HIGH COURT OF LESOTHO
Application of :
DANIEL TSOSANE Applicant
'MAFOHLE TSOSANE Respondent
by the Hon. Mr. Justice M.L. Lehohla on the 4th day of February, 1992
an application moved by Mr. Steyn in his capacity as the trustee in
the insolvent estate Daniel Tsosane against the respondent
respondent admits that the applicant was appointed trustee of the
above named estate and that the letters of appointment were
the Master of the High Court on 8th December 1986 as borne out in
respondent does not admit the contents of the applicant's averments
in paragraph 3 to the effect that the applicant caused the
formerly owned by Mr. D. Tsosane to be sold by public auction in
Maseru where the highest bidder was
Penane allegedly qualified in terms of the Land Act to take ownership
and occupation in so far as the law allows, of the premises
question. The respondent puts the applicant to the proof of these
averments as she alleges she has no knowledge of them.
applicant further avers that he has been advised that the respondent
and others are in occupation of the said premises. He asserts
this state of affairs is totally unlawful as he has not granted any
lease to the respondent over the premises in either shape
applicant denies contents of this averment and puts the respondent to
proof thereof. She goes further to say that the premises
have nothing to do with the applicant in his capacity as the trustee
of the late (sic) estate D. Tsosane. She presents
her version of. the
story as follows :-
"On the contrary I wish to state that the premises which I
occupy are mine and they comprise a residential site where I live
a commercial site nearby where I have carried on business of cafe the
copies of certificate of allocation are annexed and marked
MT 1 and
MT. 2 respectively".
appears then that for her claim to the site she occupies she relies
on allocation certificates while the applicant relies on
a title deed
in respect of the property he claims is the insolvent estate D.
for the applicant accordingly tried to put the matter in its
perspective by submitting that the dispute involves a parcel
He pointed out that on 15-10-89 the applicant obtained an interim
Court Order in his capacity as trustee of the insolvent
Tsosane. He further said in terms of that order the respondent was
ejected from the property.
the return date of the rule nisi the Court is to decide on the rights
of the disputants to this parcel of land. He invited
the Court to
keep sight of the fact that the law applicable to this matter simply
centres on the identity of the land in question.
is aware that the system of registration has the result that the
Deeds office and the surveyor's department place the
miniature form represented by diagrams.
is only logical that in the absence of fraud or error this public
record provides positive reflection and representation
of rights to
instant matter a certain piece of land was sold by the trustee in the
observed in paragraph 5 of the respondent's
affidavit that what she has done is place in dispute the identity of
trustee says he sold a piece of land to Mr. Penane. At the same time
the respondent states she occupied the same piece of land
says has nothing to do with that held by the applicant.
then to the Court to identify the land and determine who the true
holder thereof is. It behoves the Court to adopt a robust
and examine records kept by the Deeds Registration office which holds
true records in the absence of fraud or error. This
becomes even more
necessary where there are two title deeds pertaining to the same
piece of land. In such an event then an inference
would follow that
fraud or error played some part in the obtaining of either of the
the instant matter what we have is not a question of two title deeds
but one against which it is sought by the respondent
to show by
reliance on certificates (and not title deed) of allocation or Form
C's "MT 1" and "MT 2" as proof
that the land
belongs to her.
argument Mr. Hlaoli submitted that
holder of a title Deed is not by holding it
proving his case. It is only a prima facie evidence. Once challenged
a title deed does not serve as proof"
submission he referred me to Majoro vs Sebapo 1981(1) LLR at 150. My
perusal of this authority shows that
"the possession of a document called Form "C" is prima
facie evidence that the land has been allocated to the person
therein but it is not per se conclusive proof that the allocation was
effected in accordance with the law".
seem therefore that Mr. Hlaoli has had his wires crossed on this
aspect of the matter where he tends to equate a Title
Deed to a Form
C. The position in law is it is not a Title Deed but a form C which
is prima facie evidence that land was allocated
to the holder of such
document. The authority of Majoro above rams the point home by
further showing that possession of a Form
C is not per se conclusive
proof that the allocation was effected in accordance with the law.
occasion serves the exposition of the law above should clinch the
argument and put paid to the respondent's claim. But there
further factors which help show that the respondent's claim cannot be
annexed "MT 1" and "MT 2" in support of her claim
the respondent has not produced any Title Deed or lease
of these two documents is the precursor of.
