IN THE HIGH COURT OF LESOTHO
the Application of :
MOSES ISAACS Applicant
AYESHA BIBI GOOLAM MOHAMED FRANCIS Respondent &
Delivered by hen. Mr. Justice F.X. Rooney on the 30th
day of March, 1982.
Mr. Masoabi for the Applicant Mr. Sello for the
This is an application for the setting aside of an Order
of this Court made by consent of the contending parties on the 2nd
1981. There is also a counter application by the respondent
for the variation of the same Order. The matter has a long history
it is necessary to recount.
On the 4th April, 1977, the applicant and the respondent
entered into a deed of sale in respect of certain immovable property
Nos B11, B12, B23 and B24 Cathetral Area, Maseru reserve.
The agreement provided that the applicant as seller should transfer
property for a price of R30,000. Payment of the purchase price
was to be effected by the settlement of R24,000 worth of debts owed
by the applicant to various named creditors and the payment of R6,000 in cash. On the same day the applicant, who was the
registered owner of the property in question, executed a power of
to pass transfer in favour of one Rashid Ahmed Karim who was
then an attorney of this Court. The property was not transferred
and on the 15th April, 1980 the applicant wrote to the
Town Clerk, Maseru repudiating the
contract. On the 21st June, 1981 the respondent
commenced proceedings in this Court by way of Notice of Motion
seeking what amounted
to a mandatory interdict against the present
applicant requiring him to transfer the property in accordance with
the deed of sale.
The present applicant resisted these proceedings and he
filed an affidavit in which he raised a number of defences including
That his opponent had no locus standi
That she has no valid permit for indefinitesojourn
in Lesotho and was not thereforecapable of holding a title to
land interms of section 5 of the Land Act 1979.
That the deed of sale was not signed orproperly
signed by the purchaser or her dulyappointed attorney.
That the deed of saw was not a validdocument by
reason that all the materialter,ms thereof were not reduced to
and that the amount of the purchase price could not be
5. That the purchaser had not carried out
herobligations under the said deed of sale.
6. That the purchase price had not been paidin full.
7. That the seller's signature had been forgedon a
letter to the Ministry of the Interiorindicating his consent to
the transfer ofthe property in the name of the purchaser.
That the seller had not executed a documentdescribed
as a "declaration of sale",
That the proceedings should not have beencommenced
by way of notice of motion.
It can be seen from the above that the present applicant
was prepared to go to considerable lengths in his effort to be
the agreement for the sale of his property. His various
defences were not put to the test because on the 23rd October, 1981,
to compromise the proceedings in terms of the following
" Agreement between the Applicant and the
The 4th respondent hereby consents to anorder in
terms of paragraph 1 of the noticeof motion.
The 4th respondent hereby undertakes to signall
documents and do all things necessary inorder to effect transfer
of the immovableproperty referred to in paragraph 1 of
thenotice of motion into the name of the applicant,
The 4th respondent abandons all his defencesto the
claim of the applicant and acknowledgesin particular that the
applicant has a permitof indefinite sojourn to enter and
sojournin Lesotho (Permit No. 659/81 of the 7thOctober
The applicant undertakes to pay to the 4threspondent
the sum of R6,000 (six thousandrand) against transfer of the
said immovableproperty into the name of the applicant.
The said payment is being made ex gratia and
entirity without admission of liability.
Each party shall bear its own costs in
Ave for what is herein contained, theapplicant and
the 4th respondent acknowledgethat they have no claims
whatsoever againsteach other. The 4th respondent
alsoacknowledges that he has no claim against thefollowing
Auto-Care Lesotho (Pty) Ltd. A.R Carrim M.A. Rehman
7. The parties acknowedge that the applicant
isrepresented herein by her husband A.R. Carrim.
Dated at Johannesburg this 23rd day of October 1981."
On the 2nd November, 1981 at the request of both
parties, the above settlement was made an Order of this Court. That
been an end of the matter as the present applicant was by
Order of this Court directed to effect transfer of the immovable
in question into the purchaser's name.
The basis of the present application for the recall of
the consent Order is contained in the founding affidavit of the
29th January, 1982. In this he admits the compromise
but states that he entered into it on the basis that the respondent
that time a permit for indefinte sojourn in Lesotho. He
4/ letter dated
- 4 -
letter dated the 18th November, 1981 from the Ministry
of the Interior which advises him that the respondent's permit had
The applicant alleges that the respondent had
obtained her resident permit fraudulently without setting forth any
facts in support
of that serious allegation. He claims that the
cancellation of the respondent's resident permit disqualified
her from holding
immovable property in Lesotho and that
this"automatically rendered any prior deeds of sale or
agreements of sale entered into
by and between herself and myself
purporting to transfer my immovable property to her null and void."
Before I deal with the submissions made by Mr. Masoabi,
it is to be observed that the applicant raised in the original
the ineligibility of the respondent to held land in
Lesotho. It is a specific term of that compromise that the applicant
all his defences and he acknowledged in particular that the
present respondent was in possession of a permit of indefinite
Although the circumstances have changed and the respondent's
permit has since been cancelled, the applicant is clearly in breach
of the terms of the compromise in raising the matter again.
