HIGH COURT OF LESOTHO
Application of :
MAHASE 1st Applicant
MAHASE 2nd Applicant
KHETHISA 3rd Applicant
MAHASE MAHASE Respondent
by the Hon. Mr. Justice M.L. Lehohla on the 13th day of December.
applicants brought an application seeking an order against the
respondent to restore to them items listed in the document annexed
their papers marked Annexure "A".
"A" is a list consisting of items set out from numbers one
cream white bed, dressing table, stool, mattress and base
and Cylinder(48kg) full
suit, bed Dresaing table, stool mattress and base
LP'a at M32 = Ml,184
Big mat - dark green
value of these above items is given as M14 484-00.
Applicant's affidavit carries the thrust of the three applicants'
version in the outline of events constituting these applicants
seems to be common cause is the fact -
the property set out in Annexure "A" belonged to the
the property in question was at Maputsoe in Leribe where the
deceased Bernard Lesole Mahase was residing before his death;
the three applicants didn't live at Maputsoe but that the first two
applicants lived at Ha Hoohlo in Maseru. The 3rd applicant
say where she lives;
she did not live at Maputsoe at the deceased's place;
the three applicants are majors.
to let applicant supported by the two other applicants they are all
the children of the deceased.
applicant avers that the deceased died on 1st February, 1993 and was
buried at Seforong, Quthing on 13th February, 1993.
Prior to his
death the deceased was employed by Wanda Furnishers Maputsoe.
further avers that the deceased was separated from their mother
'Mempeoane Mahaae. He further states that the applicants nonetheless
stayed with their mother during school terms and with their father
during school holidays. This averment does not say when this
the respondent has not bothered to say anything in relation to
contents of the 1st applicant's affidavit in paragraph 5
has strongly denied that the applicants are the legitimate children
of his late son Bernard Leaole Mahase. He states
that his son was
never married to the applicants' mother and challenges them to
furnish proof of such marriage. He reiterates that
his son was
neither by Civil nor Sesotho law and custom married to the
buttresses his averments by pointing out that the applicants by
virtue of their illegitimacy have never worn a mourning cloth
accordance with Sesotho Law and Custom in respect of any death of the
relatives in the Mahase family nor have they in any way
in relation to any death of a member of that family.
response to the respondent's charges of the applicants' illegitimacy
the 1st applicant supported by the other two avers that
legitimate children of the deceased and their mother who was married
to the deceased by customary law. The 1st
is quick to indicate that the question of the applicants' legitimacy
is not an issue in this proceeding "since it
is a case of
spoliation as can be inferred from the Notice of Motion". The
1st applicant buttresses the question of the applicants'
by stating that he has been advised that the presumption of marriage
between the applicants' parents can be made on
the basis that the
applicants have all along been using their late father's family name.
applicants associating themselves with the 1st applicant's averments
seek to show the Court that the respondent took the items
in Annexure "A" from the 1st applicant's possession and
loaded them in a truck belonging to Wanda Furnishers.
applicant's averment as to when the alleged property was taken by the
respondent is somewhat confused in relation to the
date of the
deceased's burial. In paragraph 5 of the Founding Affidavit he says
the deceased was buried at Seforong on 13th February
1993, but in
paragraph 7 he says "on 12th February 1993 (the) respondent
after deceased's funeral came to Maputsoe and.....took
listed in Annexure "A"......".
reading immediately above it would seem the property was taken after
the deceased's funeral reckoned by the let applicant
to have been
either some day preceding 12th February 1993 or in fact on that day.
But his previous statement indicates that
funeral was on 13th February, 1993. The respondent agrees with this
date as the date of the funeral. Yet consistently with the
by the 1st applicant that the property was taken after the funeral
whatever date it was, the 3rd applicant on page 10
"Immediately after the Deceased's funeral first and second
applicants returned to the house occupied by deceased at Maputsoe,
and I was there when respondent forcefully loaded the furniture items
in a Wanda Furnishers truck".
emphatic despite the above confusion on which was the actual date of
the funeral are the applicants that the 2nd applicant on
paragraph 4.1 avers that
"I wish to emphasise the fact that the respondent after my
deceased (father's) funeral......followed I(sic) and 1st applicant
Maputsoe and that he did not consult us in any way before loading the
furniture which was in our possession".
would seem according to the applicants the furniture was taken and
loaded after the funeral on the one hand, while on the
according to the respondent it was taken on the day when the body was
being conveyed from Maputsoe to Seforong i.e.
