IN
THE HIGH COURT OF LESOTHO

In the Application of :

ABDUL RAUF ABUBAKER Applicant

V

ELLERINES FURNISHERS (LESOTHO) Pty Ltd 1st Respondent
TOWN TALK FURNISHERS (LESOTHO) Pty Ltd 2nd Respondent

RULING
Delivered by the Hon. Mr. Justice M.L.
Lehohla

The applicant approached this Court on short notice and
urgent basis in terms of a Notice of Motion wherein an order is
sought in
the following terms :-

1. That a Rule Nisi be issued calling upon the
respondents to show cause (if any) on a date to be determined by this
Court why
the Order in the following terms should not be made
absolute:-

(a) That the respondents be ejected (sic) in respect of
the properties occupied by them (sic) in respect of business premises
situated
at Teyateyaneng and Butha-Buthe (sic) occupied by the 1st
respondent and in respect of the property situate at Maputsoe
occupied
(sic) by the 2nd respondent;

(b) That this Court should make an order that the
leases in respect of the properties as (sic) aforementioned are null
and void and
of no

force and effect in terms of Provisions of

section
24 of the Deeds Registry Act of 1967;

/(c)

-2-

(c) That the respondents be ordered to pay the
costs of this application;

2. 
   That prayer l(a) should operate with immediate
   effect.

   
   

3. 
   Dispensing with the periods of service of
   this
   application on the grounds of its urgency as
   provided by
   the Rules of this Court.

   
   

4. 
   Granting such further and/or alternative relief
   as
   this court may deem fit.

   
   

The properties in respect of which the order of
ejectment is sought purport to be sub—leases.

Section 16(l)(c) of the Subordinate Courts (Amendment)
Proclamation of 1964 says:

"Subject to the provisions of this Proclamation the
Court, with regard to causes of action, shall have jurisdiction

(a)

(b)

(c) in any action of ejectment against the occupier of
any house ,land or premises to such property."

The 1980 Subordinate Courts Order does not depart from
the above view.

The High Court Act provides that the High Court can

entertain such application in chambers and on notice to
the other side.

It would seem therefore that what this contemplates is
that an applicant can proceed on such application with leave to do so
granted
by this Court. Further that it seems that irrespective of
the value of property from which ejectment is sought the Subordinate
Court
has jurisdiction to entertain an application relating to
ejectment.

However in the instant application no leave has been
sought to move it before this court. Neither has sufficient cause
been shown
why the application was not

/moved

-3-

moved before the Subordinate Courts in which the
respective properties from which ejectment is sought are situated. I
am not unmindful
of the salutary remarks made in
Golube_vs_Oosthuizen_and_Another 1955(3) 1 SA at headnote 1 and
Liassou_vs_Pretoria_C^t^_Council
1979(3) 217 wherein the question of
exhuasting domestic remedies was discussed in conjunction with the
fact that there would be an
ouster only if the conclusion that
domestic remedies have not been exhuasted flows by necessary
implication from the particular
provisions under consideration. I am
of the view though that the instant matter does not call for any
detailed consi­deration
to that end.

Mr Buys for the respondents raised preliminary points of
law with a view to avoiding delving into the merits of the main
application
in the event that the points in limine raised are upheld
at the end of the day.

He
premised his argument by praying that the main application should not
be heard and that if heard, it should be dismissed; alternatively
that the respondents be afforded an opportunity to file their
opposing afficavits. He submitted that it is not necessary to file
opposing affidavits if a respondent relies on a point of law.

In this regard he relied on page 90 of The Civil

Practice of Superior Courts in South Africa 3rd
Ed. by

Van
Winsen et al where it is stated :

"If any party wishes to oppose he must, save where
he relies solely upon a point of law, file and serve answering
affidavits
in which his defence is set out."

It was pointed out that if the applicant proceeds by way
of motion then he must comply with the rules. It was submitted that
the
applicant ought to have first obtained an order of nullity with
respect to the leases and afterwards prayed for ejectment.

Having submitted that if a party adopts an incorrect
procedure the court is entitled to refuse to hear him he

/referred

-4-

referred me to the importance of the rule requiring that
a party bringing an application at short notice should carefully
consider
options open to him together with the relevant forms.

At page 59 Van Winsen et al say

"When relief is claimed against any person, or
where it is necessary or proper to give any person notice of such
application,
the notice of motion must be addressed to both the
registrar and such person."

But in the instant application the notice of motion is
addressed to none.

