IN THE HIGH COURT OF LESOTHO In the Application
H.J.F.STEYN N.O. INSOLVENT
ESTATE DANIEL TSOSANE Applicant
vsMRS 'MAFOHLE TSOSANE Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
4th day of February, 1992
This is an application moved by Mr. Steyn in his
capacity as the trustee in the insolvent estate Daniel Tsosane
against the respondent
The respondent admits that the applicant was appointed
trustee of the above named estate and that the letters of appointment
issued by the Master of the High Court on 8th December 1986 as
borne out in Annexure "A".
The respondent does not admit the contents of the
applicant's averments in paragraph 3 to the effect that the applicant
property formerly owned by Mr. D. Tsosane to be sold by
public auction in Maseru where the highest bidder was
one Penane allegedly qualified in terms of the Land Act
to take ownership and occupation in so far as the law allows, of the
in question. The respondent puts the applicant to the proof
of these averments as she alleges she has no knowledge of them.
The applicant further avers that he has been advised
that the respondent and others are in occupation of the said
He asserts that this state of affairs is totally
unlawful as he has not granted any lease to the respondent over the
premises in either
shape or form.
The applicant denies contents of this averment and puts
the respondent to proof thereof. She goes further to say that the
she occupies have nothing to do with the applicant in his
capacity as the trustee of the late (sic) estate D. Tsosane. She
her version of. the story as follows :-
"On the contrary I wish to state that the premises
which I occupy are mine and they comprise a residential site where I
and a commercial site nearby where I have carried on business of
cafe the copies of certificate of allocation are annexed and marked
MT 1 and MT. 2 respectively".
It appears then that for her claim to the site she
occupies she relies on allocation certificates while the applicant
relies on a
title deed in respect of the property he claims is the
insolvent estate D. Tsosane.
Mr. Fick for the applicant accordingly tried to
put the matter in its perspective by submitting that the dispute
involves a parcel of land.
He pointed out that on 15-10-89 the
applicant obtained an interim Court Order in his capacity as trustee
of the insolvent estate
Daniel Tsosane. He further said in terms of
that order the respondent was ejected from the property.
Thus on the return date of the rule nisi the Court is to
decide on the rights of the disputants to this parcel of land. He
the Court to keep sight of the fact that the law applicable
to this matter simply centres on the identity of the land in
The Court is aware that the system of registration has
the result that the Deeds office and the surveyor's department place
in miniature form represented by diagrams.
Thus it is only logical that in the absence of fraud or
error this public record provides positive reflection and
rights to land.
In the instant matter a certain piece of land was sold
by the trustee in the insolvent estate.
I have observed in paragraph 5 of the respondent's
opposing affidavit that what she has done is place in
dispute the identity of the land.
The trustee says he sold a piece of land to Mr. Penane.
At the same time the respondent states she occupied the same piece of
which she says has nothing to do with that held by the
It falls then to the Court to identify the land and
determine who the true holder thereof is. It behoves the Court to
adopt a robust
approach and examine records kept by the Deeds
Registration office which holds true records in the absence of fraud
or error. This
becomes even more necessary where there are two title
deeds pertaining to the same piece of land. In such an event then an
would follow that fraud or error played some part in the
obtaining of either of the documents.
But in the instant matter what we have is not a question
of two title deeds but one against which it is sought by the
show by reliance on certificates (and not title deed)
of allocation or Form C's "MT 1" and "MT 2" as
the land belongs to her.
In argument Mr. Hlaoli submitted that
"A holder of a title Deed is not by holding it
proving his case. It is only a prima facie evidence.
Once challenged a title deed does not serve as proof"
For this submission he referred me to Majoro vs
Sebapo 1981(1) LLR at 150. My perusal of this authority shows
"the possession of a document called Form "C"
is prima facie evidence that the land has been allocated to
the person named therein but it is not per se conclusive proof
that the allocation was effected in accordance with the law".
It would seem therefore that Mr. Hlaoli has had
his wires crossed on this aspect of the matter where he tends to
equate a Title Deed to a Form C. The position in law is
it is not a
Title Deed but a form C which is prima facie evidence that
land was allocated to the holder of such document. The authority of
Majoro above rams the point home by further showing that
possession of a Form C is not per se conclusive proof that the
allocation was effected in accordance with the law.
As occasion serves the exposition of the law above
should clinch the argument and put paid to the respondent's claim.
But there are
further factors which help show that the respondent's
claim cannot be sustained.
Having annexed "MT 1" and "MT 2" in
support of her claim the respondent has not produced any Title Deed
that either of these two documents is the precursor of.
