C OF A
(CIV) NO. 10 OF 2000

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

QUINTINO
GONCALVES VICENTE APPELLANT

and

LESOTHO
BANK LIMITED RESPONDENT

Held At
Maseru

CORAM:
SteynP

Gauntlett J.A.

Ramodibedi J.A.

JUDGMENT

RAMODIBEDI
J.A

The
appeal in this matter is a culmination of a catalogue of errors in
which a matter that ought not to have been a subject of litigation
at
all in the first place was somehow allowed to engage the attention of
the Court a quo to the bitter end. The relevant background
facts are
hardly in dispute and it all started in certain case No.
CIV/APN/350/99 wherein the Appellant brought an application
(original
application) in the court a quo for an order in the following terms:-

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"1. Dispensing with the normal periods of notice prescribed by
the Rules.

2. Interdicting
   the respondent from selling the Applicant's immovable property
   consisting of business premises on a portion of the
   plot bearing
   Land Act Lease number 23123-213 situate at Maputsoe, in the Leribe
   district which portion measures 1485 square metres
   save pursuant to
   a judgment by a court of competent jurisdiction against the
   Applicant in favour of the respondent.

   
   

2. Interdicting
   the sheriff and deputy-sheriffs of this Honourable Court from acting
   upon any writ of execution or other similar
   instrument purporting to
   authorise such sale.

   
   

2. Directing
   the respondent to pay the costs of this application.

   
   

2. Granting
   the applicant further or alternative relief."

   
   

The salient facts of that application show that during or about the
year 1995 the Appellant purchased from one Mooki Vitus Molapo
certain
immovable property consisting of business premises situated at
Maputsoe. In his founding affidavit the Appellant averred
that the
immovable property in question bore lease number 23123-213. He
further alleged that he paid the sum of R225,000-00 (Two
hundred and
twenty five thousand Rand) for the said immovable property.

The
Appellant further averred in his founding affidavit and indeed this
is common cause that the immovable property in question
had been
mortgaged by the seller Mooki Vitus Molapo to the Respondent and that
accordingly it became necessary to obtain the latter's
consent to the
transfer of the plot to enable the Appellant to secure a lease. Such
consent was only granted in a conditional form
and when the attendant
condition failed to materialise the Respondent resiled from the
agreement, foreclosed on the mortgage bond
and sought to sell the
immovable property in question. It issued out a writ of execution for
this purpose. Hence the Appellant's
original application for
interdict against the Respondent.

Arguments
in the High Court in relation to the original application predictably
turned on whether the Appellant had locus standi
to interdict the
Respondent from selling the immovable property in question in view of
the fact that no transfer of the property
had yet been effected to
the Appellant and also in view of the subsisting mortgage bond in
favour of the Respondent.

It is
indeed trite law that a registered mortgage bond over immovable
property gives rise to a real right which holds good against
the
whole world. No alienation of the property in question can therefore
deprive the mortgagee (Respondent) of its mortgage. Moreover
it is
trite that a real right created by a mortgage bond ranks as a
preferent over any other rights that any other person may have
on the
mortgaged property. See Wiber v Manodini (1904) S.C. 645.

There was
yet another insurmountable hurdle for the Appellant. It was this: in
terms of Section 35(1) of the Land Act 1979 a lessee
is only entitled
to the exclusive possession of the land leased subject to any
statutory conditions attaching to the lease in question
and subject
also to obtaining the consent of the Minister. If these two
conditions are met a lessee is in terms of the section
entitled to
the following :-

(i). to dispose of his interest;

(ii). to encumber the land leased by mortgage;

(iii). to sub-let the land leased.

Now
Section 36(5) of the Land Act 1979 provides the killer blow to the
Appellant's case in these terms:-

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"Any transaction conducted by a lessee without the consent of
the Minister or contrary to the terms and conditions of a general

consent shall be of no effect."

It is
indeed common cause that there was no Minister's consent to the
purported transaction conducted between the lessee Mooki Vitus
Molapo
and the Appellant in respect of the plot in question. Accordingly it
stands to reason that the former could not dispose
of his interest or
to encumber the land leased by mortgage or to sub-let the land leased
without the consent of the Minister.

In this
Court Mr. Sello for the Appellant submitted that a distinction has to
be drawn between rights to land and rights to improvements
in or over
land. He then sought to persuade the Court that the Appellant's
rights to improvements in or over the land in question
should be
protected by way of an interdict against the Respondent selling such
land.