Emphasising that observance of forms is of the first
magnitude Schutz P. in C of A (CIV) No. 16 of 1904

(unreported)
at 7 said:-

"I am afraid that my decision may smack of the

triumph of formalism over substance. But forms

are often important and the requirements of the
sub-rule
are such ...."

It is to be noted that motion proceedings are authorised
in certain types of proceedings such as insolvency where the statute
so requires.
On the other-hand certain classes of cases such as
matrimonial causes and claims for damages admit of no motion
proceedings before
court. With respect to all other forms of cases
the party wishing to bring his matter to court is confronted with a
choice either
to proceed by way of action or by way of motion. The
yardstick to apply in making this choice in favour of proceeding by
way of
motion, resides in making a determination even before coming
to court whether there is a real dispute of fact involved. If there
is; then an action is the preferable mode of proceeding.

I am thus inclined to accept the view expressed by Mr
Buys that

"It is common knowledge that motion proceedings are
normally used in cases where there is no danger of

/real

-5-

real dispute of fact and where urgent and quick relief
is sought or needed."

Mr Buys refers to this application as ex parte.
Mr Mphalane says it is not ex parte but on notice. He goes
further to pray that the omission to address the application to both
the Registrar
and the other parties should be condoned in terms of
Rule 59. Mr Buys opposes this prayer for condonation of the
omission and submits that the respondents would be prejudiced if
condonation were granted:
Further that the respondents would be
inconvenienced on grounds of being dragged before court on one leg.

Despite argument to the contrary it seems to me that in
effect this application is ex parte. It required that a rule nisi
should
be granted and rendered returnaule the following day i.e. 10th
November 1989. I have observed that an alteration from the printed
10th to handwritten 16th November has been effected but not
initialled.

Applying the rule that a dubious disposition should be
interpreted against the author it would seem that within the time
when cause
was required to be shown the respondents could hardly have
been ready to oppose the matter even if they so desired at the
initial
hearing before the intended rule would have been obtained.
Thus the purported service was but a farce.

Because the papers were addressed neither to the
Registrar nor to the parties they should not have been received by
the office of
the Registrar in the first place but rejected even as
an attempt was being made to file them. I have been told that
instead of being
brought to the office of the Registrar these papers
were taken straight from the Registry by a filing clerk to the Chief
Justice's
secretary for purposes of being placed before the Chief
Justice for allocation.

I maintain that the procedure adopted was not only

/irregular

-6-

irregular but totally wrong. The High Court Act No.5 of
1978 says in section 12 :-

"The Chief Justice shall regulate the distribu­tion
of business in the court, and all actions and proceedings before the
court shall be heard and determined by a single judge, unless the
Chief Justice otherwise directs."

This section does not say that the Chief Justice shall
distribute the business in the court. The fact that it says he shall
regulate
the distribution pre­supposes that the distribution is
to be effected by someone else: in this regard the Registrar. If the
Legislature intended the Chief Justice to distribute the business
then there would have been no need to have used the elaborate phrase
"shall regulate the distribution of the business . .. " .
The purpose would have been adequately served by saying the
Chief
Justice "shall distribute the business of the Court." The
failure to follow the strict terms of the Act has the
unfortunate
effect of clothing with an aura of acceptability documents which have
otherwise been irregularly received.

Mr Buys invited the Court to appreciate that the
order sought by the applicant is to the following effect and
requires:

1. 
   an immediate ejectment from the properties
   being
   occupied by the respondents,

   
   

2. 
   a rule to show cause why the respondents should not
   to
   ejected,

   
   

3. 
   a declaration that the agreements are null and vold.

   
   

He accordingly submitted that the first two prayers are
absurd because to comply with them the respondents would have to be
evicted
before they could show cause why they should not be ejected.
He criticised the rule nisi sought because in effect it requires
that
the respondents should on the return day show why they should be
re­instated.

He submitted that the procedure used by the applicant

/is

-7-

is wrong and that the application should not have been
brought ex parte in the present circumstances because
there is no urgency in the matter.

Indeed the rule is that the applicant must prove in the
founding affidavit that the matter is urgent. It is not enough for
the applicant
merely to make an allegation that the matter is urgent
without proving how. See page 57 of Uniform Rules of Court by
Nathan, Barnet and Brink. C/F Mangala vs Mangala
1967(2) SA 415.

In the present application the applicant merely contents
himself at page 9 para 16 with making the allegation that

"In the interests of justice the application calls
for urgent relief because there has been no com­pliance with the
law."

I have not been told that there is a chance of damage to
the properties in question or any financial loss.

Besides the allegation that

"the respondents are adamant that they are not
prepared to comply with the requirements that the leases be
registered"

the applicant gives no reason why he should have
immediate vacant possession of the premises.

