HIGH COURT OF LESOTHO
AND CULTURE 1ST RESPONDENT
OF POLICE 2nd RESPONDENT
OF CONVEENTION CENTRE 3rd RESPONDENT
GENERAL 4TH RESPONDENT
THE HON. MR JUSTICE S.N. PEETE
9th JUNE 2007
8.15 PM (Saturday)
PALACE OF JUSTICE - COURT 8
- Agreement entered between parties for the use of a Convention
Centre Auditorium. Proprietor of the auditorium purporting
repudiate contract. Specific performance. Sanctity and Privity of
auditorium proprietor enters into an agreement to let the auditorium
for a gospel music festival, the court can order specific
or restrain the proprietor from preventing the use of the auditorium
by the other party. Damages for the financial
loss may not meet the
justice of the case. Privity and sanctity of contract must always be
protected by the courts of law.
good public policy that the Sanctity of a contract seriously entered
into should be enforced.
2.10 pm on Saturday 9th June 2007, Mr Phoofolo - counsel for
applicant - was brought to my residence in Maseru West by my Judge's
Clerk Mr Mohafa in order to move an urgent application. These motion
papers were unstamped.
then made the following interim order:
"(a) Condoning the unreadiness of the papers;
that the motion papers plus the interim order be immediately served
upon all the respondents in the application;
Ordering that the return date (time) be the same day 9th June 2007
at 4.00pm and that submissions be made in open court at
The respondents represented by the Honourable Attorney General
responded to all these proceedings with all haste and the
indebted to him for his excellent assistance at short notice.
In his founding papers the applicant prayed for an order couched
"1. (a) Dispensing with the periods and modes of service of
process stipulated by the rules due to the urgency of this matter.
the 1st and 2nd respondent from interfering with the lawful use of
the Convention Centre by the applicant
that it is an unlawful act to deprive a member of public of the use
of public and/or state facilities without furnishing
applicant further and/or alternative relief
of this application. "
is common cause that the Respondents did not file any answering
affidavits, the 4th Respondent representing all respondents
contenting themselves to a single legal issue when the matter was
later argued that evening.
the applicant states in her affidavit that having been granted a
permit lawfully by the employee of the 3rd respondent,
was "purportedly" cancelled by the 1st and 3rd respondent
and that she was therefore seeking an order
restraining the 1st and
2nd respondent from interfering with her lawful use of the
'Manthabiseng Convention Centre.
C was later abandoned by the applicant.
was common cause that one Ntsihlele (an employee of the 3rd
respondent) granted a permit (Receipted no.AA 640009 dated 4th
2007) to Harvest FM to hold an anniversary Celebration Concert in
the Centre's Auditorium upon payment of a fee of M4,500.00.
to applicant Harvest FM is a Trust registered under no.26704 to
exist for the purpose of proclaiming the word of God
related matters in this Kingdom.
"The Anniversary is held every year by holding Gospel Music
Festival and preaching the word of God to the audience attending.
said Anniversary is to be held to-day, the 9th June 2007 starting
states further that thereafter announcements were made extensively
on the Harvest Radio and other radio stations in
the Republic of
South Africa informing the public of the venue and dated of this
she states, a preacher of high standing had also been invited to
travel from Cape Town to come to preach at the festival;
foreign gospel music artists had been contracted at high appearance
states that on the 5th June 2007.
"...I received a call from the 3rd respondent saying "Ho
thoe re se ke ra lumella Harvest ho sebelisa holo eno "
(translated) - "It has been directed that we should not grant
Harvest the use of that hall".
who said that and he said it is the government. I asked for reasons
and he said he would go and ask for them and he would
same to me. He also said he is preparing to give a refund of the hall
fee a refund of the hall fee. I said I will
only accept the refund
cheque when it comes if it is accompanied by a letter containing
...On Thursday / I phoned him where upon he told me that he was told
not to furnish any reasons to me.
...On Friday he told me to collect my cheque. It was already too late
as I could not be able to secure another hall without having
it in advance much as I tried to negotiated same with other hall
owners in the interim.
the 8th June 2007 she says she received a following circular from
the 2nd respondent - Commissioner of Police.
