HIGH COURT OF LESOTHO
THABO MONAHENG Applicant
ELIAS MATJI First Respondent
'MATHABANG MALEKE Second Respondent
by the Hon. Mr. Justice Sir. Peter Allen on the 12th day of November,
applicant filed this Notice of Motion asking the Court for several
orders as follows -
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
First Respondent to re-erect the steel structure that he dismantled
on a portion of 618 Hoohlo Area.
the purported sale and lease agreement between First and Second
Respondent to be a nullity.
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.
applicant is asking for various types of relief including specific
performance of an alleged agreement, a spoliation order,
a permanent interdict.
there is apparently another issue regarding whether the second
respondent is involved as an heiress/guardian or as
an executrix of a
opinion the applicant ought to have realised from the start that a
request for all of these orders would be opposed, as indeed
Even if not before, at least when the opposing affidavit was filed
this should have become apparent and steps should then
taken to convert the matter into a trial. Obviously it would have
been even better to have started off by means of a
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
respondents said in Court, I still believe that they could reach a
settlement if the parties got together with that intention
It would certainly save any further costs.
rate, it is clear that this matter cannot be decided on affidavits
and that oral testimony will have to be heard. There is
property in Maseru involved and I do not consider that justice and
the best interests of the parties will be ensured by
dismissing this application as requested by the respondents.
8(14) High Court Rules, 1980 allows the Court considerable latitude
in this type of situation and, in my view, it is more just
desirable in many matters of this sort wherever possible to resolve
evidence rather than upon a preliminary technical point.
I repeat that I believe that the applicant should have foreseen
strong opposition to his prayers and so he ought to have
way of summons.
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
it is ordered that the applicant's Notice of Motion shall stand as
summons in the action as of today and the usual pleadings
that are to be filed within the usual time limits, unless the parties
can meanwhile reach a settlement.
satisfied that the applicant ought to have realised that a dispute
and trial was inevitable in this case and, therefore, the
are to receive the wasted costs so far in this matter.
P. A. P.
Maqutu for the applicant
for the 1st respondent
for the 2nd respondent
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