It was only at the replying stage during arguments that
I heard for the first time that if the premises catch fire the
applicant would
not be able to claim from the insurance companies
because the premises are illegally occupied in the first place in
that the leases
have neither been registered nor the Ministerial
consent obtains See Deeds Registry Act 1967 section 24 subsections
(2) (3) and (4).

Mr Buys charged that the applicant does not say
why he could not have used the normal notice periods or even action
proceedings in bringing
this matter to Court.

/in

-8-

In Republic Motors vs Lytton Road Service Station
1971(2) 516 at 518 Beck J. said:-

"The procedure of approaching the Court exparte
for relief that affects the rights of other persons is one which
... is somewhat too lightly employe). Although the relief that is
sought when this procedure is resorted to is only temporary in
nature, it necessarily invades, for the time being the freedom of
action of a person or persons who have not been heard and it is, to
that extent, a negation of the fundamental precept of audi alteram
partem. It is accordingly a procedure that should be
sparingly employed and carefully disciplined by the existence of
factors of such urgency,
or of well-grounded apprehension of perverse
conduct on the part of a respondent who if informed before
hand that resort will be had to the assistance of the Court, that the
course of
justice stands in danger of Frustration unless temporary
curial intervention can be unilaterally obtained."

I accordingly agree with the submission that it is
essential for this kind of application that the applicant must give
reasons why
the normal periods for service should not be adhered to
or that it would damage or harm his case if he gave notice for that
notice
would precipitate the apprehended harm.

There seems therefore to be substance in the submission
that on the applicant's own papers it is clear that the matter has
been dragging
on since March 1989 to the end of September 1989. See
Annexure M M 9.

Annexure M M 6 29.9.89 shows that it was during a course
of negotiations when it occurred to the applicant. that the
provisions of
the Deeds Registry Act were over­looked with the
result that he feared the leases were of legal effect. The tenor of
the letter
clearly shows that applicant wished to re-negotiate the
terms of the leases. To what end? Mr Buys says the renegotiations
were
intende primarily for renewal of rentals. In other words the
applicant's eagerness to regularise the registration of the leases
was but a smoke-screen.

I tend to agree with this view because I fail to see why
it is only then that, when the negotiations which had been

/going

-9-

going on for a long time fail, the applicant should
suddenly be of the view that the matter is urgent.

The applicant alleges on page 4 of the founding
affidavit that he first took legal advice in this matter during the
end of September
1989. This allegation stands in stark contrast with
contents of Annexure N M 9 and N H 10 written in Way 1989 and June
1989 respectively.

On this basis it seems nothing of note justified this
matter being brought to Court as a matter of urgency. It thus
follows that
the applicant only chose to proceed by way of urgency to
avoid taking his turn at the end of the list of matters already in
the pipeline
awaiting consideration by the court in due course.

The fact that in the eyes of the law the leases were a
nullity does not warrant a precipitate flight to this Court first
because the
agreement of the leases is bindin;-inter partes
notwithstanding the nullity; secondly because the parties were
entitled to rectify whatever defects were discernable in the leases.

The fear that the leases have the blemish of lex in

turpe causa and therefore unenforceable is not
warranted because the turgis causa doctrine relates to base
and vile undertakings which are tainted with either criminality or
immorality. None of these prevails
in the instant application. An
application for the ministerial consent can still be made even at
this late hour.

The applicant's counsel pointed out that the points of
law raised did not accord with the procedure laid down in the rules
that the
other party should be given notice. See Rule 8(10)(c). The
purpose of this provision is to ensure that the affected party is not
taken by surprise. The importance of this rule is all the more
relevant where point of law raised is a product of a construction
of
that law gathered from the facts. But it seems to me doubtful
whether there is necessity for a notice to the other party

/where

-10-

where the point of law is not a product of that
constru­ction from the facts but rather appears ex facie
the affected party's papers.

Van Winsen above Bays at page 01

" A party is entitled to make any legal

contention which is open to him on the facts as they
appear on the affidavits, and the court may decide an application on
a point
of law which arises out of the alleged facts even if the
applicant has not relied thereon in his application."

See CIV/APN/120/86 Pitso vs Executive Committee of
the

Lesotho Evangelical Church (unreported) at 3 to 4. See
also Yorkshire Insurance Co. Ltd vs Ruben 1967(2) at 265 .

