IN
THE HIGH COURT OF LESOTHO

CIV/T/383/2008

In the matter
between;

PHEKO MATHIBELI
….............................................................................................APPLICANT

AND

MANTAI KULEHILE
….........................................................................................RESPONDENT

JUDGMENT

DELIVERED BY
THE HON. MRS JUSTICE K.J. GUNI

ON THE 30^TH
DAY OF MAY 2011

Coronology
of Events:

Manti
Kulehile as plaintiff issued out of this court on the 9^th
of September 2008 summons against nine (9) defendants. The applicant
in the present matter was the 1^st Defendant in that law
suit. The nine defendants were:

1. PHEKO MATHIBELI an adult Mosotho male of
Katletleng in the Maseru district (herein referred to as (first
defendant)

2. NCHAFATSO SELLO an adult Mosotho male of
Katlehong in the Maseru district (herein referred to as (first
defendant)

3. S.T.C. DEVELOPMENT (PTY) LTD de-registered
company (54/02) (herein referred to as (third defendant)

4. REGISTRAR OF DEEDS (Herein referred to as
(fourth defendant)

5. REGISTRAR OF COMPANY (herein referred to as
(fifth defendant)

6. MASTER OF THE HIGH COURT Government complex,
Maseru (herein referred to as sixth defendant)

7. COMMISSIONER OF LANDS Lands, Survey &
Physical Planning (herein referred to as seventh defendant)

8. MINISTER OF LOCAL GOVERNMENT
AND CHIEFTAINSHIP (herein referred to as
eighth defendant)

9. ATTORNEY GENERAL
(herein referred to as ninth defendant)

In
the action, the plaintiff – Manti Kulehile claimed:-

1. 
   An Order declaring null and void and of no legal effect
   deed of Transfer in respect of Lease No 12292-391 and 12292-393 in
   favour
   of 1^st defendant and deed of No 12292-391 in
   favour of second defendant respectively.

   
   

2. 
   Canceling and setting aside ministerial consent granted
   by 8^th defendant for transfers of plots No 12292-391,
   12292392 and 12292-393 in favour of first and second defendants.

   
   

3. 
   Declaring that Plot No 12292-391, 12292-392,12292-393
   to be the property of the state as third defendant was
   de-registered by Gazette No 54 of 20^th May 2002.

   
   

4. 
   Cost of suit.

   
   

5. 
   Further and/or alternative relief.

   
   

Apparently,
the matter proceeded undefended and uncontested. The default judgment
was entered against all the defendants for their
failure to enter a
Notice of Appearance to defend. The following order dated 20^th
October 2008 was issued out.

It
is ordered that;

1. DEEDS
   OF TRANSFERS of Lease No 12292-391 AND 12292-393 in favour of 1^st
   defendant and transfer of Lease No 12292-391 in favour of 2^nd
   defendant respectively are declared Null and void.

   
   

2. Ministerial
   consents granted by 8^th defendant for transfers of plots
   No 12292-391, 12292392 and plot No 12292-393 in favour of first and
   second defendants respectively
   are cancelled and set aside.

   
   

3. Plots
   No 12292-391, 12292-392 and 12292-393 property of the state as third
   defendant has been de-registered.

   
   

4. Plaintiff
   is granted the costs of this suit.

   
   

The
summons in this matter were served upon (8) eight of the defendants.
The 3^rd defendant was found to have been deregistered. It
seems none of the nine defendants filed any Notice of Intention to
defend the
action. This applicant included. On the 20^th
October 2008 Mr Hlaoli for plaintiff made an application before court
for Default Judgment to be entered against the defendants
upon whom
the service of the summons had been effected. He succeeded. He
obtained the order sought in the summons by default of
entry to
defend.

The
order was served upon the defendants around about October 2008. In
November 2008 this application for stay of execution and
rescission
of the judgment was filed. This application is made by only one of
the (9) nine defendants. The rest of the defendants
did not enter an
appearance to defend the action. They indicated by their conduct lack
of interest in the matter. They are ready
to abide by the decision of
this court. They can safely be presumed to have indicated by their
conduct, their readiness to abide
by the judgment of this court.

APPLICANTS’S
CASE

This
applicant seems to be saying that he was not deliberately in default
when the matter proceeded in his absence undefended. He
claims to
have the bona fide defence that the sites are already registered in
his name. Therefore it appears he claims the ownership
of the said
sites. He further adds that the respondent, Mantai Kulehile has no
interest in the said sites because she sues for
and on behalf of the
state. She does not want the sites herself. It is her prayer that the
said sites should revert back to the
state. Does she have power
and/or authority to sue for and on behalf of the state? She has
produced no such authority.

RESPONDENT’S
CASE

The
respondent has raised Points in limine.

1. Applicant
   has failed to join the rest of defendants in the main action.

   
   

2. Applicant
   has delinquently hidden the fact that there is an appeal pending on
   his rights to same sites in CIV/A/21/08.

