HIGH COURT OF LESOTHO
Application of :
MOEKETSI MASOABI Applicant
TSIU MAKHABANE MOPELI Respondent
by the Hon. Acting Mr. Justice M. Lehohla on the 26th day of
an ex parte application a rule nisi was issued by this Court on 9th
December 1986 calling upon Respondent to show cause
on 12th January
why the rule granted should not be made absolute.
three paragraphs in the notice of motion constituted the interim
order that was granted. They read as follows :-
the respondent be immediately interdicted and restrained from
dismantling and removing the applicant's fence around
applicant's unnumbered Business site at Mazenod Ha Paki near Old
Masianokeng Bridge measuring 2.8360 Hectares which was
allocated to the applicant on 31st March, 1979 as measuring 204 x
128 x 231 x 137 metres.
the respondent be immediately interdicted and restrained from
entering Business site mentioned in (1) above;
the respondent be immediately interdicted and restrained from
ploughing theapplicant's Unnumbered Business Site mentioned
It was in
terms of prayer (4) in the notice of motion that it was ordered that
the three prayers should operate with immediate effect.
revealed in prayer 4 that he sought the Court's intervention "pending
the finalization of this application and an
action for ejectment and
damages which the applicant
instituting at once against respondents." Under paragraph 6
applicant prays for costs to be awarded against respondent
attorney and client scale.
founding affidavit applicant avers in para 3 that on 31st March 1979
respondent duly allocated to him the site in question
attached a copy of Form C marked "A" in support of his
response to this allegation respondent admits that he gave applicant
the Form C marked "A" but denies that in doing
so he was
"duly" allocating the site to applicant. See para 4 of the
opposing affidavit. In pars 17 respondent sets out
reasons why he
maintains applicant was not lawfully allocated the disputed land.
They are the following :-
never filled a Form "A" applying for allocation of land as
required by law.
land allocating committee never met or allocated the disputed land
to applicant as required by law.
support of this allegation respondent relies on affidavits of Mohau
Mompe and Paki Mopeli who have held respectively positions
and secretary in the Mozenod land allocating committee since 1976 to
date without any interruption. Both of these deponents
deny that applicant was ever allocated the disputed land. They
accordingly maintain that the land still lawfully
respondent because he has never been lawfully deprived of it in terms
of the law.
point out that it has been admitted by respondent that he is "Headman
and or Word Chief (of) Ha Paki in the Thota-Moli
Urban Area. See para
2 of applicant's founding affidavit. C/F respondent's para 3 in
Respondent further states in
that "I have no authority to allocate land alone in the absence
of land allocating committee" and
that "I have never been lawfully deprived of the disputed land
before any lawful allocation can be made to somebody else,"
avers that immediately upon the allocation to him of the said site he
put up a barbed wire fence around it at the total
cost of M2000.00.
Respondent concedes that a barbed wire fence was put up by applicant
but denies that the site had been allocated
to applicant. He overs
that applicant put up this wire fence on the pretext that the land
was going to be used for "our hotel!!
In para 5
respondent sets out what he submits as the correct history of the
matter and states that in April 1980 applicant who was
family lawyer and homeboy approached him saying that a client of his
called Jack was keen to open a hotel business
at Phuthiatsana Mazenod
6 and 7 respondent goes on to say "The applicant further
informed me that the intention was that he, ... Jack and
be shareholders in the proposed hotel business".
The applicant then suggested that "My contribution would be the
release of my arable land - fully described in the said form
annexure "A" - as it was obviously big enough for the
aver that he was made to understand by applicant that the Capital for
the venture would be provided by the said Jack
reputed to be a
wealthy block expatriate from one of the African countries, while
applicant's contribution would consist of legal
been approached by the said Jack in the company of the applicant and
having perceived the plan to be financially attractive
only too willing to be part of it. Hence he accepted it. The hotel
business was to be given the name Afrocontact
by prospects of making good money quickly respondent without
consulting his land allocating committee,unilaterally filled
a form C
in the name of
(Proprietary) Limited which described the disputed land in identical
terms as the form C i.e. Annexure "A"
affidavit. Respondent has produced and attached a copy of the said
Form C marked "G" bearing date stamp
of chief Tsiu
Makhabane P. Mopeli of Phuthiatsana and dated 27/4/80.
