IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/224/2009
In the matter between:
PEETE MOLAPO Applicant
DU PREEZ, LIEBETRAU & CO. 1st Respondent
J. C. DAMBHA (PTY) LTD 2nd Respondent
JOOBUS CASSIM DAMBHA 3rd Respondent
ABDUL GANIE DAMBHA 4th Respondent
ABDUL RAZAK DAMBHA 5th Respondent
R. ‘MUSI 6th Respondent
THE LIQUIDATOR – LESOTHO BANK
(IN LIQUIDATION) 7th Respondent
F. VAN HEERDEN N. O. 8th Respondent
NEDBANK LESOTHO 9th Respondent
REGISTRAR OF DEEDS 10th Respondent
THE ATTORNEY GENERAL 11th Respondent
Delivered by the Hon. Mr Justice T. E. Monapathi
On the 21st day of July 2011
1. I have already made my ruling that there is now no need for viva voce evidence as Counsel agreed. My reasons hereby follow for the main case in which the following orders were sought:
“a). Declaring the purported cancellation of the agreement cession between Applicant and First, Sixth, Seventh and Eighth Respondent and any other interested Respondent herein concerning plot number 12282-041 Maseru West as invalid and of no force on effect;
b) Directing First Respondent to cause to be transferred into Applicant’s name plot number 12282-041 Maseru West Lesotho with immediate effect;
c) Directing First, Sixth, Seventh and Eighth Respondent and any other interested Respondent to pay costs hereof on attorney and direct scale while the other Respondents pay costs in the event of apposing the application;
d) Granting Applicant further and/or alternative relief.”
2. On the 16th March 2011 which was the continuation date of the above matter this court was advised that the Deed of Cession which was the bone of contention between the parties was traced and Applicant’s attorney was furnished with a copy thereof by First Respondent’s counsel immediately before the sitting of the court.
3. The court ascertained from respective counsel of the parties matters which were common cause and they were recorded. Counsels for the parties agreed that in the light of the availability of the Deed of Cession, Counsel for the parties should make further submissions in support of their respective cases based on the Deed of Cession coupled with pleadings filed of record in order for the court to arrive at a conclusion for either party based on a balance of probabilities of whether the agreement was for Mr Molapo to pay M2,500,000.00 not M1,500.000.00 as the First Respondent contended. The court was then requested either to pronounce itself on the matter or reserve judgement to any convenient date whereupon it would make final findings (judgement) or make any other ruling including calling of viva voce evidence if then still necessary in order to determine this matter.
4. As Mr Ntlhoki submitted, central to this dispute is that Applicant is a cessionary of plot no. 12282-041 Maseru West (which is not disputed) which had previously been put up for auction and where the cedent Francois van Heerden had been the highest bidder (which is not disputed) in the auction and according to the messenger’s return bought the immovable property at M2,500,000.00 (which is not disputed) as more fully appears at page 21 of the paginated record. A close scrutiny of that return indicates that Van Heerden was acting in nemine officio (N. O) i.e he was acting for somebody else. Not much was made of this except that as Mr Mpaka argued the cession could have not been strictly speaking a cession. I concluded that the cession remained indisputable an agreement between Mr Molapo and Mr Van Heerden in any event.
5. Furthermore that First Respondent attorneys were acting for the judgement creditor, namely Lesotho Bank (in liquidation) who had sued J. C. Dambha and 3 Others in CIV/T/371/98 for the recovery of an amount of M3,000,000.00 + and J. C. Dambha was the owner of plot No. 12282-041 which was then auctiouned after judgement in favour of Lesotho Bank.
6. At the auction First Respondent eventually and in the same transaction represented Eighth Respondent i.e Van Heerden (N.O) who was the purchaser of the said immovable property allegedly bought for M2,500,000.00. The court has been denied information as to who Van Heerden represented in nemine officio (N.O) when the judgement creditor was Lesotho Bank-in-Liquidation represented by First Respondent. First Respondent ought to have taken the court into its confidence about this matter as First Respondent represented Eighth Respondent i.e Van Heerden (N.O) the cedent and the judgement creditor.
7. The Cessionary Peete Molapo who is Applicant disagreed with First Respondent when he was not presented with documents of transfer into his name of the said property after his bank Nedbank (Ninth Respondent) had paid First Respondent M1,5000,000.00 for the acquisition of the immovable property. This was the amount for which the property was not auctioned.
8. It was common cause that Applicant through his bank paid an amount of M1,500,000.00 to First Respondent allegedly and according to him it being the full purchase price of the amount for the cession. To that extent First Respondent on 12th November 2007 wrote to Ninth Respondent and the letter is annexure “A”, item 4, page 13 of the paginated record. This letter contains the following telling phrases:
“this constitutes the sale contract”. “The purchaser ceded his right to the agreement to Mr Molapo against the payment of the amount of M1,500,000.00”.
