1
CIV/APN/241/97
IN THE HIGH COURT OF LESOTHO
In the Application of:
RAPUTSOE MAHAMO Applicant
vs
STEVE LEHLOENYA Respondent
JUDGMENT
Delivered by the Hon. Mr Justice M.L. Lehohla on the 29th June. 1999
On 6th May, 1999 this Court ordered that points (b) and (c) which had been raised in limine were dismissed with costs. Point (a) was withdrawn by the respondent at the hearing.
The dismissal had the effect of disposing of the entire defences to the application.
The Court had undertaken to give reasons for its verdict.
2
Though the Court had banked on receiving the transcripts before giving its reasons such transcripts have not been forthcoming. Nevertheless here do reasons follow below.
The applicant initiated this application ex parte seeking an order :
dispensing with periods and modes of service prescribed by the Rules of Court on account of the urgency of the Application.
Granting a Rule Nisi................ calling upon the Respondent.............. to show cause, if any, why
The Respondent shall not be interdicted and restrained from carrying on the construction and development works at a certain site No. 13282-342 situate at Ha Mabote in the Maseru District, pending the hearing and finalisation of this application.
The Applicant shall not occupy and use the said site as the lawful owner thereof.
The Respondent shall not be ordered to pay costs of this application.
This Court shall not grant Applicant further and/or alternative relief.
That prayers 1 and 2(a) operate with immediate effect as an interim interdict.
The applicant has attached to his founding papers a founding affidavit. But because the Respondent has raised points of law in limine I shall confine myself to the outline of the applicant's averments as referred to in his Counsel's heads of argument for purposes of wedding brevity to relevance.
3
The Applicant deposes that on 24th November, 1987 he was granted title to a certain site No. 13282-342 situate at Ha Mabote, by the Minister of the Interior.
In support of this averment he has attached a document entitled Ministerial Grant of Title reflecting that the grant of title was
effected in terms of Section 49 of the Land Act 1979 and that it is to prevail for ninety (90) years.
The site in question covers an area of 804 square metres; and falls within the Mabote Selected Development Area in terms of provisions of Legal Notice No.60 of 1984.
is piece of legislation specifically provides that any person who held title to any site prior to that Notice No.60 of 1984, had his title extinguished.
The respondent's version is that site No. 13282-342 is his and has referred to a Form C in his paragraph 8 of the answering affidavit.
He says he has attached it but the applicant says that is not the case. The Court finds itself in possession of none. The applicant charges that the respondent never produced any documents relating to title at the Charge Office where he was
4
apparently escorted under arrest. Applicant charges further that the Form C referred to is invalid because it was issued by a chief in respect of an area that does not fall under jurisdiction of chiefs. This area belongs to Mabote Project.
The respondent admits that the site in question falls within the Mabote Project Area.
The applicant construes that this admission should necessarily and inevitably be patient of the law applying to Selected Development
Areas of which Mabote Project area is part and kind. Thus Notice No.60 of 1984 is applicable to this area.
The respondent denies that the Minister of (then) the Interior (now Home Affairs) has any authority to grant any titles and therefore deposes that the applicant's title is defective. See paragraph 7 of the respondent's answering affidavit for this rather bold assertion.
In the same answering affidavit the respondent indicated that he would raise the following points of law in limine :
The founding "affidavit" of the applicant is not an "affidavit" as required by law for want of proper attestation in that the person who
5
has purportedly administered the oath is not a Commissioner of Oaths. This is contrary to the Oaths and Declarations Regulations, 1964. Further argument will be advanced by my Counsel at the hearing hereof.
Applicant ought to have foreseen that the (sic) would be a material dispute of fact in this matter and ought to have proceeded by way of application.
Ejectment is justiciable in the Subordinate Court. This application violates Section
6
of the High Court Act.
