Section 16 I1) of the Court of Appeal Act 1978, application for leave to appeal against an order of the High Court in interlocutory proceedings. High Court having granted interlocutory order against objection matter was re judicata, there was non-joinder and non-compliance with rule 8(19) of the High Court rules. On appeal court sets out circumstances in which it will grant leave to appeal against an interlocutory order.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO.: 12/2021
In the matter between:
MAFETENG PROPERTY GROUP (PTY) LTD APPELLANT
BENJAMIN RADIOPELO MAPHATHE RESPONDENT
CORAM: P.T. DAMASEB AJA
M.H. CHINGENGO AJA
N.T. MTSHIYA AJA
HEARD: 12 April 2022
DELIVERED: 13 May 2022
‘The respondent, a duly registered company, sued the appellant and ten other persons, in the High Court by way of urgent motion proceedings on 13 July 2016. It sought orders (a) stopping the appellant from interfering with the its rights as the owner of all occupational rights in Plot No. 16472-041 and Plot 16472-222 Mafeteng, both of which are also known as Patsa Shopping Centre (“the Shopping Centre”); directing the appellant “to account [to it] for all monies and rentals received from the tenants at the Patsa Shopping Centre, Mafeteng from 11 October 2008 to date hereof, and as at that time 30 April 2016 and to debate, upon demand, such account … and to pay … any amount which may be found to be due to (it) after such accounting and debate”; (c) stopping the appellant from collecting rent from tenants at the Shopping Centre and from personally or through his agents directing any demand to the tenants to enter into any sub-leases with him or threatening the tenants with eviction should they refuse to enter into such sub-leases or from interfering with the occupation or business of any of the tenants; (d) stopping the appellant from relying on a wrong order issued by the Registrar of the Court of Appeal dated 6 November 2014 purporting that it is the order issued by the Court of Appeal; (e) stopping tenants (2nd to 9th respondents in the court a quo) from paying rent to the appellant and directing them to enter into sub-lease agreements with it and, in default thereof, vacating the Shopping Centre and paying rent into an independent account nominated or appointed by the court, pending the finalisation of the application. The ten other persons were eight tenants at the Shopping Centre and the Minister of Trade and Industry and the Attorney General, the 10th and 11th respondents, respectively. No relief was sought against these last two. Some interim reliefs were granted to the respondent before its application was heard.’
The respondent’s application was heard by the High Court on 5 December 2016 and, despite opposition from the appellant, judgment in favour of the respondent was granted on 17 May 2018.
The present appeal is against the whole judgment of the High Court. At the hearing of the appeal the parties agreed that the single issue for decision in the appeal was whether or not the matter before the High Court was res judicata. That was the substance the appellant’s contention in the High Court and in the appeal before this court. A brief history of the litigation between the appellant and the respondent will assist in properly understanding the contested issue, to wit, whether or not the matter was res judicata.
The appellant is the son of the late Dr KT Maphathe who, during his lifetime in 1990, entered into an agreement of sub-lease, as sub-lessee, with a company called I. Kuper (Lesotho) (Pty) Ltd (“the company’” or “Kuper”) in respect of the Shopping Centre. I will refer to this agreement as the Kuiper agreement. The sub-lease was to subsist for 25 years after which the sub-lessee had, at his election, two options to renew the sub-lease for periods of ten years each. In terms of clause 4(c) of the Kuper agreement the rent payable by the company was to be paid to Dr Maphathe or his nominee. The amount of the rent was fixed by clause 4(a) of the Kuper agreement at M1.20 per square metre of ground floor space actually sub-let to tenants and such amount “automatically increased or decrease, depending on the extent of the occupancy of the premises.” Clause 4(b) of the Kuper agreement is a rent escalation clause providing for the increase of the rent by “7% per annum, compounded, with effect from the first anniversary of the bus-lease.”
‘(1) An appeal shall lie to the Court-
The application for leave to appeal
 I make the following order:
Leave to appeal
P T DAMASEB AJA
ACTING JUSTICE OF APPEAL
M H CHINHENGO
N T MTSHIYA
For the Appellant: Adv. T Mpaka
FOR THE RESPONDENT: ADV T POTSANE
Ben Radiopelo Maphate v Mafateng Property Group (Pty) Ltd.
 C of A (CIV) 51/2019  LSCA 33 (11 November 2019) para .
 Qocha v Nthongoa C of A (Civ) 49/16  LSCA 19 (07 December 2018); Matete v Matete C of A (CIV) 57/2018  LSCA 31 (31 May 2019), para 11; Mohlouoa v Motsami C of A (CIV) 49/2018  LSCA 49 (01 November 2019).
 Hughes’ Estate v Fouche 1930 TPD 41; Haarhoff’s Executor v De Wet’s Executor 1939 CPD 273.
 Krige v Scoble 1912 TPD 820; Smith’s Estate v Follet’s Esate 1942 AD 385.
 Ohlsson’s Cape Breweries v Humburg 1909 TS 140; Snyman v Basson N.O. 1915 TPD 374.
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