C. of A (CIV)
No.16 of 1990
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
SELLOANE PUTSCANE Appellant
MOTLATSI LEKATSU Respondent
HELD AT MASERU Coram:
Mahomed F. Ackermann J.A. Browde J.A.
Appellant's husband, one James Mcrapeli Putsoane,
brought an application by way of Notice of Motion in the High Court
for an order
ejecting respondent from a certain unnumbered site at
Thoteng Ha Sccut, Roma, in the district of Maseru. During the
of the proceedings the aforesaid James Mcrapeli Putsoane died
and appellant duly substituted in his place. Molai, J.
the application and the present appeal is brought against
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It is common cause that the two sites to which
reference is made in the papers were formerly allotted to certain
and that one of these sites ("the original site")
was duly and properly allocated to appellant's husband ("JM
by virtue of a so-called Form "C" dated
9th March 1974. In the founding affidavit it is stated that the
is shown "as plot number 012 in the Lesotho
Cadastral Plan No. 18333 hereunto annexed". A copy of the
Plan No. 18333 ("plan 18333") is annexed
to the founding affidavit and on it a rectangular site numbered "012"
is indicated. There is no dispute about the original site.
The dispute in this case concerns a site ("the
adjacent site") which is adjacent to the original site and
which JM Putsoane
alleges "was subsequently allotted to me in
1979 by Chief Maama Mafefoane Maama. I hold a Form 'C' dated 15th
in respect here of which is hereunto annexed end marked
'C'." I shall refer to this annexure "C" as "the
It is common cause that in about July, 1985 the
respondent deposited building materials on the adjacent site and
a house on the adjacent site in which he and his
family are living. Respondent alleges that the adjacent site was
given to him by
Leronti Matobe to whom he had paid money for the
site. Respondent further alleges that Matobo "later colluded
with the applicant"
to deny him the use and occupation of the
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The issue before the High Court was whether the
appellant (through JM Putsoane) had a stronger title to the
occupation of the adjacent
site than respondent.
In paragraph 7 of the founding affidavit deposed to by
JM Putsoane the following is stated:
"The Chief of Roma, Chief Maama Maama arbitrated
sometime in 1985 in an earlier dispute in respect of the same site
under reference in my favour. A fair translation of an
agreement concluded between myself and Leronti Matobe, former allotee
the said site and attested to by Chief Maama Maama, the chief
of Roma is hereunto annexed and marked 'D'."
The deponent does not aver that respondent was a party
to the above alleged agreement, which respondent alleges "is
designed to deprive me of the site ". . . .This
alleged agreement is dated 15th August, 1985 (the translation
reflects the date and as 27th August, 1987)and purports
to be between Matobo as "site allotter" and J.M. Putsoane
"site allottee". Reference is made in this
"agreement" to a decision and a letter of the Commissioner
Lands in Maseru, but applicant did not include such letter in his
papers and there is no further reference in the papers to the
"decision" of the commissioner. The "agreement"
states that it is on the basis of paragraph (2) of that letter
the matter is referred to the Chief of Roma for his intervention.
The concluding paragraph of the "agreement" reads
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"The Chief advised that as he knew that I have
another site at that area I should give the disputed site to Mr.
James M. Putsoane
and Mr. Motlatsi Lekatsu another site as a
replacement to the site in question. The Chief blessed the idea
because it was fair
Immediately below this paragraph the name of Leronti
Matobe appears and below that the following sentence:
"I agree and approve the decision above because it
is in order."
Immediately below this the signature of "Maama M.
Maama" appears above the typed title "Chief of Roma"
below this the Chief's date stamp is appended
whereof only the year 1985 is legible.
On the papers and in the High Court the appellant based
her title to the adjacent site squarely and exclusively on the
an allotment by virtue of the 1985 Form "C";
by virtue of the "agreement" with Matobo
The Land Act 1979, in consequence of section 1
into operation on the 16th June, 1980 by virtue of
Government NoticeNo.71 of 198G published in the Government
Gazette of 23rd May, 1980.
Part III of the Land Act 1979, embodying sections 19 to
to land in an urban area. The Roma area (in which
the adjacent site
is situated) was declared an urban area by Legal
Notice No. 14 of1980 dated 22nd August, 1980.
