C OF A (CIV)
NO.6/05

IN THE COURT OF APPEAL OF LESOTHO

In
the matter between:-

MATHABELO
MBANGAMTHI APPELLANT

and

PULENG
SESING-MBANGAMTHI RESPONDENT

CORAM:

STEYN,
P

MELUNSKY,
JA

LEHOHLA,
CJ

SUMMARY

Spoliation order - Rule nisi issued but matter argued 9 months
later – Courts should refuse to grant postponements, without good
cause. Chief Justice’s practice directive adopted by the Court of
Appeal. Rule neither confirmed nor discharged on return day
by court
a quo – rule cannot be left in air. In spoliation
proceedings generally not competent for respondent to challenge
applicant’s legal
right to possession by way of defence or
counter-application. Landlord entitled to apply for spoliation order
when tenant in possession
of property. Spoliation order granted where
respondent interferes with use of part of property. Not competent for
court a quo to grant different relief from that claimed. Rule
confirmed. Points of law raised for first time on appeal without
notice to the
Court or the other side deprecated – ambushing of
opponent unacceptable practice and an abuse of process.

JUDGMENT

10 and 20 October 2005

MELUNSKY,
JA

[1] This is an appeal against an order made by Mofolo
J in the High Court. Before dealing with the issues it is
regrettably necessary to draw attention to certain unsatisfactory
features
in the record. The first includes the duplication of the
appellant’s counter-application, including all annexures to the
founding
affidavit. The second relates to the failure by both parties
to furnish English translations of many of the documents,
notwithstanding
averments in the affidavits that this had been done.
There was also the omission to include a copy of the notice of appeal
in at
least one of the appeal records despite the assurance of the
appellant’s attorney that the record “comprises seven identical
copies”. A further unfortunate factor in this matter is the absence
of a judgment by the learned judge a quo. This is a matter of
considerable concern, particularly because the order made was not
sought by either party and is somewhat ambiguous.
It would have been
helpful to us had we been furnished with the reasons which motivated
the Court in making the order which is appealed
against. Finally it
is to be observed that proceedings in the High Court commenced by
means of a rule nisi issued on 17 March and returnable on 29
March 2004. Although the matter was prima facie one of some
urgency, the rule was thereafter extended and the matter postponed on
at least ten occasions, frequently without any
reasons appearing on
the record therefore. It was only on 29 December that the matter was
argued before the court a quo. There appears to be an
increasing tendency for postponements to be applied for and to be
granted without good cause. The learned
Chief Justice, whose
assistance in this appeal we greatly appreciate, joins us in
deploring this practice. He specially draws attention
to his Practice
Directive, no.1 of 2005 in this regard.

[2] The litigation relates to the possession and
occupational rights of the parties to Plot No.13284-279 (“the
property”) situated
at Motimposo in the Maseru urban area. The
property was leased to Ashton Mbangamthi (“Ashton”) in
terms of section 49 of the Land Act 1979 for a period of sixty years
commencing on 1 March 1992. Ashton, who has since died,
was married
by customary law to the appellant. In terms of a handwritten document
dated 25 August 1992, Ashton granted permission
to Thabelo Edwin
Mbangamthi (“Thabelo”), to whom he referred as his son, to use
the property “for any length of time he wishes”.
On 7 November
1995, and after Ashton’s death, the Land Allocation Committee,
apparently acting in terms of the Land Regulations
1980, ruled that
the property

“be passed to Thabelo Mbangamthi”.

[3] The respondent married Thabelo on 7 August 1996 and
after his death was appointed as executor dative in his estate.
According
to the respondent she has, since her appointment as
executor in January 2003, enjoyed “the use and rights” of the
property without
disturbance or interference from the appellant or
two other persons who were cited as the second and third respondents
in the proceedings
in the court a quo.

[4] The litigation commenced by means of an urgent
application brought ex parte by the respondent in the High
Court. She raised two separate issues. The first was that the
appellant and the second respondent had
locked the premises on the
property on 5 March 2004, thus denying her the right to use, occupy
and enjoy the property. The second
was that the appellant and the
second and third respondents had applied for transfer of the property
into the appellant’s name
and the respondent was anxious to prevent
this from taking place. She sought appropriate relief in respect of
both of these issues.
The matter came before Peete J who, on
17 March 2004 issued a rule nisi calling upon the respondents in the
court a quo to show cause on 29 March why they

“shall not be directed to desist from interfering with
the peaceful use of the property on lease No.13284 279 situated at
Motimposo,
which is registered in applicant’s late husband’s
names Thabelo Mbangamthi”.

