HIGH COURT OF LESOTHO
by the Hon. Mr Justice M.L. Lehohla on the 29th June. 1999
May, 1999 this Court ordered that points (b) and (c) which had been
raised in limine were dismissed with costs. Point (a)
by the respondent at the hearing.
dismissal had the effect of disposing of the entire defences to the
had undertaken to give reasons for its verdict.
the Court had banked on receiving the transcripts before giving its
reasons such transcripts have not been forthcoming. Nevertheless
do reasons follow below.
applicant initiated this application ex parte seeking an order :
with periods and modes of service prescribed by the Rules of Court
on account of the urgency of the Application.
a Rule Nisi................ calling upon the
Respondent.............. to show cause, if any, why
Respondent shall not be interdicted and restrained from carrying on
the construction and development works at a certain
13282-342 situate at Ha Mabote in the Maseru District, pending the
hearing and finalisation of this application.
Applicant shall not occupy and use the said site as the lawful
Respondent shall not be ordered to pay costs of this application.
Court shall not grant Applicant further and/or alternative relief.
prayers 1 and 2(a) operate with immediate effect as an interim
applicant has attached to his founding papers a founding affidavit.
But because the Respondent has raised points of law in limine
confine myself to the outline of the applicant's averments as
referred to in his Counsel's heads of argument for purposes
wedding brevity to relevance.
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
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.
in question covers an area of 804 square metres; and falls within the
Mabote Selected Development Area in terms of provisions
Notice No.60 of 1984.
of legislation specifically provides that any person who held title
to any site prior to that Notice No.60 of 1984, had
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 has attached it but the applicant says that is not the case. The
Court finds itself in possession of none. The applicant
the respondent never produced any documents relating to title at the
Charge Office where he was
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.
respondent admits that the site in question falls within the Mabote
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.
respondent denies that the Minister of (then) the Interior (now Home
Affairs) has any authority to grant any titles and therefore
that the applicant's title is defective. See paragraph 7 of the
respondent's answering affidavit for this rather bold assertion.
same answering affidavit the respondent indicated that he would raise
the following points of law in limine :
founding "affidavit" of the applicant is not an
"affidavit" as required by law for want of proper
in that the person who
has purportedly administered the oath is not a Commissioner of Oaths.
This is contrary to the Oaths and Declarations Regulations,
Further argument will be advanced by my Counsel at the hearing
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
is justiciable in the Subordinate Court. This application violates
of the High Court Act.
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
regard to the point raised in (b) the central and indeed only point
of importance to determine is whether the Ministerial Grant
confers lawful title on the applicant within the Mabote Selected
Development Area, or whether the respondent's Form C
is a valid
for the respondent indicated in argument that point (b) relates to
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
averments which are common cause should otherwise be accepted by the
the document that the respondent seeks to rely on in raising the
dispute on point (b) has not been attached to his papers.
point alone of failure to furnish a document that constitutes
relevant evidence the dispute raised ceases to qualify as
Because the Form C that the respondent has referred to has not been
included in his papers it does not form part of this
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.
basis of Room Hire vs Zeppe Street Mansions (Pty) 1949(3) SA 1155 the
answer to what is materially necessary for the determination
disputed point in (b) is provided by the existence of Legal Notice
No. 60 of 1984:
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.
the respondent admits that the place in dispute falls within the
Mabote Project Area there cannot be any material or genuine
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.
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
indicated on it that it is to take effect from 24th November 1987 and
run for a period of 90 years from that date.
pass muster therefore to argue that the Minister's affidavit is not
attached to these papers as the document speaks for
respondent's counsel argued that this matter could well have been
dealt with in the Magistrate's Court.
applicant indicated that this is an application for an interdict and
not one for ejectment as the respondent portrays it
ground alone the respondent's attack in (c) should collapse for he
has clearly misconstrued the position. There is no way
of section 6 of the High Court Act can be invoked successfully in the
light of the fact that Section 16 of the Subordinate
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.
rules that there doesn't seem to be any genuine dispute of fact.
the High Court is in the circumstances of this application the proper
the applicant to have moved it in.
remaining points in limine i.e. points (b) and (c) were dismissed
Applicant: Mr Putsoane
Respondent: Mr Metlae
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law