IN THE HIGH COURT OF LESOTHO In the natter
BEM MALOTSI Applicant
Delivered by the Hon. Mr. Justice M.P. Mofokeng on
the 18th day of April, 1986.
This is an application for mandament van spolie.
The Applicant seeks an Order in the following terms.
(a) Directing Respondent in his capacity as
the legal representative of Lesotho Government to
restore forthwith to Applicant House No. 604/C at Thaha-Bosiu
staffing House Maseru
and Applicant's property locked therein
Dispensing the periods of notice requiredby the
Rules of Court,
Granting Respondent further and/or alternativerelief,
and that Applicant's affidavit
attached hereto will be used in support hereof.
In his founding affidavit , the Applicant avers
that he was in peaceful and undisturbed occupabion of House No. 604/C
at Thaba-Bosiu Staff Housing near Lakeside Hotel Maseru Urban
Area in the district of Maseru until on or about the 7th April 1986
when Mochochoko and Letsoela of the Conservation Division of the
Ministry of Agriculture (who were acting with the scope of their
employment with Lesotho) wrongfully and unlawfully took part of his
property and left the other in the house.
Thereafter they locked the door of the said house in
such a way that he could not gain access thereto. He proceeds to
property which were locked in the said house totally the
value of M10,000,00 (Ten Thousand Maloti). There was also a sum of
(Three Thousand and Five Hundred Maloti only) in hard cash
in the locked house in a shelf of the headboard. He alleges that by
action the two Government officers mentioned have resorted to
self-help or spoliation which action in law is not allowed. The
required by the Rules of this Court was dispersed with.
In opposing this application the Respondent alleges that
the two Government officers were acting in accordance with law, that
say Public Service Regulations 1985 (Legal Notice No. 136 of
1985). It is denied that any money was taken from the said house.
It is not denied that the said house was entered into in the absence
of the Applicant and the property removed prcSV^c-Vd to belong
and the rest were left and locked inside the said house. On the 7th
April 1986 Mochochoko alleges that he met Applicant at
At 5 p.m. he, Applicant and one Ramaqele (who has not made any
affidavit) proceeded to the house in order that Applicant
point out his property. They then left the house. One Marite was to
be called to identify property belonging to the Government.
Letsoela, one of the Government officers took what they
were told was the property of Applicant and put it outside. Prior to
removal "repeated" notices to vacate the said
premise. The Applicant was finally
ejected from the said house on the 7th April 1986
pursuant to the provisions of "Legal Notice No. 71 of 1983 of
the Public Service
(Amendment No.3) Regulations 1983 sub-regulation
"D" read together with Regulation 65 of Public Service
Legal Notice No. 136 of 1985". Ho further
alleges that the Applicant had been given "sufficient written
notice to vacate
and the procedure for ejectment which followed the
terms of the said legal notices."
The Applicant's contention in quite a simple one, namely
that when the two officers took possession of the said property, they
according to the principles of self-help or committed an act of
spoliation. He was no longer,an officer in terms of the
section of the Public Service Commission Rules 1970
which merely says that an officer means a "Public Officer".
countered this contention by saying simply that the
Applicant's possession was not peaceful.
Section 64(5) (b) says that a dismissed officer from
Public Service shall vacate his quarters with effect from the date of
Section 65(1) deals with procedure to be followed if the
officer refuses to vacate the premises.
These sections are clear and unambiguous and must be
applied. The question is to whom? They are not of general
application. They apply
to a particular class of people namely
officers in the government service i.e. "Public Officer".
Non-public officers are not affected by these regulations. To them
procedure which upholds the rule of law must apply. In
other words the due process
of the law must take its course. The principle of
self-help is not tolerated. The ordinary courts must hear an
application if there
is any interference with one's possession,even
if it is alleged that his possession is unlawful. It is for this
reason that the possession
of a property by a thief is protected
against the whole world including the owner of the said property.
Ownership is not considered
where a person has been dispossessed.
Possession must first be restored to the dispossessed person.
According to annexures attached to the affidavit of
Letsoela many "sufficient written notices were written to the
Annexure A1 was written to the ' Applicant is dated
17th December 1984 where it is alleged that Applicant had been
dismissed from the Public Service on the 7th November 1984,
and that he should vacate the said house. This was one month and
ten days after the Applicant's dismissal. The second letter was
written to Applicant on the 23rd September 1985 asking the
Applicant to vacate the said house (Annexure A2). This is ten
(10) months after Applicant had been dismissed from the service. It
requested him to vacate the house. The next letter was written
29th November 1985 (Annexure A3). This is after a year
and twelve days after the dismissal of the Applicant. The last
letter was written on the 4th April 1986 (Annexure A4).
There must have been a reason for this inordinate dela
The reason, in my view, is that it must have been realised that the
had ceased to be a public officer and hence not amenable to
be dealt with in terms of the law which
is specifically meant to apply to public officers. The
section under which the Applicant was dealt with is vicious and
The ordinary rules of procedure is not to be followed.
Certain class of officers of the government are allowed to perform
of self-help which is totally denied by members of the general
public. The Applicant had ceased to be the public officer to whom
these regulations are apply In that even, therefore, the two
officers resorted to self-help which they should not have since the
normal rules of procedure had now to be followed. The regulations
are meant to apply to public officers and to nobody else. However,
harsh or cause injustice to those to whom they apply, they have to be
followed by those effected by them. (Principal Immigration
Officer v Blnila, 1931 A.D. 323 at 336-7). These regulations have
to be strictly construed in favour of the person affected by them. I
that approach in this Application.
The Order is hereby granted as prayed with costs.
J U D G E, 18th April, 1986.
For Applicant : Mr. Pheko For Respondent : Mr.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law