CIV/T/273/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

MPITI
TAOLE Plaintiff

V

G.O.
DWAMENA Defendant

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S, Levy on the 6th November, 1985.

In this
matter Plaintiff whose claim is for eject­ment of the Defendant
from certain premises and payment of arrear rentals
amounting to
M3,000 takes exception to the Defendant's plea that it does not
disclose a defence.

The
admitted allegations made by the Plaintiff are as follows :

1. The
   Plaintiff is the lawful owner and occupier of site 619 Hillsview.

   
   

2. The
   Defendant was called upon by Lesotho Building Finance Corporation.
   (L.B.F.C.) to. vacate the premises.

   
   

3. The
   Defendant was informed by L.B.F.C. "that it had decided to hand
   over its rights and obligations under (an agreement of
   lease between
   L.B.F.C. and certain AGTEC (Pty) Ltd)" (AGTEC).

   
   

4. The
   Defendant is in occupation of the premises..

   
   

The
Defendant did not deny a further allegation by the Plaintiff that
this agreement of lease has expired

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and is
therefore presumed to have admitted it.

The
remaining allegations made by the Plaintiff having been denied, or
not having been admitted, by the Defendant the issues that
arise
between the parties on the pleadings are :

1. Whether
   L.B.F.C. acted as agent for the Plaintiff in entering into a written
   agreement of lease of the premises of which the Plaintiff
   is in
   occupation.

   
   

2. Whether
   such lease was for a period of 24 months.

   
   

3. Whether
   the Plaintiff leased the premises to AGTEC in terms of a written
   agreement or whether Plaintiff leased the premises to

   
   

a certain Peacock Garment Company (Pty) Ltd (Peacock) in terms of an
oral agreement as alleged by the Defendant.

4. Whether
   such oral agreement is for an indefinite period.

   
   

The gist
of the Defendant's version of the agreement of lease to be culled
from the pleadings is that Defendant claims that his
right of
occupation arises out of an oral agreement for the lease of these
premises to Peacock by Plaintiff for an indefinite period
and that he
does not derive his right from any agreement of lease between
Plaintiff and AGTEC which may or may not have expired.

On this
analysis of the pleadings it is apparent that the Defendant's plea
does disclose a defence to the action for ejectment.
It further
discloses the defence that Peacock and not the Plaintiff (who is its
managing director) is liable for the rent due under
the lease since
he is not a party to it nor is he in unlawful occupation (and so
liable for damages) until the

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lease has
been lawfully terminated by notice duly given. The allegation by the
Plaintiff that he told the Defendant to vacate the
premises does not
amount to such a notice.

The
Plaintiff's further exception to the plea is that the lease between
Plaintiff and Peacock on which he relies for his right to
remain in
occupation was alleged by him to be timeless in its duration and so
is a nullity under the provisions of section 26 of
the Deeds Registry
Act 12 of 1967. I am of the view that the word 'timeless' as used by
the Defendant to describe the lease was
not intended to convey the
allegation that the lease was for ever but merely to allege that no
period was fixed for its duration
so that it would amount to no more
than a monthly tenancy.

The
exceptions accordingly are dismissed with costs.

D.S. Levy

ACTING
JUDGE.

6th
November, 1985.

For the
Plaintiff : Mr. Pheko

For the
Defendant : Mr. Gwentshe.