C. OF A.
(CIV) 19/2000

SUMMARY

In this
matter the judgment was prepared by my colleague Van den Heever, with
which my brother Gauntlett and I concur. This matter
concerns a
dispute in regard to the alleged sale in terms of an oral agreement,
by the first respondent of its rights to an industrial
plot, to the
appellant.

The
second respondent refused to sign a deed of sale supposed to contain
the terms agreed upon.

Appellant
on an improper certificate of urgency and ex parte, obtained a rule
nisi aimed at compelling the respondents to sign that
document. The
matter was opposed and the application dismissed with costs. The
appeal was brought against that dismissal.

The
application, brought by improper procedure, was improperly pursued
where the appellant was aware that a dispute of fact was
inevitable.
Appellant was guilty of material non-disclosure of relevant facts.
The document itself makes it clear that a contract
would come into
being only once a written agreement had been signed.

In terms
of the Land Act prior ministerial consent is a prerequisite to the
validity of a contract disposing such rights. That had
not only not
been obtained, but the draft the appellant asked the court to compel
the respondent to adopt contains a clause aimed
at binding the seller
to performance contrary to express statutory provisions.

The
application is so flawed that it constituted an abuse of the process
of the court, and an appeal against its dismissal can only
be
described as reckless.

It is
dismissed with costs to be paid de bonis propriis by the appellant's
legal advisers.

C of A
(CIV) No. 2 Of 2000.

IN THE
COURT OF APPEAL - LESOTHO

(Held at
Maseru)

In the
matter between:

Peter
Lefume Lepamo & 7 others Appellants/Applicants

and

Lesotho
Bank and 2 others Respondents

Coram:
Steyn P

Leon J.A.

Vd Heever J.A.

ORDER.

The Court
notes that -

1. the
   above appeal as well as the application to lead further evidence on
   appeal as well as the application for condonation for
   the late
   filing of Heads are withdrawn.

   
   

2. It
   is ordered that the Appellants shall pay the Respondents costs in
   the matters referred to in paragraph 1 above on the scale
   as between
   attorney and client, such costs to include the costs of two counsel,
   which costs shall be paid jointly and severally
   by the appellants.

   
   

3. It
   is ordered accordingly.

   
   

REGISTRAR

1

C OF A
(CIV) NO 19 OF 2000

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

SEA LAKE
(PTY) APPELLANT

and

CHUNG HWA
TRADING FIRST RESPONDENT

ENTERPRISE
CO.(PTY)LTD

YU-SHING
SIU SECOND RESPONDENT

HELD AT
MASERU

Coram :
Van den Heever,

JA Gauntlett, JA

Ramodibeli, JA

JUDGMENT

Van den
Heever, JA

The
appellant was the applicant in the court a quo, represented in
bringing the application which is the subject of the appeal before

us, by Mr A.K.N. Mahomed. The second respondent is a director of the
first. The latter holds certain rights over an industrial
plot in
Maseru, in terms of a sub-lease agreement between the Lesotho
National Development Corporation ["the LNDC"] and
the first
respondent.

2

The
appellant claims to have bought these rights from the first
respondent, in terms of an oral agreement concluded on 17 November

1998 between Mr Mahomed and the second respondent acting on behalf of
their respective companies. However the second respondent
refuses to
sign the deed of sale recording the terms of that agreement, despite
(the appellant claims) the second respondent having
admitted the
correctness of the draft submitted to him.

On 7
December, 1998, attorney Qhobela signed a certificate of urgency,
alleging that he had considered the matter and bona fide
believed it
to be a matter for urgent relief. I repeat the comments of this court
in the Commander of the Lesotho Defence Force
and another v.
Matseliso Matela (delivered on 15.10.1999) that such certificates
must shortly state the grounds for urgency or
risk dismissal of
applications and special costs orders in appropriate cases. The
application was in fact heard a few days later.

The
appellant obtained ex parte a rule nisi operating as a temporary
interdict to prevent the respondents from selling their rights
in the
sub-lease of the plot to anyone else, and calling upon them to show
cause why the second respondent or any official of the
first
respondent shall not be compelled to sign the document in

3

question,
with costs. The matter was opposed. On the 20th of June 2000 the
application was dismissed with costs. Reasons were filed
on 10 July.

The only
facts Mr Mahomed's affidavit adds to the bare bones of the cause of
action outlined above, are

- that
the appellant issued or caused to be issued a cheque as full payment
of the purchase price in favour of the respondents;

- that
the oral agreement concluded between the parties was by agreement
reduced to writing by Mr Lepholisa, an attorney;

- that
despite repeated requests that the second respondent sign the Deed of
Sale, he persists in his refusal;

- that
the appellant has not committed any breach of the agreement and there
is no basis for the second respondent's refusal to
comply with "the
requirements of the agreement" save a "malicious intention
to renege" on it.

The only
"justification" for rushing into court he advanced is that
he fears that the second respondent intends selling
the property to
another party, with not a single fact alleged as the foundation for
the alleged fear. No reason is given at all
for bringing the
application ex parte.