This
submission falls to be dismissed on two main grounds namely that:-

1. The
   Appellant's case was never based on the proposed distinction in the
   first place. The Appellant's Notice of Motion as fully
   set out above
   clearly shows that his case was for a permanent interdict
   restraining the Respondent from selling "the Applicant's

   immovable property consisting of business premises on a portion of
   the plot bearing Land Act Lease Number 23123-213".

   
   

It is
also pertinent to bear in mind that in terms of Section

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2(1 )(a)
of the Deeds Registry Act 1967 the term "immovable property"
includes "any building including fixtures or
improvements in or
over land and the right of occupation and use thereof."

Mow to
remove any further doubt the term "immovable property" is
defined in the Land Act 1979 to include any lease granted
under the
Land Act itself. Thus there is no distinction drawn between land and
improvements on land.

2. As
   previously pointed out Section 36(5) of the Land Act 1979 learly
   makes any transaction between the lessee Mooki Vitus Molapo
   and the
   Appellant null and void and of no force and effect in law for as
   long as the Minister's consent was not obtained.

   
   

In the
light of the aforegoing considerations it came as no surprise when
the High Court in the original application came to the
inescapable
conclusion that the Appellant had no locus standi and that the sale
agreement between the Appellant and Mooki Vitus
Molapo was a nullity.
Hence the High Court correctly in my view dismissed the Appellant's
original application with costs. That
was on the 21st day of October
1999.

Realising
that the door had finally been closed in his face on the question of
locus standi the Appellant brought another application
before the
court a quo in terms of Rule 45(1)(c) of the High Court Rules for an
order rescinding the aforesaid judgment dated 21
October 1999 on the
ground that it was granted as a result of a

6

mistake
common to the parties. In paragraph 5 of his founding affidavit the
Appellant explained the nature of the alleged mistake
as being that
the original application was decided on "entirely incorrect
facts, a version which I had been supplied by the
respondent and with
which respondent subsequently concurred when I set them out in my
said application." In the same vein
though the Appellant was
quick to point out that he had no reason to believe that the
Respondent's officers were deliberately misleading
him in giving him
the information which formed the basis of the original application
nor did the Appellant believe that they were
deliberately misleading
the court.

In view
of the fact that the Respondent filed no answering affidavit and has
as a result left the Appellant's allegations as set
out above
uncontroverted I think it can safely be accepted as correct that the
first judgment of the High Court was granted as
a result of a mistake
common to both parties in the sense that entirely wrong facts were
presented to the court. Plascon-Evans
Paints Ltd. v Van Riebeeck
Paints (Pty) Ltd 1984 (3) SA 623 (A) at 635.

Indeed it
is not disputed that after judgment in the original application was
reserved by the court a quo the Appellant then made
"further
investigations" and ascertained that the above mentioned writ of
execution issued out by the Respondent did
not relate to the disputed
immovable property plot number 23123-213 as he had alleged in the
original application, but instead
it related to plot number 22124-001
which was not the subject matter of the original application at all.

After
hearing argument in the application for rescission of judgment the
court a quo maintained its view that the Appellant had
no locus
standi in the matter. Nor did he have an interest either in the
judgment of the court a quo itself or in the

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future.
Indeed that court held the view that Appellant's application was
merely academic. It accordingly dismissed the application
with costs
hence the appeal to this Court in the instant matter.

Now Rule
45(1 )(c) on which the Appellant's application for rescission in the
court a quo was premised reads as follows:-

"45 (1) The court may, in addition to any other powers it may
have mero motu or upon the application of any party affected,
rescind
or vary -

1. ...........................................................

   
   

2. ...........................................................

   
   

3. an
   order or judgment granted as a result of a mistake common to the
   parries."

   
   

I have
underlined the word may to indicate my view that the Court dealing
with an application for rescission is vested with a discretion

whether or not to grant the application. See Tshivhase Royal Council
and Another v Tshivhase and Another: Tshivhase and Another
v
Tshivhase and Another 1992 (4) SA 852 (AD) at 862-63 in which the
Appellate Division was dealing with Rule 42(1)(c) of the Uniform

Rules of Court in the Republic of South Africa which Rule is word for
word similar to our Rule 45(l)(c).

The
discretion vesting in the court is however not an arbitrary
discretion but is one predicated upon proper objective factors.

It will
be observed at once that our Rule 45(1)(c) is also substantially
similar to Section 36(b) of the Magistrates' Court Act
32 of 1944 of
South Africa which reads as follows:-

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"The court may, upon application by an person affected thereby -

2. rescind
   or vary any judgment granted by it which was void ab origine or was
   obtained by mistake common to the parties."

