CIV/APN/10/84

IN THE HIGH COURT OF LESOTHO
In the
Application of

JAMES MOTLALETSI MOTAUNG Applicant
and

MAHOMED OSMAN Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
17th day of February, 1986.

Applicant herein has moved this Court for an order
couched in the following terms

"1. Rule Nisi be issued returnable on a date and
time to be determined by the above Honourable Court calling upon the
Respondent
to show cause why

(a) Bataung garage at Qoaling Ha Seqobela,
presently
occupied and used by

Respondent should not be closed with immediate effect,

2. 
   Respondent should not pay the monthly
   rental in the
   amount of M3,000 being
   rental for the occupation and use by
   him
   of the said garage premises since
   July, 1983 to date,

   
   

3. 
   Respondent should not pay interest a
   tempora
   morae at the rate of 11 per cent,

   
   

4. 
   He should not pay costs of this
   application.

   
   

2. That prayers 1(a) and (b) above should operate as an
interim interdict pending the finalization of this application."

The Rule was on 6th March, 1984, granted as prayed but
the Respondent subsequently opposed its confirmation.

The facts that emerged from the affidavits were briefly
that on 17th June, 1983. the Applicant and the Respondent entered
into a written
contract (Annexure D) whereby the former agreed to
sell to the latter all rights,

2/ title .....

-2-

title and interest in and to the buildings and other
improvements erected with the consent of Government, express or
implied, and
the garage plant and equipment on his unnumbered
business site - situate at Qoaling in the district of
Maseru,measuring 150 feet
x 250 feet according to Title Deed Number
4568 of 19th February, 1968 (Annexure A).

In terms of Clause 1 of the conditions of the Deed of
Sale signed by the parties the purchase price of the property was
M155.000 of
which M50.000 was to be paid by the Respondent as a
deposit into the Trust Account of Messrs. E.G. Cooper and Sons -
Attorneys of
Maseru The balance was to be paid in twelve (12)
monthly instalments commen­cing from the date on which the
ministerial consent
for the transfer of the property would be
obtained. Indeed it would appear that in consequence of the deed of
sale, the Commissioner
of Lands was approached with an application
for lease to facilitate the requisite ministerial consent This is
implied in annexure
'M' about which more will be said later in this
judgment.

It was common cause that upon signature of the Deed of
Sale on 17th June, 1983, the Respondent did pay the M50.000 into the
Trust
Account of Attorneys E.G. Cooper & Sons. In terms of Clause
2 (of the Deed of Sale) which provided that occupation of the
property
would be given to the purchaser on 1st July, 1983, the
Respondent did assume occupation of the property on 1st July, 1983.
He was,
therefore, only awaiting the ministerial consent to be
obtained so that he could start clearing the balance of the purchase
price
in accordance with the provisions of the Deed of Sale.

However, according to the Applicant after they had
signed the Deed of Sale on 17th June, 1983, the parties held another
meeting during
which it was verbally agreed that they had not fully
understood the terms of the Deed of Sale which should, therefore, be
cancelled.
A draft agreement (Annexure F) to that effect was prepared
but never signed by either of the parties. Nonetheless, following the
alleged unsigned verbal agreement, the applicant addressed a letter
(a copy of which

3/ is annexure M)

-3-

is annexure M) dated 14th December, 1983 to the
Commissioner of Lands advising him of the parties' alleged verbal
agreement and questioning
the wisdom of his proceeding with the
processing of the application for the ministerial con­sent.

The applicant further deposed that following the alleged
verbal agreement to cancel the Deed of Sale concluded on 17th June,
1983,
he and Respondent entered into another agreement whereby the
latter was to pay him an amount of M3,000 per month as rental for the
occupation and the use of the property. The Respondent was, however,
not honouring the agreement by refusing/neglecting to pay him
the
amount.

