HIGH COURT Of LESOTHO
JACOBS FREDERICK STEYN Plantiff
PHAKISO LEBONA Defendant
by the Honourable Mr. Justice J.L. KHEOLA on the 28th day of
5th April, 1982 the plaintiff issued a combined summons against the
defendant in which he claims the following relief:
order ejecting the defendant from Site Number 532. Europa, Maseru
Reserve. Alternatively to prayer 1 above plaintiff prays:
the defendant be directed to pay to the plaintiff compensation for
the improvements which ware existing on the said
Plot No. 532,
Europa, Maseru Urban Area when defendant took occupation of the
defendant be directed to pay interest on the amount of compensation
from the date he took occupation to date of payment.
statement of account from the defendant reflecting all such sums as
he has collected as rent in respect of the said promises.
debatement of such account.
of all sums of money as may be found to have been collected as rent
by the defendant in respect of the said promises.
of suit on attorney and client scale.
or alternative relief.
material facts of this case are not in dispute and may be summarised
plaintiff brings these proceedings in his capacity as Trustee in the
insolvent estate of Augusto Moreira (His letter of appointment
Trustee is Exhibit "A").
the 3rd October, 1974 the plot in question was apparently allocated
to the said Augusto Moreira (The allocation certificate
"N" signed by the Principal Chief and by the Chairman of
the Land Advisory Committee).
terms of section 15 (2) of the Deeds Registry Act 1967 Augusto
Moreira was expected to apply to the Registrar of Deeds for
registered certificate of title to occupy or use the plot. He did
not do so within the prescribed period of three months from
of the issue of the certificate referred to in paragraph 2 above.
is common cause that by the 3rd January, 1975 Augusto Moreira had
lost his title to the plot in question, nonetheless he remained
occupation and use because the authorities still regarded him as the
owner of the plot (see Exhibit "R" dated 31st
1977; and Exhibit "S" dated 1st March, 1977).
August or September, 1977 Mr Moreira purported to sell the plot to a
Mr. Karim for R9 000,00. The latter paid a deposit of
R2 000,00; the
balance was to be paid on registration of the transfer.
the time of the sale there was a small building on the plot.
after the sale Mr. Karim built a big house on the plot consisting of
three bedrooms, a lounge, a dining room and a
a transfer was made to Mr. Karim. Mr. Moreira was declared insolvent
and the plaintiff was appointed as Trustee of the
the meantime the defendant who was then Town Clerk of Maseru noticed
that Mr. Moreira had not only lost his title to the plot,
left the country. He applied for the allocation of the plot to
the 13th June, 1980 the plot in question was re-allo-cated to the
defendant (see Exhibit "G" which is a certificate
evidence the plaintiff stated that the defendant showed an interest
in the property and offered to buy the improvements on
the plot. A
deed of sale was prepared and handed to defendant to sign it. The
purchase price was M14 000 but the defendant failed
to sign the deed
of sale and never paid the purchase price. In January, 1981 the
plaintiff wrote a letter to defendant (Exhibit
which he demanded the return of the dead of sale within 14 days. He
indicated that Mr. CD. Molapo who was the
Minister of Foreign Affairs
was also interested in buying the improvements in question. The
plaintiff did not hear from the defendant
till the negotiation with
Mr. C.D. Molapo full through. He entered into a sale agreement with
Mrs. A. Makabelo
(see Exhibit "E"). The contract was signed by the parties
on the 31st August, 1981 and 13th September, 1981. The
not performed apparently because of the attitude of the defendant
because on the 21st September, 1981 he wrote a letter
in which he ordered the defendant to remove the improvements on the
plot within 14 days.
testified that he spent nearly M30 000 in building the main house on
the plot No. 532.
defendant testified that the plot in question was allocated to him.
The allocation to Mr. A. Moreira was unlawful in as much
as the land
in question had not been properly surveyed and physically pegged in
terms of the Land Regulations 1974; he alleged
that Mr. Moreira's
title to the land expired when he failed to register it within three
months after allocation in terms of the
Deeds Registry Act 1967. He
admits that after the site was allocated to him he entered into some
negotiations with the plaintiff
and Mr. Karim about the purchase of
the aforesaid improvements. He stopped the negotiations because he
realised that he was going
to lose money because it was not clear who
the owner of the improvements was. He finally asked the plaintiff to
remove the improvements
because they could not agree.