Mr
Mahomed annexes to his affidavit as "A" a copy of the
sub-lease between the LNDC and the first respondent setting out
the
rights of the latter in

4

respect
of the plot; as "B" a copy of a crossed cheque of A.
Abubaker dated 17 November 1998 in the sum of R215 000,00,
in favour
of S. Siu; and as "C", the document produced by Mr
Lepholisa.

The
application was opposed, the second respondent being duly authorised
to do so for the first respondent. His affidavit is crisp.
He
admitted that he and Mr Mahomed negotiated a sale, but denies that an
agreement was finally concluded. Annexure "C"
does not
reflect the correct agreement between the parties. That is why it was
never signed. "B" was never accepted by
the respondents
because of the dispute which had arisen as to the exact terms of the
contract. He did see "C" at a meeting
with Mr Ashraf
Abubaker, representing the appellant, " but that is where I
raised some concern about certain aspects which
seemed to be either
not covered or not reflected correctly according to my requirements".
That was the basis for his refusal,
for which he had given his
reasons. Mr Abubaker shouted at and threatened him and "the
whole meeting ended in disagreement".

At this
stage it became apparent (as the second respondent also submitted in
his opposing affidavit) that there was a dispute of
fact incapable of
resolution in the appellant's favour without resort to oral evidence.
Plascon Evans Paints Ltd

5

v Van
Riebeeck Paints(Pty)Ltd 1984(3) SA 623 (A). Nevertheless the
appellant filed replying affidavits, and did not ask for leave
to
refer the matter in order that evidence could be led. Mr Mahomed's
replying affidavit merely repeats what he had said in the
founding
one, but he annexes an affidavit of Attorney Lepholisa. Mr Mahomed
does not himself deny the respondents' version of the
meeting with
MrAbubaker. Mr Lepholisa confirms that he prepared "C" as
"the draft of the agreement between the parties
as duly
instructed by both of them". The second respondent never made
him aware of any mistake he may have made. (It is strange
that he did
not produce any notes he must surely have taken when receiving
instructions from both parties to prepare the complicated
document
"C", as one would have expected, to corroborate his bald
allegation that "C" is a correct rendering
of every term on
which the parties had agreed.) The second respondent, Lepholisa says,
never gave any reason for his refusal or
reluctance to sign. The
second respondent had accepted the cheque but returned it only when
he was called upon to sign "C".
He could not say what
happened at the alleged meeting between Mr Abubaker and the second
respondent as he himself had not been
invited to attend it.

No
affidavit by Mr Abubaker himself was annexed to the replying
affidavit.

6

The
appellant was remiss in having concealed this episode from the court
a quo. It

constituted
a material non-disclosure (Schlesinger v Schlesinger, 1979(4) SA 342
(W) at 348 C-354 A.)

Annexure
C, the draft agreement the appellant asked the court a quo to compel
the respondent to sign, itself makes it clear that
the parties would
not be bound until the document had been signed. The preamble records
that "The purchaser has expressed
a desire to purchase the
rights, title and interest of the seller in the property and the
seller is prepared to sell its interests
in the property".
Clause 9 reads :

"This is the sole and complete Agreement between the parties and
any term or condition thereof insofar as it refers to an
obligation
of any one of the parties is a material term or condition, and any
amendment of, addition to, or substitution of any
term or condition
in this Agreement or to this Agreement, shall only be valid, binding
and enforceable upon the parties in the
event of it being reduced to
writing and signed by both the Purchaser and the Seller each before
TWO (2) witnesses."

Yet there
are blanks in the document, still to be filled in, in clauses 3 and
7.

No
registration of the rights in question is possible unless an
appropriate document has been completed in order for that to happen;

moreover prior

7

ministerial
consent is required in terms of section 35 of the Land Act of 1979.

Moreover
the appellant asked the court a quo and asks this court to enforce a
provision in "C" which is infraudem legis.
Ministerial
consent is required before the first respondent was entitled to
dispose of its interest (s. 35(l)(b)(i) of the Land
Act, 17 of 1979).
A transaction without that, is invalid (s. 35(5)). Nevertheless
clause 1 of "C" provides :

"In the event of Ministerial consent............being
refused,............. the Purchaser shall have the right to use and

occupy this property for the duration of the existing Land Act Lease,
as well as for the duration of the extended period thereafter".

The court
a quo cannot be faulted for having dismissed the application with
costs. From the above analysis of its flaws it clearly
constituted an
abuse of the process of the court.

Mr
Sooknanan before us conceded those flaws, which cumulatively must be
laid at the door of the legal advisers of the appellant.
Under the
circumstances an appeal against the dismissal can only be described
as reckless. He advanced no argument as to why costs
should not be
ordered de bonis propriis.

8

The
appeal is accordingly dismissed with costs to be paid de bonis
propriis by the appellants legal advisers.

L. VAN
DEN HEEVER

JUDGE OF
APPEAL

I agree

J J
GAUNTLETT

JUDGE OF
APPEAL

I agree

M. M.
RAMODIBEDI

JUDGE OF
APPEAL

Delivered
at Maseru on this 13th day of October 2000

For
appellant : Mr A.K.N.Mahomed

For
Respondents : Mr Sooknanan