The Respondent hotly disputed Applicant's averment that
following the conclusion of the Deed of Sale on 17th June, 1983.
another meeting
was held during which he and the Respondent verbally
agreed to cancel the Deed of Sale. We have, therefore, the word of
the Applicant
as against that of the Respondent on this point.
However, assuming for the sake of argument, that the parties did
enter into an agree­ment
to cancel the Deed of Sale, it was
applicant's evidence that such agreement was never signed by the
parties. That being so, the verbal
agreement could never have been
valied for Clause 7 of the Deed of Sale clearly provided

"This Deed of Sale constitutes the entire

agreement between the parties and no modification,
variation or alteration thereto should be valid unless in
writing and signed by the parties there-to." (My
underlinings)

I do not see how an invalid agreement to cancel the Deed
of Sale could have, in fact, cancelled it. For this reason
Respondent's contention
was that as far as he was con­cerned, the
agreement concluded between him and the applicant on 17th June, 1983
was still in force.
I entirely agree. It follows, therefore, that if
it were based on the purported concellation of the Deed of Sale by
the alleged verbal
agree­ment, prayer 1(a) of the Notice of
Motion cannot stand.

It must, however,be pointed out that as it was subject
to the minister granting his approval or consent in some future time,
the agreement
entred into by the parties to

4/sell

-4-

sell the property was subject to a true suspensive
condition i.e. it was not, as yet, a contract of sale over the
property. It was
merely an agreement that the parties would enter
into such a contract when and if the minister gave his consent to the
parties to
do so (Corondinas & Another v. Badat 1946 A.D.
548 p.651).

As regards Annexure M, the copy of the letter dated 14th
December, 1983, the Respondent deposed that it was never copied to
him and
he was surprised to learn of its existence from the
Commissioner of Lands. I have looked at Annexure M and I must say, on
the face
of it, there is no indication that it was copied to the
Respondent. I find it difficult, therefore, to resist the inference
that
the applicant wrote it behind the back of the Respondent in an
attempt to surreptitiously undermine the agreement concluded by the
parties on 17th June, 1983. That was patently a disho­nest act
from which the applicant could not be allowed to benefit.

The Respondent further disputed applicant's evidence
that following the conclusion of the agreement of 17th June, 1983,
the parties
entered into another contract whereby he was to pay the
applicant an amount of M3,000 as monthly rental for occupation and
use of
the property. On the contrary he (Res­pondent) was the one
who suggested by way of a compromise that he would be prepared to
pay
the M3.000 monthly rental pending the ministerial consent on
condition that the total amount paid would be deducted from the
balance of the purchase price as soon as it became due and payable
i.e. when the ministerial consent had been obtained. For that
purpose
the Respondent offered to prepare a draft amendment to the contract
of 17th June, 1983 which amendment would be signed by
the parties in
accordance with the provisions of Clause 7 of the Deed of Sale.
However, notwithstanding repeated requests, applicant
refused/neglected to give him the go ahead and the Deed of Sale
remained unamended.

Reading from the papers before me, it would appear that
the Respondent did write Annexure 'C', the letter of 14th November,
1983,
in which he accepted by way of a compromise to pay the amount
of M3,000 as monthly rental on conditions

5/ that the

-5-

that the agreement of 17th June, 1983 was amended in
accordance with the provisions of Clause 7 of the Deed of Sale and
the amount
paid would be deductable from the balance of the purchase
price when it became due and payable. The applicant clearly accepted
this
compromise by Annexure 'G', his letter of 18th November, 1983.
It is, however, clear from the letters marked Annexures "H","J"
and "K" that the parties never finalised the question of
amendment as proposed by the compromise. Until this had been done,
it
seems to me, there was no reason why the Respondent should have paid
the M3.000 monthly rental for occupation and use of the property
since July, 1983

In the light of all that has been said above, it is
clear that the view that I take is that the applicant is not entitled
to the reliefs
sought in this application and the Rule Nisi
granted on 6th March, 1984 ought to be discharged with costs to the
Respondent. It is accordingly so ordered.

B K. MOLAI JUDGE

17th February, 1986.

For Applicant Mr. Khauoe,
For respondent Mr.
Tsotsi.