IN THE HIGH COURT OF LESOTHO
In the Application of :
CARRINGTON MOEKETSI MASOABI Applicant
CHIEF TSIU MAKHABANE MOPELI Respondent
Delivered by the Hon. Acting Mr. Justice M. Lehohla on
the 26th day of September, 1987.
Following an ex parte application a rule nisi was
issued by this Court on 9th December 1986 calling upon Respondent to
show cause on 12th January why the
rule granted should not be made
The first three paragraphs in the notice of motion
constituted the interim order that was granted. They read as follows
That the respondent be immediatelyinterdicted and
restrained from dismantling and removing the
applicant'sfence around the applicant's unnumberedBusiness
site at Mazenod Ha Paki nearOld Masianokeng Bridge measuring
2.8360Hectares which was duly allocated to theapplicant on
31st March, 1979 as measuring204 x 128 x 231 x 137 metres.
That the respondent be immediatelyinterdicted and
restrained from enteringBusiness site mentioned in (1) above;
That the respondent be immediatelyinterdicted and
restrained fromploughing the applicant's UnnumberedBusiness
Site mentioned in (1) above.
It was in terms of prayer (4) in the notice of
motion that it was ordered that the three prayers should
operate with immediate effect. Applicant revealed in prayer 4 that
the Court's intervention "pending the finalization of
this application and an action for ejectment and damages which the
contemplates instituting at once against respondents."
Under paragraph 6 applicant prays for costs to be
awarded against respondent on attorney and client scale.
In his founding affidavit applicant avers in para 3 that
on 31st March 1979 respondent duly allocated to him the site in
and has attached a copy of Form C marked "A" in
support of his claim.
In response to this allegation respondent admits that he
gave applicant the Form C marked "A" but denies that in
he was "duly" allocating the site to
applicant. See para 4 of the opposing affidavit.
In pars 17 respondent sets out reasons why he maintains
applicant was not lawfully allocated the disputed land. They are the
Applicant never filled a Form "A"applying
for allocation of land asrequired by law.
The land allocating committee nevermet or allocated
the disputed land toapplicant as required by law.
In support of this allegation respondent relies on
affidavits of Mohau Mompe and Paki Mopeli who have held respectively
of member and secretary in the Mozenod land allocating
committee since 1976 to date without any interruption. Both of these
categorically deny that applicant was ever allocated the
disputed land. They accordingly maintain that the land still
to respondent because he has never been lawfully
deprived of it in terms of the law.
I may point out that it has been admitted
by respondent that he is "Headman and or Word Chief
(of) Ha Paki in the Thota-Moli Urban Area. See para 2 of applicant's
affidavit. C/F respondent's para 3 in response thereto.
Respondent further states in
(c) that "I have no authority to allocate
landalone in the absence of land allocatingcommittee"
(d) that "I have never been lawfully deprived
of the disputed land before any lawful allocation can be made to
Applicant avers that immediately upon the allocation to
him of the said site he put up a barbed wire fence around it at the
cost of M2000.00. Respondent concedes that a barbed wire fence
was put up by applicant but denies that the site had been allocated
to applicant. He overs that applicant put up this wire fence on the
pretext that the land was going to be used for "our hotel!!
In para 5 respondent sets out what he submits as the
correct history of the matter and states that in April 1980 applicant
his personal family lawyer and homeboy approached him saying
that a client of his called Jack was keen to open a hotel business at
Phuthiatsana Mazenod Ha Paki.
In paras 6 and 7 respondent goes on to say "The
applicant further informed me that the intention was that he, ...
Jack and myself
would be shareholders in the proposed hotel
The applicant then suggested that
"My contribution would be the release of my arable
land - fully described in the said form C i.e. annexure "A"
it was obviously big enough for the purpose."
Respondent aver that he was made to understand by
applicant that the Capital for the venture would be provided by the
said Jack reputed
to be a wealthy block expatriate from one of the
African countries, while applicant's contribution would consist of
Having been approached by the said Jack in the company
of the applicant and having perceived the plan to be financially
responded was only too willing to be part of it. Hence he
The hotel business was to be given the name Afrocontact
Impelled by prospects of making good money quickly
respondent without consulting his land allocating
a form C in the name of
Afrocontact (Proprietary) Limited which described the
disputed land in identical terms as the form C i.e. Annexure "A"
applicant's affidavit. Respondent has produced and attached a
copy of the said Form C marked "G" bearing date stamp of
chief Tsiu Makhabane P. Mopeli of Phuthiatsana and dated 27/4/80.