Relying on Van Winsen at page 89 Mr Bugs submitted that

"where an application is brought ex parte,
but the rights of other persons may be affected by the order the
court will not make an out-and-out order but will grant what is
called a 'rule nisi'. This is an order directed to a particular
person or persons calling upon them to appear in court on a certain
fixed date to show cause why the rule should not be made absolute."

He submitted that on the above basis it becomes clear
that if the court is persuaded that a rule nisi is appropriate such a
rule affords
only a temporary relief. Contrasting the above
submission with what appears to be prayed for here he pointed out
that what is sought
here is an outright final order of ejectment.
This, he submitted is untenable in view of the fact that it
disregards the importance
of letting the other party being heard.

He ruefully submitted that the applicant in this matter
seeks to drag the respondents over a barrel at short notice to have
them evicted
from the premises and in the same breath says they
should tell the court why they should be allowed to go back to occupy
those premises.

He submitted that ex parte procedure is an
extra­ordinary procedure entitling the court to grant relief only

/in

-11-

in exceptional circumstances.

The court, he argued, is protected against applications
of these nature even before hearing them.

The devices used to secure this end ensure that the
court is not suddenly inundated with all forms of applications
becoming suddenly
urgent as where people don't wish to await their
turn and prefer to secure a place ahead of cases pre-existing on the
court calendar.

These devices consist in the fact that the rules are
prescribed in a manner that ensures that the time limits and forms
are to be
observed.

Hence the court will not give relief if the other party
has not been given proper notice. Methods of service too are
outlined as
well as the times. See Rule 8(22).

A further device consists in the requirement that a
certificate of urgency should be signed by an officer of this Court
who thereby
certifies that having looked at the matter in question he
formed the opinion that it is urgent. I have grave doubts whether it
is
appropriate that an attorney who has drawn the papers is in turn
entitled to sign such a certificate.

Allegations that the matter is urgent are not enough if
proof is not furnished with regard to fear of suffering irreparable
harm,
prejudice and the fact that notice would precipitate the
apprehended danger.

By contrast with the above it appears that the
respondent's path is not beset with like or even as

many obstacles.

Sub-rule 18 of Rule 8 clearly shows that a respondent,
doesn't have to obtain leave of court in order to be heard. He is
entitled
to anticipate the return date on giving a brief period of
only 48 hours' notice. Sub rule 17 shows that in counter
applications
the rules as to prescribed periods apply to him as they
do to the

/applicant

-12-

applicant but interpretation of a similar rule in
Yorkshire above reveals a different picture because the learned
Munnik J. in reference
to the requirement to give notice said :-

"I am satisfied that the use of the word 'notice'
in sub-rule (11). as opposed to the notice of motion' in the other
sub-rules
to Rule 6 indicates that interlocutory and other
applications incidental to pending proceedings were not intended to
be brought by
way of formal notice of motion in the same way as
applications initiating proceedings."

See also CIV/APN/402/86 Khoboko vs Khoboko & 2
Others (unreported) at 5 and 6.

Relying on Amler's Precedents of Pleadings at 129
respondents' counsel submitted that the applicant's attempt to effect
an ejectment
by resorting to motion procedure cannot succeed. He
further submitted that the applicant's effort to avoid instituting an
action
is to no avail.

In the notes section appearing immediately below the
heading Eviction or Ejectment Amler refers to cause of action and
points out
that

"Ejectment of an occupier of premises can be
obtained by means of :

1. 
   the rie vindication In such event reliance
   is
   placed upon the plaintiff' s ownership and
   the defendant's
   wrongful possession of the
   property; or

   
   

2. 
   a possessory claim ..."

   
   

Pretoria Stadsraad vs Ebrahim 1979(4) SA 193 shows that
the plaintiff need not allege and prove any title to the property
from which
the defendant is to be evicted, but Steenkamp vs Mienies
En Andere 1987(4) SA 186 shows that the plaintiff must however allege
and
prove

1. 
   the right of the defendant to possess e.g. the
   terms
   of the agreement between the parties;
   while Myaka vs Havemann &
   Another 1948(3) SA
   457 shows that the plaintiff should
   also
   allege and prove;

   
   

2. 
   a valid termination of the right to possess.

   
   

/It

-13-

It is also essential to allege and prove :-

(c) the continued occupation by the defendant
or
someone holding on his behalf or through
him. See Amler above at
p. 130.

(d) damages suffered (if any) as a result of the

holding over. See Phil Morkel Ltd vs

Lawson
& Kirk (Pty) Ltd 1955(3) SA 249

These four things above have to be proved. But needless
to say the applicant left me at sea regarding what damages he
suffered if
any.

