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CIV/A/30/93
IN THE HIGH COURT OF LESOTHO
In the Appeal of:
PROJECT AUTHORITY FOR SELF-RELIANCE
PROJECT 1st Appellant
PROJECT DIRECTOR FOR TRAINING FOR
SELF-RELIANCE PROJECT 2nd Appellant
and
ANGELINA THEEPE MAKHAKHE. Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 24th day of March. 1993.
The appellants herein instituted, before the magistrate court of Maseru, motion proceedings in which they inter alia, sought an order of ejectment against the Respondent. After considering affidavits and hearing arguments, the magistrate court ruled:
"In this case .... there is clearly a dispute of fact on the claim for ejectment. The application is dismissed with costs as prayed."
The appellants were unhappy with the magistrate court's ruling against which they appealed to this court on a long list of grounds which can, however, be summed up in
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that the court a quo erred in dismissing as it did, the application for the ejectment of the Respondent.
It was common cause from affidavits that the Respondent had entered into a contract of employment with the 1st appellant. The conditions of her employment were set out in Annexure "B" (to the founding affidavit) of which clauses R7(e) and R11 read: of its areas of operation.
"7(e) Termination of employment may be by mutual agreement done in writing for good cause shown or for reasons of closing of the operation of the project or any of its areas of operation.
R11 Housing:
Where housing is available accommodation will be allocated to staff according to seniority and need. Technical staff will have
preference. Rent will be payable on rates approved by Project Authority and should follow public service rates for equivalent accommodation."
It was further common cause that the Respondent, as a staff member of 1st Appellant was allocated, in accordance with the provisions of clause R11 of Annexure "B", house number 16 at Albertville next to L.T.I. in Maseru. She had at all material time been occupying that house as a staff member of the 1st Appellant. However, on 18th March, 1991 the 2nd Appellant addressed annexure "D" (to the founding affidavit) a letter to the Respondent, The letter read, in part:
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"Dear Mrs Makhakhe,
re: Contract Renewal
Your February 15th, 1991 letter of application for contract extension renewal refers.
Although the Project closes by the end of September, 1991, I am directed, on due work-load exigencies, to offer you a three month's
extension on your contract, that is April 1991 to June, 1991.
The terms and conditions of your contract will be those applicable to TSRP Service Contracts, and your salary will be at Grade 9(4) or M12,684-00 per annum.
Please sought out your section's operations scheduling with the head of your division in relation to due leave days since Project will not honour any personnel payment requests in this regard.
By copy of this letter, the Project Accountant is requested to process your 25% gratuity to be payable at the end of March, 1991.
Yours sincerely,
L.C. MOFELEHETSI
PROJECT DIRECTOR (AG)
According to the appellants, the Respondent accepted the extension of her contract which finally expired at the end of June, 1991. She was paid her terminal benefits and
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ceased to be an employee of the applicants. That was however, denied by the Respondent according to whom she had, in fact, instituted, before the High Court, proceedings in which she challenged the Appellants purported termination of her contract of employment and the decision was still pending before the court. In her
contention, the Respondent was, until the court had given its decision, still lawfully employed by the appellants and, therefore, entitled to occupy house number 16 at Albertville.
Be that as it may, on 23rd August, 1991, the 2nd Appellant addressed, to the Respondent, a letter, annexure "M" to the founding affidavit, in which she was required to have vacated the house by the 28th August, 1991. In reply to annexure "M", the Respondent, through her attorneys of record, addressed, to the 2nd appellant, annexure "N", a letter of 27th August, 1991, in which she re-iterated that, until the High Court had given decision in the pending case, she considered herself still an employee of the 1st Appellant, She was not, therefore, prepared to vacate house number 16 at Albertville.
On 27th July, 1992, the 1st Appellant held a meeting
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at which it was resolved, per annexure "A" (extract of the minutes), that the High Court should be approached for an order of ejectment against the Respondent. The appellants accordingly instituted, before the High Court CIV/APN/275/92 in which they, inter alia, sought the eviction of the Respondent from house number 16 at Albertville, Maseru. On 30th July, 1992, the case was placed before me, when I took the view that it had been brought to the High Court contrary to the provisions of Section 6 of the High Court Act. 1978. Consequently, I ordered that proceedings for ejectment of the Respondent should be instituted in the magistrate court which clearly had jurisdiction in the matter.
On 31st July, 1992, the appellants accordingly instituted motion proceedings before the magistrate court of Maseru for the ejectment of the Respondent from House Number 16 at Albertville. After considering affidavits and hearing arguments, the trial magistrate found that there was a dispute of fact and the matter could not, therefore, be resolved in motion proceedings. The application was, for that reason, dismissed with costs.
On the papers before me there can be no doubt that on one hand the appellants contended that the Respondent's contract of employment had been lawfully terminated and she was no longer in their employ. Consequently, the
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Respondent was not entitled to remain in House number 16, at Albertville, which she occupied by reason of being an employee of the appellants. On the other hand, the Respondent contended that the alleged termination of her contract of employment was unlawful, null and void. She had, indeed, instituted, before the High Court, proceedings in which she challenged the validity of the appellants' purported termination of the contract. Until the High Court had given its decision in the matter the Respondent regarded herself still an employee of the appellants and, therefore, entitled to occupy the house, the subject matter of this dispute. That being so, I find nothing unreasonable in the trial magistrate finding, as she did, that there was a dispute of fact.
Assuming the correctness of this finding, the question that immediately arose was whether or not, in the circumstances, an order of ejectment could be made against the Respondent on motion proceedings. In this regard, the court was referred to the decision in Prank v. Ohlsson's Cape Breweries Ltd. 1924 A.D. 289 where at p. 294 Innes C.J. had this to say:
"...where the facts relied upon are disputed an order of ejectment will not be made on motion; the parties will be ordered to go to trail. The reason is clear; it is undesirable in such cases to endeavour to settle the dispute of fact upon affidavit. It is more satisfactory that evidence should be led and that the court should have an
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opportunity of seeing and hearing the witnesses before coming to a conclusion. But where the facts are really not in dispute, where the rights of the parties depend upon a question of law, there can be no objection, but on the contrary a manifest advantage in dealing with the matter by the speedier and less expensive method of motion."
Regard being had to the fact that the trial magistrate found, and correctly so in my opinion, that there was a dispute of fact in this case, the answer to the question I have posed viz. whether or not, in the circumstances, an order for ejectment could be made against the Respondent on motion proceedings must be in the negative.
In the result, I would dismiss this appeal with costs to the Respondent. It must, however, be mentioned that this decision does not prevent the applicants from instituting, before a court of competent jurisdiction, action proceedings for an order of ejectment against the Respondent.
B.K. MOLAI
JUDGE.
24th March, 1993.
For Appellants : Mr. Mohapi
For Respondent: Mr. Nthethe.