In pars 5
applicant avers that since March, 1979 till bringing these
proceedings before court he has been ploughing a portion of
and effecting other development works on the remainder thereof for
his business. He further avers that he has been using
it for a
continuous period of seven years without any interruption by
respondent or any person whatsoever. In answer to these averments
respondent states that whatever work was done by applicant on the
said lend was always on the pretext that it was the start of
hotel business." He even goes further to say he himself
maintained his physical presence on the disputed land. This
by respondent has been denied by applicant in his replying affidavit
in para 15 thereof. He bases his denial on the fact
never ploughed any portion of the land and that he was not at any
time a nightwatchman or guard to the place. In
any event if
respondent's claim to any of the duties named was to stand applicant
would have known because applicant kept the site
under lock and key.
I however do not think it would be necessary for physical presence as
perceived by respondent to be. manifested
by his ploughing any
portion of the land. Moreover in his response he has indicated that
his contribution to the venture was the
release of the land for use
in the development and running of the hotel business. I don't see why
it should have been necessary
for him to act as a guard to the place
or a nightwatchmsn in order for his claim to be accepted that he
maintained a physical presence
on this land. It is. quite another
thing of course whether it would be possible to maintain it even in
the light of the fact that
applicant claims that he kept the place
under lock and key.
founding affidavit consists mainly
steps he followed end the nature of business he set about doing once
the lend had been allocated to him. The affidavit also
what he did on learning that respondent was disturbing his peaceful
enjoyment and occupation of the land. On his part
that applicant applied for a lease but maintains that this was
effected behind his back. He further avers that
lease failed dismally because the Department of Lands and Survey soon
realised that applicant had not been lawfully
allocated the disputed
land. Applicant discarded this avernment by respondent as untrue and
challenged respondent to furnish proof
of what he alleged.
charged that applicant failed to make full disclosures as to how he
got hold of Form C marked Annexure "A"
to his founding
applicant averred that this Form C was given to him by respondent and
that it was in fact written by the respondent himself.
also that respondent does not deny his signature on it nor its
avers that applicant has not satisfied the requirements for an
interdict therefore the application ought to be dismissed.
denies this and maintains that application ought to succeed.
regard to improvements referred to by applicant, respondent avers
that he was made to understand by applicant that they were
against a loan from the Lesotho Bank for the purpose of the purported
building of the said hotel.
13 respondent says that the alleged hotel did not take off until some
time in 1981 when the suggestion that the Form C i.e.
to respondent's opposing affidavit, be converted into applicant's
name because Jack had financial problems
and therefore applicant
could only obtain a loan from Lesotho Bank for the hotel business if
he produced a Form C bearing applicant's
own names. Because
respondent still hod confidence in the applicant and because he did
suspect that applicant had any ulterior motived he accepted the
suggestion. These allegations are denier.! by applicant who
buttresses his denials by pointing out that no Lesotho Bank official
can support respondent's allegation and by further saying
respondent is neither a fool nor an illeterate therefore it is
inconceivable that he could be so easily tricked. In this regard
seems to me that an important factor has been overlooked by
applicant; namely that for doing ell these irregular things including
those which are out of keeping with the person of "a chief of
the Mazenod and the Thota-Moli Urban Area" who is astute
knowledgeable he was lured and blinded by greed and hopes of making
quick money. It is to be wondered whether by denying that
had confidence in the applicant and charging that respondent is not
repose any confidence in him applicant in effect admits that he is
not to be trusted by a man who regarded himself as applicant's
client. I would hesitate to consider that applicant holds that the
confidence reposed on him by his client is misplaced confidence
reference to "G 1" which is a counterpart of "G"
shows clearly that the names of the allottee Afrocontact
(Proprietory) Limited hove been cancelled and replaced by the names
Carrington Moeketsi Masaobi. With regard to the similarity
handwriting to the writing of the names appearing in this document
applicant as para 14 of his reply says
don't deny that the hand-writing of my name on Annexure G looks like
mine and this was when I indicated to respondent my
full names on a
copy which he said it was not being used."