In pars 5 applicant avers that since March, 1979 till
bringing these proceedings before court he has been ploughing a
portion of this
site and effecting other development works on the
remainder thereof for his business. He further avers that he has
been using it
for a continuous period of seven years without any
interruption by respondent or any person whatsoever. In answer to
respondent states that whatever work was done by
applicant on the said lend was always on the pretext that it was the
start of "our
hotel business." He even goes further to say
he himself maintained his physical presence on the disputed land.
by respondent has been denied by applicant in his
replying affidavit in para 15 thereof. He bases his denial on the
fact that respondent
never ploughed any portion of the land and that
he was not at any time a nightwatchman or guard to the place. In any
event if respondent's
claim to any of the duties named was to stand
applicant would have known because applicant kept the site under lock
and key. I however
do not think it would be necessary for physical
presence as perceived by respondent to be. manifested by his
ploughing any portion
of the land. Moreover in his response he has
indicated that his contribution to the venture was the release of the
land for use
in the development and running of the hotel business. I
don't see why it should have been necessary for him to act as a guard
the place or a nightwatchmsn in order for his claim to be accepted
that he maintained a physical presence on this land. It is. quite
another thing of course whether it would be possible to maintain it
even in the light of the fact that applicant claims that he kept
place under lock and key.
Applicant's founding affidavit consists mainly
of what steps he followed end the nature of business he
set about doing once the lend had been allocated to him. The
alludes to what he did on learning that respondent was
disturbing his peaceful enjoyment and occupation of the land. On his
respondent admits that applicant applied for a lease but
maintains that this was effected behind his back. He further avers
consequently the lease failed dismally because the Department of
Lands and Survey soon realised that applicant had not been lawfully
allocated the disputed land. Applicant discarded this avernment by
respondent as untrue and challenged respondent to furnish proof
what he alleged.
Respondent charged that applicant failed to make full
disclosures as to how he got hold of Form C marked Annexure "A"
his founding affidavit.
In reply applicant averred that this Form C was given to
him by respondent and that it was in fact written by the respondent
He charges also that respondent does not deny his signature
on it nor its contents.
Respondent avers that applicant has not satisfied the
requirements for an interdict therefore the application ought to be
Applicant denies this and maintains that application
ought to succeed.
With regard to improvements referred to by applicant,
respondent avers that he was made to understand by applicant that
made against a loan from the Lesotho Bank for the purpose
of the purported building of the said hotel.
In para 13 respondent says that the alleged hotel did
not take off until some time in 1981 when the suggestion that the
Form C i.e.
annexure "G" to respondent's opposing
affidavit, be converted into applicant's name because Jack had
and therefore applicant could only obtain a loan
from Lesotho Bank for the hotel business if he produced a Form C
own names. Because respondent still hod
confidence in the applicant and because he did
not suspect that applicant had any ulterior motived he
accepted the suggestion. These allegations are denier.! by applicant
his denials by pointing out that no Lesotho Bank
official can support respondent's allegation and by further saying
is neither a fool nor an illeterate therefore it is
inconceivable that he could be so easily tricked. In this regard it
me that an important factor has been overlooked by
applicant; namely that for doing ell these irregular things including
are out of keeping with the person of "a chief of
the Mazenod and the Thota-Moli Urban Area" who is astute and
he was lured and blinded by greed and hopes of making
quick money. It is to be wondered whether by denying that respondent
in the applicant and charging that respondent is not
as to repose any confidence in him applicant in effect
admits that he is not to be trusted by a man who
regarded himself as applicant's client. I would
hesitate to consider that applicant holds that the confidence reposed
on him by his
client is misplaced confidence -Vet reference to "G
1" which is a counterpart of "G" shows clearly that
names of the allottee Afrocontact (Proprietory) Limited hove been
cancelled and replaced by the names Carrington Moeketsi Masaobi.
