C. of A.
(CIV) No. 23 of 1994
LESOTHO COURT OF APPEAL
ORIEL MOHAPI APPELLANT
MONNE 1ST RESPONDENT
MONNE 2ND RESPONDENT
TS'IU 3RD RESPONDENT
TS'IU 4TH RESPONDENT
SEIPOBI 5TH RESPONDENT
14th of September, 1992 Appellant applied ex parte for the following
1. That a
Rule Nisi issue returnable on a date and
be determined by the above Honourable Court calling upon the
Respondent herein to show cause, if any, why:
Applicant shall not be declared the sole owner of Plot No. 13263-404
situated at Stadium Maseru Urban Area.
Respondents and all other persons acting for or on behalf of the
Monne family shall not be interdicted and restrained from
the above said plot No. 13283-404 and / or claiming ownership
thereof, or in any other way molesting the Applicant and
him in connection with his ownership and occupation thereof, pending
the final end and determination of this application.
Respondents shall not be ordered to pay the coats of this
application on an attorney / client scale."
The application was granted and a rule in the
terms was issued returnable on the 19th of October, 1992. However the
granting of a final order was opposed by the Second
grounds to which I will refer anon. Shortly after the opposing
affidavit was filed on the 4th of November 1992 and
on the 11th of
November a Notice of Motion headed "Counter/Claim" (sic)
was issued out of the High Court. In this counter
application - as
the Judge a quo referred to it - Second Respondent (to whom I
hereinafter refer as Respondent) claimed in essence
a cancellation of
the lease upon which Applicant relied for the relief claimed in its
notice of motion on grounds to which I will
refer below. This
application was opposed by the Applicant and replying, supporting and
answering affidavits were filed by and
on behalf of the Appellant.
attempts were made to set the matter down for hearing. Finally on the
2nd of September 1993 and in circumstances unexplained
on the papers
the following order was made by the then Chief Justice:
"1. Hatters continue as trial, affidavits to stand as pleading
and parties may call any witnesses they wish.
shall be discovery of documents.
of Deeds is joined as 6th Respondent whilst Commissioner of Lands is
joined as 7th Respondent,"
an application to advance a point in limine to the following effect
was served on Respondent on the 13th of December,
"1. The Respondents have failed to show that they have locus
standi in judicio to contest the Applicant's claim to be the
owner of the land in question and that they are entitled to apply for
cancellation of his lease to the said land.
Respondents have no valid defence to the main Application and no
cause of action in the Counter-claim."
matter was heard on the 19th of April, 1994. It would appear as if
both parties and the Court ignored the
the Batter had been referred to trial and the matter was - so it
would appear - set down and dealt with by both parties
on the papers
as they stood. Comprehensive heads of argument were filed by both
sides, Appellant for its part strenuously challenging
second date (19/04/94) the Court made the following order:
"1. The rule prayed for by the applicant in the main
application is dismissed with costs.
2. The transfer of the land contrary to the provisions of the land
act is declared a nullity."
9th of Hay 1994 reasons for judgment were furnished by the Judge who
presided at the hearing (Lehohla J.) to which I will
against the orders referred to above that Appellant appeals to this
alleged by the Appellant and on which his claim for relief is based
are the following:
Lefa Mary Mohapi to whoa Appellant alleges he was married according
to Sesotho Lav and custom, was previously married by
civil rites to
one Khampepe. This civil marriage, it is common cause, was dissolved
by divorce. Appellant alleges that in 1955
he married the said Mohapi
by customary rites and that they lived together as man and wife until
she passed away and was buried
on the 29th August, 1992. There was no
issue of the marriage.
property in dispute is Plot Mo. 13283-404 Stadium Maseru Urban area
and is held by Appellant under a 90 year lease issued to
him by the
Commissioner of Lands on the 6th of Hay 1988 but commencing in
operation on the 16th of June, 1980. The value of the
circumstances under which Appellant acquired the right to the lease
are the following. He alleges it was allocated to him by
Commissioner, Maseru in or about 1964. By agreement with Mary (his
now deceased "wife") be registered title
to the plot in her
name "to protect it from claims being made to it by my estranged
first wife". When they subsequently
first wife was not pursuing any claims and because Mary was very ill
they decided "that the plot should be transferred
back to me in
order to secure it for ay children by my first wife, the eldest of
whoa was brought up by Mary".
fact wrote a letter to the Commissioner of Lands on the 11th of
December 1962 which reads as follows:
APPLICATION FOR LEASE:
apply for lease in terras of Section 28 (1) read with Section 29 of
the LAND ACT 1979. I am the owner of residential site
no. 1 situate
in the MASERU URBAN AREA.
herewith a certificate of Title Deed No. 8381 issued by the Registrar
of Deeds on the 9th September, 1969. I also enclose
a map of the
boundaries of Site No. 1 in terms of Section 29 (1) (b) of 1979 Land
request that the said lease be in favour of ay husband THABO MOHAPI
to whoa we are married according to Sesotho Law &
reason for this request is that I want the said lease to pass by
inheritance to my present family.
