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 -
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.
Directing First Respondent to re-erect the steel structure that he dismantled on a portion of 618 Hoohlo Area.
Declaring the purported sale and lease agreement between First and Second Respondent to be a nullity.
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
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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