after making this lame admission that the handwriting is similar to
his on the bock of which is added the rather incomprehensible
explanation of how his names in a handwriting similar to his cams to
be borne on this document applicant was quick to further aver
"I must however say that that Annexure G1 is irrelevant to the
issue before this Court
as alleged Afrocontact company is not in dispute with me if it was
ever earlier allocated this same plot and for some reasons it
later allocated to me." Suffice it to say the meaning sought to
be conveyed by the phrase just quoted is as clear as mud
"G" is a Form C signed by respondent on 27/4/80 in favour
of Afrocontact (Proprietary) Ltd. Annexure "G1"
replica save that above the cancelled title Afrocontact (Proprietary)
Limited have been inserted
names Carrington Moeketsi Mssoabi,
dates 27th April 1980 have been cancelled and altered (in
handwriting not dissimilar from that applied in effecting
in (a) above to 31st March 1979,
the same handwriting have been added the words (BUSINESS SITE) after
the words "setsa sa khoebo";
figures 27/4/1980 appearing in the Chief's date stamp have been
altered in the same handwriting to read 31 - March, 1979.
date stamp imprint similar to the Chief's has been made opposite the
chief's signature. The dates appearing are only partly
respect to these alterations respondent says in para 15
"In fact applicant himself and in his legal office wrote his own
name above Afrocontact (Proprietary) Limited on the Form
"G" after he had personally cancelled the latter name. He
also altered the dates and added the words ''business
annexure "G".A court is referred to Annexure "G1"
which is self-avident."
avers in para 16 that he unilaterally filled Form C Annexure "A"
to applicant's affidavit mostly using particulars
Annexure "G1" on the advice of the applicant. This includes
the back date 31/3/79. He is adamant that in
so doing his intention
was not to allocate the disputed land to applicant. His further
averment is held in question and looked
upon by the applicant as an
the court. The words in question are
"It is again significant that even applicant's names in annexure
"A" were written by the applicant himself in his
at all the averments made by the respondent it appears to me that it
is only in respect of the above phrase that his assertion
be false. Indeed as averred by applicant in para 14 of his reply
"It is clear to the naked eye that my names on Annexure A were
written by the same person who wrote the whole Form C and signed
who is the respondent."
of the same rule it is clear to me that whoever effected alterations
on annexure "G 1" did so with no other purpose
deceive. Annexure "A" is clearly a product of Annexure
"G1". It stands to reason therefore that reliance
Annexure "A" is not different from reliance on Annexure
"G1" -in short deception.
avers in para 16 that
"I may add that the applicant suggested the said back date of
31/3/79 to make sense because in 1981 when I filled Annexure
it was a known fact that with effect from May 1980 I was no longer
permitted to sign Form C's".
becomes clear to me that Annexure "A" is nothing else but
sham together with information based on it appearing
in para 3 of
applicant's affidavit to the extent that in it is stated that the
site was allocated (if at all) to applicant on 31/3/1979.
heads of arguments applicant has correctly set out the requirements
for an interdict being
clear right on the part of an applicant;
injury actually committed or a well founded apprehension that the
injury will be committed by a respondent:
there is no other remedy open to the applicant which will afford any
adequate protection from the mischief being done or
I have referred to applicant's replying affidavit there is no doubt
that it was out of time contrary to Rule 8(11). In
Masoabi submitted that a replying affidavit can be filed any time.
But the rule clearly says the reply should be filed
within 7 days of
service upon applicant of respondent's answering affidavit.
application relies solely on Annexure "A" i.e. Form C But
there is authority in Majoro vs Sabapo 1981(1) LLR. at 156-7
production of a Form C is not in itself conclusive proof of
allocation or that such allocation was effected in accordance
section 6(2) of the Land Act 1973 says
"In exercising his functions under subsection (1) a chief shall
act after consultation with a Development Committee established
such area." (rural areas).
respect to urban areas section 9(2) of the same Act provides that
"In exercising his functions under sub-sec (1) each Principal
Chief or Ward Chief shall act after consultation with a Land
Committee established in respect of a particular area."