MOHAPI (Nee Mary Lefa Monne)
It was in
response to this letter that on the 6th of May 1988 the Commissioner
of Lands executed a lease in favour of the Appellant
- annexure "A"
to the founding affidavit..
challenge to the validity of Appellant's claim is the following:
alleges that the lease was issued to Appellant "fraudulently or
by mistake as a result of a misleading letter". (This
reference to the letter cited above). Respondents then place in issue
the fact as to whether Appellant and Mary were in fact
alleged, and that they "aisled the Commissioner of Lands, who
sought no proof, that they were man and wife".
The basis of this
allegation is an averment that "if deponent
married by customary rites ... the respondents herein would know as
they constitute Monne family to whom lobola and other customary
marriage requirements would be met" .
averment Respondent makes justifying any rights to the land in
question is the following. fie alleges the response to Appellant's
averment that Respondent is interfering with his right to occupy the
land in question that - "This is correct, the reason
is that the
plots belonged to our subject in her own right and having died we
have the duty to attend to her estate according to
these allegations lack particularity and are essentially bald,
unsubstantiated averments is self-evident .
response to these allegations and the counter claim, Appellant very
specifically challenges Respondents' locus standi and their
not only to seek to impugn the validity of the lease but also to have
been involved in the negotiations concerning the conclusion
marriage contract between the parties
and Mary). He says that:
"Her late mother Mrs. Mamphesa Monne agreed to the marriage
between Mary Lefa and me and she said it w]as not necessary for
seek the permission of the Monnes for the marriage and to pay any
bohali to the Monnes because they had not refunded the
bohali paid to
them by her divorced husband, and that the Khampepe's could not claim
bohali from me because it was Khampepe's fault
that led to the
dissolution of their marriage.
The late Mary Lefa and I lived together as man and wife at the hose
of her said late mother at Sea Point Maseru for 4 years and
the Monnes ever queried the fact that we were married according to
Sesotho custom or ever asked for payment of lobola."
averments are repeated in the opposition to the counter-claim and
Appellant affirms moreover that "on the contrary all
(the Monnes) accepted us as man and wife".
other affidavits were filed in substantiation of these averments. I
will refer to some of these herein below.
in conclusion record that the narrow legal basis on which Respondents
purport to challenge the validity of the lease was
"a title deed
in the name of Mary Lefa Honne would not result in (the lease's
concerned) without transfer deed". (I assume
that this was an
allegation to substantiate a contention that Appellant could not have
acquired title to the lease because of a
non-compliance with the
provisions of Section 16 of the Deeds Registry Act.)
a quo in its judgment discharging the rule nisi and granting the
"counter application" found that because lobola
been paid and as a matter of law the parties were not married in
accordance with Sesotho law and custom. Handing over of
part or all
agreed "bohali" cattle for the marriage is according to the
Judge a quo an essential for the existence of
marriage and is "totally lacking. He proceeds to find that the
"affairs of the late Mary seemed to
have been dogged by secrecy
which rendered them all suspect".
"....in her (Mary's) eagerness to pass that property to the
Applicant (Appellant) the late Mary faulted (sic) by hastily
fraudulently trying to cut corners'".
also finds that the Appellant "has concealed from the Court how
he cane to acquire title to the said plots".
The Judge goes on
"It is significant that, thanks to the diligence of the
respondents especially Moshe Monne, the applicant was not the
allottee of the above plots. The original allottee was the
late Mary who having died unmarried to the applicant and having borne
no children to her previous husband and to the man with whom she
lived before her death, by lav left her assets to be dealt with
her maiden family i.e. the Monne family as she was their ward."
to me that the Court a quo erred at least in the following important
have pointed out above that in his response to the Respondents'
opposition and the filing of their Counterclaim, Appellant
that the land in question was allocated to him by the District
Commissioner, Maseru in or about 1964 and that he - sometime
the reasons indicated above registered title in Mary's name.
no response to this averment by the Respondents. They did not seek to
challenge this averment as they would have been
entitled to do -
especially in view of the fact that they initiated a
counter-application. The finding therefore that Appellant
from the Court how he case to acquire the plots is a serious factual
misdirection. So too is the finding
that "applicant was not the
original allottee of the above plots". There was uncontested
evidence under oath that he
was an allottee by virtue of an
allocation by the District Commissioner in 1964 and that Mary derived
her title from him.
true that in his original application Appellant relied simply on the
existence of the current lease as a basis for his claim.