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In terms of the provisons of section 24 of the Land Act
1979 the power to grant title to land within an urban area is
an Urban Land Committee consisting of:
"(a) the Principal Chief having jurisdiction,
the Commissioner or his authorisedrepresentative;
the District Administrator, or wherea Town Clerk
has been appointed, theTown Clerk for the relevant urban area,
who shall be the secretary of the committee;
(d) three other persons appointed by the Minister."
While it is averred in the founding affidavit that the
adjacent site was alloted to J.M. Putsoane in 1979 the claim is
on the 1985 Form "C".
For the grant of title to land in an urban area after
16th June 198C to be valid, it must have been granted by an Urban
as provided for in section 24 of the said Act.
Section 27 (1) moreover provides that when a decision to grant title
under Part III of the Act has been taken, the secretary of
the Urban Land Committee shall forward to the Commissioner a
to that effect in Form "C3" in the Third
Schedule and shall at the same time issue a copy of the
certificate to the
The 1985 Form "C" did not purport to be a
grant of land in an urban area in terms of Part III of the said Act.
In fact it
clearly purports to be a grant in terms of Part II of the
Act. Annexure "C" to the founding affidavit (which is the
Form "C" relied upon by the appellant) is in fact Form
"C2" of the Third Schedule and is so headed and stated
be issued in terms of section M (1) of the Act and not in terms of
section 27 (1) of the Act. Molai, J. therefore rightly held
1985 Form "C" did not evidence a valid grant of land in an
urban area and consequently not a valid grant of the
adjacent site to
Likewise the "agreement" with Matobo could
not, by itself, constitute a valid grant of the adjacent area.
Accordingly, on the papers before him, Molai, J. was.
quite correct in finding that appellant had not proved a valid grant
adjacent site to J.M. Putsoane and in dismissing the
application with costs.
At the hearing of the appeal, however, Mr. Sello on
behalf of the appellant sought leave to file two further affidavits
on the merits,
one attested by a certain Joyce Masemene and the other
by Chief Maama Mafefoane Maama. The notice of application, which was
on the 15th July, 1991, is headed "NOTICE OF APPLICATION
FOR LEAVE TO PRODUCE A DOCUMENT" and states that the application
is being brought in terms of section 12 (a) of the Court of Appeal
Act 1978 read with "Rule 10 (c) of the Rules."
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The heading of the notice of application is misleading.
The substance of the application was to introduce new evidence. The
to section 12 (a) of the Court of Appeal Act is misplaced.
This section is in part II of the Act which deals with criminal
The reference to "Rule 10 (c) of the Rules" can
only be a reference to rule 10 (1) (c) of the Court of Appeal Rules.
Rule 10 of the High Court Rules deals with joinder of parties and
causes of action. Rule 10 (1) (c) of the Court of Appeal
provides as follows:
"Subject to the provisions of sections 10, 11
and 12 of the Court of Appeal Act No. 10 of 1978 the Court shall
(c) it may order evidence of any witness to beheard
whether or not such witness gave evidenceat the trial."
The reference in this paragraph to "trial",
and the reference in the sub-rule to sections 10, 11 and 12 of the
Appeal Act (which deals with criminal trials) indicates that
Rule 10 (1) (c) probably relates to criminal matters.
Even on the assumption that Rule 10 (1) (c) can apply to
opposed applications, an applicant for relief thereunder will have to
out a proper case for setting aside a judgment in order to
re-open a case and adduce fresh evidence by way of affidavit.
must be made to the common law in order to determine when a
court of appeal could properly exercise such a discretion. The
- 8 -which such
a discretion will be exercised are narrow.
In Shein v. Excess Insurance Co. Ltd 1912 AD 418, Innes
ACJ, said the following at p. 429:
"It would be undesirable to endeavour to frame an
exhaustive definition of the special grounds on which the Court ought
to the application of a litigant desirous of leading
further evidence upon appeal. But neither the circumstance that the
issue is of great importance to the applicant nor the
circumstance that he finds himself able materially to strengthen the
he made in the trial Court or materially to weaken of his
opponent would in themselves be such special grounds."
In Shedden and Another v. Patrick and Others 22LT 631 at
634 Lord Chelmsford formulated the English rule as follows:
"It is an invariable rule in all the courts, and
one founded upon the clearest principles of reason and justice, that
which either was in the possession of parties at the
time of a trial, or by proper diligence might have been obtained, is
not produced or has not been procured, and the case is decided
adversely to the side to which the evidence was available, no
for producing that evidence ought to be given by granting
a new trial."