SEPOLESA SA LESOTHO MALEBANA LE MOKETE OA HARVEST FM O NENG O LOKELOA
HO TSOARELOA HOLONG EA LIBOKA EA 'MANTHABISENG CONVENTION
Sepolesa sa Lesotho se eletsa le ho hlokomelisa bahlophisetsi ba
mokete oa Harvest FM o neng o lokeloa ho tsoareloa 'Manthabiseng
Convention Centre ka moqebelo oa la 09 June 2007, le batho bohle ba
neng ba itokiselitse ho ea
moketeng oo, bore ho fihlile tlhokomelong ea sepolesa sa Lesotho bore
sebaka seo sa 'Manthabiseng Convention Centre se ke ke sa
sebakeng sa mokete o joalo, 'me kahona haho motho ea lebelletsoeng ho
ba sebakeng seo ka sepheo sa ho ea ntsetsa mokete
oo pele. Bohle ba
hlokomelisoa ho ela keletso ena kaha likhato tse matla tsa molao li
tla nkuoa khahlanong Ie batho ba ka eang
moo ka khang ba sa fuoa
tumello ke ba ikarabellang sebakeng seo."
contends that :-
"..it is wrongful and unjust to deny us the use of this public
place without furnishing us with any reasons thereto".
should interpose to state here that the 'Manthabiseng Convention
Centre are premises whose proprietor is the Government of Lesotho
and are administered by the 1st and 3rd respondent. This was common
contends that failure to furnish reasons "is an arbitrary use
of power, malicious against them and therefore unlawful."
lastly states that she has been unable to secure another venue for
her gospel festival; and that failure to hold the festival
occasion her financial loss and will be hurtful to numerous people
who had intended to attend the festival; hence, she argues,
suffer irreparable harm because some 500 tickets (at M50.00 each)
had already been sold and would also have to pay the
their appearance fees. She says she still has no alternative proper
place to hold their function which expected
some 800 souls.
about 6.20 pm, the court convened and it was ultimately agreed by
both counsel that no viva voce evidence would be led and
proceed to motivate their positions.
law, a contract for hire came into existence on the 4th June 2007
under which for a fee of M4,500.00 the 3rd respondent let
auditorium for a 12 hour use by the applicant for a gospel festival.
The principle of privity of contract also implies the
basic idea of
contract; that is, people who seriously enter into a contract must
be bound by their agreement they make with each
other. In other
words, a contract creates rights and obligation which can be
enforced in a court of law. See Christie —
Law of Contract in
South Africa - 3rd Ed (1996) pp 21-113, 288.
Attorney General candidly conceded that a contract existed between
applicant and the 3rd respondent and that this created
right" that was justiciable in the courts of law. In this
regard it must be noted in passing that once the
auditorium was the
subject matter of a contractual agreement freely concluded on the
4th June 2007, both parties enjoyed full
equality under the law of
was common cause that on the 5th June 2007 the 3rd respondent sought
to renege from this agreement for one reason or another.
was not invited to inquire into the validity of the
agreement e.g. re: capacity, authority, fraud or whatever cause that
could invalidate the agreement.
it is not necessary to determine whether to classify the relief
sought as an interdict or specific performance, the applicant
to restrain the 1st and 2nd respondent from interfering with the
lawful use of the auditorium of the Convention Centre.
my view the conduct of the 1st and 3rd respondents in seeking to
prevent the applicant to use the auditorium as agreed was
breach of contract and the applicant was entitled to seek a specific
performance order which could be enforced by way
of a prohibitory
Phoofolo submitted that the essential requirements of an interdict
had been satisfied and met i.e. clear right, actual or potential
harm that was irreparable.
all fairness, the Attorney General rested his case on the submission
that there existed alternative remedy in the form of compensation
for the financial loss which the applicant could have suffered as
the result of the non-use of the auditorium.
court does not lose sight of the fact that many or several gospel
music fans were all bent on attending the festival and foreign
artists were due to perform. Quantification of the gospel or
religious fevour cannot be computed with any finesse or precision.
however of the firm view that as a matter of public policy, the
binding character of a lawful contract validly concluded
upheld and enforced by the courts of law and our law is clear that a
contracting party is always entitled to claim specific
[Farmers' Co-op Society v Berry - 1912 AD 343 at 350 per Innes J.
The court also has a discretion whether or not
to order specific
performance. [Christie (supra) 578]
the exercise of my discretion, I am of the view that the applicant
is entitled to the relief she seeks either in a form of
or an order for specific performance. I am convinced that the 3rd
respondent uses the auditorium for let to the
public for a fee and
upon certain conditions and no reasons having been advanced why the
3rd respondent was now seeking to resile
from the agreement, such
conduct was wrongful and in breach of contract. I am also convinced
that specific performance or restraining
the 1st and 3rd respondents
can be ordered for the enforcement of the contract. I am convinced
that urgent as the relief sought
is, compensation for the losses
likely to be suffered will not meet the justice of the case.
Order: (1) Prayer 1 (b) is granted and the 1st and 2nd
respondents are restrained from interfering the lawful use of the
Convention Centre by the applicant.
avoidance of any doubt, it is directed that the said Convention
Centre be used solely for gospel music and no other (e.g.
2nd respondent is ordered to enforce this order and to stop the
festival if and when any violation of this order occurs.
festival to proceed until 6 am on the 10 June 2007.
respondents to pay costs.
Applicant : Mr Phoofolo
Respondents : Attorney General
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