It becomes clear therefore what is paramount in his mind
is the desire to collect more and more money by way of increasing the
rental
from the current rates to some rates likely to suit his
ever-expanding desire.

With regard to the relief claimable Amler states that
it is

1. 
   optionally, cancellation or confirmation of
   the
   cancellation of the agreement;

   
   

2. 
   ejectment from the premises;

   
   

3. 
   damages, if any.

   
   

But in the instant case the applicant seeks ejectment
before he has applied for and obtained cancellation of the agreement.
I am
thus inclined to the view expressed on behalf of the
respondents that the applicant has placed the cart before the horse.

It would appear that moving on vindicatory basis if

allowed would enable the applicant to obtain an order

before he has proved his case. On all accounts that
would
be an absurdity.

To succeed the applicant must prove the nullity of the
lease and obtain confirmation of the prayer for nullification by him
of the
contract.

It was submitted for the respondents that annexures N M
8 and 9 contain sufficient ammunition to support the view that the
applicant
was aware that the respondents

/dispute

-14-

dispute that the sublease agreements are null and void.
The respondents are of the view that the legislation does not make
the sublease
agreements null and void per se in the
face of the fact that there is still an opportunity to apply to court
for leave to have them registered, or at least that
there is still
room for making an application.

Indeed section 24 clearly shows that an application must
be made and registered only after the consent has been granted.

The respondents have charged that the applicant has not
informed the court of or set out in detail in the founding affidavit
the defence
raised by the respondents. They submit that if the court
was aware of the respondents' defence or objections its decision
might have
been influenced in their favour. See CIV/APN/149/88
Monoto

vs The National University of Lesotho
(unreported) at 3 where this Court said :-

"I take the view that contents of this
supplementary affidavit constitute the most crucial informat ion
which should not have
been omitted in the first instance. The fact
that this information was not laid bare at that stage is telling
against the applicant's
bona fides."

At page 4 it was said of the applicant

"The fact that he ultimately laid bare this aspect
of the matter does not detract from the observation that he had
something
to hide. He only furnished it when he realised that it
would surface in any case at the instance of the other party. It is
not wrong
to infer that he was aware that if he disclosed it in the
founding affidavit (the application) would have been discharged."

Responding to the onslaught Mr Mphalane indicated that
references to disputes of fact in this application are fictitious and
not
genuine. He asked the court to consider that all requirements
have been complied with by the applicant. He submitted that the
applicant
being aware that there might be raised objections based on

/disputes

-15-

disputes of fact forestalled any such possibility and
canvassed relevant points in his affidavit.

He submitted that the agreement was entered into since
1987 but till 1989 the leases had not been registered all because of
the respondents'
attitude. He made much of the fact that the leases
were prepared by the respondents' attorneys. He buttressed his
argument that
non-compliance with section 24 renders the agreement
null and void by vehemently drawing on the use of the word shall with
regard
to the fact that the section requires that the leases be
registered.

Mr Mghalane submitted that the nullity of the leases
justified the applicant in approaching this court on the basis of
urgency because
if the contracts are inexistent then obligations
which should flow from them cannot be enforced.

He denied that the reason for moving this application
was so as to enable the applicant to hike the rent. He pointed out
that by
filing their opposition only a day before this matter was
heard betrayed a clear intention on the respondents' part to delay
these
proceedings. He submitted that the prayers despite argument to
the contrary by the respondents, are framed in a manner that is
under­standable
to the court. He accordingly asked for
confir-mation of the rule, alternatively that the respondents be
afforded an opportunity
to file their opposing affidavits and that
the matter be proceeded with and argued today.

It was argued on behalf of the applicant that the party
were properly served on the respondents' attorneys. Mr Buys in
reply pointed out that the address given was for purposes of
receiving summons. The respondents' view was consistently that the
applicant shouldn't have proceeded by way of motion. But if the
applicant was dissatisfied then the address where they would accept
service was that of their attorneys.

/The

-16-

The applicant was challenged for non-disclosure; it
being alleged that he knew that the respondents' attorneys denied
that contracts
were prepared by them yet the applicant failed to
disclose that denial.

In view of the line of procedure that appears to me to
be favoured by dependable authorities I am inclined to refuse hearing
this
matter on the basis of urgency.

Although the application richly deserves dismissal I am
however disinclined to prejudge the issues upon which the merits may
be' based.
While it would save the time to order that the papers
as they stand should be converted into pleadings, it appears that
they
are not in such a state that conversion could serve a useful
purpose.

Consequently the respondents are awarded the costs.

JUDGE.
5th February, 1990.

For Applicant : Mr Mphalane For Respondents: Mr Buys.