IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/681/2010
In the matter between:
MOTLATSI RAMETSE APPLICANT
MORENA DAEMANE 1ST RESPONDENT
THE OFFICER COMMANDING
MASERUDISTRICT 2ND RESPONDENT
THE ATTORNEY-GENERAL 3RD RESPONDENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 28th February, 2011
The Applicant has approached this Court on a Notice of Motion claiming an Order in the following terms:
1. Dispensing with the normal notice periods stipulated in the Rules of this Honourable Court and admitting this matter to be dealt with on an urgent basis.
2. Authorizing a Rule Nisi to issue returnable on a date to be fixed by the above Honourable Court calling on 1st Respondent to show cause on a date to be determined by the above Honourable Court why the following Order shall not be made final;
(a) Interdicting and restraining the 1st Respondent from damaging any of Applicant’s property on Plot No.14272-114 situate at Koalabata;
(b) Interdicting and restraining the 1st Respondent from entering or setting foot on the said Plot No.14272-114 situate at Koalabata;
(c) Interdicting and restraining the 1st Respondent from continuing with any construction work at Plot No.14272-114 situate at Koalabata pending the finalization of an application brought by 1st Respondent under CIV/APN/237/2008;
3. Ordering and directing 1st Respondent to remove any other property that he has put on the said site within 7 days from the date of this Order;
4. Authorizing the 2nd Respondent through his subordinate officers to give assistance to the Deputy Sheriff of the above Honourable Court in execution of this Order;
5. Directing that prayers 1 and 2 (a), (b) and (c) operate with immediate effect as an Interim Order;
6. Granting Applicant such further and/or alternative relief as the above Honourable Court may deem fit.
The application is opposed.
On paragraph 5 of his Founding Affidavit, Applicant has claimed he is the lawful owner of certain immovable property registered with the Deeds Registry under Lease No.12472-114 marked “Annexure A”. And according to his paragraph 6 Applicant claims 1st Respondent has been interfering with his right of ownership to the site 1st Respondent having removed a fence erected by Applicant and also erecting split poles in the middle of Applicant’s site without the latter’s consent and continuing to invade Applicant’s ownership rights was in process of erecting buildings on the site.
On paragraph 7, Applicant has referred to a case pending before the High Court for cancellation of Lease No.14272-114. Applicant has alleged 1st Respondent has no prospects of success in the application and according to his paragraph 8 Applicant has alleged before the hearing of the case 1st Respondent erected a shack on the site in dispute. Applicant has also alleged he obtained an Interdict against the Applicant in the Magistrate’s Court in CC 1656/03 (Annexure “B”).
In his Answering Affidavit, the 1st Respondent has denied Applicant’s allegations saying, amongst other things in his paragraph 5 that deponent’s so-called lease appears to be bigger than the allocation suggests, the result being that Applicant has encroached on 1st Respondent’s land.
On paragraph 6, 1st Respondent has conceded out of sheer frustration caused by Applicant not attending meetings to resolve the impasse 1st Respondent did remove the fence erected on his land and it was only after removing the fence that 1st Respondent knew it was Applicant who was encroaching on his land. 1st Respondent denies he erected split poles on Applicant’s site in that they were erected on 1st Respondent’s site.
At paragraph 7 of his Answering Affidavit, 1st Respondent has deposed in CC 2121/03 being a case for ejectment and damages the Court granted absolution the 1st Respondent having been absolved from the instance the Applicant having neither appealed or instituted a fresh action. 1st Respondent has also referred to CC 1656/03 in which while the Magistrate’s Court confirmed the Rule Nisi the Court explained if by 25th January, 2004 the Applicant will not have instituted action against 1st Respondent the latter was free to build on the disputed piece of land.
1st Respondent in CIV/APN/237/2008 has brought an application to this Court for cancellation of Applicant’s Lease No.14272-114 and the matter is pending before this Court due to be heard on 16 March, 2011 and Applicant has alleged to his Answering Affidavit (para.7) that 1st Respondent has no prospects of success in the application. For the success of this application the only question is whether the Applicant has a clear right or as some prefer as to whether it may be said the Applicant has a prima facie right to bring this application.
To me and in his Heads of Argument Mr. Mohau has claimed an Applicant for an interdict has to establish:
1. A prima facie right;
2. A well funded apprehension that he will suffer irreparable harm;
3. A balance of convenience favouring the relief sought;
4. The absence of any other satisfactory remedy whereas.
The Applicant in his Heads of Argument and before me has claimed Applicant holds title to the disputed plot under Lease No.14272-144 while 1st Respondent holds a Form C in maiden name of his wife, a site bought prior to marriage. Applicant has also claimed the object of the remedy is to preserve the status quo pending the final determination of the rights of parties and in this regard there is nothing, in my view, to stop the launch of the application to preserve the status quo the only obstacle being whether Applicant has a clear or prima facie right to do so and the Court by virtue of Applicant holding a title deed to the land in dispute holding that the Applicant has such a clear right. The Applicant has further submitted an interim interdict does not involve a final determination of the rights and does not affect their final determination effect of the grant of an interlocutory interdict being to maintain a particular status quo to freeze the position until the determination of the application when the interdict will cease to operate and as stated by Prest in his South African Law the minimum requirement for the grant of an interlocutory interdict being the establishment by the Applicant of a prima facie right for Applicant to forward as he does. Another requirement according to the Applicant is a well grounded apprehension and suffering of irreparable harm if an interim relief is not granted and Applicant has referred to construction work by 1st Respondent on disputed land fortifying Applicant’s fear of suffering irreparable harm unless the application is granted.
Applicant has also submitted the application is likely to succeed if he can establish it will be difficult and costly to restore the status quo at a later stage and further, that the balance of convenience favours the granting of interim relief; Applicant has further stated the absence of any other further remedy and has further encapsulated requisites for the right to claim an interdict as stated by Innes JA in Setlogelo v Setlogelo 1914 AD 221 as a clear right, injury actually committed or reasonably apprehended and absence of similar protection by any ordinary remedy.
This Court has not hesitated granting this application and it so granted with costs to the Applicant.
For the Applicant : Ms Da Silva
For the 1st Respondent : Mr. Mohau
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