CIV/T/323/98

IN THE HIGH COURT OF LESOTHO
In the matter
between:

RETS'ELISITSOE KHOMO MOKHUTLE N.O. PLAINTIFF

and

M.J.M. (PTY) LIMITED 1ST DEFENDANT

THE COMMISSIONER OF LANDS AND SURVEY 2ND DEFENDANT

REGISTRAR OF DEEDS 3RD DEFENDANT

THE ATTORNEY GENERAL 4TH DEFENDANT

MAMALIA JOYCE TSEPPE 5TH DEFENDANT

JUDGMENT

Delivered by the Honourable Chief Justice Mr. Justice
J.L. Kheola on the 2nd day of February. 2000.

This is an exception by the first and fifth defendants
in terms of Rule 29 of the High Court Rules 1980 to the summons of
the plaintiff.
The exception is based on the following grounds:

"1.1 No basis in law or in fact is advanced for the
claim that annexure "D" was "granted and issued upon
and after
false and/or incorrect 'facts'

2 and/or documents were submitted to second and/or third
defendants

by the late 'Mamileng Mosethi Ana Mokhutli..."

2. 
   The allegation that the "... exact nature of the
   said false and/or
   incorrect 'facts' and/or documents.... are not
   known to plaintiff'
   clearly establishes the absence of any cause
   of action on the part of the plaintiff.

   
   

3. 
   No basis in law or in fact has been advanced in support
   of the
   allegations in paragraphs 12.3 and 12.4.

   
   

2. 
   There is no basis in law or in fact for the allegation
   in paragraph 13 that 'Mamileng Mosethi Anna Mokhutli could not have
   passed
   or transferred any rights to the property simply because no
   executor has allegedly been appointed to administer her estate.

   
   

3. 
   There is no basis in law or in fact advanced in support
   of the
   allegation in paragraph 14.3 that there were no grounds or
   iusta cause for and in favour of Mantebaleng Adelinah Mokhutle to
   obtain
   any rights to the property in dispute and that 3rd defendant
   could not, in

   
   

3 consequences, register a lease in her favour.

4. There is no basis in law or in fact advanced in
support of the allegation in paragraphs 14.4 and 14.5 that because no
executor
has allegedly been appointed to administer her estate the
late Mantebaleng Adelinah Mokhutle could not have passed or
transferred
any rights to the property in dispute and that the lease
of the same to 1^st defendant is unlawful or flawed.

In his particulars of claim the plaintiff states that he
is a citizen of Lesotho. His father is the late Frank Moeti Mokhutle
who
died on the 18^th January, 1969. On the 19^th
June 1968, the third defendant duly registered a binding and proper
certificate of title to occupy and certificate of registered
title to
immovable property with reference number 5601 A to and in favour of
Frank Moeti Mokhutle (the deceased) in respect of certain
immovable
properties situated and known and described as site numbers 36 and 37
Cathedral (Pitso Area) Maseru.

It is common cause that on the 1st July, 1998 the
plaintiff was appointed executor of the deceased estate of the late
Frank Moeti
Mokhutle. The plaintiff has stated that before his
appointment as executor of his late father's estate no

4 other executor was ever appointed. He alleges that as
the eldest son of the late Frank Moeti Mokhutle he is the heir. He
sues in
his capacity as the executor and heir of the property in
question. He alleges that because no executor was ever appointed
before
his own appointment as such, the distribution of the deceased
estate could never have been done properly.

It is common cause that on the 22^nd May, 1984
the second defendant issued a lease in terms of the Land Act of 1979,
in respect of the same property in favour of a certain
'Mamileng
Mosethi Anna Mokhutle. The lease was registered by third respondent
as lease NO. 13283-232. Plaintiff alleges that as far
as he can
ascertain no executor has been appointed to wind up the deceased
estate of 'Mamileng Mosethi Anna Mokhutle who died a few
years ago.

