In the matter between:
and
MOHAMED ISLAM ABUBAKER Respondent
This is an Application for a declaratory order. The Applicant is asking the Court to declare null and void and without force and effect some two lease agreements JTL2 and JTL3 entered into between himself and the Respondent in respect of Plot No.23131-001.89 and 90 purportedly entered into on the 30th May, 1996 and 18th August 1997 respectively. He is also asking for costs.
In his founding papers, the Applicant has shown that he holds title to the plot in question, situated along Seretse Khama road opposite St Luke at Maputsoe Urban Area in the Leribe district. That he has a valid registered sublease agreement with the Lesotho National Development Corporation (LNDC), the owner of the site in question, for a period of 40 years. The sublease agreement dated 29th July, 1986 is JTL1.
The said sublease allows the Applicant to further sublet portion of that plot. The Applicant is saying that he entered into a sublease agreement with the Respondent on the 30th May, 1996 in which he only sublet 200 square metres of that plot, JTL2 for a period of 25 years. But that when the Respondent
later erected a building on that plot he crossed the boundary which called for an increase in rent from M300 to M600. He further said that the Respondent nonetheless kept on paying M300 which according to the Applicant was outside their agreement.
The Applicant further said in his affidavit that the Respondent in 1997induced him to sign yet another sublease agreement JTL3 on the 18th August, 1997, wherein the Respondent sought to hire the entire plot and that the agreement was that rent shall be M500.00 per month in addition to the M600.00. The Applicant was never left with a copy of the subsequent lease, which was to be for a period of 35 years.
According to the Applicant the Respondent had never paid the rental of M1100.00 per month. The Applicant said further that though the second sublease had been signed, the Respondent never occupied or developed that plot. That in the end some street vendors took advantage of the situation and erected their shacks. They were however removed from the plot by demolishing their sharks through a Court process from the Magistrates Court Leribe of the 28th November, 2005.
To his dismay, the Applicant said that on the 30th November, 2005 the Respondent offloaded sand, crushed stone and bricks on the plot and without wasting any more time erected a shark. Through the office of the Town Clerk the Maputsoe Police stopped him and removed him from the site.
The Applicant when he later came across the second sublease, he learned that the second lease did not cancel the first lease but that they existed side by side. And that on closer look at one of the agreements he became aware that it was stated that the sublease agreement was incapable of being terminated.
He also learned that both agreements shared the same ministerial consent and concluded that there was forgery. They both shared the same receipt number for the payment of stamp duty. And that both subleases have not been registered contrary to provisions of the Deeds Registry Act.
The Applicant therefore feels that both sublease agreements are to be declared null and void and of no legal force and effect.
It was whilst there was that disagreement on rent that the Applicant entered into another sublease agreement on the same plot with another person, Katija Bebe Anwary and the said sublease was registered in 2003.
According to the Applicant he has instituted ejectment proceedings at the Magistrates court in respect of the two agreements and the matter is still pending at that Court. He says only rent in respect of the first agreement has been paid up to December, 2006 as he no longer wanted to pursue the agreements but wanted out. He based his argument on the provisions of section 24 of the Deeds Registry Act 1967.
The Respondent on the other hand admitted that the two leases exist side by side and that both have not been registered. According to the Respondent he has been paying rent to date, but that the Applicant could be the one who is not collecting such rent as it is still being deposited into Applicants account, which Bank account had been given to them by the Applicant himself.
What has been common cause between the parties was that the agreements between them were not registered, but the reason for not being registered is not common cause. They also are agreed that consent for both agreements was granted and that the agreements if not registered after expiration of three months would lapse.
The Respondent has shown that it was through no fault of his that the agreements were not registered. Though it has not been specifically stated in law as to who has to register a lease, in casu the Respondent contended that it was the Applicant who had to register the lease agreements as he was the one who was given the necessary consent papers to the transactions for the purpose. To confirm that, the Applicant in his replying affidavit has shown that he refused to sign the consent papers as he was not being paid rent.
The Respondent had indicated that he even had to file proceedings before this Court CIV/APN/41/2006 asking the Court to compel the Applicant to register the two leases. This has not been denied by the Applicant.
The Respondent submitted that the Application was without merit and an abuse of Court process. He showed that the Applicant had approached the Magistrate Court for ejectment of the Respondent and an interdict. The Respondent in those proceedings made a counter Application for an interdict against the Applicant and the said Katija Anwary, preventing them from continuing with construction of a building on that land, pending the ejectment proceedings.
According to the Respondent, both interdicts were granted pending the ejectment action in a certain CC383/2005. The Applicant then withdrew the ejectment action thus frustrating the interdict pendente lite obtained by the Respondent. The interdict by the Respondent would no longer operate as the ejectment action by the Applicant would no longer be pending. The Respondent felt that the withdrawal was not genuine but meant to evade an interdict. This has not been denied by the Applicant, but said he withdrew because he had been advised that a non-existent sublease could not be cancelled or set aside, that is why he chose to withdraw from it.
