HIGH COURT OF LESOTHO
Application of :
by tue Hon. Mr. Justice M.L. Lehohla on the 24th day of June, 1991
applicant brought the above application on an urgent basis against
the respondent for a Rule Nisi calling upon the respondent
cause why :-
shall not be directed to put the applicant in occupation of the
immovable property situate at Qoaling Ha Besele in the Maseru
shall not be directed to transfer, forthwith, to the applicant
lawful ownership of the said immovable property and to execute
documents required for such transfer,
the third prayer required the Deputy Sheriff and the Chief of Qoaling
Ha Besele to carry out orders, if granted, in (a) and (b)
the event of the respondent's failure to comply therewith.
(d) on costs calls upon the respondent to say why the scale
applicable should not be on attorney and client, while (e) calls
the respondent to say why he shall not be interdicted from causing
the applicant to be evicted from her residence at Qoaling..........
applicant, relied on the averments contained in her affidavit stating
that between the period 1986 and 1981 she and the respondent
cohabited ana lived on a site belonging to the respondent.
in 1975 the respondent erected a house for the applicant to live in
at ha' Letlatsa. By agreement with the respondent, the
removed to this house and has been residing there since 1981.
the respondent demanded that the applicant vacate the above residence
and move to a third house erected by the respondent
at Ha Besele. the
applicant refused to do so on the grounds that the house she was
occupying was the result of a joint effort between
her and the
respondent and that by agreement she would in due course have
property rights to this house transferred to her. The
counter argument was that the agreement was that the property that it
was envisaged would be transferred to the applicant
was this third
the respondent instituted ejectment proceedings against the applicant
and succeeded in doing so before the Matala Local
Court in part
because that Court accepted the respondent's assertion that he had
built the applicant a house at the third site.
applicant's appeal to Hatsieng Central Court was upheld only to be
upset by the Judicial Commissioner' s Court which re-instated
judgment of the Local Court.
applicant failed to obtain a copy of the Judicial Commissioner's
written reasons for judgment because the said Commissioner
seriously ill and died soon afterwards.
applicant then decided to accept the respondent's version of the
agreement between the parties and thus how down in the house
Rimmon, for in any case the Judicial Commissioner's Court had
determined that the respondent's version was the right one.
the applicant aligning herself with the terms of the agreement given
Judicial sanction force to by the Judicial Commissioner's
caused a letter to be sent to the respondent's attorneys requesting
to be placed in occupation of the third house in terms
judgment. The letter is attached to the papers marked "A"
dated 16th July 1990.
response to Annexure "A" the respondent's attorneys
addressed Annexure "B" dated 30th July 1990 to the
attorneys saying in part with regard, no doubt, to the
third site ;-
"Our client has agreed to give possession of the property to
your client in terms of his undertaking throughout these legal
Kindly let us know when your client wishes to take possession.
We understand that there will be need to change the Form C that it
could be in your client's name.
Our client will proceed to do so immediately......"
applicant's attorneys proposed that Friday 3rd August, 1990 be marked
as the suitable date for the applicant's occupation of
house in the site in question. See Annexure "C".
August 1990 the respondent's attorneys wrote a letter to the
applicant's attorneys pointing out that they were withdrawing
letter (Annexure "B") of 30th July. Further explaining that
this letter was a product of some misunderstanding
and urging the
applicant's attorneys to take whatever action they deemed
appropriate; the respondent's attorneys concluded by pointing
that they had argued the appeal and considered that their mandate had
terminated at that point and no further.
for the applicant submitted that the
opposing affidavit is mainly common cause.
replies to the questions put by the Local Court the respondent
indicated that the applicant resided in the 2nd site since
she moved from the 1st site where she used to live with him.
also indicated that the parties cohabited because their marriages to
their respective spouses had failed.
respondent further indicated at page 21 that he and the applicant set
up home through their joint resources with the applicant.
This is the
time of the trial before the Local Court the respondent and the
applicant were not staying together. The applicant was staying
second site while the respondent was staying at the first site. He
wanted the applicant to remove to the third site because
site was a business site intended to be rented to tenants. Otherwise
he explained to the Court that they lived apart
with the applicant in
order to avoid frictions which might arise due to the fact that each
party had grown up children from the
failed respective marriages and
the respondent feared that these children might resent the illicit
relations between the parties.
the foregoing in his affidavit before this Court the respondent seeks
to explain that granting the applicant any
of the properties involved
in the dispute was an act intended by him and the applicant -to
defraud his family.
further stated that the applicant's qualification to occupy as her
own any of these sites without his heirs' knowledge and consent
conditional upon the continued existence of the concubinage between
him and the applicant. To make it plain that the applicant
reason to expect to occupy either the second or third site
right the respondent avers that the concubinage no longer exists. He
further indicates that the applicant is well aware that
which had been intended for her and which she refused was given to
the respondent's child 'Mannaki 'Mamohloki Mohono who
has even made
improvements on the said site.
view, it is plain that in the Court of first instance the
respondent's contention was that the place agreed upon for the
applicant to remove to was the third site. Although the applicant
argued that the place agreed upon was the second site the Courts
preferred the defendant's version to hers. It seems to me that the
agreement did not exclude the essential element that in recognition
of the applicant's contribution to the building erected after she
cohabited with the respondent she was to receive a house where
live apart from the respondent. While this essential element in the
agreement obtains it seems to me immaterial whether the
question is the one that the applicant claimed or the other regarding
which the respondent was accepted in his version
that it was the one
agreed upon. The end result is that the applicant cannot be turned to
the veld. Although it is arguable that
the Local Court and in turn
the Judicial Commissioner's Court were wrong to dismiss the
applicant's claim, in my view, the consideration
upon which the
respondent embarked on building a house at the third site for the
applicant is enforceable, for under oath he said
"at this new
site at Ha Besele where I want the applicant to go and stay, all the
expenses are solely mine". It seems
to me that this was done
regard having been had to the fact that the applicant was to forego
the site to which she had contributed
in the development of.
adopt the popularised American expression, it would seem the
bottom-line was that in acknowledgement of the applicants
contribution to the enlarged estate of the respondent she was to
receive a developed site. Therefore
attempt to turn her out to the veld should fail- the Court cannot
ignore the importance of the correspondence reflected in Annexures
"A" to "E". Nor can it condone the transparent
excuse that the then attorneys of record had acted outside their
mandate. To my mind the most important end result of litigation is
execution of judgment. A legalpractitioner's mandate cannot
to have been out of turn if his extended services are employed to
realise the most important result in litigation- There
is a vital
principle that it is in the interests of justice that litigation
comes to finality.
would appear that the respondent's attempt to bail out of what he
considered to be an agreement between him and the applicant
prompted by a combination of two things : the undeserved success in
the court of first instance and the Judicial Commissioner's
the greedy desire to skin the applicant to the bone.
was invited to grant the application and order costs on attorney and
noted that the respondent was represented by a different counsel from
the one who had argued his appeal in the Judicial Commissioner's
Court. I do not think that Mr. Mohau's efforts to do his duty by
holding the torch for a client's dull brief should warrant this
his argument based on the view that the nature of the agreement if
shown to be immoral would not be enforceable served
as a foil to the
view that the applicant's
was not the bestowing of her favours on the respondent or the sale of
her body to him.
application is granted with costs on party and party scale.
Applicant : Mr. Sello
Respondent: Mr. Mohau
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