This passage has been quoted with approval in Deintje v.
Gratus and Gratus 1929 AD 1 at 6 and in Staatspresident en in Ander
1990 (2) SA 679 (A) at 691 (1).
In Colman v. Dumbar 1933 AD 141 the applicable
principles were fully formulated at p. 161 - 163 and have been
approved since by the South African Courts. (See Lefuo's
case supra at 691 J). These principals may be summarised as follows:
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It is essential that there be finalityto a trial
and a litigant will only inexceptional circumstances be allowed
toadduce further evidence.
The party making the application mustshow that he
could not have adduced theevidence at the appropriate stage if
hehad used reasonable diligence.
The evidence must be material and weightyand must
be such that if adduced would bepractically conclusive.
Conditions must not have changed to such anextent
that the opposite party will be prejudiced by the fresh
The deponent to one of the new affidavits, Joyce
Masemene, is an acting Lands Officer in the Department of
Lands,Surveys and Physical
Planning of the Lesotho Government. In
August 1985 J.M. Putsoane lodged an application with the above
department for the issue to
him of a lease in terms of the Land Act
1979 in respect of, inter alia, the adjacent site. J.M. Putsoane was
advised to produce evidence
from his chief of the allocation of the
adjacent site. He endeavoured to comply with this request and
produced the 1985 Form "C".
It was brought to his attention
that the Roma area had since been declared an urban area and that,
consequently, the chief was no
longer the competent land allocating
authority in the area. He
was thereupon advised by the department that if he could
obtain an affidavit from his chief deposing to the fact that the
prior to the change of status of the Rome area,
lav/fully allocated to him the adjacent site the department would be
able to issue
him with a lease in respect of the original and
adjacent site. "In due course" the deponent states, J.M.
en affidavit from Chief Maama which is annexed to
the deponent's affidavit. Chief Maama's affidavit was attested to
on the 23rd
August, 1985 but it is not clear when exactly J.M.
Putsoane lodged it with the department in question. From Joyce
affidavit it was certainly lodged before court proceedings
were instituted. She is referring presumably to the proceedings in
the local Court which were instituted on the 20th February 1987.
On the probabilities it was probably done sooner. Whatever
precise date was, there can be no: doubt whatsoever that J.M.
Putsoane had been warned of his problems in establishing his title
respect of the adjacent site and had in his possession Chief Maama's
affidavit, before he deposed to his own supporting affidavit
present nutter on the 27th July 1987. No attempt has been made to
place an explanation on oath before us as to why the
which appellant now seeks to adduce, was not included in the
founding papers. It is not as if the new affidavits tendered
provide this answer. On the contrary. As outlined above they
indicate that J.M. Putsoane was well aware of all the evidence
sought to be tendered before he launched the application. Having
been warned of the inadequacy of the 1985 Form "C"
have beer easy to
obtain all the evidence that the appellant now wishes to
place before court. There is not even a prima facie indication that
to bring forward the "new evidence" in the
founding papers was not owing to remissness on the part of J.M.
that he could not have obtained this evidence if he had
used reasonable diligence. See Colmen v. Dumbar, supra.
On this ground alone the appellant is not entitled to
the relief she seeks. There is another reason in my view, why the
ought not to be granted. The new evidence seeks to
introduce a new cause of action, i.e. a grant in respect of the
made some time prior to 16th June 1980, and purporting
to be evidenced in an affidavit by Chief Maama deposed to on the 23rd
1985. In consequence of the view I take of the matter 1
expressly refrain from expressing any opinion as to the validity of
cause of action or its chances of success, in the event of the
appellant deciding to pursue it. I also consider it appropriate to
point out that at the time this application was launched the
applicant J.M. Putsoane was well aware of the fact that his claim
disputed on the facts. He therefore launched motion proceedings at
his peril. The present appellant is moreover aware of the
one of the defences raised to her claim is collusion and fraud.
For all these reasons the judgment in the court a quo
must be sustained.
12 The appeal is
accordingly dismissed with costs.
L.W.H. ACKERMANN Judge of Appeal
President of Court of Appeal
J. BROWDE Judge of Appeal.
Delivered at Maseru this 26th day of July, 1991.
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