IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) 6 OF 2011
In the matter between:
MASEZWANE TSOLO (Nee MOHLABA) APPELLANT
and
'MATLI TSOLO RESPONDENT
CORAM : SCOTT, JA
HURT, JA
HLAJOANE JA
HEARD: 7 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
SUMMARY
Land Act 1979 – meaning of "transaction" in section 36(5) – includes both the agreement to transfer title and the consent of the Minister – where Minister's consent not obtained, underlying agreement is also unenforceable – contract of donation without Ministerial consent, cannot be enforced. On Appeal,
Held: Purported donation of title to husband without consent in terms of section 36 does not transfer title to the joint estate, nor can the agreement be enforced by the joint estate against the donor.
JUDGMENT
Hurt, JA
[1] The Appellant was cited as the Defendant and Plaintiff-in-Reconvention in an action by the Respondent for divorce. Her Counterclaim included a prayer for a division of the joint estate. The divorce order was granted without opposition and the issues arising from the Counterclaim were referred to trial. It appears that the only asset in contention in regard to the division was an immovable property on which the Appellant and Respondent had constructed a house, the construction not having reached completion at the time of dissolution of the marriage. The Appellant contended that the immovable property had been donated to her husband by his mother and that the Appellant was entitled to a half share in that property. The trial Judge, Monapathi J, rejected her claim to half the property. He found that the Appellant had established, on a balance of probability, that the she had contributed to the cost of constructing the building, but that the purported donation by her mother-in-law to her son (the Respondent) was invalid for want of compliance with the statutory requirement of Ministerial consent.
.[2] The Appellant appeals against this finding. It must be borne in mind that the issue that was referred to the trial Judge arose out of an assertion that the Appellant was entitled to a division of the joint estate. Judging from the evidence and cross-examination this issue was apparently widened to embrace the question of whether the property and the building on it were an asset in the joint estate. The issue was not clearly defined before the parties embarked on the leading of evidence[1], and the only way to define it is by reference to the opening paragraphs of the judgment, which are to the following effect:
"MrThene(Appellant's counsel) submitted that the parties had built a house together at Ha Tsolo and for that reason the house formed part of the joint estate and that being the case, the value of the house should be divided. He expanded this argument further by saying that even the site on which the house was built formed part of the joint estate as well and its value has to be divided accordingly.
[4] (Appellant's) Counsel further argued that the site in question was given to (the Respondent) and that was the reason why the parties had decided to build the house on that site.
. . . . . .
[6] On the other hand MrSetlojane for the (Respondent) argued that the land in question was never allocated to the parties and for that reason, it did not form part of the joint estate.
. . . . .
[8] The issue is primarily the question of whether the land in question and the house built thereon formed part of the joint estate."
For the purposes of dealing with the Appellant's contentions on appeal, it must be assumed that this was a correct definition of the issues on which the trial Judge was asked to adjudicate.
[3] MsTiisetsoSello-Mafatle who appeared pro bono for the appellant and to whom the Court is indebted for the energy with which she presented her argument, endeavoured to persuade us that there were various grounds on which the respondent's mother was in breach of the obligation to transfer title to the property to the respondent for the benefit of the joint estate. But the law is clear that there can be no claim by the joint estate against the respondent's mother. The relevant provisions in S 35(1)(b) provide that:
"A lessee shall be entitled . . . subject to obtaining the consent of the Minister . . . to dispose of his interest (in the property)."
S 36(5) stipulates that
"Any transaction conducted[2] by a lessee without the consent of the Minister or contrary to the terms and conditions of a general consent shall be of no effect."
In Mothobiv Seboka C of A (CIV) No. 3 of 2008 (unreported), this Court affirmed and clarified the construction attributed to the subsection in Sea Lake (Pty) Ltd v Chung Hwa Trading Enterprises Co (Pty) Ltd and Another (2000 -2004) LAC 190. Melunsky JA stressed that the word "transaction" in its context referred not only to the act of delivery, in the form of registration of transfer, but to the underlying contract as well. If the underlying contract is invalid, there can be no question of a claim to enforce it accruing to the joint estate.
[4] The conclusion to which the learned Judge came is accordingly correct and the appellant failed to establish that the joint estate had been enhanced either by the acquisition of title to the property or by the existence of a claim against the respondent's mother for transfer of that title.
[5] A number of other submissions were made by counsel for the appellant. But the invalidity of any contract of donation which there may have been between the respondent and his mother is an insuperable stumbling block as far as appellant's claim to share in the immovable property is concerned. There is no reason why the costs of the appeal should not follow the result.
[5] The appeal is dismissed with costs.
_______________________
N V HURT
JUSTICE OF APPEAL
I agree:
______________________
D G SCOTT
_____________________
A M HLAJOANE
Counsel for the Appellant: Sello-Mafatle Attorneys
Counsel for the Respondent: Adv. Setjojoane (KEM CHAMBERS)
[1]I think it is necessary for me to point out that this type of ad hoc procedure is not to be encouraged and judges and counsel alike should be astute to avoid it. Before embarking on a trial of issues, the issues should be clearly defined, preferably in writing or at least as part of the viva voce record. The litigants and judges should always bear in mind that the matter may go further than the court of first instance, and, as in this case, the appeal court may have substantial difficulties in ascertaining precisely what the dispute was about.
[2]The word "conducted" was apparently used in the sense of "concluded" – see Mothobisupra.