The plaintiff alleges that the said certificate of lease
was granted and issued upon and after false and/or incorrect facts
and/or
documents were submitted to second and/or third defendants by
the late 'Mamileng Mosethi Anna Mokhutle in order to move and
convince
second and/or third defendants to issue and register the
said lease agreement in respect of the said property to the said
'Mamileng
Mosethi Anna Mokhutle.

5
The plaintiff alleges that the exact nature of the
said false and/or incorrect

facts and/or documents which were submitted to second
and/or third defendants in order to convince them to grant the said
rights and
register the said lease are not at this time known to
plaintiff. There were consequently no grounds or iusta causa for and
in favour
of the late 'Mamileng Mosethi Anna Mokhutle to obtain any
rights to the relevant property and the only lawful rights to the
property
vest in the estate of the deceased's estate and now, in the
plaintiff in his capacity as executor of the deceased's estate.

On the 27th September, 1996 and after the death of
'Mamileng Mosethi Anna Mokhutle a certain 'Mantebaleng Adelinah
Mokhutle entered
into a written agreement of sublease with the first
defendant in the present case in respect of the relevant property.
Second defendant
consented to the above sublease on the 20th March,
1997 whilst third defendant registered the sublease agreement on the
2nd June,
1997 under registration No.25354.

In Inkin v. Borehole Drillers, 1949 (2) S.A. 366 (A) 374
it was held that "It is the duty of the Court, when an exception
is
taken to a pleading, first to see if there is a point of law to be
decided, which will dispose of the case in whole or in part. If
there
is not, then it must see if there

6

is an embarrassment, which is real and such as cannot be
met by the

asking of particulars, as the result of the faults in
pleading to which exception is taken. And, unless the excipient can
satisfy
the Court that there is such a point of law or such
embarrassment, then the exception must be dismissed."

Mr. Wessels submitted that the plaintiff has primarily
sued in his capacity as executor in the deceased estate of his late
father.
It is his duty to take custody of the property of the
deceased in respect whereof he has been appointed and "the
executor has
the same and no greater right to repossession than the
deceased himself had". D. Meyerrowitz: The Law and Practice of
Administration
of Estate, 5th Edit., p. 108.

He submitted that the plaintiff also has an interest and
vested right in the relevant property.

"The position under our modem system of
administering deceased

estates is that when a testator bequeaths property to a
legatee, the latter does not acquire the dominium in the property
immediately
on the death of the testator, but what he does acquire is
a vested right to

7

claim from the testator's executors' at some future
date, delivery of the legacy, i.e. after confirmation of the
liquidation and distribution
account in the estate of the testator.
If, for instance, immovable property is bequeathed to a legatee, he
acquires a vested right
at the death of the testator but he does not
acquire the dominium in that property until it is transferred to him
by the executor."
See Greenberg and Others v. Estate Greenberg,
1955 (3) S A 361 A.D. at 364 G.

In Ankin v. Borehole Drillers - supra - it was held that
"it is the duty of the Court, when an exception is taken to a
pleading,
first to see if there is a point of law to be decided which
will dispose of the case in whole or in part." It is now
pertinent
to consider whether in the present case there is such a
point of law.

Section 35(3) of The Land Act 1979 provides that -In the
event a lessee dying intestate -

2. 
   where the lessee qualifies thereunder the disposition
   of his estate shall be governed by the written law relating to
   succession;
   or where the lessee does not qualify under paragraph
   (a), section 8(2)
   and (3) shall apply as if he were an allottee
   and the Commissioner

   
   

8 shall thereupon request the Registrar of Deeds to
endorse any

registered lease or other registered document of title
accordingly."

Section 8 (2) reads as follows:

"(2) Notwithstanding subsection (1), where an
allottee of land dies, the interest of that allotted passes to,

1. 
   where there is a widow - the widow is given the same
   rights in relation to the land as her deceased husband but in the
   case of re-marriage
   the land shall not form part of any community
   property and, where a widow re-marries, on the widow's death, title
   shall pass to
   the person referred to in paragraph (c);

   
   

2. 
   where there is no widow - a person designated by the
   deceased allottee;

   
   

3. 
   where paragraphs (a) and (b) do not apply - a
   person
   nominated as the heir of the deceased allottee by the
   surviving members of the deceased allottee's family;".

