HIGH COURT OF LESOTHO
DAIRY PRODUCTS (PTY) LTD 1st PLAINTIFF
MABEOANA DAIRY FARMERS
TSEPISO 1st DEFENDANT
RECOVERIES (PTY) LTD 2nd DEFENDANT
by the Honourable Madam Justice N. Majara on 19th August 2005
herein instituted an action against the Defendants in which they
of the sale in execution of 2nd Plaintiffs site to 1st Defendant.
the 1st Defendant to vacate the said site.
the 1st Defendant to restore possession of all the Equipment to 1st
of rental of M4, 400. 00 for 11 months which was illegally collected
from June 2003.
the Defendants to pay the costs in the event of opposition.
Plaintiff such further and/or alternative relief.
28th February 2005, Mr Matooane, Counsel for plaintiffs and Mr
Malebanye, Counsel for 2nd Defendant argued the matter before
the facts herein are common cause in that on the 11th February 2003
the 2nd Defendant herein obtained a default judgment
against the 2nd
Plaintiff following which 2nd Defendant sold 2nd Plaintiffs site in
execution of the said default judgment. The
default judgment was
later rescinded by my brother Maqutu J as per an attached court order
wherein 2nd Plaintiff was allowed to
proceedings against 1st defendant who was occupying the said site
subsequent to its sale in execution.
plaintiffs' case that the default judgment was erroneously granted
against 2nd Plaintiff because as per their contention,
it never had
dealings with Lesotho Agricultural Development Bank which has since
been wound up. They went on to aver that the 1985
agreement which the
Bank entered into was with someone else and not 2nd Plaintiff since
according to them, the latter was only
registered in October 2001.
also Plaintiffs' further case that 1st Defendant had taken illegal
possession of the dairy machinery on 2nd Plaintiffs site
belongs to 1st Plaintiff and had also been illegally collecting
rental in the amount of M400.00 per month since June 2003
to the time
of these proceedings.
reaction, Defendants raised the plea of non-joinder in that, as per
their contention, Raohang Mabeoana Dairy Farmers Cooperative
should have been joined in the present proceedings because it has a
substantial interest in this matter for it claims ownership
site and machinery, the subject matter of this claim.
further averred that the default judgment had been properly granted
against the said Society since the latter acknowledged
indebtedness to 2nd Defendant and consented to the judgment. It was
also Defendants' case that the site in question was allocated
Society long before registration of 2nd Plaintiff and that the said
registration was never revoked. They contended that
machinery does not belong to 1st Plaintiff but to the
until it was lawfully sold in execution. Defendants also denied ever
having collected rental as alleged by Plaintiffs.
in turn excepted to the Defendants' plea for the reason that the
latter sued, obtained the default judgment and executed
present Plaintiffs and that it was no defence to cite a 3rd party
(the Society) to whom they never made any reference
in the original
pleadings as they appear in the court file and from both Counsel's
contentions and submissions, it became apparent that
the legal arguments which were raised by both sides, it would be
necessary to refer to the predecessor matter CIV/T/396/01
some of the arguments herein made reference to and/or flowed directly
perusal of the said file, I noted that the action which was
instituted by 1st Defendant herein was indeed against 1st Plaintiff
who was cited therein as Raohang Mabeoaona Dairy Farmers Association,
an association registered in terms of the Societies Act of
default judgment which was granted by my brother Mofolo J on 11th
February 2001 was granted against this
At the date of this judgment, the site had already been allocated to
2nd Plaintiff herein as per Annexure C in the
said default judgment was rescinded as I have already shown above, it
was pet the agreement of the parties to the proceedings
and no one
else. At the time of rescission, it was also ordered that the issue
of the sale in execution should be a subject of
vindicatory proceedings. Upon perusal of the files, nowhere did I
find any reference to a third party in the
name of the Society as
distinct from the association since the latter had not been cited in
the previous proceedings until at the
time that these present
proceedings were instituted.
further particulars, at paragraphs 2.4 and 2.5 respectively,
plaintiffs averred that the site in question was previously
to a Cooperative Society which went defunct and that the said
allocation was revoked in October 2001. Plaintiffs also
Annexure C which is a Form C evidencing allocation to 1st plaintiff.
The annexure bears the stamp of the Chief of Matsieng
and is dated
23rd October 2001.
plea, defendants contended that the default judgment was properly
granted against the said Society as the latter acknowledged
indebtedness to 2nd defendant herein and consented to judgment.
However, as I have already pointed out, the said default judgment
subsequently rescinded per the agreement of the two parties herein.
There was no mention of a Society at that stage and by
then the site
had already been re-allocated to 2nd Plaintiff.
basis of the contents of these pleadings, I am of the opinion that
indeed at some stage there was a Raohang Mabeoana Dairy
Cooperative Society which entered into a loan agreement with the then
Agric Bank. However, this Society ceased to exist
at some stage
resulting in the site in question being subsequently allocated to 1st
Plaintiff herein. On the other hand, there
is nothing in the court
file to support defendants' argument that such a Society still exits
which would justify its being joined
in the present proceedings.
There is not even a supporting affidavit from them to reinforce
defendants' argument that the site
is being claimed by another entity
aside from 2nd Plaintiff."
probably have been a different matter if Defendants herein were
claiming that 2nd Plaintiff and the Society are one and
thing with maybe a subsequent change of names and/or constitution of
membership. This was however not their case. Their
that the two exist separately from one another yet they failed to
produce any evidence to show that the Society
still exists as a
matter of fact. In addition, defendants also failed to show whether
the said Society was a properly incorporated
entity in accordance
with the provisions of the law with the right to sue or be sued in
its own name. I therefore find that on
the pleadings before me, at
present there is no such legal entity as the Cooperatives Society.
For these reasons, I dismiss defendants'
special plea of non-joinder.
brings me to Plaintiffs' exception to Defendants' plea viz, that it
is not a defence to quote a third party at this late stage
they never referred in the original litigation. In response, it was
defendants' argument that execution of judgment was
the site allocated to Raohang Mabeoana in 1990 prior to registration
of the 2nd Plaintiff. As I have already shown,
and as was admitted by
Plaintiffs, indeed the site was previously allocated to the Society.
However, Plaintiffs have annexed proof
that the site had since been
to 2nd Plaintiff hence why the subsequent agreement that the default
judgment of the 11th February 2003 should be rescinded
vindicatory proceedings be instituted. On the face of it Annexure C
is an authentic document and in the absence of any concrete
to the contrary, I accept it as proof of such allocation.
light of the above reasons, I accept Plaintiffs' submission that
Defendants plea has not disclosed a defence and uphold their
exception with costs.
Plaintiffs : Mr Matooane
Defendants : Mr Malebanye
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