12th February, 1993
which is the day preceding the day of the funeral i.e. 13th February,
inelegance in the use of the English Language indulged in on behalf
of the applicants has a double tragedy; first lack of clarity,
the consequent difficulty in discerning the more
important aspects of the case such as points of real dispute.
instance one is not clear on when exactly is the time sought to be
conveyed as the time when any of the applicants mentioned
possession of the deceased's property from the reading of paragraph
6.3 at page 5 saying :
"Immediately prior to the death of Deceased after he was taken
ill to Ficksburg Hospital and immediately after deceased's
and 2nd Applicant was (sic) in possession of the mentioned items
listed in Annexure 'A'".
the phrases immediately prior to and immediately after the deceased's
death cannot mean one and the same thing. Yet possession
if at all
any of deceased's property was taken, could have been taken from
either of those two points onwards and not both. Surely
if I take
possession of deceased's chair before he dies I don't take possession
of it after he died unless the prior possession
had been interrupted.
Likewise the reference to the phrase was taken ill when used in
relation to a hospital betrays laziness in
the choice of words which
could bring clear meaning to surface because being taken ill is a
phrase which is in itself complete
and does not imply conveyance to
any place as such; but lo and behold In this paragraph it is loaded
with an unenviable quality
to serve the purpose of conveying two
different meanings at once and in the process help obscure the
meaning more and more. I may
just point out that time and again
Courts of law have drawn
distinction between two forme of evidence, namely oral evidence and
evidence on affidavits. The Courts assign greater responsibility
attorneys who help prepare evidence in the form of affidavits. It is
thus intolerable to put the Court under the necessity to
sentence which could have been quite clear if those who drafted
affidavits devoted enough time to achieve the desired
KOTELO for the applicants submitted that the applicants seek
restoration of goods listed in Annexure "A" appearing
page 12 of the paginated record.
emphasised that the instant proceedings are spoliation proceedings.
She relied on background facts to show how the applicants
possession of goods of which it is complained that they were
stated that paragraph 5 shows that the 1st applicant came into
possession of the goods on the death of the deceased. But my
of paragraph 5 merely indicates the date when, the deceased died, the
place and date where and when he was buried. It also
he was working and residing prior to his death. Apart from that it
refers to the question of the deceased's separation
applicants' mother 'Mampeoane.
truly paragraph 5 shows that apart from the white
suite allegedly bought as a wedding present in consideration of an
impending marriage between the 3rd applicant and one
the items reflected in Annexure "A" belonged to the
deceased. The wedding is said to have taken place
on 8th May, 1993
when the deceased had already died and was thus unable to hand it
over to the bride.
pointed out further that paragraph 6,3 shows that the 1st and 2nd
applicants were in possession when the deceased was taken
moved to Fickaburg Hospital.
since discovered on perusal of the 3rd applicant's affidavit that
what the 1st applicant doesn't state with any amount of
particularity in paragraph 6.3, is given some semblance of meaning at
page 10 paragraph 4 as follows :
"First and Second Applicant (sic) remained in possession of the
goods listed in Annexure (sic) when my deceased father was
connection she dispels any need to resort to inferences concerning
the two other applicants' evidence on the issue for she
KOTELO drew the Court' s attention to the fact that paragraph 7.1
shows that the respondent took items in Annexture "A"
Maputsoe to Quthing; and that the record reveals that the 1st
applicant strongly objected to that deed. The Learned Counsel
out that the respondent refused to return the goods even when asked
so to do by the first applicant.
emphasised that the respondent in his opposing affidavit wants the
Court to believe that there hasn't been any spoliation. She
that the applicants were in possession but were deprived of their
possession by the respondent. She buttressed her contention
reference to page 16 paragraph 6.3 where the respondent is said to
"I would not dispute that applicants used to visit my late son
as their biological father...."
quick to make the best of the fact that while the corresponding
paragraph 6.3 at page 5 makes reference to the fact that
and 2 were in possession of the deceased's property, the respondent
contented himself with saying
"they only knew him to be their biological father about four
years before his demise".
the respondent failed to deny that they were in possession.
KOTELO accordingly submitted that what the Court is seized of in this
proceeding is spoliation and contended that illegitimacy
relevant at all in this instant matter.
stressed that even though the respondent tries to deny that the
applicants were in possession, the allegation he makes at 7.3
16 is a bare denial. In fact the respondent's attitude comes clearly
to surface as being that even if the applicants were
which he is quick to indicate that he denies, "they had no right
whatsoever to such property".
