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CIV/APN/266/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOTSEKI
MOSOEU Applicant

AND

TUMISANG
LETSIE 1st Respondent

KHOZAKA
LEKOKOJA LEPHOTO 2nd Respondent

DINGISWAYO
MASHAPHA 3rd Respondent

JUDGMENT

Delivered
by the Honourable Acting Mr. Justice N. A. Matete on the 10th day of
December. 1993

On the
18th June, 1993 applicant Motseki Mosoeu obtained a rule nisi calling
upon all three respondents herein to show cause, if
any, on the 24th
June, 1993, why:-

"1. (a) Ordinary periods of notice prescribed by the Rules shall
not be dispensed with on account of the urgency of the matter;

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2. The
   respondents shall not be ordered to release to applicant forthwith
   the house or premises situated at Lower Seoli Lithoteng
   of which
   respondents dispossessed applicant;

   
   

2. The
   respondents shall not be ordered to release forthwith to applicant
   the items listed in annexure ppl of which respondents dispossessed

   applicant;

   
   

2. 1st
   abd 3rd respondents pay costs of this application and 2nd respondent
   pay only in the event of opposing same.

   
   

2. Applicant
   be granted further and/or alternative relief.

   
   

2. That
   prayer l(a) operate with immediate effect as interim order...."

   
   

The rule
was extended several times and the matter was postponed accordingly.
On the 6th December, 1993 the mater was

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placed
before me for argument.

The 2nd
and 3rd respondents have not filed any papers, and I presume they
have decided to abide by the decision of the Court.

It is
common cause that the applicant lived as man and wife with one
Tseliso (now deceased), a relative of the 1st and 3rd respondents,

from 1974 until March, 1993 when she died. It is also common cause
that the two lived in the very house which forms subject of
dispute
in this case.

According
to applicant the house was built by him on the site that was
allocated to him personally and that he was in peaceful and

undisturbed possession of the same until the 8th March 1993 when he
was evicted from the house by the respondents against his will.

The
parties agree that they both contributed towards the burial costs of
the deceased Tseliso, however each one claims to have been
in charge
whilst the other merely made a contribution.

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In his
rather too long answering affidavit, the 1st respondent does not
specifically deny that that applicant was infact evicted
from the
house against his will. Be contents himself by stating that the house
belonged to the late Tseliso and that after Tseliso's
death applicant
had no reason to remain in occupation of the house. He admits that
applicant was made to vacate the house but denies
to have acted
unlawfully simply because the house did not belong to the applicant.
Respondent misses the point that what is protected
by mandament ran
spolie is possession and not ownership or the right to possess, YAKO
vs QANA 1973 (4) S.A. 735 (A).

Applicant
has alleged that he was in peaceful and undisturbed possession of the
house and property which form subject of dispute
here. He has also
alleged that he was unlawfully deprived of the said property without
his consent or due legal process SILLO vs
NAUDE 1929 AD 21, and this
has not been denied save to say that the dispossession was lawful in
that applicant is not the owner
of the premises.

I am
satisfied that applicant has proved his case on a preponderance of
probability and that the 1st respondent has not

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raised
any reasonable defence.

The rule
is confirmed with costs against the 1st and 3rd respondents as
prayed,

N. A.
MATETE

ACTING
JUDGE

6th
December, 1993

For the
Applicant : Mrs V, Kotelo

For 1st
Respondent : Mr. P. P. Mofolo