The rule did not operate as an interim interdict. It is
important to note that the order granted no more than spoliatory
relief to
the respondent and that no order was granted in respect of
the second issue.

[5] In her response, the appellant made certain
qualified admissions and some denials relating to the alleged
spoliation. The nature
and extent of her opposition to the rule with
be dealt with later. The appellant also maintained that the transfer
of the property
into Thabelo’s name was fraudulent and that she had
applied for it to be set aside. Furthermore, and after the filing of
the respondent’s
replying affidavits, she launched a
counter-application in which she sought the following relief:

“(1) Leave to consolidate this application together
with the main application …..

2. 
   Cancelling and expunging the endorsement on lease
   no.13284-279 in favour of late Thabelo Mbangamthi by [the
   Commissioner of Lands]

   
   

2. 
   Allowing and facilitating the succession procedures of
   Lease no.13284 on the death of the original owner, late Ashton
   Mbangamthi.

   
   

2. 
   Costs of suit in the event of opposition.

   
   

2. 
   Further and alternative relief.”

   
   

[6] The counter-application was opposed but Mofolo J
granted the following order on 29 December:

“1. For
the natural time of life of [Appellant] the property remains hers and
be enjoyed by her in the same way her late husband enjoyed
its use.

2. 
   That the status quo be kept in tact.

   
   

2. 
   With regard to (1) above, for the purpose of
   maintaining tranquility and good family relationship the [Appellant]
   is to from time
   to time to consult with the [Respondent] in the
   administration of the estate. Under no circumstances the [Appellant]
   to in any
   way lease or part with the property of her late husband,
   save enjoying its fruits.

   
   

2. 
   This being a family matter, no order as to costs.”

   
   

The appellant appealed against the order on the grounds
that the learned judge a quo restricted her right to use the
property and imposed a duty on her to consult with the respondent “in
the administration of the
estate”. She sought an order that the
appeal be upheld. Counsel for the respondent conceded in his heads of
argument that the appeal
should be upheld but contended that the
matter be remitted to be heard by another judge. There was no
cross-appeal.

[7] This is an appropriate stage to refer to certain
aspects of the order. In our view there are four respects in which
the order
was incorrect. The first is that the learned judge a quo
did not deal with the order issued by Peete J. When a court is
called upon to consider finally a matter in which a rule had
previously been issued, it cannot leave the rule in
the air. The rule
should either be confirmed or discharged and the omission of the
learned judge to do either resulted in no order
being made in respect
of the alleged spoliation which, in fact, should have been the only
matter for the Court’s consideration.
Counsel for the appellant
submitted, however, that the terms of the order were inconsistent
with the confirmation of the rule and
that therefore it had been
discharged, as it were, by implication. This submission is clearly
untenable. Quite apart from the fact
that an order of court should be
explicit, it is not possible to divine an intention on the part of
the judge a quo to make any order in respect of the spoliation
aspect.

[8] The second problem with the order concerns the
learned judge’s failure to apply the basic principles of spoliatory
relief. It
is well-established that all that the person despoiled has
to prove is that he had possession of the kind which warrants
protection
and that he was unlawfully ousted. Whether his possession
was lawful or illegal is irrelevant (see Yeko v Qana 1973 (4)
735 (A) at 739 D-G). It is therefore not open to a respondent to
contend, whether by way of defence or counterclaim, that
an applicant
has no right to possession of the property. The reason for this is
due to the fundamental principles of spoliatory relief,
that no-one
is allowed to take the law into his own hands, and that conduct
conducive to a breach of the peace should not be tolerated.
The
rights of the party despoiled are encapsulated in the maxim spoliatus
ante omnia restituendus est. The effect is that before any
dispute concerning the legality of the right to the property is
resolved, or even considered, possession
must be restored to the
spoliatus. And it is by virtue of the very nature of a
spoliation application, that a counter-application should not be
countenanced (see Willowvale Estates CC and Another v Bryanmore
Estates Ltd 1990 (3) SA 954 (W) 961 H; Minister of Agriculture
and Agricultural Development and Others v Segopolo and Others
1992 (3) SA 976 (T) at 970 F). What the learned judge appears to have
done is to have granted some qualified relief to the appellant
in
terms of the counter-application and to have overlooked the policy of
the law relating to spoliatory relief.

