IN THE HIGH COURT OF LESOTHO
In the matter between:-
LESOTHO CATHOLIC BISHOPS CONFERENCE
PROPERTY COMPANY (PTY) LTD APPLICANT
PEP STORES 1 RESPONDENT
PEPKOR RETAIL PROPERTIES 2 RESPONDENT
Date of Hearing : 19 July 2011
Date of Judgment : 19 July 2011
CORAM : MR ACTING JUSTICE J.D. LYONS
Mr. S. Makhabane for Applicant
Mr. Mpaka for Respondent
Need for a real dispute – Court does not give advisory opinions which will assist any party to ceate a dispute.
LYONS J. (AGT)
The Applicant is a property owner. The 1st Respondent is a chain of retail stores. The applicant owns the leasehold on certain property in the area of the Cathederal. (‘The property’).
On 1 April 2004 the parties signed a sub-lease over the property. It was a 3 year lease with two further 3 year option periods.
The rental for the option periods (as well as the initial period) was set in the original sub-lease document.
The 1st Respondent went into possession and duly paid the rental. The Applicant appears to have accepted the rental without a quibble.
In 19 February 2007, the 1st respondent applied to exercise the first 3 year option period. There is no evidence that this was refused or that any issue of dispute was raised. Again, the 1st respondent continued in possession. It paid the rent. It was accepted.
Then on 28 April 2009 the Applicant brought this Notice of Motion. Essentially what was sought was an advisory opinion on the validity of the sub-lease.
The Applicant now, it seems, considers the sub-lease to be unfairly weighted in favour of the 1st Respondent. Further (and this is the primary focus of the Applicant’s argument) the sub-lease has not been registered pursuant to the Deeds Registry Act (Act 12/1967). Under S24 thereof, an unregistered lease or sub-lease is said to be null and void and of no force and effect.
Somewhat unwisely the Applicant did not engage the services of lawyer when negotiating the sub-lease.
Be that as it may the applicant and, in particular its present counsel (adv. Makhabane) have been very stright forward with the court. Counsel advised that the applicant is only seeking a declaration that the sub-lease is invalid. In effect, he said, an advisory opinion is sought. If that is favourable to the applicant it may or may not (given the late stage of the overall term of the sub-lease – it has run for 7 of a 9 year total) decide to re-negotiate the sub-lease.
Unfortunatly the law does not support such an approach. The court does not give advisory opinions. In Miller v Commissioner of Police NSW NSWCA 356 (30 September 2004 URL: http://www.austlii.edu.au/au/cases/nsw/NSWCA/2004/356.html), McColl J, writing for the Court, set out the law in this regard. At paras 27-28, His Honour stated:
“Secondly, the Court would not deliver what would, in effect, be an advisory opinion on an issue which had become moot. Courts do not entertain appeals on questions which would "produce noforeseeable consequences for the parties": Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR180 at 188 per Mason J (with whom Jacobs J and Murphy J agreed); app Ainsworth v Criminal JusticeCommission  HCA 10; (1992) 175 CLR 564 at 582 (per Mason CJ, Dawson, Toohey and GaudronJJ) and which are, therefore, academic: Sun Life Assurance Co of Canada v Jervis  AC 111 at113-114; FAI Traders Insurance Co Ltd v FAI Workers Compensation (NSW) Ltd and Ors (NSW Courtof Appeal, unreported, 16 July 1996 per Handley JA with whom Beazley JA agreed, BC9603498); R vHome Secretary; Ex parte Salem  UKHL 8;  1 AC 450 at 457; Secretary to the Departmentof Human Services v Magistrates' Court at Melbourne  VSCA 171; (2002) 6 VR 140 at 147 .
As Heydon JA (with whom Sheller JA and Einstein J agreed) said in Victims Compensation Fund Corporation v District Court of New South Wales and Anor  NSWCA 355 at , it is wrong for judicial power to be exercised in answering questions which are "merely moot, theoretical, abstract, hypothetical and advisory". His Honour continued: "A judicial determination "involves a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy": Bass v Permanent Trustee Co Ltd  HCA 9; (1999) 198 CLR 334 at  per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. Here there was a controversy, but it was not one which could be quelled by any particular outcome of the debate about s 30(3): the controversy had already been quelled by the findings negating shock and by the second opponent's abandonment of any challenge to them. And at  in Bass's case the court said: "Because the object of the judicial process is a final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions." The question of what s 30(3) meant was only hypothetical, because it rested on the hypothesis that there was shock, and the second opponent had not proved this. The opinion offered on the hypothetical question was only advisory, because there was no "immediate right, duty or liability to be established by the determination of the Court" in the sense in which those words were used in In Re Judiciary and Navigation Acts”
It the Applicant wanted to create a real dispute, it could have refused the option thus forcing the issue. As the final option period is now upon th eparties, it is probably too late for that tactic. As it satnds though, it is unacceptable that it comes to court without the existence of a real dispute in the hope of getting favourable advice before deciding whether or not to raise a real dispute.
It cannot come to court asking to cancel the sub-lease for even on its own argument, there is no sub-lease to cancel. It is null and void. On its argument the eyes of the court are closed to it.
The Applicant’s application seeks, firstly, that the sub-lease be declared null and void ab initio and of no force and effect. It relies on the non-registration under the Deeds Registration Act.
As an alternative, it then seeks to cancel the lease because of a percieved unfairness by saying that the applicant’s representative, at the time of signing and negotiating, was not fully aware of the consequences and legal nicieties. Quite apart from the hearsay nature of the evidence given in this regard, factual disputes would clearly exist making this part of the application unsuitable for the motion process.
Putting that aside, however, if the applicant succeeded on the first argument (its major argument) there would be no need for an alternative as the sub-lease would for all intents and purposes (at least in the court’s eyes) not exist.
So in this motion process, the first limb of the applicant’s case (as set out in its prayers for relief) would be the only arguement open. Appropriately, therefore, the applicant is proceeding only on that argument.
Assuming the applicant was successful, it then seeks to have the 1st respondent ordered off the property. But by what cause of action? It cannot rely on any section of, or any law relative to the sub-lease or any perceived tenancy – even if it be a tenancy at will. The terms of any perceived tenancy at will (notably with the payment of rent) must come from the sub-lease that would have been found to be void for non-compliance with the statute. This would amount to a nonsense of striking down the sub-lease but at the same time, when favourable, seeking to use its terms.
Does the applicant’s case then assume that the 1st respondent is to be treated as a trespasser? If so, and noting that the 1st respondent has entered into possession, paid rental (which has been accepted) and has exercised its option, then are not certain equitable shields available for the 1st respondent? Also, if this is the cause of action relied on to order the 1st respondent from the property, are motion proceedings appropriate?
I mention the foregoing to point out the academic nature of the application, given that no real dispute is identified. It also illustrates how the court could get into difficulties and how all the controversial points may not be covered unless the true controversies are clearly identified. The illogical nature of the applicant’s case (as pleaded and stated) is clear. Just as clear is the reason why courts do not give advisory opinions.
For the above reasos the Notice of Motion stands to be dismissed. The applicant is to pay the 1st Respondents costs to be taxed if not agreed.
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