CIV/APN/243/2007
IN THE HIGH COURT OF LESOTHO
In the matter between:-
NTEBALENG MASOETSA APPLICANT
and
MINISTER OF TOURISM
ENVIRONMENT AND CULTURE 1ST RESPONDENT
COMMISSIONER OF POLICE 2nd RESPONDENT
MANAGER OF CONVEENTION CENTRE 3rd RESPONDENT
ATTORNEY GENERAL 4TH RESPONDENT
JUDGMENT
CORAM : THE HON. MR JUSTICE S.N. PEETE
DATE : 9th JUNE 2007
TIME : 8.15 PM (Saturday)
PLACE : PALACE OF JUSTICE - COURT 8
Headnote
Interdict - Agreement entered between parties for the use of a Convention Centre Auditorium. Proprietor of the auditorium purporting to repudiate contract. Specific performance. Sanctity and Privity of contact.
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Where an auditorium proprietor enters into an agreement to let the auditorium for a gospel music festival, the court can order specific performance 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.
It is good public policy that the Sanctity of a contract seriously entered into should be enforced.
At 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.
I then made the following interim order:
"(a) Condoning the unreadiness of the papers;
Ordering that the motion papers plus the interim order be immediately served upon all the respondents in the application;
(c) 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 5pm."
3. The respondents represented by the Honourable Attorney General responded to all these proceedings with all haste and the court is indebted to him for his excellent assistance at short notice.
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4. In his founding papers the applicant prayed for an order couched thus:-
"1. (a) Dispensing with the periods and modes of service of process stipulated by the rules due to the urgency of this matter.
Restraining the 1st and 2nd respondent from interfering with the lawful use of the Convention Centre by the applicant
Declaring that it is an unlawful act to deprive a member of public of the use of public and/or state facilities without furnishing reasons.
Granting applicant further and/or alternative relief
Costs of this application. "
It 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.
Briefly, the applicant states in her affidavit that having been granted a permit lawfully by the employee of the 3rd respondent, this permit 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.
Prayer C was later abandoned by the applicant.
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It was common cause that one Ntsihlele (an employee of the 3rd respondent) granted a permit (Receipted no.AA 640009 dated 4th June 2007) to Harvest FM to hold an anniversary Celebration Concert in the Centre's Auditorium upon payment of a fee of M4,500.00.
According to applicant Harvest FM is a Trust registered under no.26704 to exist for the purpose of proclaiming the word of God and other related matters in this Kingdom.
The affidavit states-
"The Anniversary is held every year by holding Gospel Music Festival and preaching the word of God to the audience attending. The said Anniversary is to be held to-day, the 9th June 2007 starting 6.00pm. "
Applicant 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 yearly occasion.
Thus, she states, a preacher of high standing had also been invited to travel from Cape Town to come to preach at the festival; and that foreign gospel music artists had been contracted at high appearance fees.
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She 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".
I asked 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 communicate the 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 reasons ..."
...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 paid for it in advance much as I tried to negotiated same with other hall owners in the interim.
On the 8th June 2007 she says she received a following circular from the 2nd respondent - Commissioner of Police.
"NR 45/2007
June 08 2007
POLELO EA SEPOLESA SA LESOTHO MALEBANA LE MOKETE OA HARVEST FM O NENG O LOKELOA HO TSOARELOA HOLONG EA LIBOKA EA 'MANTHABISENG CONVENTION CENTRE
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
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moketeng oo, bore ho fihlile tlhokomelong ea sepolesa sa Lesotho bore sebaka seo sa 'Manthabiseng Convention Centre se ke ke sa fumaneha 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."
She contends that :-
"..it is wrongful and unjust to deny us the use of this public place without furnishing us with any reasons thereto".
I 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 cause.
Applicant contends that failure to furnish reasons "is an arbitrary use of power, malicious against them and therefore unlawful."
She lastly states that she has been unable to secure another venue for her gospel festival; and that failure to hold the festival will occasion her financial loss and will be hurtful to numerous people who had intended to attend the festival; hence, she argues, she will suffer irreparable harm because some 500 tickets (at M50.00 each) had already been sold and would also have to pay the music artists their appearance fees. She says she still has no alternative proper place to hold their function which expected some 800 souls.
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At about 6.20 pm, the court convened and it was ultimately agreed by both counsel that no viva voce evidence would be led and counsel proceed to motivate their positions.
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In 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 his 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.
The Attorney General candidly conceded that a contract existed between applicant and the 3rd respondent and that this created "a clear 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 contract.
It was common cause that on the 5th June 2007 the 3rd respondent sought to renege from this agreement for one reason or another. The court was not invited to inquire into the validity of the
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agreement e.g. re: capacity, authority, fraud or whatever cause that could invalidate the agreement.
Though it is not necessary to determine whether to classify the relief sought as an interdict or specific performance, the applicant seeks to restrain the 1st and 2nd respondent from interfering with the lawful use of the auditorium of the Convention Centre.
In my view the conduct of the 1st and 3rd respondents in seeking to prevent the applicant to use the auditorium as agreed was a clear breach of contract and the applicant was entitled to seek a specific performance order which could be enforced by way of a prohibitory interdict.
Mr 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.
In 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.
The 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.
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I am however of the firm view that as a matter of public policy, the binding character of a lawful contract validly concluded must be upheld and enforced by the courts of law and our law is clear that a contracting party is always entitled to claim specific performance [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]
In 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 an interdict 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.
For avoidance of any doubt, it is directed that the said Convention Centre be used solely for gospel music and no other (e.g. political propaganda) and
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The 2nd respondent is ordered to enforce this order and to stop the festival if and when any violation of this order occurs.
The festival to proceed until 6 am on the 10 June 2007.
The respondents to pay costs.
S.N. PEETE
JUDGE
For Applicant : Mr Phoofolo
For Respondents : Attorney General
