CIV/APN/303/2004

IN THE
HIGH COURT OF LESOTHO

Held at
Maseru

In the
Matter Between:

MANTHABISENG
RAKAIBE APPLICANT

And

MAMATSEPE
RAKAIBE RESPONDENT

RULING

Delivered
by the Honourable Madam Acting Justice N Majara on the 12th May 2005

Applicant
in this matter approached the court for relief in the following
terms;

1. That
   respondent or any persons authorized by her should vacate
   Applicant's house situated at Ha Thetsane in the Maseru district

   registered as plot NO:- 11294.

   
   

2. That
   respondent be ordered to pay costs herein.

   
   

3. Granting
   applicant further and/or alternative relief.

   
   

1

After
several set downs and the matter not proceeding, it was postponed in
the motion court by consent to the 25th April 2005 for
hearing. On
the said date, Ms Rantofi for respondent was duly before court but
there was no appearance for applicant. There being
no explanation
offered with regard to the non-appearance, the court allowed counsel
for respondent to proceed with the matter.

Ms
Rantofi addressed the court on the points in limine as raised in
their opposing affidavit and which were couched in the following

terms;

1. The
   application is fatal in that applicant has chosen the wrong forum
   for this matter. The Subordinate Courts Order 1988 clearly
   grants
   the Magistrate courts with exclusive jurisdiction as courts of first
   instance to hear all matters of ejectment.

   
   

2. Applicant
   ought not to have proceeded by way of application in ejectment
   proceedings where there is a serious and material dispute
   of fact.

   
   

2

On the
first point, respondents' case was based on the provisions of Section
17 (1) © of the 1988 Order and Section 6 of the
High Court Act
No 5 of 1978.

On the
second point, it was respondents' case that in casu, there is clearly
a dispute of fact on the claim for ejectment and that
therefore, this
matter can not be resolved on motion proceedings.

I now
proceed to deal with the two points. With regard to the question of
jurisdiction, Section 17 (1) © of the Subordinate
Courts Order
to which this court was referred provides as follows;

Subject
to this Order, the court, with regard to causes of action, shall have
jurisdiction,in any action of ejectment against the
occupier of any
house, land or premises within the district.

3

Section 6
of the High Court Act of 1978 in turn provides as follows;

No civil
cause or action within the jurisdiction of a subordinate court (which
expression includes a local or central court) shall
be instituted in
or removed into the High Court, save-

1. by a
   judge of the High Court acting of his own motion; or

   
   

2. with
   the leave of a judge upon application made to him in Chambers, and
   after notice to the other party.

   
   

In casu,
applicant's claim for ejectment is stated in her first prayer in the
Notice of Motion as I have already quoted above. In
support of this
prayer in her founding affidavit, in paragraph 14, she averred as
follows;

"After some two weeks I returned to my house at Ha Thetsane
where I discovered that the said house was occupied by one MATSEPE

and other people placed thereat by Respondent. The matter was taken
to Thetsane police where Respondent confirmed that she had
allowed
her children to occupy my house, the police said we should approach
courts for relief."

4

Without
even going into the background of this matter, the facts as stated in
the affidavits are clear that indeed what applicant
herein is seeking
is that respondent whom she alleges has unlawfully occupied her
house, should be ejected by the court.

The issue
which this court has to determine therefore is whether applicant has
brought her claim to the right forum. In light of
the above quoted
provisions, the answer has to be in the negative. It is my opinion
that applicant ought to have lodged her claim
in the Subordinate
Court which has been granted the power to deal with claims of this
nature.

This is
more so as she has also failed to indicate reasons if any, why this
matter could possibly be beyond the limits prescribed
by the 1988
Order. Nor, did she indicate having sought leave of a judge to
approach this court as prescribed by Section 6 of the
High Court Act.
See also the comments of my brother Nomngcongo J in Sekoala Phiri v
Kamoho Phiri CIV/APN/560/02.

5

It is for
these reasons that I uphold Ms Rantofi's point and accordingly
dismiss the application on this point alone.

There is
no order as to costs.

N. Majara

Acting
Judge

For
Applicant: Mr. N E Putsoane

For
Respondent: Ms. Rantofi

6