Counsel invited the Court to the view that the reason for the
respondent's attitude is not hard to find. It is to be
his own evidence that the applicants are illegitimate. She asked the
Court to regard it as a revealing admission of
possession on the respondent's part that at page 17 he actually said
"I needed nobody's consent to take my
son's property". This
in my view tends to render nugatory the respondent's counsel's
submission that it was Wanda Furnishers
employees and not the
respondent who took the goods.
feature advanced on behalf of applicants as an admission of the
applicants' possession is to be found in the respondent's
at page 17 paragraph 8.2 that he refused to hand over the bed room
suit because he wanted to consult with his family
on what its fate
should be according to Sesotho law and custom.
KOTELO reiterated that it seemed to be the respondent's attitude that
he should take this property without regard to the
it was in the applicants' possession because, as his eon was
unmarried, the applicants were illegitimate hence cannot
be heard to
seek protection against clear acts of spoliation by the respondent.
was referred to Nienaber vs Stuckey 1946 (AD) 1049 at 1055 that
"As it is clear that a person who has no rights at all to the
property removed from his possession, may still be entitled
relief, his not having a iue retentionis has no relation to his claim
for the relief.......
Bonino vs de Lange (1906 TS 120) Innes CJ says (at p.122) that
'spoliation is any illicit deprivation of another of the right of
possession which he has whether in regard to movable or immovable
property or even in regard to a legal right'."
was referred to page 1053 of the above authority where it is stated
"Where the applicant asks for a spoliation order he must make
out not only a prima facie case, but he must prove the facte
necessary to justify a final order - that ie, that the things alleged
to have been spoliated were in his possession and that they
removed from his possession forcibly or wrongfully or against his
The learned Greenberg JA went on
"Although a spoliation order does not decide what, apart from
possession, the rights of the parties to the property spoliated
before the act of spoliation and merely orders that the status quo be
restored, it is to that extent a final order and the
same amount of
is required as for the granting of a final interdict, and not of a
temporary interdict; where the proceedings are on affidavit.....".
to the submissions made on behalf of the applicants MR PHEKO for the
respondent neatly after setting what is common cause
proceeding, stated that what remains for the Court to determine is
whether these proceedings are spoliation proceedings
proceedings based on the doctrine of re vindicate. In this regard the
Court feels greatly obliged to learned counsel
for giving an
important warning signal at the very outset that the Court should be
wary of the fact that it might have been induced
into labouring under
the false impression that it is dealing here with spoliation while in
fact it is dealing with re vindicate
masquerading as or indeed
clothed in glad rags of spoliation process. May I give an assurance
that I am alive to such possibility
and its misleading consequences.
the Court observed that at page 5 paragraph 6.3 the only people
reflected as having been in possession are the 1st and 2nd
applicants. Thus even on the applicants' own affidavits the 3rd
applicant couldn't have been in possession. In any case she failed
take the Court into her confidence in that she does not say where she
was staying at the time of the alleged spoliation. Thus
in the applicants' own affidavits the 3rd respondent couldn't have
been in possession, and even assuming this, in
her case, is a
spoliation proceeding she couldn't be
into possession of items she never possessed.
Counsel guided the Court through numerous assertions appearing in the
Founding Affidavit tending to suggest and show that
what is in issue
is not possession but rather right of ownership.
the 1st applicant at page 5 paragraph Buses the phrase that
"Respondent has no right to our deceased father's property.,.".
Counsel used this in illustration of the fact that what the
applicants assert is that their grandfather, the respondent,
right but they do. Thus MR PHEKO submitted that what is in point is
that the applicants were not talking of possessory rights
referred to page 5 paragraph 6,3 and stated that what has been
purveyed before the Court regarding the first two applicants is
they didn't live at Maputaoe and none of the applicants lived with
the deceased in any case yet, so he charged, they make
statement that "we are in possession of the deceased's
property". Learned Counsel pointed out that they didn't
they got into possession nor that they went to Maputsoe end obtained
the key to the house. Thus he submitted that it appears
that by virtue of being the deceased's heirs they
entitled to possession of the deceased's property. He submitted that
it is not clear on papers before Court how they got into
this may be so I have indicated earlier that the 3rd applicant throws
some light on the issue. Moreover in Bennet Pringle(Pty)Ltd
Adelaide Municipality 1977(1) SA 230 D it is succinctly stated that
"The question of 'possession' is one of degree. Where what is
encompassed by possession requires little in the way of positive
physical activity by the possessor, the person who gave him such
right and who now invades it cannot justify his conduct on the
that there was very little positive physical activity by the
is that if the principle espoused herein avails with some force
against the person who gave the right to possess it would
avail even with greater vigour against a third party who interferes
with that right.