   
   

3. Applicant
   is guilty of non disclosure of delinquency on transfer of the sites
   into his name.

   
   

I
shall deal first of all with the points in limine.

The
applicant is accused of failing to join the rest of the defendants in
the main action. The rest of the defendants in the main
action have
shown no interest to defend the case. This is a clear indication that
they bind themselves to abide by what ever the
decision the court
makes in the matter. They are therefore bound by that decision. These
defendants are mostly functionaries or
what is commonly called
nominal defendants. They did not defend the main action. They have no
interest in the rescission of this
default judgment. The persons that
must be joined in the proceedings are those that have their own
interest in the matter. That
interest must be shown to be likely to
be affected by the court’s decision. The said interest must be
shown to be substantial.
This point is not well taken, it therefore
must fail. It is dismissed.

The
second point in limine is said to be the delinquency of the applicant
by hiding the fact that there is a pending appeal on the
question of
applicant’s rights to the claimed sites in CIV/A/21/08.
The default judgment obtained
had nothing to do with the alleged appeal. This so called point in
limine is not shown to have had
any relevancy in the summons issued
out of this court by the plaintiff. The plaintiff in that action made
no mention of the said
appeal. It was not part of the action in the
present matter I fail to see its relevancy. No relevancy of this
point is shown by
the plaintiff. It is also not well taken. It must
fail. It is dismissed.

The
1.3 point in limine is not clear, what exactly the allegation against
the applicant is about. The 1^st
respondent sounds like she is
accusing the applicant of obtaining the transfer to him of the said
sites, fraudulently. This allegation
of fraud is baseless and totally
unsupported. It also falls to be dismissed.

MERITS

For
the default judgment to be set aside and the case reopened in order
to give the applicant an opportunity to defend the main
action three
most important requirements must be satisfied. Those are:-

1
- Applicant must show the court that he was not deliberately in
default.

2
- He must satisfy the court that he has a bona-fide defence against
the claim, THAMAE AND ANOTHER V KOTELO AND
ANOTHER LAC 2005 – 2006 Page
283 at
290. MELANE V SANTAM INSURANCE 1962 (4) SA 531 AT 532
F.

It
is the applicant’s uncontested averment that he approached what
to him seemed an appropriate authority to deal with the
matter. He
avers that he approached the Ministry of Local Government. It is this
Ministry of Local Government which gives land
rights. It issues out
leases. It gives Ministerial consent to transfer. It gives or
authorizes transfers. There he saw and discussed
the matter of
CIV/T/383/08 with the Legal Officer who assured him that the matter
will be appropriately dealt with by her office
as they have been
cited as defendants. This applicant received assurance that his
interest in the matter will also be protected,
perhaps by an action
or steps which the Ministry was going to take. It was pointed out to
him by the said legal officer at the
Ministry of Local Government,
that the plaintiff/respondent has no locus standi to sue and claim on
behalf of the state as she
did. This applicant was at that particular
time working on his thesis for a degree of PHD. He was studying in
RSA where he resided
at that time. He cannot be faulted by believing
that the Ministry will act appropriately. He cannot be faulted for
taking advantage
of what appeared to be an immediate help plus relief
of his dilemma. He handed his matter over to the legal officer of the
Ministry
of Local Government as he left the country for RSA.

When
the default judgment was applied for and obtained, this applicant was
in fact out of the country. He was in the RSA where he
was doing his
doctorate degree. His thoughts thereat were that the matter is being
handled by the legal officer at the Ministry
of Local Government. He
was not deliberately in default because he believed that someone is
in fact dealing with the matter, even
on his behalf. He return to
Lesotho almost immediately after the default judgment was entered
against him. He acted promptly to
rectify the error of his absence
and failure to protect his own rights.

Another
essential element which he must establish is the bona fide defence.
It is this applicant’s case that he in fact owns
the said
sites. The transfer which the plaintiff sought to be declared null
and void and of no legal effect was the transfer to
him. That
ministerial consent for the transfer of those plots was granted in
his favour. The ministerial consent for transfer to
him was properly
obtained. Therefore the said transfer was properly made to him.
Applicant must be given an opportunity to meet
the present challenge
to his rights.

Lastly,
but most importantly, the respondent/plaintiff is suing those parties
in the alleged interests of state. The plaintiff/respondent
wants the
sites to be the property of the state. The plaintiff/respondent is
not claiming ownership of the said sites. She has
no interests in the
property. She wants the rights to revert back to the state. She has
no right to act as she did in the interest
of the state and/or the
general public. LESOTHO HUMAN RIGHTS ALERT
GROUP V MINISTER OF JUSTICE 1993-94 LLR & LB P264.
In this case it was held that the right of the private person, or an
association of persons, is limited to prosecuting actions
in his or
its own interest and he or it has no title to institute actions in
the interest of the public.

In
these circumstances this application must succeed and it is granted
as prayed with costs.

K.J. GUNI

JUDGE

For Applicant: Mr
Matooane

For
Respondent: Mr Hlaoli