Matsau, plaintiff's attorney submitted that Mr. Moreira was a bona a
fide occupier of the aforesaid plot and as such was entitled
compensation for the improvements he made on the plot which have
enhanced the value of the property. I am not so sure that Mr,
was a bona fide occupier, because a bona fide occupier is a person
who occupies land under the bona fide, but mistaken
, belief that he
has a lease of the land (Rubin v. Botha,
581). A bona fide possessor is a person who genuinely believes that
he is the owner of the land (Barnard v. Colonial Government,
5.S.C. 122). It seems to me that Mr. Moreira genuinely believed that
he was the owner of the plot in question because it
allocated to him and he had a proper. certificate of allocation. He
occupied the plot from 1974 with the approval
of the land allocating
authorities without any query from any person. The authorities
believed that he was the owner of the plot
and their belief is
reflected in letters which they wrote (see Exhibits "S".
"0", "L", "K"
and "B"). The
mere fact that Mr. Moreira failed to register his title in terms of
the Deeds Registry Act 1967 does not
disqualify him from being a bona
rights of a bona fide possessor to compensation for improvements to
the property have been clearly defined by our law. Voet
(6, 1, 36),
in dealing with the subject, says:
"As regards useful expenses the bona fide possessor recovers the
whole of them in so far as the property has in reality been
in value, provided the cost was greater than is the utility or the
improvement actually in existence, which most
often happens in
the case of buildings; unless these useful expenses are too heavy,
and the owner himself would not have incurred
them, in which case he
either only removes them so far as he can, or he recovers from the
owner only so much as he. would have
had if they had been removed. So
that here much has been left to the discretion of the judge, who is
directed in this matter to
decide each case on its merits having
regard to the persons and the circumstances."
Voet follows the Digest, 6, 1, 38 which reads as follows:
"You bought without notice which did not belong to your vendor
and then built or planted, after which the land was recovered
true owner. In this case the order made by the wise judge will vary
according to the circumstances of the parties and the
facts. Take the
case in which the owner himself would have made the same
improvements; then, before he can get his land back, he
reimburse your expenses, but only to the extent to Which the property
was made more valuable, and where the additional value
cost, he need only pay what was actually expended."
common cause that the value of the plot in question in the present
case has been greatly enhanced inasmuch as before the improvements
were made there was only a small outbuilding on the plot. The
expenses incurred in the building of the main house were not very
heavy, and they are such that the defendant would have incurred. As a
town clerk, the defendant would have needed a house of the
as the one built by Mr. Karim. It can hardly be said that the house
is so big that the defendant would not have thought
of building it.
The house is in the centre of Maseru where there is a very high
demand for houses for renting; so that even if
the defendant did not
live in it himself he would always have tenants. In fact it is common
cause that since 1980 when the plot
was allocated to him, the
defendant has never lived there but has rented it out to some
evidence Mr. Karim stated that he spent about N30 000 to build the
main house on the plot. It seems that before the defendant
allocated the plot in question he requested a quantity surveyor, a
Mr. C.J. Aitken, to inspect this property and to fix its
Exhibit "Q" Mr. Aitken estimated the value of the building
and other improvements as M29 020. The report of
Mr. Aitken was
addressed to the defendant personally
to him as town clerk.
defendant's main submission was that ha allowed the plaintiff to
remove the improvements. A house is an immovable thing which
be moved from one place to another without injury to itself and to
the land to which it is attached. The defendant suggested
plaintiff would have removed the roofs, doors and frames and left the
walls only. In my view this would not be possible without
the corrugated iron sheets, rafters and every fixture in the house.
In any case I see no reason why the walls have to
be left. The
foundations would also have to be dug and removed. A house is an
immovable structure and forms part of the land on
which it is built.
