CIV/APN/;64/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of

GEORGE
THABO MONAHENG Applicant

v

ROBERT
ELIAS MATJI First Respondent

ANGELINAH
'MATHABANG MALEKE Second Respondent

RULING
AND ORDER

Delivered
by the Hon. Mr. Justice Sir. Peter Allen on the 12th day of November,
1987

The
applicant filed this Notice of Motion asking the Court for several
orders as follows -

1. Directing
   Second Respondent to sign all papers necessary to effect the
   transfer of portion 618/1 Hoohlo area to applicant falling

   compliance there­with an order authorising the Commissioner of
   Lands to prepare transfer papers without signature of Second

   Respondent.

   
   

2. Directing
   First Respondent to re-erect the steel structure that he dismantled
   on a portion of 618 Hoohlo Area.

   
   

3. Declaring
   the purported sale and lease agreement between First and Second
   Respondent to be a nullity.

   
   

4. Restraining
   First and Second Respondent from interfering with Applicant's
   occupation of portion 618/1 Hoohlo Area of site 618
   allocated to the
   late Lucas Maleke.

   
   

Thus the
applicant is asking for various types of relief including specific
performance of an alleged agreement, a spoliation order,
a
declaratory

2

order and
a permanent interdict.

Furthermore,
there is apparently another issue regarding whether the second
respondent is involved as an heiress/guardian or as
an executrix of a
deceased person.

In my
opinion the applicant ought to have realised from the start that a
request for all of these orders would be opposed, as indeed
it was.
Even if not before, at least when the opposing affidavit was filed
this should have become apparent and steps should then
have been
taken to convert the matter into a trial. Obviously it would have
been even better to have started off by means of a
summons.

From the
numerous documents on file so far it is clear that all issues are to
be fought out in Court, though, in spite of what counsel
for the
respondents said in Court, I still believe that they could reach a
settlement if the parties got together with that intention
in mind.
It would certainly save any further costs.

At any
rate, it is clear that this matter cannot be decided on affidavits
and that oral testimony will have to be heard. There is
valuable
property in Maseru involved and I do not consider that justice and
the best interests of the parties will be ensured by
simply
dis­missing this application as requested by the respondents.

Rule
8(14) High Court Rules, 1980 allows the Court considerable latitude
in this type of situation and, in my view, it is more just
and
desirable in many matters of this sort wherever possible to resolve
them

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upon the
evidence rather than upon a preliminary technical point.

However,
I repeat that I believe that the applicant should have foreseen
strong opposition to his prayers and so he ought to have
commenced by
way of summons.

Consequently
this application cannot proceed as it stands. Nor do I consider it
appropriate merely to order oral evidence to be
heard, because that
is the usual way to proceed whan the disputed issues are within a
comparatively narrow compass whereas, here,
they are quite
wide-ranging.

Accordingly
it is ordered that the applicant's Notice of Motion shall stand as
summons in the action as of today and the usual pleadings
following
that are to be filed within the usual time limits, unless the parties
can meanwhile reach a settlement.

I am
satisfied that the applicant ought to have realised that a dispute
and trial was inevitable in this case and, therefore, the
respondents
are to receive the wasted costs so far in this matter.

P. A. P.
J. ALLEN

JUDGE

12th
November, 1987

Mr.
Maqutu for the applicant

Mr. Buys
for the 1st respondent

Mr. Fick
for the 2nd respondent