The question that would have exercised the mind of the court had it been in issue is: was Applicant lured into this transaction when clearly the cedent had not acquired this property in terms of the prevailing legislation even after he had allegedly purchased it at a two man auction sale i.e Ashraf Abubaker and Attorney Buys acting on behalf of Eighth Respondent (Van Heerden)? In short whether the auction sale properly advertised as required by the rules of court? This was common cause or accepted by the parties that the auction was regular. This is so inasmuch as I have concluded that the Deed of Cession ought to be interpreted as an agreement between Mr Molapo and Mr Van Heerden which was also common cause. This is similar to whether the cession was an inchoate agreement supposing it was.
9. What is the effect of this inchoate transaction where Applicant has “bought” in good faith and for value? My conclusion is that transfer has to be passed to him for the amount he paid moreso because even Applicant’s bank Ninth Respondent must have been availed of this deed of cession about which it is now being argued on an interpretation is to the effect that there was still an additional M1,000,000.00 to be paid over and above the M1,500,000.00. Applicant attaches to his heads a letter from the bank which is self explanatory nor has the deed of cession is registered in the deeds office. Applicant further refers to annexure “B”, item 5, page 22 of the paginated record where equally like his bank he refers to M1,500,000.00 as the purchase price.
10. A reading of the Agreement of cession between Eighth Respondent as the cedent and Applicant reads at the preamble sub paragraph 3 “payment of the consideration”. In Mercantile Law the word “consideration” means full payment for value. At clause 2 of the Deed of Cession sub paragraph 3 it is recorded that: “The Cession is conditional upon the Cessionary paying to the Cedent as compensation the amount of M1,500,000.00 on the day upon which the Cedent signs this cession”. There is no additional amount to be paid as balance. It is inconceivable that the parties would have been so naieve as not to have recorded that there was a balance outstanding.
11. As Applicant submitted further Clause 5 of the Deed of Cession refers to the conditions of the sale of the auction. Those conditions appear as annexure “B” item 2, page 181 of the paginated record. A perusal of those conditions from paragraph 1 to 15 thereof make no mention of the amount of M2,500,000.00. They are followed by a certificate of the deputy sheriff which makes mention of M2,500,000.00 and that certificate is not in our view a condition of sale; it simply restates the messenger’s return as more fully appears at annexure “B”, item 3, page 21 of the paginated record.
12. In the light to the deed of cession for what it may be worth, the letter of First Respondent to Ninth Respondent being annexure “A”. item 4, page 13 of the paginated record of 12th November 2007 referred to above, the letter of Applicant to his bank i.e annexure “B”, item 5, page 22 of the paginated record and the valuation of the property at the instance of Ninth Respondent at page 14 of the paginated record which shows that in fact the property was even less than M1,500,000.00 there is overwhelming evidence in favour of Applicant that he bought this property by private treaty from the original purchaser and through a deed of cession for what it is worth for M1,500,000.00 and is entitled to transfer thereof based on that amount for which he tenders to pay the charges based on that amount. This would be a fair conclusion.
13. Applicant further submitted that in law there is absolutely nothing especially in the law of cession which prohibits a cedent from parting with his property at a reduced amount. I agreed with respect.
14. As it became instantly clear counsel had become almost one hundred per cent (100%) in agreement about what the facts were including the events of the auction and the days on which they occurred, the signature and the “agreement” of cession between Mr Molapo and Mr Van Heerden No. and until Du Preez and Liebetrau (per Mr Buys) ended up disagreeing where Mr Molapo had then sought for transfer of the site in Maseru West which was sold by auction to Mr Van Heerden.
15. With the absence of dispute over the cession between Mr Molapo and Mr Van Heerden according to Mr Ntlhoki’s submission the die seemed to be cast. If Mr Van Heerden had settled an affidavit perhaps to concede that (the cession) that was the agreement between him and Mr Molapo. He could have been settled earlier according to the probabilities. If Mr Van Heerden the buyer of the site settled, as between him and Mr Molapo, for M1,500,000.00 it is difficult to understand why Mr Molapo would be made, in effect, to pay more or M2,500,000.00. This is against probabilities, common sense and what was agreed between the two parties.
16. There was in the above circumstances no privity between Mr Molapo and the Deputy Sheriff Respondent (Mr Musi). So that what could have transpired between Mr Musi and Mr Van Heerden’s agents or Mr Van Heerden was not the business of Mr Molapo. He knew only Mr Van Heerden’s agents. Neither the principal and agents offer a credible explanation why the Deed of Cession was cast in the term for payment of M1,500,000.00 not M2,500,000.00.
17. If it is contended or suggested that the sale was flawed in any way or that the agreement over/of cession by Mr Molapo and Mr Van Heerden was not what it professed to be then there would have been need for viva voce evidence.
18. Indeed once it was agreed on acknowledge that the cession was good as it is or that alternatively, in any event, it constituted any agreement between Mr Molapo and Mr Van Heerden, this seems to settle everything finally.
19. This application ought to succeed with costs against those who opposed it.
T. E. Monapathi
For Applicant : Mr Ntlhoki
For Respondents : Mr Mpaka
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law