With regard to the similarity of his handwriting to the writing of
the names appearing in this document applicant as para 14 of
"I don't deny that the hand-writing of my name on
Annexure G looks like mine and this was when I indicated to
respondent my full
names on a copy which he said it was not being
Immediately after making this lame admission that the
handwriting is similar to his on the bock of which is added the
explanation of how his names in a handwriting
similar to his cams to be borne on this document applicant was quick
to further aver
"I must however say that that Annexure G1 is
irrelevant to the issue before this Court
/as alleged "
as alleged Afrocontact company is not in dispute with me
if it was ever earlier allocated this same plot and for some reasons
later allocated to me."
Suffice it to say the meaning sought to be conveyed by
the phrase just quoted is as clear as mud to me.
Annexure "G" is a Form C signed by respondent
on 27/4/80 in favour of Afrocontact (Proprietary) Ltd. Annexure "G1"
is its replica save that above the cancelled title Afrocontact
(Proprietary) Limited have been inserted
the names Carrington Moeketsi Mssoabi,
the dates 27th April 1980 have been cancelledand
altered (in handwriting not dissimilarfrom that applied in
in (a) above to 31st March 1979,
In the same handwriting have been added thewords
(BUSINESS SITE) after the words"setsa sa khoebo";
The figures 27/4/1980 appearing in theChief's date
stamp have been altered in thesame handwriting to read 31 -
(e) Another date stamp imprint similar to theChief's
has been made opposite the chief'ssignature. The dates appearing
are onlypartly visible bar 25/7/19
With respect to these alterations respondent says in
"In fact applicant himself and in his legal
office wrote his own name above Afrocontact
(Proprietary) Limited on the Form C Annexure "G" after he
had personally cancelled
the latter name. He also altered the dates
and added the words ''business site" in annexure "G".A
court is referred
to Annexure "G1" which is self-avident."
Respondent avers in para 16 that he unilaterally filled
Form C Annexure "A" to applicant's affidavit mostly using
reflected in Annexure "G1" on the advice of the
applicant. This includes the back date 31/3/79. He is adamant that
so doing his intention was not to allocate the disputed land to
applicant. His further averment is held in question and looked upon
by the applicant as an attempt to
-8-mislead the court. The words in question are
"It is again significant that even applicant's
names in annexure "A" were written by the applicant himself
in his own
Looking at all the averments made by the respondent it
appears to me that it is only in respect of the above phrase that his
appears to be false. Indeed as averred by applicant in
para 14 of his reply
"It is clear to the naked eye that my names
on Annexure A were written by the same
person who wrote the whole Form C and signedit who
is the respondent."
By token of the same rule it is clear to me that whoever
effected alterations on annexure "G 1" did so with no other
than to deceive. Annexure "A" is clearly a product
of Annexure "G1". It stands to reason therefore that
on Annexure "A" is not different from reliance on
Annexure "G1" -in short deception.
Respondent avers in para 16 that
"I may add that the applicant suggested the said
back date of 31/3/79 to make sense because in 1981 when I filled
it was a known fact that with effect from May
1980 I was no longer permitted to sign Form C's".
It thus becomes clear to me that Annexure "A"
is nothing else but sham together with information based on it
para 3 of applicant's affidavit to the extent that in it
is stated that the site was allocated (if at all) to applicant on
In his heads of arguments applicant has correctly set
out the requirements for an interdict being
a clear right on the part of an applicant;
on injury actually committed or a wellfounded
apprehension that the injury willbe committed by a respondent:
that there is no other remedy open to theapplicant
which will afford any adequateprotection from the mischief being
Although I have referred to applicant's
replying affidavit there is no doubt that it was out of
time contrary to Rule 8(11). In argument Mr. Masoabi submitted that
affidavit can be filed any time. But the rule clearly
says the reply should be filed within 7 days of service upon
respondent's answering affidavit.
The application relies solely on Annexure "A"
i.e. Form C But there is authority in Majoro vs Sabapo 1981(1) LLR.
that production of a Form C is not in itself conclusive
proof of allocation or that such allocation was effected in
Furthermore section 6(2) of the Land Act 1973 says
"In exercising his functions under subsection (1) a
chief shall act after consultation with a Development Committee
for such area." (rural areas).
With respect to urban areas section 9(2) of the same Act
"In exercising his functions under sub-sec (1) each
Principal Chief or Ward Chief shall act after consultation with a
Committee established in respect of a particular area."