But this he
to do. Until Respondents filed their opposing affidavits he was not
to know on what grounds other than that they challenged
of his marriage. they contested his right to the land. He was
therefore entitled in his response to Respondent's opposition
counterclaim to detail the history of how he obtained title, which I
repeat, has not been challenged.
would Respondents have been entitled to challenge the fact that he
was indeed the original allottee, but they could have
themselves of the opportunity to cross-examine Appellant on this
issue or to lead evidence pursuant to the Court order
matter to trial. They did none of these things. In these
circumstances the finding of the Court on this issue is
conflict with unchallenged evidence.
finding concerning the validity of the
marriage, whilst it appears to have some legal basis in customary
law, in other respects flies in the face of uncontested evidence.
find it difficult to agree with the summary rejection of Appellant's
evidence that Mary's late mother consented to the marriage
the right to lobola in the circumstances alleged by him. This
averment is also confirmed by one Makhotso Mphahama (born
relative of the Respondents. Indeed she specifically avers that this
marriage was approved by Mary's mother "and
generally by the
Monne family". Moreover, it was common cause that she had been
married by civil rites, divorced, and no longer
subject to the
customary law constraints alleged by Respondents.
again Respondents have not denied these allegations. They were, as
indicated above, entitled to do so, either on affidavit
or viva voce.
They were content to abide by the bald allegations
again the findings of the Court a quo appear to fly in the face of
evidence which has not been contested by Respondents, who
entitled to do so both in reply to the opposition to their
counterclaim or pursuant to the Court order referring the matter
trial. Instead they elected to have the issues decided on the papers
as they stood.
more startling, however, is the failure of the Judge a quo to deal
with the challenge to Respondents' locus standi in judicio.
challenge was not only raised in limine; it was raised by Appellant
in his opposition to the counterclaim. The said Mphahama
specifically articulates the challenge thus:
"The second Respondent is the genealogical head
of the Moshe family but not of Mofo's house. Mofo had a son called
Matsepe who got married and had children. He is late but his
son Ts'iu Monne, still lives and resides at Sea Point Maseru. In my
opinion he of all the Monnes, would have a better claim
second Respondent to manage and inherit the estate of the late Mary
Lefa Mohapi (born Monne)"
in his heads of argument dated as long back as the 2nd September, 19
93, Appellants advanced the following contentions
in paras. 6 and 7:
"6. The only reason given by the Respondents for invading the
Applicant's rights to exclusive possession of his land is that
"...the plots belonged to our subject in her own right and (she)
having died we have the duty to attend to her estate according
custom". Apart from the fact that custom does not permit such a
highhanded manner of asserting one's rights, the Respondents
have failed to show that
fact have such right.
if Lefa Mary Mohapi was not married to the Applicant, which is
denied, the Applicants have not shown that
was not entitled to dispose of her property during her lifetime.
they are her heirs or that they are acting on behalf of her
been unable to find any attempt by the Court to deal with these
averments. Once again, there was ample opportunity for Respondents
reinforce their alleged rights to the land by way of further evidence
- either viva voce or by way of affidavit. They failed
to do so. Nor
did they challenge Appellant's evidence in this regard. On this
ground alone Respondents should in my view have been
in their opposition to Applicant's claim for relief and in
of their counterclaim.
the finding that Appellant's wife "hastily and fraudulently"
tried "to cut corners" is a totally unsupportable
There is ample evidence, some of which I have cited above, that not
only did Appellant and Mary live together continuously
' for 37
years (4 years of which with Mary's mother), but that they were
generally regarded as man and wife. To say that in these
circumstances Mary, when she wrote the letter referred to above did
so "fraudulently" is not only unjustified but grossly
circumstances the narrow legal challenge to the validity of the
leases on the ground of non~ compliance with Section 16
of the Deeds
Registry Act and, if so its consequences in respect of Appellant's
right to occupy the land in question, does not
require to be
clear from the above reasoning that there was
basis established upon which Respondents were entitled to challenge
Appellant's rights to the undisturbed occupation of
the property in
question. Respondents failed to prove that they had locus standi in
judicio to do so.
a quo clearly erred in finding as it did. The orders granted by the
Court a quo are set aside and in place thereof the
Rule Nisi issued on the 14th of September, 1992 is made final.
counterclaim is dismissed.
Respondent is ordered to pay the costs of suit.
at Maseru this 13th day of January, 1995.
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