[9] The third aspect for concern is the fact that the
learned judge took it upon himself to make an order which was not
sought in
the notice of motion or covered by the evidence or, so we
were informed, canvassed in argument at the hearing. There is no
doubt
that this was unfair both procedurally and materially (Vice
Chancellor of the National University of Lesotho and Another v
Putsoa, C of A (Civ) No.28/2002, paras [9], [10] and [11]). This
indeed is why both counsel were agreed that the appeal should be
upheld.
Nor is it permissible in this matter to rely upon the
catch-all prayer for further and alternative relief, as here the
relief actually
granted was substantially different from that sought
(see The Liquidator Lesotho Bank v Mahlomola Khabo, C of A
(Civ) No.22/03).

[10] Finally it may be noted that the order is ambiguous
to the extent that it is unclear what is meant by paragraph 2
thereof. The
order is also uncertain insofar as the duties imposed on
the appellant in paragraph 3 are concerned. But as neither party
supported
there paragraphs it is not necessary to elaborate any
further thereon and I turn to consider the remaining issues in this
appeal.

[11] For us to have simply allowed the appeal, as
suggested by counsel, would not have resolved the issue of the
spoliation: we would
have been obliged to refer the matter back to
the High Court for a consideration of the rule. Therefore, and in
order to bring the
matter to finality without further costs being
incurred, counsel were invited to consider whether they would be
agreeable to argue
the question of spoliation before us. They are to
be commended for consenting to this procedure and the appeal stood
down to enable
them to prepare argument on this issue only.

[12] On the appellant’s behalf it was submitted that
the question of spoliation did not arise. The argument was based on
the premise
that the rule had lapsed, as there was nothing to
indicate that it had either been confirmed, discharged or extended on
29 March.
Without deciding whether a rule may lapse, which is a
proposition of doubtful validity, it is apparent from the Court file
that the
rule was in fact extended on 29 March and from time to time
thereafter. I will assume that the appellant’s counsel was unaware
of the extensions of the rule as his firm was appointed to represent
the appellant at a late stage in the proceedings. In all events
the
argument advanced in this respect has no merit.

[13] The way is now open to consider the merits of the
spoliation application. The main structure on the property was a
building used
partly as a workshop and partly as the appellant’s
residence. On a proper reading of the affidavits it seems to be clear
that the
appellant locked the workshop section, thereby excluding the
respondent from that part of the building. According to the
respondent.
This occurred on 5 March 2004. In response to this
allegation the appellant, save for making a general denial of the
respondent’s
averments, does not deal with what happened on 5
March. She says:

“Applicant (i.e. respondent on appeal) had control
only over portion of the workshop. However she did not have
possession of the said
premises as she had hired them out to a male
person who was unknown to me. In January 2004 the applicant’s
tenant was arrested
and spent time in the Maseru Central after he was
charged with theft. During his absence I locked up the place as I was
visiting
the second respondent at Vereeniging in the Republic of
South Africa. Thus I have not unlawfully dispossessed applicant as
she was
not in possession.”

In reply the respondent avers that the person who was
arrested in January 2004 was named Moeketsi Malete; that he was
released from
prison during the same month; that he was not the
respondent’s tenant but her partner; that the respondent was locked
out on 5^th March and not during January; and that she was
dispossessed of her right of access, entry and peaceful enjoyment of
the property.

[14] On those allegation it was submitted on the
appellant’s behalf that there was a dispute of fact which could not
be resolved
on the affidavits. In my view, however, the only possible
dispute is whether Malete was a tenant or a partner of the
respondent.
The appellant does not say when Malete was released from
prison and she does not refer at all to the events of 5 March. I have
no
difficulty in concluding, therefore, that the appellant locked up
the workshop on 5 March at the time when Malete was no longer under
arrest. On the evidence before me the appellant’s conduct was
unlawful.

