CIV/A/30/93 IN THE HIGH COURT OF LESOTHO
In the Appeal of:
PROJECT AUTHORITY FOR SELF-RELIANCE
PROJECT 1st Appellant
PROJECT DIRECTOR FOR TRAINING FOR
SELF-RELIANCE PROJECT...... 2nd Appellant
ANGELINA THEEPE MAKHAKHE Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
24th day of March. 1993.
The appellants herein instituted, before the magistrate
court of Maseru, motion proceedings in which they inter alia,
sought an order of ejectment against the Respondent. After
considering affidavits and hearing arguments, the magistrate court
"In this case .... there is clearly a dispute of
fact on the claim for ejectment. The application is dismissed with
The appellants were unhappy with the magistrate court's
ruling against which they appealed to this court on a long list of
which can, however, be summed up in
that the court a quo erred in dismissing
as it did, the application for the ejectment of the Respondent.
It was common cause from affidavits that the
Respondent had entered into a contract of employment with the 1st
The conditions of her employment were set out in Annexure
"B" (to the founding affidavit) of
which clauses R7(e) and R11 read: of its areas of
"7(e) Termination of employment may be by mutual
agreement done in writing for good cause shown or for reasons of
the operation of the project or any of its areas of
Where housing is available accommodation will be
allocated to staff according to seniority and need. Technical staff
will have preference.
Rent will be payable on rates approved by
Project Authority and should follow public service rates for
It was further common cause that the Respondent, as a
staff member of 1st Appellant was allocated, in accordance with the
of clause R11 of Annexure "B", house number 16
at Albertville next to L.T.I. in Maseru. She had at all material time
occupying that house as a staff member of the 1st Appellant.
However, on 18th March, 1991 the 2nd Appellant addressed annexure "D"
(to the founding affidavit) a letter to the Respondent, The letter
read, in part:
"Dear Mrs Makhakhe,
re: Contract Renewal
Your February 15th, 1991 letter of application for
contract extension renewal refers.
Although the Project closes by the end of September,
1991, I am directed, on due work-load exigencies, to offer you a
extension on your contract, that is April 1991 to June,
The terms and conditions of your contract will be those
applicable to TSRP Service Contracts, and your salary will be at
or M12,684-00 per annum.
Please sought out your section's operations scheduling
with the head of your division in relation to due leave days since
will not honour any personnel payment requests in this
By copy of this letter, the Project Accountant is
requested to process your 25% gratuity to be payable at the end of
L.C. MOFELEHETSI PROJECT DIRECTOR (AG)
According to the appellants, the Respondent accepted the
extension of her contract which finally expired at the end of June,
She was paid her terminal benefits and
ceased to be an employee of the applicants. That was
however, denied by the Respondent according to whom she had, in
before the High Court, proceedings in which
she challenged the Appellants purported termination of her contract
and the decision was still pending before the court.
contention, the Respondent was, until the court had
given its decision, still lawfully employed by the appellants and,
entitled to occupy house number 16 at Albertville.
Be that as it may, on 23rd August, 1991, the 2nd
Appellant addressed, to the Respondent, a letter, annexure "M"
to the founding
affidavit, in which she was required to have vacated
the house by the 28th August, 1991. In reply to annexure "M",
Respondent, through her attorneys of record, addressed, to the
2nd appellant, annexure "N", a letter of 27th August, 1991,
in which she re-iterated that, until the High Court had given
decision in the pending case, she considered herself still an
of the 1st Appellant, She was not, therefore, prepared to
vacate house number 16 at Albertville.
On 27th July, 1992, the 1st Appellant held a meeting
at which it was resolved, per annexure "A"
(extract of the minutes), that the High Court should be approached
for an order
of ejectment against the Respondent. The appellants
accordingly instituted, before the High Court CIV/APN/275/92 in which
they, inter alia, sought the eviction of the Respondent from
house number 16 at Albertville, Maseru. On 30th July, 1992, the case
was placed before
me, when I took the view that it had been brought
to the High Court contrary to the provisions of Section 6 of the High
Court Act. 1978. Consequently, I ordered that proceedings for
ejectment of the Respondent should be instituted in the magistrate
court which clearly
had jurisdiction in the matter.
On 31st July, 1992, the appellants accordingly
instituted motion proceedings before the magistrate court of Maseru
for the ejectment
of the Respondent from House Number 16 at
Albertville. After considering affidavits and hearing arguments, the
trial magistrate found
that there was a dispute of fact and the
matter could not, therefore, be resolved in motion proceedings. The
application was, for
that reason, dismissed with costs.
On the papers before me there can be no doubt that on
one hand the appellants contended that the Respondent's contract of
had been lawfully terminated and she was no longer in
their employ. Consequently, the
Respondent was not entitled to remain in House number
16, at Albertville, which she occupied by reason of being an employee
appellants. On the other hand, the Respondent contended that
the alleged termination of her contract of employment was unlawful,
null and void. She had, indeed, instituted, before the High Court,
proceedings in which she challenged the validity of the appellants'
purported termination of the contract. Until the High Court had given
its decision in the matter the Respondent regarded herself
employee of the appellants and, therefore, entitled to occupy the
house, the subject matter of this dispute. That being
so, I find
nothing unreasonable in the trial magistrate finding, as she did,
that there was a dispute of fact.
Assuming the correctness of this finding, the question
that immediately arose was whether or not, in the circumstances, an
ejectment could be made against the Respondent on motion
proceedings. In this regard, the court was referred to the decision
in Prank v. Ohlsson's Cape Breweries Ltd. 1924 A.D. 289
where at p. 294 Innes C.J. had this to say:
"...where the facts relied upon are disputed an
order of ejectment will not be made on motion; the parties will be
go to trail. The reason is clear; it is undesirable in
such cases to endeavour to settle the dispute of fact upon affidavit.
more satisfactory that evidence should be led and that the
court should have an
opportunity of seeing and hearing the witnesses before
coming to a conclusion. But where the facts are really not in
the rights of the parties depend upon a question of
law, there can be no objection, but on the contrary a manifest
advantage in dealing
with the matter by the speedier and less
expensive method of motion."
Regard being had to the fact that the trial magistrate
found, and correctly so in my opinion, that there was a dispute of
this case, the answer to the question I have posed viz.
whether or not, in the circumstances, an order for ejectment could be
against the Respondent on motion proceedings must be in the
In the result, I would dismiss this appeal with costs to
the Respondent. It must, however, be mentioned that this decision
prevent the applicants from instituting, before a court of
competent jurisdiction, action proceedings for an order of ejectment
JUDGE. 24th March, 1993.
For Appellants : Mr. Mohapi For Respondent: Mr.
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