applicant's submission "MT 2" has nothing to do with the
instant dispute. The one that is affected is "MT
1" relates to Khoebo Cafe. This document is dated 6-2-79. The
measurements it bears are 143 x 62 x 129 x 53 ft.
applicant has also annexed documents to substantiate his claim,
namely "Al" the Title Deed; "A4" a Form
"A5" a sketch of the site, "A6" another Form "C"
and "A7" another sketch.
mystifying and amazing is that "A4" belonging to the
insolvent estate and "A5" filed in' support thereof
exactly the same in measurements as "MT1" the Khoebo Cafe
Form C belonging to the respondent.
difference is that "A4" bears the date stamp 26-2-79 while
"MT 1" bears 6-2-79.
stamp borne in both these documents is the same. It bears the words
"Morena Mothobi Hlatsi K. Mothobi" of "Ha
the "Maseru Dist. Lesotho" But the signatures are different
both as to the appearance of the handwriting
and as to the style of
each respective signature. "MT 1". is signed L.M. Mothobi
while "A4" is signed Lithonako
doubtful that these two documents which are the
to dimensions relating to land falling under one chief can both
relate either to Khoebo Cafe or insolvent estate D. Tsosane.
them must be irregular. The position in law is to give effect to one
relating to the land which is based on the Title Deed.
respondent's mere assertion in submissions backed by no proof that
"A4" was issued irregularly cannot be sustained.
submitted that it was clear from the start that there was going to be
dispute of fact in this matter before the applicant
purported to sell
the site because the site relied on by the applicant is unnumbered in
the title deed and makes no mention of
adjacent sites in order to
have its location ascertained. He argued that the diagrams attached
would qualify anybody to eject any
other from any part of the Tsosane
area. He submitted that the law required, in terms of the 1973 Land
Act, the chief to keep a
register of allocation as the Chief is the
person who would be able to point out the deceased's plot.
replied that there shouldn't be any complaint based on the fact that
the applicant approached the Court by way of motion,
because when one
holds a proper title deed registered and prepared by the Registrar
granting a piece of land the holder can only
have faith in the
genuineness of the document from the Registrar's office. A challenge
to that title deed would be unusual and
unforeseen. I accept that
the applicant could not reasonably have had prior knowledge of a
denial that his Title Deed issued by legitimate authority
authentic. It is this very denial that put the applicant under the
necessity to enhance his case and provide further materials
indicating the honest and untainted process that culminated in the
grant of the Title Deed.
regard to the challenge concerning the title deed per se Mr. Fick
submitted that a title deed is a public document. Nothing
in it is
hidden from the respondent. Hence she cannot complain that a surprise
has been sprung on her by production of documents
supporting it. This
was in response to the complainant that "A4" to "7"
were filed at the replying stage.
view these documents do not introduce a new matter at all. They are
merely an embellishment of the applicant's basic case.
In any event
the courts have on numerous occasions held that it is not a hard and
fast rule that no new matter may be allowed in
the reply, especially
where the essence of an applicant's case already appears from its
founding affidavits. See Shaw Company of
South Africa vs Vivier
Motors Pty Limited 1959(3) SA 971; Markus vs Universale Products
EDMS) BPK 1962(3) SA 242; Pat Hinde and
Sons Motors (BRAKPAN) Pty Ltd
vs Carrim 1976(4) SA 58.
proper approach seems, in this regard, to be that it
established whether in fact the replying affidavits contain new
matter or a new cause of action, and if so, whether it is
of such a
nature that it must be struck out.
indicated that it is a matter of great surprise that the respondent
has not filed any Title Deed.
view a Form C is a precursor to the actual preparation of a title
deed. While the title deed holds good against any pretender
property, any one seeking to rely on a Form C to challenge it cannot
be heard to complain that a countervailing Form C which
led to the
preparation of a title deed filed at the appropriate stage, is
irregularly filed if filed at . the replying stage because,
that the title deed was itself on time it cannot be required that the
party filing the Form C at the replying stage should
that the Form C would be required; common sense dictating that the
title deed is sufficient in such circumstances.
C's are mere precursors to the granting of a title deed, in the event
of disputes concerning allocation of land to respective
seems a sound rule that the Form C leading to the actual title deed
should carry the day.
is entered in favour of the applicant as prayed
going any wider than the title deed he holds. Thus the order is
granted ejecting the respondent from the place described
in the title
deed. Costs are awarded to the applicant.
Applicant : Mr. Fick
Respondent : Mr. Hlaoli
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