   
   

9
Mr. Wessels submitted that the plaintiff's claim
is simple. He alleges that,

since the deceased became the registered owner of the
immovable property, had been such at the time of his death and since
no executor
had been appointed for his estate, the rights which he
had obtained and possessed at the time of his death, could not,
lawfully,
have been passed to the relevant persons, in particular,
'Mamileng Mosethi Anna Mokhutle; therefore and since the later deed
was
issued, the later deed must have been obtained, granted and
issued upon and after false and/or incorrect facts and/or documents
were
submitted to second and/or third defendants.

Mr. Wessels seems to be under the impression that unless
an executor is appointed immovable property/land which forms part of
a deceased
estate, cannot be distributed or transferred. This
perception is not in accordance with the law. Section 35 (3) of The
Land Act 1979
makes it clear that if the lessee qualifies the
disposition of his estate shall be governed by the written law
relating to succession.
The law of succession appears in Section 8
(2) of The Land Act as stated above. Under Section 8 (2) (a) when the
allottee dies the
interest in the land passes to the widow. In the
present case we know that the mother of the plaintiff was divorced
before the deceased
died. For that reason there was no widow when the
deceased died. Under Section 8 (2) (b) it is provided that where
there is no

10 widow the land shall pass to a person designated by
the deceased allottee.

The plaintiff has not made any proper inquiries at the
Law Office to find out under what circumstances the title to the
property in
question was transferred to 'Mamileng Mosethe Anna
Mokhutle. Was 'Mamileng not designated by the late father of the
plaintiff? Such
information is readily available at the Law Office
(Deeds Registry Section). Section 8 (2) (c) provides that where 8
(2)(a) and 8(2)(b)
do not apply the property shall be transferred to
a person nominated as heir of the deceased allottee by the surviving
members of
the deceased allottee's family. There is no indication
whatsoever that the plaintiff was so nominated.

It seems to me that after the death of his father the
plaintiff disinherited himself or failed to claim his right for about
thirty
years. In 1992 the Land Act 1979 was amended by Order No. 6 of
92 which provides that where there is a widow the rights of the
deceased
allottee pass to her, where there is no widow the rights
pass to a person designated by the deceased allottee. Where there is
neither
a widow nor a person designated by the allottee the rights
pass to a person nominated as the heir by the surviving members of
the
deceased allottee's family. It is most probable that 'Mamileng
Mosethi Anna Mokhutle was so nominated.

11

The first ground for the exception is that

"no basis in law or in fact is advanced for the
claim that Annexure "D" was granted and issued upon and
after false
and/or incorrect facts and/or documents were submitted to
second and/or third defendants by the late 'Mamileng Mosethi Anna
Mokhutli."

I have already stated above that the availability of
documents supporting the issue or granting of Annexure "D"
is not a
problem because they are kept by the Law Office. The
plaintiff would have no difficulty to obtain them. He would not be
speculating
that false or incorrect documents were submitted to
second and/or third defendants by 'Mamileng before Annexure "D"
was
issued. The question is whether without the production of such
documents it can be said that the plaintiff's particulars of claim
disclose a cause of action. The answer is obviously in the negative.
These documents form the very basis of the plaintiff's case
and
without them it cannot be said that his particulars of claim disclose
a cause of action. He actually confesses that the exact
nature of the
said false and/or incorrect facts and/or documents are not known to
plaintiff. I agree that this clearly establishes
the absence of any
cause of action on the part of the plaintiff.