even greater vindication of the principle referred to above in the
summary of Addleson, J that
"The inquiry must be whether the conduct of the possessor -
minimal as it might be - shows that he did exercise rights or
out activities consistent with the transfer to him of control of the
premises; and whether he did so with the intention of
benefit to himself".
shows that the spoliation order will always avail to prevent persons
taking the law into their own hands, such an order
available at least to any person who (a).... (b).... (c)"is
deprived of such use and benefit by a third person".
proposed on behalf of the respondent that even if it could be assumed
that the applicants were in possession of the property
Annexure "A" before or after the deceased's death the
respondent denies such possession. In this regard he
is supported by
three other deponents i.e. the respondent's wife at page 20, the
respondent's younger brother at page 22 and the
deceased's mother at
respondent's counsel made the most of absence in the letter from the
applicant's counsel of any reference to property save only
policy. This letter was written on 2nd March, 1993 while the deceased
had been buried on 13th February, 1993.
indicated that the Respondent denies that the first two applicants
were ever in possession, learned counsel for the respondent
to indicate that there is dispute of fact, and to accordingly rely on
the principle enunciated in Bernard Moselane &
Ors vs The Manager
Bonhomme Commercial High School C of A (CIV) 33 of 1992 (unreported)
at p.3 that
"The application being one for final relief a Court is entitled
to assume the correctness of averments by an applicant which
admitted or not challenged by respondent and correctness of the
version of the respondent".
page 8 regarding the effect had by the dispute of fact
"Inasmuch as the appellants were seeking final relief, the
version deposed to by the respondents has to be accepted".
was submitted that as a matter of law the respondent's version should
be accepted for there is a dispute on question of
possession and the
applicants are seeking a final relief.
readily agree with this submission if it did not come from the
respondent's own affidavit that he required no consent of
when he came to take his son's property. This runs counter to the
principle laid down in a case referred to earlier that
to succeed in
obtaining a spoliation order the applicant should show that the
property was taken without his consent. The 1st applicant
indicated this in his founding affidavit. The 3rd applicant
thoroughly supplements what scantilly was referred to as
by the 1st applicant and further indicates that she saw when the 1st
and 2nd applicants were despoiled.
already dealt with the question relating to the legitimate
observation arising from contents of the founding affidavit paragraph
6.3. I can only express my agreement as indeed I even questioned MRS
KOTELO during arguments and brought to her attention, not
in so many
words, that it is not shown exactly when the applicants came into
possession. Nor, as MR PHEKO indicated, when the 1st
applicants assumed joint possession.
learned Counsel relying on C of A (CIV) No 27 of 1988 Johnny Wa Ka
Maseko vs Attorney General and An. (unreported) at 32-33
highlight the perennial tragedies which beset the path where the
Court is presented with a conclusion without giving
facts to assist
the Court how the conclusion was reached.
greatest respect to the above authority, I wish to say that mandamant
van spolie is such as strong remedy that the status quo
ante has to
be restored where it is found that a possessor is found to have been
despoiled, before considering proprietory rights
or any ancillary
rights which may emanate from a proceeding. Once it is shown and
accepted as a fact that spoliation exists, all
else takes the back
seat and mandamant van spolie comes into operation. It avails even
between spouses as was the case in Oqlodzinaki
vs Oqlodzinski 1976(4)
SA 273. See also Jivan va National Housing Commission 1977(3) SA 890.
Prinale (supra) indicates that the degree of possession required to
necessitate invocation of a spoliation order is minimal.
more than minimal possession to have been present. Positive physical
activity is borne out by the fact that the 3rd
applicant stated that
the other applicants remained in the house when the latter went for
hospitalisation in Ficksburg where he
died after some days. Thus the
requirement for the remedy in question was satisfied.
regard to the 3rd applicant MBS KOTELO hesitated to say if indeed
spoliation was proved in her case. She contented herself
spoliation was not direct in her case.
the 3rd applicant's claim to spoliation, but uphold that of the 1st
and 2nd applicants.
suitable order for costs will be that the applicants i.e. 1st and 2nd
applicants taken as a composite whole are entitled to 60%
costs (which take account of the respondent's substantial success)
less 3% representing expression of the Court's displeasure
slovenly manner that characterises the applicants' papers. The
respondent will otherwise bear his own costs.
Applicants: Mrs Kotelo
Respondent : Mr. Pheko
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