IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/322/2010
In the matter between:
LIEKETSENG LEBETHA Applicant
TSEKO MOKETU 1st Respondent
CITY LIGHTS (PTY) LTD 2nd Respondent
THE DEPUTY SHERIFF 3rd Respondent
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 6th Day of July 2011
1. After a failed application for rescission and another application, the Applicant (who was not a party) brought an urgent application before this court and prayed for stay a sale in execution of the immovable property on the site situated at Ha Matala in the district of Maseru. It followed a judgement obtained by default of filing of a defence. The basis of the present application is that the ownership of the property is disputed by the Applicant who was not the judgement debtor.
2. It is common cause that judgement was granted in default against the First Respondent one Moketu in CIV.T/322/2010 by the Second Respondent in satisfaction of a debt owed by Moketu. Applicant contended that she was the owner of property that was attached or rather that was to be sold in execution. The Deputy Sheriff had mistakenly attached her own property which is the house on the site. This was to be the main argument by Counsel.
3. To prove ownership of the said land or site, Applicant has annexed a Form “C” which bears her names. She contended that this was prima facie evidence that she holds title to that land not the judgement debtor (Moketu). Applicant’s Counsel Mr. Sepiriti correctly referred the court, as authority, to the case of Koali v Nkosi CIV/A/8/1993 by Maqutu J, 14th March 1994 (as he then was) at page 14 citing Seeisa Tsotako v Matsaisa Matabola in C of A (CIV) No. 10 of 1986, Aaron JA “in dealing with a case that was substantially similar to this one”, said:
“Plaintiff had produced prima facie evidence in the shape of her Form C, and supporting evidence by two members of the Land Allocation Committee. The Magistrate accepted this evidence, and it was clearly a finding which a reasonable court could have made on the evidence, there is no basis upon which we can disturb it.”
I approve as well.
4. Mrs Masupha had raised other points of law in her papers. One of those points which were argued that there was a dispute of fact which needed the court to call viva voce evidence. In response, Mr Sepiriti argued that in order for the Respondent to succeed on this point, he was supposed to show the court and point out what the factual issue in dispute was. He must further prove that the court cannot, because of the dispute, decide the matter on the papers as then stand. That is the rationale. The dispute must not only be identified, it must be a serious dispute of fact such that because of it the court ought to dismiss the application or order for viva voce evidence in its discretion. Those disputes must be confined to specific issues (to be determined by oral evidence) and be clearly defined. See Standard Bank SA (Pty) Ltd v Neugarten and Others 1987 (3) SA 695 (W). Mr Sepiriti submitted that the Respondent had failed to do so and as result the point should be dismissed. I agreed with respect.
5. Counsel for Respondent (Mrs Masupha) in reply to the main issue, argued that the Form C in question was not a legal document because it was not a land lease registration document. She further argued that the site belonged to the said Moketu (judgement debtor) by virtue of a statement made by him in previous affidavit. Her argument was premised on the fact that in rescission application, Moketu had professed that the house was his, and if sold, he would have no where to stay. In her further submission Mrs Masupha told the court that there was conspiracy between the Applicant and the First Respondent with regard to the house and site in question, intended to defeat execution. With respect it was difficult to agree without proof of some kind. In any event the reasoning in Koali v Nkosi’s case (supra) stood in the way of such a conclusion.
6. I would make the following observations on the issues as outlined by Counsel. Firstly, as Mr Sepiriti has correctly submitted in principle, a document called Form C is in itself prima facie evidence to prove that the holder of such a document has title on a certain site specified on that document. Therefore, in the circumstances of this case, there is no way or basis upon which the court would doubt such a document unless there is strong controverting evidence. A Form C in itself, is a legal document that gives the holder a right of ownership of land allocated to him or her. Indeed it may not have complied with other or certain requirements of the old Land Act, 1979. And even in this case the court does not see why this court cannot agree with the Applicant that the property was hers more especially when she has title shown in such a regular document of title.
7. In conclusion, there is no aorta of evidence that has brought forward to show that indeed this site does not belong to the Applicant. Furthermore, Counsel for Respondent had persistently argued that there was a dispute of fact that could be resolved by referring the matter to a trial. She has in my view failed to demonstrate those factual issues which are in the court’s discretion to be determined by trial or otherwise be dealt with in terms of Rule 18 (14).
8. By way of repetition this court does not see any disputes of facts that can disable the court to decide this matter on papers. Even if it was not true that house and site belonged to Applicant, unfortunately there is no evidence before the court by way of at least one witness a chief or member of land allocating committee from the village of the Applicant who would show that the house belongs to the judgement debtor. A court will not just act on this bare denial of the First Respondent without more. This court will refuse to order for viva voce evidence without good cause if the sole purpose of oral evidence would be to make a case for the other party where there is none.
9. This application succeeds with costs.
T. E. Monapathi
For Applicant : Mr. Sepiriti
For Respondents : Ms Masupha
Judgement noted by Mr Motšoari on 6th July 2011
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