   
   

Now
dealing with the aforesaid Rule 36(b) of the Magistrates' Court Act
32 of 1944 Eloff J expressed the following remarks with
which I am in
respectful agreement in the case of Seedat v Arm and Another 1984 (2)
SA 198 (T) at 201:

"In my view a mistake to qualify as such for the purpose of
Section 36(b) (our Rule 45(1)(c)) must relate to and be based
on
something relevant to the question to be decided by the court at the
time, or to something in the procedure adopted. It can
never be
founded on material which was irrelevant at the time of the grant of
the judgment sought to be set aside."

These
remarks are apposite to the instant case. In other words it is not
every mistake that will give rise to rescission but one
that is not
only relevant but also directly material to the case at issue. Were
it otherwise litigants would no doubt have a field
day in which they
would simply come with fresh set of facts ex post facto and thus
claim rescission based on "mistake common
to the parties"
even though such facts had nothing to do with the judgment sought to
be rescinded. This would no doubt open
the flood gates for
invalidating lawful judgments.

It
remains then to determine whether the mistake common to the parties
in the instant case as set out above was relevant and material
to the
original application and whether but for that mistake the court a quo
would have granted the application for interdict as
originally
sought. In this regard it is absolutely crucial to bear in mind that
the original application was never amended at any
stage. It has
always remained an application for an order interdicting the
Respondent from selling the above mentioned immovable
property plot
No. 23123-213.

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It has
now emerged from the application for rescission that what the
Respondent was in fact selling in terms of the writ in question
was
not plot 23123-213 but a different plot altogether namely plot No.
22124-001. This then immediately raises the question: did
the
Appellant satisfy the requirements for an interdict namely a clear
right an injury actually committed or reasonably apprehended
and the
absence of similar protection by any ordinary remedy (Setlogeh v
Setlogelo 1914 AD 221)? In my view the answer must be
in the
negative. If this be right then it follows that the Appellant failed
to satisfy the requirements for an interdict more especially
in view
of his additional failure to show that he had a clear right in the
matter. See Setlogelo v Setlogelo (supra).

As long
as the Appellant's original application related to plot No. 23123-213
it follows as a matter of logic and common sense that
the alleged
common mistake relating to the sale of plot No. 22124-001 as
reflected in the writ thereof can never relate to the
former plot
hence the original application itself. In that regard the mistake was
obviously not relevant to the question to be
decided by the court a
quo at the time namely whether to interdict the Respondent from
selling plot No. 23123-213. Put differently
any new facts relating to
plot No. 22124-001 were irrelevant to the original application which
was only concerned with plot No.
23123-213.

It
follows from the aforegoing that the mistake relied upon by the
Appellant does not qualify as such for the purpose of Rule 45(l)(c).

In
dismissing the application for rescission the court a quo correctly
remarked as follows on page 9 of its judgment:

"If the Applicant herein had said he would continue to claim the

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rights over plot No. 23123-213 that would be a different matter.
Perhaps then, there would be no basis for constituting that mistake

as a fundamental one. But would he really claim the same rights on
similar set of circumstances about which he has said (such
circumstances) were mistaken? The answer should be in the negative."

In my
judgment the court a quo was fully justified in viewing the
application for rescission as an academic exercise. Indeed courts
are
disinterested in academic situations.

In any
event whatever new facts the Appellant relied upon could not as
already pointed out detract from the fact that his transaction
with
the lessee Mooki Vitus Molapo relating to the plot forming the
subject matter of the original application is null and void
and of no
force and effect in terms of the provisions of Sections 35(1) and
36(5) of the Land Act 1979. Nor could the Appellant's
perceived
"rights" stand in the way of the Respondent which has a
real right based on a mortgage bond.

Weighing
all of the aforegoing considerations it follows that the judgment of
the court a quo dismissing the Appellants's application
for
rescission of judgment is sound in law and cannot be faulted.
Rescission was obviously not the correct route to follow in the

circumstances of the case.

In the
result the appeal is accordingly dismissed with costs.

Signed:

M.M.
Ramodibedi

JUDGE OF
APPEAL

I agree:
Signed:

J.H.
Steyn

PRESIDENT

I agree:
Signed:

J. J.
Gauntlett

JUDGE OF
APPEAL

Delivered
at Maseru this 13th day of April 2000

For
Appellant: Mr. Sello

For
Respondent: Mr. Matooane