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 30TH DAY OF MAY 2011
Coronology of Events:
Manti Kulehile as plaintiff issued out of this court on the 9th of September 2008 summons against nine (9) defendants. The applicant in the present matter was the 1st 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:-
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 1st defendant and deed of No 12292-391 in favour of second defendant respectively.
Canceling and setting aside ministerial consent granted by 8th defendant for transfers of plots No 12292-391, 12292392 and 12292-393 in favour of first and second defendants.
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 20th May 2002.
Cost of suit.
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 20th October 2008 was issued out.
It is ordered that;
DEEDS OF TRANSFERS of Lease No 12292-391 AND 12292-393 in favour of 1st defendant and transfer of Lease No 12292-391 in favour of 2nd defendant respectively are declared Null and void.
Ministerial consents granted by 8th 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.
Plots No 12292-391, 12292-392 and 12292-393 property of the state as third defendant has been de-registered.
Plaintiff is granted the costs of this suit.
The summons in this matter were served upon (8) eight of the defendants. The 3rd 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 20th 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.
Applicant has failed to join the rest of defendants in the main action.
Applicant has delinquently hidden the fact that there is an appeal pending on his rights to same sites in CIV/A/21/08.
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 1st 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
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