[15] It was also argued by the appellant’s counsel
that the respondent, being the lessor of the premises was not in
possession at
the time as she had given the use and occupation to her
tenant. The appellant’s contention that Malete was a tenant is open
to
serious doubt. She does not disclose how she acquired information
about the legal relationship between the respondent and Malete
or on
what she based her conclusion. There is more justification for
relying on the respondent’s version as she had direct knowledge
of
her contractual dealings with Malete. However that may be, I am not
aware of any authority which precludes a landlord from instituting
spoliation proceedings in respect of leased premises even if he is
not in physical occupation thereof. In my view, and to use the
expression employed in Yeko v Qana (supra), a landlord has
“possession of the kind that warrants protection.” He may not
have possession in the juridical sense
but he holds the property with
the intention of securing a benefit for himself, which is sufficient
to enable him to claim spoliatory
relief in respect of the property.
Addleson J explained the position as follows in Bennett
Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (E)
at 233 G – in fin:

“In
terms of all the authorities cited, the “possession”, in order to
be protected by a spoliatory remedy, must still consist of
the animus
–
the “intention of securing some benefit to” the possessor; and of
detentio,
namely the “holding” itself. From a consideration of the cases
referred to above, it seems to me to be clear that both these
elements, and especially the detentio,
will be held to exist despite the fact that the claimant may not
possess the whole property or may not possess it continuously.
If one
has regard to the purpose of this possessory remedy, namely to
prevent persons taking the law into their own hands, it is
my view
that a spoliation order is available at least to any person who is
(a) making physical use of property to the extent that
he derives a
benefit from such use; (b) intends by such use to secure that benefit
to himself; and (c) is deprived of such use and
benefit by a third
person. Such a definition may obviously be incomplete but it seems to
me to comprise the essentials derived from
the authorities referred
to, which are necessary to a decision in this case and which were
relied on by Mr
Howie,
for the applicant.”

[16] On the application of the aforesaid principles
there seems to be no reason why a lessor should not be regarded as a
possessor
for the purposes of enabling him to bring a mandament
van spolie if access to the leased property is interfered with.
It should be noted, moreover, that a landlord retains a considerable
degree
of control and various rights in respect of the leased
premises, including the right of entry under certain circumstances.
For these
reasons the respondent was entitled to bring the
application and the submissions put forward by the appellant’s
counsel cannot
be upheld.

[17] There was also a submission that as the respondent
was not in possession of the whole property, the rule nisi
would have to be discharged. The answer to this argument is simply
that the respondent did not allege that the appellant had interfered
with her possession of the entire property. More significantly the
rule does not refer to the respondent’s use or possession of
the
whole property. It protects her peaceful use of the property to the
extent that she is in possession of any part.

[18] It follows that the rule should be confirmed but
only insofar as the appellant is concerned. The other respondents in
the court
a quo are not before us and we cannot make any order
which may affect them adversely. Consequently the operation of the
rule against them
should be discharged.

[19] Although the respondent succeeds in this court and
in the court a quo, this is not a case in which an award of
costs should be made in her favour in either Court. The parties were
agreed that there should
be no costs order in the appeal. As there
was no appeal by the respondent against the order made by Mofolo
J. she is not entitled to costs in the High Court.

[20] Finally, and in order to prevent any confusion, it
is necessary for us to set aside the order of the Court a quo
and to dismiss the counter-application. This should not prevent the
appellant from instituting proceedings de novo if she is so
advised. I draw attention to the apparent factual disputes in the
affidavits which prima facie will require oral evidence for
resolution.

[21] The following order is made:

1. 
   The order of Mofolo J is set aside and is
   replaced with the following:

   
   

“(a) The
rule nisi
granted
by Peete
J
on 17 March 2004 is

hereby confirmed insofar as it relates to the first
respondent;

(b) The rule is discharged against the second and third

respondents;

3. 
   The first respondent is directed to desist from
   interfering with the applicant’s peaceful use of the property
   referred to in lease
   no 13284 279 situated at Motimposo in the
   Maseru urban area;

   
   

4. 
   The counter-application is dismissed;

   
   

3. 
   No order is made in respect of the costs of the
   application or counter-application.”

   
   

2. 
   No order is made in respect of the costs of appeal.

   
   

[22] I should add that I have read the judgment of the
President of the Court of Appeal and that I also agree with it.