Suffice it to say that the point raised in (a) above was withdrawn at the drop of a hat when the matter was heard. This was very proper in my view because in terms of the Schedule of officers authorised to administer oaths as reflected in Government Notice No.35 of 1964 as amended by Legal Notice No.48 of 1969 a police sergeant is lawfully and rightly entitled to attest to an affidavit. Members of the Lesotho Mounted Police of or above the rank of sergeant are specifically mentioned as authorised in that piece of legislation.
With regard to the point raised in (b) the central and indeed only point of importance to determine is whether the Ministerial Grant of title confers lawful title on the applicant within the Mabote Selected Development Area, or whether the respondent's Form C is a valid title.
Mr Metlae for the respondent indicated in argument that point (b) relates to
dispute of fact and submitted authorities where disputes of fact were successfully decided in favour of respondents on the well-known
principle that if the dispute is real or genuine then the disputed point is to be decided in favour of the respondent and that only averments which are common cause should otherwise be accepted by the Court.
However, the document that the respondent seeks to rely on in raising the dispute on point (b) has not been attached to his papers. On this point alone of failure to furnish a document that constitutes relevant evidence the dispute raised ceases to qualify as genuine. Because the Form C that the respondent has referred to has not been included in his papers it does not form part of this proceeding. The applicant has thereby been denied an opportunity to react issuably to such document. In any event because the passing of the legislation i.e. Legal Notice No.60 of 1984 extinguished all prior rights to the Mabote Selected Development Area it doesn't seem to me that a spurious Form C merely made mention of by the respondent can be of any use. In my view it cannot avail.
On the basis of Room Hire vs Zeppe Street Mansions (Pty) 1949(3) SA 1155 the answer to what is materially necessary for the determination of the disputed point in (b) is provided by the existence of Legal Notice No. 60 of 1984:
7
meaning that the point of dispute is not real. Thus all other allegations are merely peripheral to the issue and therefore need not be allowed to cloud this proceeding.
Because the respondent admits that the place in dispute falls within the Mabote Project Area there cannot be any material or genuine dispute of fact. The reason being that after all rights were extinguished in 1984, whatever title the respondent had, ceased to exist. His was to apply for revival of his rights if he had any. Obviously he did not. There lies therefore his ill-fate that was self-inflicted. The Chief and his land allocating committee could no longer issue any Form Cs for any sites in the area after Legal Notice No.60 of 1984 extinguished all rights held prior to the passing of that piece of legislation. Thus the Chief could not have validly allocated land which at the time already belonged to Mabote Project Area.
Compared with the above state of affairs the Minister of the Interior had the authority in terms of Section 49 of the Land Act, 1979 to grant titles. Thus the applicant's title as compared to that of the respondent is valid because it was issued in terms of the law relating to Ministerial Grants of title. The Ministerial Grant of Title is annexed to the applicant's replying affidavit duly signed by both the Minister and the Commissioner of Lands and is dated 20th November 1987.
8
It is indicated on it that it is to take effect from 24th November 1987 and run for a period of 90 years from that date.
It cannot pass muster therefore to argue that the Minister's affidavit is not attached to these papers as the document speaks for itself.
The respondent's counsel argued that this matter could well have been dealt with in the Magistrate's Court.
But the applicant indicated that this is an application for an interdict and not one for ejectment as the respondent portrays it to be.
On this ground alone the respondent's attack in (c) should collapse for he has clearly misconstrued the position. There is no way the provisions of section 6 of the High Court Act can be invoked successfully in the light of the fact that Section 16 of the Subordinate Courts Order, 1988 lays down that Magistrates' Courts are not authorised to issue any orders of the nature of perpetual interdicts. This point ought to be resolved in favour of the applicant therefore.
The Court rules that there doesn't seem to be any genuine dispute of fact.
9
Furthermore the High Court is in the circumstances of this application the proper
forum for the applicant to have moved it in.
Thus the remaining points in limine i.e. points (b) and (c) were dismissed with costs.
JUDGE
29th June, 1999
For Applicant: Mr Putsoane
For Respondent: Mr Metlae
