Land Court summarily dismissed an originating application without hearing oral evidence, when on the pleadings the parties’ versions with irreconcilable and mutually destructive.
Land Court’s judgment and order set aside on appeal and matter referred back to Land Court to be heard by a different judge.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) NO.: 8/2020
In the matter between:
EXECUTOR – ESTATE LATE
‘MATHABO & MOHANOE MOEPI APPELLANT
TS’EPO MONAHENG (UNLAWFUL
OCCUPIER OF PLOT NO. 13272-625 1ST RESPONDENT
LAND ADMINISTRATION AUTHORITY 2ND RESPONDENT
MASTER OF HIGH COURT 3RD RESPONDENT
MASERU CITY COUNCIL 4TH RESPONDENT
MABOTE POLICE STATION 5TH RESPONDENT
COMMISSIONER OF POLICE 6TH RESPONDENT
ATTORNEY GENERAL 7TH RESPONDENT
MATS’OOA PATRICIA MOEPI
(BORN MOHLOAI) 8TH RESPONDENT
Coram: P T Damaseb, AJA
Dr P Musonda, AJA
Dr J van der Westhuizen, AJA
Heard: 22 October 2020
Delivered: 30 October 2020
PT Damaseb AJA:
(a) That the first respondent be restrained from interfering with the disputed land and from using it for development or constructing a residential building thereon;
(b) That the Master of the High Court (third respondent) be restrained and interdicted from permitting the Land Administration Authority (the second respondent) to authorise transfer of the disputed land to any body;
(c) That the first respondent be interdicted from holding himself out as the owner of the disputed land;
(d) An order interdicting the first respondent from interfering in whatever manner with the disputed land;
(e) An order declaring the agreement of sale (if any) entered into by and between the first respondent and an ‘undisclosed person’ relating to the disputed land ‘in whatever disguised form as null and void ab initio and of no legal effect’;
(f) An order declaring the first respondent as a mala fide occupier of the disputed land and ‘liable to forfeit any development he made’ on the disputed land;
(g) An order permanently evicting the first respondent from the disputed land;
(h) Costs on an attorney and own client scale.
‘Late Mohanoe Kalamas Moepi had three wives and the marriage of [Mathabo as second wife] being null and void to the extent that it was entered during the subsistence of the existing marriage between ‘Masekhobe Moepi [the first wife] [who] is still alive [and] with whom she was married by customary rites and in community of property with the late Mr Moepi. And the third [marriage was] with …‘Mantsoaa Moepi [who] was also married to the late Mr Moepi by customary rites and in community of property and she is still surviving the property in issue [and it] does not form part of the estate of the said deceased [with ‘Mathoba].’
The position of the law is that the civil marriage does not co-exist with any other marriage to the exclusion of all other marriages. Therefore there cannot be any talk of the joint estate between the late couple to the extent that their marriage was a nullity.’
‘ The fact that…no answer has been filed on behalf of the applicant in respect of the application for intervention by the eighth respondent, means that the applicant has waived whatever rights it had in law to have raised same. Refer to Rule 66(3) of the land Court Rules.
‘ Put differently, there is nothing put forward to interrogate allegations that the properties therein shown in those annexures form part of the estate of [the late Mr] Moepi and [ ‘Matsooa.]’
 The applicant has decided not to invoke the provisions of Rule 66 as she has not raised any preliminary objections by way of a special answer. There is therefore nothing raised by the applicant by way of a preliminary objection; as such it can safely be concluded that she admits contents of those annexures. In that way, it makes no logical sense to invoke Rule 67(1) of the Rules of this Court.’
Grounds of appeal
‘The court may, upon application by a person having interest therein, and if it finds it necessary in the interests of justice and for the proper hearing of any proceedings, allow such a person to intervene as a party thereto at any time before judgment.’
ACTING JUSTICE OF APPEAL
DR P MUSONDA, AJA
DR J VAN DER WESTHUIZEN, AJA
For Appellant: Mr CJ LepHuthing
For First Respondent: Ms M V Khesuoe
 In terms of the Land Court Rules 2012 made under the Land Act 2010.
 In terms of rule 12.
 Rule 13(1).
 In terms of rule 28.
 The rest being lack of jurisdiction by the land Court; ‘privity of contract’ and the executor’s lack of ‘locus standi’ as the disputed land belonged to an estate other than the one in respect of which she holds a mandate.
 In terms of rule 35.
 Christie, RH. 2006. The Law of Contract in South Africa. LexisNexis Butterworths: Durban from p 441 and the authorities there collected.
 See rule 69 which states: ‘ (1) After preliminary objections, if any, have been decide the court shall ensure upon what point of law or fact the parties are in controversy, and thereupon proceed to frame and record the real issues in dispute. (2) Where the pleadings have been submitted and after any preliminary objections have been decided, it appears to that the parties are not at issue on any question of fact or law the court may at once pronounce judgement’. (My underlining for emphasis).
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