Section 12(1) of Land Act 1979 says
"Subject to subsection (2) the power to grant title
to land shall be exercised by majority decision of the Land Committee
for the area of jurisdiction, of which the chief having
jurisdiction shell be chairman ex officio or of such other
Land Committee as the Minister may establish under section 18."
It would seem therefore untenable for any litigant to
support his claim to land allocated to him on no other ground besides
chief acting alone effected the allocation. It would perhaps
neve been otherwise if applicant's claim was substantiated by one or
some Land Allocation Committee members. Because the onus is on
applicant to prove that the land was allocated to him it would not
if, as in this case, his case depends on his word as
against that of the respondent.
Two members of the Land Allocation Committee have sworn
that their committee never at any time allocated the disputed land to
See Mompe's and Mopeli's affidavits.
There is credible material on which to rely in the
"It is significant that in para 14 of his opposing
affidavit the applicant appears to admit at least that he wrote his
on "G". Now annexure "G1" was clearly
executed on 27th April 1980, C/F "G". That being so it
obvious that Form C i.e. annexure "A" which was
clearly meant to replace "G" was backdated to give the
impression that it was issued on 31st March 1979."
Qoaling High Landers vs Lesotho Sports CouncilCIV/APN/92/79 (unreported) per Rooney J. at page 5
properly laid down that
"This court will not in general, grant an interdict
when the applicant can obtain adequate redress by way of damages."
Applicant made it clear in prayer 4 that he has a remedy
by way of damages.
Throughout his averments and submissions as reflected in
his heads of arguments applicant has abundantly shown that he is
on interdict in this application. It was only when he
addressed me that he alluded to spoliation being the remedy he
one can ride on two horses at once.
Moreover I am Satisfied that applicant musthave been
aware that there would be dispute of fact inthis matter and
therefore should have avoided bringingproceedings by way of
application, See Beck's Theory and Principles of Pleading in
Civil Actions at 259.C/F Afrimeric_Distributors (Pty) vs E.I.
Rapoff1948.(1) S.A. 569.
With regard to the parties' involvement with Afrocontact
(Pty) Ltd respondent's version has a ring
of truth in it. He has also been forthcoming about his
own misdeeds. He has not tried to hide anything or minimise his
part in his dealings with all concerned. His story is
therefore preferable to and more probable than that of the applicant
is not only incomprehensible in this regard but also highly
Applicant has sought to distance himself from factors
which led to the drawing of annexure "G1". He did this by
that he is Respondent's homeboy and family lawyer. But he
was clearly hard put to it to explain how the information collected
"G1" which he admitted subscribing to got to be
contained in annexure "A" on which his application rests.
Without adducing any proof whatsoever for his assertion
applicant contents himself with saying in para 15 of his reply that
allocating committee duly met. See Room Hire Co (Pty)
Ltd vs Jeppe Street Mansions 1949(3) at 1165 concerning
It casts a long shadow indeed that applicant members
have not sought the support of land allocation committee members in
See Bayat vs Mansa & Another 1955(3)
SA. at 553 where it is said
" an applicant for relief must make
his case and produce all evidence he desires to use in
support of it in his affidavit filed with the Notice of motion
I am in no doubt that factors considered in these
proceedings have demonstrsbly shown that applicant's claim fails to
meet the very
first head relied on by him as the basis for seeking an
interdict from this Court. He has not shown that his claim is based
clear right. There couldn't be any clear right in a case where
every possible means was employed to undermine provisions of
Land Act, where the Respondent himself despite being chairman sought
to indulge his greed by deliberately refraining from consulting
the Land Allocating Committee of his area, and where the best method
of contravening the Land Act in ardor to secure this unlawful
to employ the shameful
means of back dating the date stamp and impressing the
false date on the document "G1" and transferring the false
thereof to annexure A in order to deceive those who would in
turn rely and act on the false information reflected thereon. The
that annexure "A" appears to be genuine on the face of
it does not remove the dishonour attaching to "G1" the
contents of which were supplied by the applicant. The respondent was
not an entirely passive and innocent participant in the dishonourable
deeds that led to the production of annexure "A". The
court's displeasure ought to be demonstrated in the award for costs.
The application is dismissed. Applicant is ordered to
pay only twenty five per cent of respondent's costs.
ACTING JUDGE. 26th September, 1987.
For Applicant : In person
Respondent : Mr. Ramodibeli.
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