CIV/APN/3 59/2003
IN THE HIGH COURT OF LESOTHO
In the matter between:
SAMUEL MOKHOELE MONKI APPLICANT
And
AFWA INVESTMENT (PTY) LTD 1st RESPONDENT
AFZAL ABUBAKER 2nd RESPONDENT
COMMISSIONER OF LANDS 3rd RESPONDENT
REGISTRAR OF DEEDS 4th RESPONDENT
MINISTER OF LOCAL GOVERNMENT 5th RESPONDENT
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo on the 2nd of April. 2007
In a notice of motion applicant seeks an order cancelling a deed of transfer "purportedly passed by" by him in favour of the first respondent concerning a certain lease No. 17684-181 at Lower Moyeni, Quthing and directing the fourth respondent to effect such cancellation. He ask for costs of suit and/or alternative relief. The
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application is opposed by 1st and 2n respondents and the latter also filed a counter-application for rescission of judgment in CIV/T/318/96. The latter was not pursued in argument before me although it is addressed in both applicant's and respondents heads of argument.
In his founding affidavit the applicant says he is the registered owner of lease NO. 17684-181 in respect of certain land situate at Lower Moyeni, Quthing previously held under Title Deed N0.5214/68, "In the long course of my occupation of the land", so he says, he developed it and erected business premises thereon and rented it to business tenants. In particular he rented it out the premises to one Ruby Jasoob whose husband one Haji Moosa was sued by the 1st Respondent in November of 2002. First Respondent wanted to interdict Moosa from occupying the premises, claiming to be the owner thereof by virtue of a Deed of transfer number 25132 transferring lease NO.17684-181 to it That interdict was granted. This, the applicant claimed, alerted him to
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the presence of the Deed of Transfer which had been registered on 6th December 1996 and by it he had transferred all his rights to his lease to the 1st Respondent. Further in terms of the Deed he had given a power of attorney to the 2nd Respondent to effect the transfer and he himself had applied for Ministerial consent for the transfer. He is supposed to have signed for such application on the Form LB. He denies ever giving 2nd Respondent a power of attorney or signing the form. His true signature, he says, appears on the annexed lease issued to him by fifth Respondent. Further he has received no consideration from the First Respondent for the alleged transfer.
In their opposition First and Second Respondent do not directly answer these allegations, but rather in an affidavit deposed to by the 2nd Respondent who is a director of the first, they point to certain facts which they claim render the allegations of the applicant untruthful. The deponent traces a history of litigation between himself and the applicant dating back to 1996. On that
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year in CIV/T/318/96 the applicant sued him for the payment of the sum of M90,000 being the balance of the purchase price of Ml 50,000 on the sale of this very land in dispute consequent on an agreement of sale. This matter apparently did not come to finality until 1998 when the second respondent sued the applicant seeking to restrain him from using the disputed site and interdicting him from interfering with building operations on the site. That was in CIV/APN/222/98. Reference is made in that case to CIV/T/318/96. Following on that the motion proceedings in CIV/APN/222/98, by PEETE AJ(as he then was) were turned into a trial on the same papers. Following that in turn instead of proceeding on the same papers as ordered, it appears applicant issued amended summons in which he sought cancellation of the agreement of sale and forfeiture of amounts already paid alternatively payment of M90,000 etc. The amended summons is referenced under CIV/T/318/96. This is possibly because PEETE A.J. (as he then was) in CIV/APN/222/98 mentioned the possibility of a consolidation with 318 (supra) upon application of
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either party. Be that as it may the applicant got judgment by default in that case. It is dated 7th September 2000. It is the judgment that 2nd respondent in his counter-claim sought to have rescinded but did not pursue in argument.
Now, the case for applicant as I see it is neatly summarized in pars. 15 and 16 as follows:
The signature on Form LB annexure "SM3" is not that of applicant and applicant's own signature is as appears on the annexed lease "SM1"
He received no consideration from First respondent for the alleged transfer.
He did not give second Respondent power of attorney to effect transfer of lease no. 17684 - 181 to Deed of Transfer no. 25132 in favour of First Respondent.