_______________________

L.S. MELUNSKY, JA

STEYN, P.

I agree with the reasons for judgment and the orders
granted by my brother Melunsky and concurred in by the learned Chief
Justice.
I wish however to add a few comments of my own concerning
two procedural matters as well as with the implications flowing from
them.
In the first place, as is reflected in the main judgment, the
Rule nisi which operated as a temporary interdict was either extended
or the matter postponed on no less than 15 occasions and the Rule
which was granted as a matter of urgency, remained operative for
9
months. The practice of granting postponements without good cause
shown by way of evidence under oath, either viva voce
or on affidavit is, in terms of the directive of the Chief Justice no
longer acceptable. Whilst this is only now the operative rule
of
practice, the manner in which the various legal practitioners in this
matter served their clients’ interests is manifestly unacceptable.

It is deplorable that lawyers who are paid for their services should
have allowed this allegedly urgent matter to be repeatedly
postponed
without giving reasons on all but two occasions for the delay in
bringing the matter to finality. Secondly, - as recorded
in the
principal judgment - we enquired from Counsel whether they would be
agreeable to argue the issue of spoliation before us so
that finality
could be achieved and that they agreed to do so. It was therefore a
surprise when after an adjournment for Counsel
to prepare themselves,
Mr. Mosae sought to argue what he called “points in limine”.
This was clearly not in accordance with the agreement upon which
we proceeded to hear the appeal.

Thirdly, neither of the two issues raised had been
adverted to in the court below, nor had they been raised in the
papers during the
9 months period whilst the matter had served before
the High Court. Counsel submitted that he was entitled to do so
“because a
point of law could be raised at any time, even for the
first time on appeal”. There are circumstances in which such an
indulgence
will be granted, however, only in circumstances where it
would be fair and proper to do so. See Malebo v Attorney-General
– C of A (CIV) No. 5 of 2003 (unreported). Moreover, it is not
only prejudice to the other side that has to be considered. A
Court of Appeal hears matters after it has had the benefit of heads
of
argument and has had the opportunity to have regard to precedents
which could guide its decisions. Full and helpful arguments and
fair
adjudication can be severely hampered – indeed negated - when only
ill-prepared and poorly considered arguments have been
submitted.
This would almost always be the case if the points of law are raised
for the first time at the appellate hearing and
without notice to the
other side or to the Court. See The Teaching Service Commission
and Others v St. Patrick’s High School and Another – C of
A (CIV) No. 26 of 2004 (unreported). Indeed in that matter the
Court held that to seek to raise new points on appeal was “both
irregular and without
merit”. The same applies to the arguments
sought to be advanced without notice to the respondent or to the
Court in this appeal.
It amounted to an attempt to “ambush” the
other side and the Court will, as master of its processes not
tolerate such an abuse.
See in this regard also the decision in
T.A.M. Industries (Pty) Ltd v ALFA Plant Hire (Pty) Ltd. C of A
(CIV) No. 19/20004. We accordingly ruled that Mr. Mosae could
not raise his points in limine on appeal for the first time without
any notice to the
respondent or to us and that he would have to
confine himself – as indeed he had agreed - to debate the
spoliation issue. I have
added these comments because this Court has
for many years and on many occasions urged practitioners to observe
its rules and to
abide by rules of practice laid down by our
judgments and those of the High Court. The conduct of the counsel
for the appellant
is but one further indication of the failure of a
practitioner to abide by the rules of good and acceptable practice.
I would add
one of these is to curb the abuse of the recourse to
postponements and to record that this Court has also adopted the
Chief Justice’s
directive of June 2005 in this regard. The
Registrar has been directed to ensure that it is communicated to all
judicial officers,
the Law Society and all practitioners.

____________________

J.H. STEYN

PRESIDENT OF THE COURT OF APPEAL

I agree both with the principal judgment as well as with
the judgment of the President of the Court of Appeal.

_______________________

M.L. LEHOHLA,

CHIEF JUSTICE

For Appellant : Mr M. Mosae

For
Respondent : Mr T. Khauoe