There is something in this action which needs an
explanation but the

12 plaintiff has decided not to give such an
explanation. His father died on the 18^th January, 1968.
The plaintiff did not do anything to claim his title to the property
for more than thirty years until the 1st of July,
1998 when he was
appointed the executor and authorised to administer the estate of his
late father. (See Annexure "A").
I find it very strange
that for thirty years after the death of his father the plaintiff
just lay low and did nothing to have himself
appointed as the
executor of the deceased estate. In the mean time on the 22^nd
May, 1984 'Mamileng Mosethi Anna Mokhutle was granted a lease over
the same property now in dispute. The lease was granted in terms
of
section 29 of The Land Act 1979. The lease was registered under No.
13283-232 in the Deeds Registry under the Deeds Registry Act
1967.
Section 29 reads as follows:

"29. (1) Whenever a person to whom section 28(1) or
(3) applies is desirous of granting or creating any interest in the
land
held by him or whenever section 30 or 31 applies to that person,
he shall apply to the Commissioner for the issue of a lease and
shall
produce with his application: -

(a) evidence that he is qualified to hold land under
section 6;

13

2. 
   a description of the boundaries of the land in question
   (by reference to a plan or otherwise); and

   
   

3. 
   any one of the following documents: -

   
   

(i) a registered certificate of title issued by the
Registrar of Deeds under the Deeds Registry Act 1967;

(ii) a registered deed of transfer or a certified copy
thereof if the registered deed is lost;

(iv)
an affidavit by the Chief or other proper authority

that the applicant lawfully uses or occupies the land;

(v) an affidavit by three persons resident for over 30
years in the locality in which the land is situated to the effect
that it
is to their personal knowledge

14

that
the applicant and his predecessors have been occupying and using the
land for a period of at least 30 years.

(va) a certificate of verification of title issued by
the Commissioner or an Allocating Authority in the form "CC2"
as prescribed
in the Third Schedule."

(vi) any other official document evidencing that the
applicant is in lawful occupation of the land.

(2) Where, upon examination of the documents produced
under subsection (1), the Commissioner is satisfied of the bona fides
of the
applicant, he shall so inform the Minister and, shall cause a
lease to be prepared for issue to the applicant."

It seems to me that the Commissioner of Lands was
satisfied of the bona fides of 'Mamileng Mosethe Anna Mokhutle that
she was entitled
to the grant of a lease for the property in
question. She must have produced some of the documents prescribed in
section 29. If she
had failed to produce the necessary

15 documents no lease would have been issued. The
plaintiff in the present case has made no attempt to obtain those
documents from
the Deeds Registry but merely speculates that those
documents must be false. That speculation does not disclose any cause
of action.

The second ground in support of the exception is that
there is no basis in law or in fact for the allegation in paragraph
13 that
'Mamileng Mosethe Anna Mokhutli could not have passed or
transferred any rights to the property simply because no executor has
allegedly
been appointed to administer her rights. Earlier in this
judgment I pointed out that in terms of section 8 (3), 28, 29 and 35
of
The Land Act 1979 there is no need for an appointment of an
executor when land has to be transferred to a person who has to
inherit
the estate of a deceased person. In other words there was no
need in law that an executor ought to have been appointed when
'Mamileng
Mosethe Anna Mokhutli died. After her death the property
was passed or transferred to one Adelina 'Mantebaleng Mokhutle who
entered
into a sublease agreement with the first defendant. In that
sublease agreement it is alleged that she holds title to the
property.

The plaintiff confesses that he could not establish
whether third defendant registered a deed of lease in respect of the
property
in favour of 'Mantebaleng

16

Adelinah Mokhutle, but in the event this being so, it is
alleged that, having regard

to the allegations set out above, third defendant could
not have registered such a lease as there were no grounds or iusta
causa for
and in favour of 'Mantebaleng Adelinah Mokhutle to obtain
any rights to the relevant property. This is again mere speculation
because
in the sublease it is stated that 'Mantebaleng Adelinah
Mokhutle held title to the property. Although it is not stated what
kind
of title she held it can be reasonably assumed that it must have
been a lease in terms of section 28(1) of The Land Act 1979.

For the reasons stated above the exception is upheld.
The action is dismissed with costs.

J.L. KHEOLA
CHIEF JUSTICE

7th February, 2000.

For Applicant - Mr Sello
For Respondent - Mr
Wessels