The deed of transfer was fraudulently sought and obtained without his knowledge or consent.
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The first and second respondent's answer is simple: You did not tell all and therefore you should not be believed by this court; you deny what you have signed and you have in fact transferred the property in question to the first respondent. Having said that all that was argued on behalf of the respondents was that the facts that they revealed which the applicant failed to do in the founding affidavit raised a dispute of fact, so that the applicant should not have approached the court by way of motion proceedings on the authority of ROOM HIRE CO.(Pty) LTD V. JEPPE STREET MANSIONS (PTY) LTD. 1949(3) S.A. 1155(7). Mr. Sello relied in particular on a passage at 1163 where it is said:
"One of the principal ways in which a dispute of fact arises is where the respondent avers certain facts upon which applicant and his deponents rely to prove the main facts are untrue, or where he himself is giving or proposing evidence to show that the applicant and his deponents are untruthful or otherwise unreliable.
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Mr Sello goes to say that a fortiori where such untruthfulness is apparent on the face of the applicant's papers themselves.
The question is whether in fact there was a real dispute between the parties in the first place (see the ROOM HIRE case supra). It is true that in the founding affidavit the applicant does not disclose that he had had a prior relationship with second respondent, that of buyer and seller in respect of the land subject matter of this case. He did not disclose either that he even sued him in the courts of law for the balance of the purchase price on the agreement of sale. He later sued for and was granted cancellation of the agreement. If this had been ex parte application such non-disclosure would probably have been fatal. But these were ordinarily motion proceedings and the applicant was entitled to embody in his supporting affidavits only allegations relevant to the establishment of his right, {see Herbstein & Van Winsen, The Civil Practice of the Supreme Court of South Africa 4th Ed. P. 367). Having said that I go on to point out that in reply, essentially the facts alleged
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by the respondent are not denied at all nor indeed can they be denied. Does that make the applicant untruthful so that everything else he says should not be believed. I think not. He cannot be punished if he thought that he would disclose only those facts which he thought were sufficient to establish his right. As I see it there is no dispute of fact here and if there is any, it is not such that I cannot make a determination on a balance of probabilities on the affidavits before me. (see PLASCON-EVANS PAINTS V. VAN RIEBECK PAINTS 1984 (3) 623 at 634 H-I; NATIONAL UNION OF TEXTILE WORKERS V NDLOVU 1987(3) SA 155)
Now the applicant says he did not sign the form of consent FORM LB. The answer is non specific except the generalization that I should infer from what he did not say that he is untruthful. So it is with the power of attorney that he says he did not give to the second respondent. What makes the power of attorney very suspicious is the fact that it was given to the second respondent at
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all. In terms of section (17) of the Deeds Registry Act NO.12 of 1967.
"Deeds of transfer....................., shall be executed in the presence of the registrar by the owner of the immovable property described therein or by a legal practitioner, notary or conveyancer authorized by power of attorney to act on behalf of the owner........."
In terms of the law therefore the owner grants a power of attorney to a legal practitioner, notary or conveyancer, to execute a deed of transfer on his behalf. The owner does not grant it to someone else for him to grant it to a legal practitioner. In the present case why would he do so when they were still embroiled in litigation over the greater balance of the purchase price of the property.
Why would he go to the trouble of giving a power of attorney to the second respondent to transfer his property to first respondent instead of granting the same directly to the legal practitioner to transfer to the second respondent. After all he had an agreement of sale with him and not with the first respondent, albeit it is not too
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difficult to lift the coporate veil over the latter. Why, in 1998 the second respondent sued for certain interdicts against the applicant in his own name instead of the company of which he is described as either director or managing director. They appear to be inseparable although they are different legal personae.
The applicant has denied granting the power of attorney. In the face of that the respondents have skirted around the issue and not even annexed the said power of attorney. In these circumstances I conclude that it is most improbable that the applicant could have given the power of attorney and that in any case the Deed of transfer was executed contrary to the provisions of section 17 of the Deeds Registry Act NO.12 of 1967. The application is granted with costs.
T. Nomngcongo Judge
For Applicant : Mr Ntlhoki
For Respondents : Mr Sello
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