company? I shall
repeat the question I posed above. Was that done in order to
frustrate the agreement between the church and the company
particularly bearing in mind that it was obtained after the
withdrawal of the power of attorney by the church from O.K. MOFOLO &
CO., terminating their mandate to pursue the initial or first
application for the issue of the land act lease for only that
sold-out portion. Bishop Richard Allen in his letter of 21st April
1992 expressed fears that those disidents in his church may alter,
revise, or do anything they desire to stop the sale of that property.
There is no allegation or proof that anything of that sort happened.
No such thing happened. He also said there were rumours that EMMANUEL
Methodist Episcopal church - (which is another faction of the
disidents in his church) has applied for Land Act lease to that
portion of land which has been sold and the land on which the new
church stands (refer to Annexure 8 at page 43 of the record). Let us
hope and trust, that this did not happen. It was just a rumour.
However these facts as alleged by Bishop William DE VEAUX, with
regard to the obtaining of the lease for the whole site
those fears expressed by Bishop Allen in his letters to O.K. MOFOLO &
CO. at the time when that firm represented the church for the purpose
of obtaining that lease for only that portion sold to this company.
Even if it happened, it would not defeat the church's initial
intentions to sell its interest on the designated portion. If this
was not done by those disidents, it was an after thought by the
church. Therefore it cannot be in the way to stop the fulfilment of
that condition of the agreement of sale.
church whether represented by bishop Richard Allen Chappelle or
bishop William DE VEAUX cannot by its own actions commit acts which
prevents the fulfillment of the condition and then claim imposibility
to comply with the terms of that agreement. That would not be
honourable or justified.
Richard Allen Chappelle in his letter to the Commissioner of Lands
dated 29th August 1974 - (Annexure As 14 at page 55 of the record)
pleaded with the Commissioner not to approve the sale if and when the
matter comes to him. This is placing undue influence upon the
Commissioner. Each application must be
on its own merits. The only considerations being those set out in
Section 6 LAND ACT 1979. The bishop pointed out in that letter that
he pleaded to have the sale rescinded. He does not mention with whom.
I get the most unpleasant feel that the bishop wants the contract
rescinded but it should not appear that he is the one who is
rescinding it. This is most unfortunate. In no uncertain terms, he
admits he sold portion of site NO.36 in 1991. It is in the common
cause that it was to this company. He further claims that he did not
file the complete and proper papers to effect the sale and transfer
of that property. Seemingly suggesting that he did not intent to
complete the sale and transfer. This sounds like the calculated and
deliberate action to frustrate the fulfilment of the conditions of
sale. The reason being his wish not to approve the sale. He claims
that the Commissioner of Land's office records will show this.
Certainly I must be wrong to get the bad impression that some fraud
was being perpertrated or at least intended. It is established that
when the power of attorney was withdrawn from O.K. MOFOLO & CO.
no further papers were filed in respect of that application.
Therefore that application was never pursued. May be this is what the
That is not honesty. The church was going out of its way to frustrate
the fulfilment of the condition of sale. If it is correct, dishonesty
is unbecoming a churchman. The reading of "Annexures As 14"
(at page 55 of the record) gives me the impression that the bishop
was using anybody and everybody to do what he would not want to be
seen doing himself. The church must be bound to perform its
obligations under that contract. There is a valid and binding
contract. The attempts to create problems which will frustrate the
fulfilment of the conditions are not acceptable and should not be
permitted to prevail. The rentals from the tenant - Lesotho Ads have
been received and kept by the church despite having sold that
property to the company. The church is not entitled to rental from
the date when the occupation should have been given to the company.
The church did not give occupation to the company as agreed on or
after the date of signature of the agreement. The withholding of the
passing of the right of occupation in terms of the agreement was
itself a breach of that agreement. The breach was being committed by
the church. The church seems to rely on its breach of the agreement
to support its claim that that agreement is invalid. This is
a counter application. The prayers of the church in this counter
application are identical with the prayers made on behalf of the
church in the opposing affidavit in the main application, these
prayers in the counters application are also dismissed for the same
reasons set out above.
application of the company succeeds and it is granted as prayed with
applicant - Mr. Sooknanan
respondent - Du Preez, Iiebetrau & Co
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