CIV/A/1/84

IN THE HIGH COURT OF LESOTHO
In the Appeal
of :

PHOKA CHAOLANE' Appellant

V
IKANENG MAKHOOANE Respondent

J U D G M E N T

Delivered by the Hon. Mr."Justice.B.K. Molai

on the 29th day of August. 1986.

This is an appeal against the decision of the .
subordinate,Court of Maseru in a certain CC. 352/83. The Respondent
(hereinafter referred
to as Applicant) had filed with the clerk of
that Court an Ex-Parte application in which he moved for a Rule Nisi
against, the appellant
(hereinafter referred to as Respondent) framed
in the following terms:

"(a) Directing the Respondent forthwith to restore
to applicant the following movables :

2 desks,

1 filing cabinet,

1 duplicating machine,

1 queen stove,

a quantity of stationery and 5 chairs which

Respondent has unlawfully dispossessed

applicant of ;

(b) Directing Respondent to pay the costs of
this
appllication;

(6) Calling on Respondent to show cause, if any,

/on the

-2-

on the 29th day of March, 1983, in the for/afternoon
why the rule nisi shall not be made absolute."

After judgment by default and rescision thereof had been
entered on several occasions the matter finally came for argument
when the
trial magistrate ordered that viva voce evidence of
all the people who had filed affidavits should be led. The evidence
disclosed by the affidavits and the witnesses who
testified before

the Court was adequately summarised in the trial
magistrate's written reasons for judgment dated 25th

November,
1983 and there is no need to go over it again.

Suffice it to say after weighing the evidence and
observing the demeanor of the witnesses who had appeared

and testified on oath before him the trial magistrate

found the following facts to have been proved, on a
balance of probabilities, and granted the rule as prayed with costs :

1. In June 1980 the applicant (representing
Thabeng
School of Typing and Accountancy)

and one Gerard Pokane Ramoreboli (representing
Basutoland Congress Party) concluded a written agreement (annexed)
whereby the latter
leased to the applicant certain premises known as
B.C.P. Headquarters for use as a school of Typing and Accountancy.

2. 
   The lease commenced on 1st July, 1980 for
   an initial
   period of three years.

   
   

3. 
   The articles mentioned in the application
   were, at
   all material time, used by the
   applicant at the said B.C.P.
   Headquarters
   for his school of Typing and Accountancy.

   
   

4. 
   On 3rd March, 1983 and before the expiration
   of the
   lease period the Respondent came to
   the B.C.P. Headquarters and
   loaded away all
   the articles mentioned in the application
   without
   the approval/consent of the applicant
   who was the Principal of
   Thabeng School of
   Typing and Accountancy.

   
   

/The appeal

-3-

The appeal was based on a number of grounds which could,
however, be summed up in that the decision of the

trial magistrate was against the evidence and the
applicant had no locus standi to bring the application.

The remedy sought by the applicant was clearly what is
commonly known as mandament van spolie. In order to obtain his
remedy all that the applicant had to prove was that he peacefully
possessed the property mentioned
in the application and the
Respondent wrongfully deprived him of his possession of that property
- See Kramer v. C.C.V.C. Grassy Park, 1948(1) 3.A. 748 p. 753.
I must say I was unable to

find any reasonable grounds on which to disturb the
findings of the trial magistrate in this case. On the

facts found proved it is clear therefore, that the
applicant and Ramoreboli had concluded a lease agreement whereby the
former occupied
the B.C.P. Headquarters and was, at all material
time, using the property, mentioned in the application, for his
school of Typing
and

Accountancy. He was, therefore, in peaceful possession
of the property. However, the Respondent subsequently

and before the expiration of the lease period, loaded

away the property without the consent of the applicant
and thus wrongfully deprived him of his peaceful

possession of the property.

On the facts found proved the applicant had, in my view,
satisfied, on a balance of probabilities, the requirements of the
remedy
he had asked for.

As regards his locus standi to bring the
application before the Court it was argued that the applicant had
entered into the alleged lease agreement on behalf
of

/Thabeng

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Thebeng School of Typing and Accountancy. The latter,
and not the applicant, had, therefore, the locus standi to
approach the court with this application. I do not agree. Although
he may have concluded the lease agreement on behalf of Thabang
School
of Typing and

Accountancy, the applicant was, on the evidence the
person in charge of, or running the school. He was in

actual legal possession of the property used at the
school and, therefore, the proper person to institute the proceedings
- Muller v. Muller, 1915 T.P.D. 28.

In the result, there is no doubt in my mind that this
appeal ought not to succeed and I accordingly dismiss it with costs.

For Appellant : Mr. Mphutlane
For Respondent :
Mr. Tsotsi.