12(1) of Land Act 1979 says
"Subject to subsection (2) the power to grant title to land
shall be exercised by majority decision of the Land Committee
established for the area of jurisdiction, of which the chief having
jurisdiction shell be chairman ex officio or of such other
Committee as the Minister may establish under section 18."
seem therefore untenable for any litigant to support his claim to
land allocated to him on no other ground besides that
a chief acting
alone effected the allocation. It would perhaps neve been otherwise
if applicant's claim was substantiated by one
or some Land Allocation
Committee members. Because the onus is on applicant to prove that the
land was allocated to him it would
not seem satisfactory
if, as in
this case, his case depends on his word as against that of the
members of the Land Allocation Committee have sworn that their
committee never at any time allocated the disputed land to applicant.
See Mompe's and Mopeli's affidavits.
credible material on which to rely in the submission that
"It is significant that in para 14 of his opposing affidavit the
applicant appears to admit at least that he wrote his full
"G". Now annexure "G1" was clearly executed on
27th April 1980, C/F "G". That being so it
that Form C i.e. annexure "A" which was clearly meant to
replace "G" was backdated to
give the false impression
that it was issued on 31st March 1979."
High Landers vs Lesotho Sports Council CIV/APN/92/79 (unreported) per
Rooney J. at page 5 properly laid down that
"This court will not in general, grant an interdict when the
applicant can obtain adequate redress by way of damages."
made it clear in prayer 4 that he has a remedy by way of damages.
his averments and submissions as reflected in his heads of arguments
applicant has abundantly shown that he is seeking
on interdict in
this application. It was only when he addressed me that he alluded to
spoliation being the remedy he seeks. No
one can ride on two horses
I am Satisfied that applicant must have been aware that there would
be dispute of fact in this matter and therefore should
bringing proceedings by way of application, See Beck's Theory and
Principles of Pleading in Civil Actions at 259.
Afrimeric_Distributors (Pty) vs E.I. Rapoff 1948.(1) S.A. 569.
regard to the parties' involvement with Afrocontact (Pty) Ltd
respondent's version has a ring
in it. He has also been forthcoming about his own misdeeds. He has
not tried to hide anything or minimise his unwholesome
part in his
dealings with all concerned. His story is therefore preferable to and
more probable than that of the applicant which
is not only
incomprehensible in this regard but also highly garbled.
has sought to distance himself from factors which led to the drawing
of annexure "G1". He did this by denying
that he is
Respondent's homeboy and family lawyer. But he was clearly hard put
to it to explain how the information collected from
which he admitted subscribing to got to be contained in annexure "A"
on which his application rests.
adducing any proof whatsoever for his assertion applicant contents
himself with saying in para 15 of his reply that the
committee duly met. See Room Hire Co (Pty) Ltd vs Jeppe Street
Mansions 1949(3) at 1165 concerning bare denials.
a long shadow indeed that applicant members have not sought the
support of land allocation committee members in his case.
vs Mansa & Another 1955(3) SA. at 553 where it is said
"...... an applicant for relief must make his case and produce
all evidence he desires to use in support of it in his affidavit
filed with the Notice of motion ........"
I am in
no doubt that factors considered in these proceedings have
demonstrsbly shown that applicant's claim fails to meet the very
first head relied on by him as the basis for seeking an interdict
from this Court. He has not shown that his claim is based on
right. There couldn't be any clear right in a case where every
possible means was employed to undermine provisions
of the Land
Act, where the Respondent himself despite being chairman sought to
indulge his greed by deliberately refraining from
consulting with the
Land Allocating Committee of his area, and where the best method of
contravening the Land Act in ardor to secure
this unlawful end was to
employ the shameful
back dating the date stamp and impressing the false date on the
document "G1" and transferring the false contents
to annexure A in order to deceive those who would in turn rely and
act on the false information reflected thereon. The
annexure "A" appears to be genuine on the face of it does
not remove the dishonour attaching to "G1"
the contents of
which were supplied by the applicant. The respondent was not an
entirely passive and innocent participant in the
that led to the production of annexure "A". The court's
displeasure ought to be demonstrated in the
award for costs.
application is dismissed. Applicant is ordered to pay only twenty
five per cent of respondent's costs.
Applicant : In person
Respondent : Mr. Ramodibeli.
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