Mr. Masoabi submits that it was the intention of
the legislature in enacting the Land Act 1979, that a person
disqualified from holding land
in Lesotho under the terms of the Act
"should not use a nominee to obtain or own such properties".
It is admitted by the
respondent that the person in whose name the
land would be vested would, be her nominee. Such an arrangement would
create a fideicommissum. The proposed nominee would acquire a
real right to the land and any rights which the respondent retained
would be personal only.
(Wille "Principles of S.A.
Law"4th Ed 216). The respondent's rights against her nominee
would not consitute a title to land within the meaning
of the Land
Act 1979. Her position may be affected by section 16 of the Deeds
Registry Act 1967 but, it is unnecessary for me to
problems of the respondent in this respect. Whatever may be her
difficulties, they are in no way prejudicial to the
remains bound by the
5/ compromise and the
- 5 -
compromise and the rights and obligations thereby
Mr. Masoabi further argued that the arrangements
made by the respondent with the person to whom she now wants the
applicant to convey the land
violate the doctrine of privity of
contract. Mr. Masoabi referred me to the case of Dunlop v.
Selfridge (1915) A.C. 847 in support of his argument. In that case
the House of Lords decided
that a person who is not a party to a
contract cannot be bound by it. This reaffirmed the position in
English law that no one may
be bound by the terms of a contract to
which he is not an original party. The doctrine is a logical
extension of the English common
law rule which requires consideration
to support a contract. The concept of consideration is unknown to the
Roman Dutch Law, but,
even if it were, Mr. Masoabi seems to
have lost sight of the fact that his client is a party to the
Mr, Masoabi's further submission that the
concellation of the respondent's residence permit not only
disqualified her from owning any immovable
property in Lesotho but
rendered null and void any prior agreement entered into by and
between the applicant and the respondent in
regard to the land in
question was not supported by any authority. However, he went further
and submitted that the contract became
illegal and that this Court
should not enforce an illegal contract. He relied upon Mistry
Amar Singh v. Kulubya (1963). All E.R. 499. In that case
both parties entered into a patently illegal agreement in relation to
land in Uganda, The Privy
Council held that the plaintiff, who was
the owner of the land, was entitled to recover possession because his
right to possession
did not depend on the illegal agreement but
rested on his registered ownership of the land. The defendent could
not rely on the agreement
because of the illegality and therefore he
could not Justify remaining in possession. This decision does not
assist the applicant
in these proceedings.
6/ The position here
The position here is that at the date of the compromise
the agreement between the parties was legal and was made an Order of
Court. The subsequent change in the status of one of the parties
in terms of Section 6 of the Land Act 1979 did not render the
illegal but it rendered it impossible for the respondent to
insist upon its performance in accordance with its terms. If the
had been conveyed to the respondent in accordance with the
agreement before her residence permit was cancelled, her position
be governed by section 84 of the Land Act 1979. She could
continue to held the land for a period of 12 months and she would be
during that period and with the consent of the Minister, to
cede her rights to a person qualified under section 6. If she failed
in that purpose section 84(2) provides for the reversion of her
interest in the land (not to the present applicant) but to the State.
Because the applicant failed to carry out immediately the terms of
the compromise, this cannot have the effect of placing the respondent
in a less favourable position than she would had been in if the
applicant had performed the contract.
A contractual right may be ceded to a third person
without the consent of the other party except in a limited number of
of which apply to the compromise. It does not make a
substantial difference to the applicant whether the respondent cedes
under the agreement. It is not an obligation of a
personal nature. "whore the obligation is to deliver property
as a rule make any substantial difference to the debtor who
the person is who is entitled to receive the property" (Wille
There is no express agreement that the respondent shall
not cede the benefits of the agreement. The cession proposed
be its form) is not contrary to law.
The respondent has asked this Court to vary the consent
Order so as to stipulate that the applicant must transfer the
7/ The applicant
The applicant is opposed to this. When the compromise
agreement was drawn up, the respondents legal advisers ought to have
the possibility that circumstances might arise in which a
cession became desirable and they
should have so provided in the agreement. They did not
do so and I am reluctant to vary a consent order in the
face of the opposition of one of the parties.
As I have said, the applicant is bound by his
under the common law. If either party wishes to cede
the benefits of the agreement, they may do so. The respondent is
this may give the applicant an opportunity to offer
further resistence to the enforcement of the compromise. I accept
is so, but, the end result must be the same. This Court
will come to the assistance of the respondent or to her cessionary in
the applicant to fulfill his obligations. If he fails
to do so and continues to refuse to sign all necessary documents,
then this Court may appoint a person
to sign them on his behalf.
The application is dismissed with costs but no costs are
allowed to the respondent in respect of the counter application.
30th March, 1982.
Attorney for the Applicant : CM. Masoabi & Co.
Attorney For the Respondent: Mohaleroe, Sello & Co.
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