HIGH COURT OF LESOTHO
POLAO TLALI Applicant
by the Hon Mr Justice M L Lehohla on the 12th day of March, 1998
12-03-98 this Court minuted its decision on the above matter and read
it to Counsel for respective parties as follows :
"The points of law raised on behalf of the respondent are
dismissed with costs. Judgment is entered in favour of the
following are reasons for the above decision :
August, 1997 the applicant approached this Court on notice of motion
ex parte and obtained an interim order.
notice of motion was couched in the following terms, to wit
-...........that application will be made..............for :
granting of a Rule Nisi calling upon the Respondent to show cause,
if any, on a date to be determined.............why
shall not be interdicted and restrained from interfering in any
manner whatsoever with applicant's rights of ownership and
occupation and, specifically from erecting any structure on
applicant's business site referred to as site number 57 Maputsoe,
in the Leribe district.
Applicant shall not be granted further or alternative relief
l(a) to have immediate effect.
founding affidavit the applicant avers that in May 1997 when he
returned from his business operations in the mountain areas,
ascertained that the respondent had dumped some sand, crushed stones
and cement slabs on his vacant business site numbered 67
Maputsoe in the Leribe district, which he is about to develop.
applicant avers further that notwithstanding the fact that the site
in question was fully fenced in thus indicating that it
the respondent 3 nonetheless carried out the deed complained of
applicant is thus reasonably apprehensive that the respondent will
proceed to erect a structure on the said site unless immediately
restrained. If not restrained it stands to reason that the
respondent's apprehended deed would result in the applicant being
to irreparable harm at some later stage.
applicant's fear is based on the fact that the respondent has
stubbornly refused to heed the admonition of the Town Clerk of
area to desist from his said conduct as he was clearly not the owner
of the site and had no legal title thereto that he could
answering affidavit the respondent raised four points of law on the
basis of which he prayed that the application be dismissed
points of law raised are that:
application has been brought to the High Court against the
provisions of section 6 of the High Court Act.
applicant has failed to establish a clear right in his application
for an interdict.
are disputes of fact which cannot be resolved on affidavit and
which the applicant ought to have foreseen.
affidavit is a non-affidavit for non-compliance with the Oaths and
Declarations Regulations of 1964.
Makotoko for the respondent argued that in terms of the High Court
Act 1978 section 6 no civil cause shall be brought to this
it falls within the jurisdiction of the subordinate court unless
removed into the High Court
judge of the High Court acting of his own notion, or
the leave of a judge upon application made to him in Chambers, and
after notice to the other party.
buttressed his argument by reference to section 29 of the Subordinate
Courts Order 9 of 1988 listing matters which lie beyond
jurisdiction of the subordinate courts. These range from (a) to (f)
and relate to dissolution of marriage, interpretation of
adjudication as to a person's mental capacity, prayer for an order
for specific performance without an alternative of payment
damages, an order for a decree of perpetual silence and prayer for an
order for provisional sentence. He thus submitted that
prayed for in the instant application is not included in the list of
items upon which the subordinate court has no
jurisdiction. Thus this
matter should, he said, have been dealt with by the subordinate court
unless leave of the High Court had
been obtained to deal with it
regard to point (b) Mr Makotoko argued that the applicant is required
in law to establish that he has a clear right, and further
right has been invaded and lastly that he would suffer irreparable
harm unless intervention by Court has been sought.
that the applicant should have established his right by attaching a
lease or a Form C to his right especially since paragraph
about site 67 at Maputsoe while the Notice of Motion at l(a) refers
to site No. 57. So as this was raised in the answering
point was placed in issue.
© Mr Makotoko argued that the disputes raised in the forgoing
matters ought to have been foreseen by the applicant.
He argued that
there is a dispute regarding the applicant's statement that he is the
owner of the site. There he referred to the
last sub-paragraph to
Paragraph 3 and submitted that there are material disputes which
required proof before the relief of the
kind sought can be granted.
however reconciled himself with the fact that there has been filed by
the applicant a Ministerial consent but challenged the
fact that this
was not properly filed as it was only filed at the replying and not
founding stage. Thus at this stage
respondent is disadvantaged in that he cannot respond to it. I am
however taken aback by this submission in view of the fact
attempt was made by the respondent to seek leave of Court to respond
and challenge this Ministerial consent.
regard to point A reference to Albert Makhutla vs Agricultural
Development Bank C of A (CIV) No.1 of 1995 (unreported) at page
would be of benefit where Browde J A said :
"...............Interference with the High Court's jurisdiction
can only be effected by express provision or by necessary
and any provision which purports to limit the jurisdiction of the
High Court will be strictly construed".
point D Mr Makotoko challenged the fact that nowhere does the
applicant commit himself as to the truthfulness of his deposition.
the view that of relevance in the answering affidavit is the point
raised in 3(b). There it is clear and it is not disputed
lease was issued in David Sekaja's name.
for the applicant pointed out that the site was in the process of
being transferred. All that was necessary was the Ministerial
and that is attached to the applicant's replying affidavit.
Subordinate Courts have power to entertain interdicts. But the moot
point is whether they have a right to grant permanent
my humble view permanent interdicts stand in materia with orders for
perpetual decrees of silence.
pointed out that the respondent had put in question the identity of
the object of the dispute. He pointed out that the
site is that of
Marumo. This is the same site of Marumo that caused the intervention
of the Town Clerk. It is the same site that
the attention of this
Court is focussed on. Thus it would seem the identity has been
established. When there is certainty as to
the site involved in the
matter I am seized with there would appear to be little point in
arguing that the number referred to in
the papers differs from the
other appearing in a different paragraph. A number is like a name.
Presence of an object cures an error
as to the name. In much the same
way as a name a number is but a descriptive tag.
satisfied that the applicant's affidavits have been properly sworn to
before a Commissioner of Oaths. I don't think there is
rule requiring that a certain specific formula should be adopted in
an affidavit for it to pass as reflecting the
fact that the deponent
thereto has committed himself to the truthfulness of what he says. In
both affidavits the applicant has
stated that he has made oath.
case the Concise Oxford Dictionary defines an affidavit as a written
statement, confirmed by oath, to be used as judicial
Court regards the applicant's affidavits as falling well within the
above definition by way of fulfilling the purpose
of being judicial
indicated earlier the only matter of importance on which the entire
case turns is centred around point "B" of the
in limine and in turn affects the main case as a whole.
for the above reasons that the points raised in limine were dismissed
with costs this morning.
Applicant: Mr Sello
Respondent: Mr Makotoko
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