So the request by the defendant to the applicant to remove the
improvements cannot be taken seriously.
defendant further submitted that the matter should be dealt with
according to Sesotho law and custom as amplified by legislation.
stated that the house in question must be treated as a derelict house
(leqhofa) which he found on the plot when it was allocated
to him. He
says that Sesotho law and custom must apply. I disagree. The
defendant knows very well that in the olden days a man
who came to a
chief's village and applied for permanent residence was supplied with
free materials to build a house for himself,
such free materials
included thatching grass, trees used as rafters and frames, stones
and soil. Sometimes even the labour
was free because other
villagers helped in the building free of any charge. So when the man
removed from the village he was bound
to leave everything intact and
that was what
called a "leqhofa". The house which is the subject matter
of the present proceedings can, under no circumstances,
as a "leqhofa". The house is valued at M30 000 and all the
materials used in its construction were bought
by Mr. Karim. The
chief of the reserve never gave him any materials free of charge.
submitted that the plaintiff has no locus standi in judicio and that
Mr. Karim is the person who made the improvements.
enrichment which the defendant is enjoying flows from the contract
between Mr. Moreira and Mr. Karim. The latter purported
to buy from
the former the plot in question. He paid a deposit of M2,000 and it
was agreed that the balance of M7.000 would bo
paid on registration
of transfer; but the transfer never took place till Mr. Moreira was
declared insolvent. The position is that
Mr. Karim still owes the
insolvent estate an amount of M7,000.
case of Gouws v. Vester Pools (PTY) LTD 1968 (3) S.A. 563, A entered
into a contract with B for the construction of a swimming
what A believed to be B's propety. In fact C was the owner and not B.
Being unaware of this and looking solely to the credit
of B, A had
performed the contract. Having performed, A was entitled in terms of
the contract to claim counterclaim (payment)
form B in terms of
the contract. B having left the country and A's contractual claim
against B being useless., A had sued C. The
question was whether or
not C was liable.
held, inter alia, that the action of the bona fide
for compensation for impensae utiles and any other action based on
quasi negotiorum gestio were precluded because the
enriched, had not been enriched at the expense of the plaintiff but
at the expense of B, as the enrichment had flowed
performance by plaintiff of a contract with 8.
present case the contract was between Mr. Moreira and Mr. Karim. At
the time it was completed the defendant was not in the
picture as the
plot had not been allocated to him. When defendant occupied the plot
Mr. Moreira had given occupation to Mr. Karim
in terms of their
contract. In Gouws's case, supra, Jansen. J. said at p. 574:
"Although the matter is not free of difficulty and there are
writers propounding other views, Professor de Vos'reasoning is
cogent. In my view the requisite that in an action based on
unjustified enrichment the enrichment should be at the expense of the
plaintiff, with its logical consequences, should be accented."
in these proceedings, on the 26th August, 1988. the locus standi of
the plaintiff was raised and I made a ruling that he
had locus standi
on the ground that there was no proper transfer of the plot to Mr.
Karim. I came to the conclusion that he (Mr.
Karim) was a creditor to
the insolvent estate of Mr. Moreira. In the light of the decision in
the case of Gouws v. Vester Pools
-supra - I think my ruling was
erroneous. Mr. Karim is a debtor to the insolvent estate; he paid a
deposit of M2 000 leaving a
balance of M7 000. The improvements were
made by Mr. Karim and not by Mr. Moreira. In fact when the defendant
occupied the plot
after it was allocated to him the tenants he found
there were Mr. Karim's. Mr. Moreira had handed the plot over to Mr.
of failure to register the transfer to Mr. Karim I am of the opinion
that he (Karim) became a bona fide possessor as
soon as possession of
the plot was given to him. Even if he became a mere bona fide
occupier his rights are the same with those
of a bona fide possessor
as regards the improvements (Fletcher v. Bulawayo Waterworks
Co., 1915 A.D. 647).
ruling which was made concerning the locus standi of the plaintiff
was interlocutory because it was made during the trial before
defendant gave evidence. I am of the opinion that this Court may mero
motu vary it in terms of Rule 45 (4) of the High Court
Rules 1980 if
it is satisfied that it is wrong.
the order and find that the plaintiff has no locus standi in the
present proceedings and on that ground alone the action
ought to be
result the action is dismissed with costs.
Plaintiff - Mr. Matsau
Defendant - In Person.
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