The Respondent called this an abuse of Court process relying on the case of Hudson v Hudson and another 1927 AD 259 at 268 where it was decided that:-
When therefore the Court finds an attempt made to use for ulterior purposes the machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse.
It was also held in the case cited therein that:-
Litigating identically the same question in a subsequent action is an abuse of the process of the Court.
And A.L. Smith L.J. expressed himself as follows:-
I do not base my judgment upon the ground that the question is res judicata, but upon another ground-namely that the issue raised in this action is identically the same issue as that which was raised in the proceedings before the County Court Judge.
What the Court said in Hudsons case was that it is an abuse of Court process to litigate identically the same question in a subsequent proceeding. In casu, the Applicant withdrew the ejectment proceedings at the Magistrates Court thus frustrating the interdict pendente lite by the Respondent. He just withdrew without any change of circumstances.
The Court on the authority of Hudson supra would not allow that kind of litigating and considers it an abuse of Court process. In those proceedings the Applicant still claimed that the subleases were of no legal effect for reasons given and also before this Court he still challenged the validity of the subleases.
It has been clear from paragraphs 8 (b) of the Applicants replying affidavit that Applicants intention in withdrawing the ejectment proceedings at the Magistrates Court was to frustrate the interdict pendente lite by the Respondent.
The case of Hudson was cited in Levy v Levy 1991 (3) S.A 620 and the Court stated that,
it is after all not ordinarily the function of the Court to force a person to institute or proceed with an action against his or her will or to investigate the reasons for abandoning or wishing to abandon one.
And quoting from Hudsons case that where the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse. But it is a power to be exercised with great caution, and only in a clear case.
At paragraph 10 © of his replying papers the Applicant indicated that he refused to sign the consent papers because he was not being paid any rent. At paragraph 12 (b) of the Respondents opposing affidavit he mentioned that in terms of Annexure AB2 attached to his papers, he had even paid rent in advance for the whole year of 2006. The document has the Applicants signing, his signing because he never commented on annexure AB2 but he admitted that he received rent for 2006.
Declaratory Order
The Respondent pointed out that where the statute already puts the matter beyond doubt, a declaratory order cannot be decreed as the position is already defined by statute, Ex Parte Norikson 1962 (1) S.A 857 where the Court said that, The Court should not make a declaratory order where the legal position has already been clearly defined by statute and there appears no dispute on the papers as to the legal effect.
Section 24 of the Deeds Registry Act No.12 of 1967 deals with leases over immovable property. Subsection (1) clearly stipulates that every lease or sublease for more than three years shall be registered. (My emphasis)
Subsection (5) stipulates that if lease or sublease is not registered within three months of granting consent, shall render the agreement null and void and of no force and effect.
It was common cause that the subleases were for more than three years, and therefore had to be registered.
It was also common cause that consent from proper authority for both subleases for 1996 and 1997 were obtained. Also that the subleases were not registered.
Again the Respondent showed that the present application seeks a declaration of a fact that the leases since unregistered therefore are null and void. He said, the court could not grant a declaration as to a fact, but that declaration must relate to a right, citing the case of Electrical Contractors Association (South Africa and Another (ECA) v Building Industries Federation (South Africa) (BIFSA) 1980 (2) S.A 516 at 520. The Court there was asked in the Notice of Motion for a declaration that the circular contained false statements. The Court decided that it could only make a declaration as to a right not fact.
Presence of Another Remedy
The Respondent indicated further that the granting of a declaratory order was discretionary. That relevant to the exercise of discretion by the Court, was the presence of alternative remedies. In Safari Reservation (Pty) Ltd v Zululand Safaris (Pty) Ltd 1966 (4) S.A 165 at 171 the Court had this to say that:-
the fact that remedies other than a declaration of rights are available is certainly a consideration which the Court will take into account in exercising its discretion as to whether or not to make a declaration of rights.
The Applicant in casu still had the remedy of ejectment proceedings available to him, which remedy he chose to withdraw at the Magistrates Court.
The Court in the exercise of its discretion refuses to grant a declaratory order for reasons shown above.
The Court was also concerned that the agreement was entered into in 1996 and 1997 respectively. It has not been denied that rent has been paid and accepted till 2006, at least for the first lease. Applicant has shown that the Respondent had crossed over to something like 800 metres, so that even if a declarator were to be granted that would also affect the land not covered in the two lease agreements.
The Applicant has also not denied that there have been some improvements on the plots in question though the value of such improvements could not be ascertained on the papers before Court.
For the reasons stated above, the Application is dismissed with costs.
A. M. HLAJOANE
JUDGE
For Applicant: Mr Nteso
For Respondent: Mr Teele.