In the applicant's submission "MT 2" has
nothing to do with the instant dispute. The one that is affected is
"MT 1" relates to Khoebo Cafe. This document
is dated 6-2-79. The measurements it bears are 143 x 62 x 129 x 53
The applicant has also annexed documents to substantiate
his claim, namely "Al" the Title Deed; "A4" a
"A5" a sketch of the site, "A6"
another Form "C" and "A7" another sketch.
What is mystifying and amazing is that "A4"
belonging to the insolvent estate and "A5" filed in'
are exactly the same in measurements as "MT1"
the Khoebo Cafe Form C belonging to the respondent.
The difference is that "A4" bears the date
stamp 26-2-79 while "MT 1" bears 6-2-79.
The date stamp borne in both these documents is the
same. It bears the words "Morena Mothobi Hlatsi K. Mothobi"
Ratsosane in the "Maseru Dist. Lesotho" But the
signatures are different both as to the appearance of the handwriting
as to the style of each respective signature. "MT 1".
is signed L.M. Mothobi while "A4" is signed Lithonako
It is doubtful that these two documents which are the
same as to dimensions relating to land falling under one
chief can both relate either to Khoebo Cafe or insolvent estate D.
One of them must be irregular. The position in law is to
give effect to one relating to the land which is based on the Title
Hence the respondent's mere assertion in submissions backed by
no proof that "A4" was issued irregularly cannot be
Mr.Hlaoli submitted that it was clear from the
start that there was going to be dispute of fact in this matter
before the applicant purported
to sell the site because the site
relied on by the applicant is unnumbered in the title deed and makes
no mention of adjacent sites
in order to have its location
ascertained. He argued that the diagrams attached would qualify
anybody to eject any other from any
part of the Tsosane area. He
submitted that the law required, in terms of the 1973 Land Act, the
chief to keep a register of allocation
as the Chief is the person who
would be able to point out the deceased's plot.
Mr. Fick replied that there shouldn't be any
complaint based on the fact that the applicant approached the Court
by way of motion, because
when one holds a proper title deed
registered and prepared by the Registrar granting a piece of land the
holder can only have faith
in the genuineness of the document from
the Registrar's office. A challenge to that title deed would be
unusual and unforeseen.
I accept that submission.
Indeed the applicant could not reasonably have had prior
knowledge of a denial that his Title Deed issued by legitimate
was authentic. It is this very denial that put the
applicant under the necessity to enhance his case and provide further
indicating the honest and untainted process that culminated
in the grant of the Title Deed.
With regard to the challenge concerning the title deed
per se Mr. Fick submitted that a title deed is a public
document. Nothing in it is hidden from the respondent. Hence she
cannot complain that a surprise
has been sprung on her by production
of documents supporting it. This was in response to the complainant
that "A4" to "7"
were filed at the replying
In my view these documents do not introduce a new matter
at all. They are merely an embellishment of the applicant's basic
any event the courts have on numerous occasions held that it
is not a hard and fast rule that no new matter may be allowed in the
reply, especially where the essence of an applicant's case already
appears from its founding affidavits. See Shaw Company of South
Africa vs Vivier Motors Pty Limited 1959(3) SA 971; Markus vs
Universale Products EDMS) BPK 1962(3) SA 242; Pat Hinde and
Sons Motors (BRAKPAN) Pty Ltd vs Carrim 1976(4) SA 58.
The proper approach seems, in this regard, to be that it
must be established whether in fact the replying
affidavits contain new matter or a new cause of action, and if so,
whether it is
of such a nature that it must be struck out.
Mr. Fick indicated that it is a matter of great
surprise that the respondent has not filed any Title Deed.
In my view a Form C is a precursor to the actual
preparation of a title deed. While the title deed holds good against
to the property, any one seeking to rely on a Form C to
challenge it cannot be heard to complain that a countervailing Form C
led to the preparation of a title deed filed at the appropriate
stage, is irregularly filed if filed at . the replying stage because,
given that the title deed was itself on time it cannot be required
that the party filing the Form C at the replying stage should
foreseen that the Form C would be required; common sense dictating
that the title deed is sufficient in such circumstances.
As Form C's are mere precursors to the granting of a
title deed, in the event of disputes concerning allocation of land to
parties, it seems a sound rule that the Form C leading to
the actual title deed should carry the day.
Judgment is entered in favour of the applicant as prayed
but not going any wider than the title deed he holds.
Thus the order is granted ejecting the respondent from the place
in the title deed. Costs are awarded to the applicant.
J U D G E
For Applicant : Mr. Fick For Respondent : Mr. Hlaoli
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