IN THE HIGH COURT OF LESOTHO
the matter between:
I.KUPER (LESOTHO) PTY LTD….............................................Applicant
MASTER OF THE HIGH COURT
Delivered by the Hon. Mrs
Justice A. M. Hlajoane on 22nd October, 2010.
Applicant has lodged an urgent
Application before this Court for an interdict and restraining order.
Areas involved in this case
are Patsa Shopping Centre, Plot No. 06472
– 041 and 06472 – 222 Mafeteng.
Applicant is asking that the 1st
Respondent be interdicted and restrained from holding himself out as
the owner manager or the agent of the owner or rightful occupant
Patsa Shopping house at Mafeteng area or as having any authority to
manage, control or administrator any of the affairs or tenants
Patsa Shopping Centre Mafeteng.
Again to interdict and restrain
1st Respondent from collecting rentals from any of the
tenants in both areas, and not to finally interfere in any way with
rights of occupation, possession, control and
administration of the above stated areas.
The necessary affidavits were
filed and the 1st Respondent raised some points in
limine in his opposing affidavit on non-joinder and locus
It was shown in the applicant’s
founding affidavit that during or about 1990 the applicant entered
into a sub-lease agreement
with the late Kenneth Thulo Maphathe in
respect of Commercial property of the already two mentioned sites.
The sub-lease was for
a period of 25 years with two options to renew
the agreement for two further periods of 10 years each. A copy of the
is attached to the papers.
That agreement has a clause,clause 1 (b) which provides that:-
“This contract shall be binding
on the heirs, executors, administrators or successors in title of
both the contracting parties.”
Against that background the 1st
Respondent argued that applicant has failed to join other parties
with a legal interest in the outcome of this matter, namely:-
Estate of the late Dr K.
Executors of the Estate of the
late Dr K. Maphathe
Investec Property Group Limited
Du Preez Liebetrau & Co.
1st Respondent agued
that since the property whose rentals are in question, Patsa Business
Centre, forms part of the estate of the
late Kenneth Thulo Maphathe,
such estate ought to have been joined. Also that the Executors of
such estate must have been joined
as they have a direct and
substantial interest in the subject matter of this litigation. Moreso
because such Executors have yet
not discharged their duties and
responsibilities as far as that estate is concerned. 1st
Respondent contented that such interest in the subject matter would
definitely be prejudicially affected by the judgment of this
He relied on Amalgamated
Engineering Union vs Minister of Labour 1949 (3) S.A 637 at 659
for the proposition that the Court can even mero motu take a
point of non-joinder where it considers that a person or party with
direct and substantial interest has been left out. The
difference would be where such a party has waived his right to be
In casu, the Court has
been informed that the Executors of the estate of the late Dr
Maphathe have yet not discharged their duties and responsibilities
far as that estate is concerned and thus still have a direct and
substantial interest in the estate.
further argued that applicant has failed to join Investec Property
Group and Du Preez Liebetrau & Co. That the two
above have an
interest in the outcome of this case as it has been alleged that
Investec Property Group appointed the 1st Respondent as an
agent to collect the rentals and manage Patsa Centre in 2008. Also
that the said mandate was allegedly terminated
by the said Investec
who appointed new managers and agents on their behalf namely Du Preez
Liebetrau & Co.
Because it would be expected
that there was going to be interference by the first respondent
whilst those new managers and agents
discharge their duties 1st
respondent contended that those two above as necessary parties ought
to have been joined.
In response to this applicant’s
counsel argued without denying that there has been non-joinder that
non-joinder being a dilatory
plea, the Court could still make an
order to join the necessary parties.
Counsel further responded by
showing that in terms of the sublease agreement between applicant and
the late Dr Maphathe, page 20
of the record, clause 5 thereof, there
was no need to have joined the Executors and the rest as they are
bound by the term of the
sublease agreement as already stated above.
The Court here has a different
view in that the fact that the executors are mentioned in the
sublease agreement and the heirs that
would be the more reason why
they ought to have been joined as interested parties.
In Majara v Majara 1990 –
94 LAC 130 the Court of Appeal on the question of non-joinder
felt that the parties who might potentially be affected by the order
were not joined and since they
were entitled to be heard ordered that
they be joined. The Court did not render the proceedings abortive by
reason of non-joinder
but felt that since it was a protracted
litigation which had already commenced the order of the High Court
was set aside and substituted
by one requiring the essential parties
to be joined and called upon to answer matters set out by the Court
Again the 1st
respondent is denying that his mandate was ever terminated. And that
since it was alleged that Du Preez & Co was appointed
manager he too ought to have been joined.
1st Respondent on the
basis of Theko v Morojele 2000 – 2004 LAC per Ramodibedi
JA (as he then was) asked that the application ought to be
dismissed. The Court in Morojele supra stated;
“It follows from the foregoing
that the respondents are guilty of non-joinder, on this ground alone
the Court a quo
should have dismissed the application with costs.”
On this point of non-joinder the
application stands to be dismissed.
1st Respondent contended that
applicant has no locus standi to bring this application to
Court as there is no resolution to the effect that he can sue the 1st
respondent. That applicant claimed to be Managing Director but no
proof of that.
At page 18 of the record there
is Annexure A, styled, ‘Resolution of the Board of Directors of
I. Kuper (Lesotho) (Pty) Ltd
passed at a meeting held at Maseru on
1st August, 2009.’ The document is signed by A. K.
Noormahomed as Director/Secretary.
But at page 10 of the record
paragraph 8 of Ashraf Abubaker’s affidavit, the Managing
Director of applicant, it has been stated
that, I quote;
“During or about July 2009, the
shares in the applicant were sold to Mafeteng Property Group (Pty)
Ltd, a Company duly registered
in terms of the Company Laws of the
Kingdom of Lesotho under number 2008/810 and I was appointed as
Managing Director of applicant.”
Since it has not been stated how
many shares were sold to Mafeteng Group it would not be unreasonable
to conclude that it was all
the shares which were sold. That being
the case Mafeteng Property Group (Pty) Ltd must have taken over from
I. Kuper (Lesotho)
Pty Ltd. The mandate therefore must have been
given by the new Company which took over from the present applicant.
not have been two companies operating at the same time in
relation to the same subject matter.
Applicant argued that there was
no need for a resolution as applicant is a party to the contract.
That there could be no doubt therefore
that it is the applicant who
is suing and not any other person.
In the case LTC and Another v
Nkuebe and Others1997 – 98 LLR &LB 438 at 447 the same
point had been taken on locus standi, and the Court in
dismissing that point showed that as was said in the Notice of Motion
“Take Notice further that
applicants have appointed the under mentioned attorney’s
address as the place where at all process
and documents herein may be
That the applicant was
authorized by all the named applicants and that point failed.
Also in Wing on Garment (Pty)
Ltd v Lesotho National Development Corporation and Another 1999 –
2000 LLR 151, the application had been dismissed as appellant had
not established the authority to make the founding affidavit, and the
too was dismissed.
In casu the Court
considers that Abubaker who deposed to the founding affidavit has not
established the authority to have made the affidavit
as on the papers
there are two companies involved and the last company which had
bought shares from the former seems not to have
give any mandate to
In the results, the points in
limine on non-joinder and locus standi are upheld,
resulting in the dismissal of the application with costs.
For Applicant: Mr Mpaka
For Respondents: Ms Kao
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