C of A (CIV) 15/2000
To be read by Rmodibedi A.J.
MOKHUTLE N.O.
v
MJM (PTY) LIMITED & OTHERS
Appellant in this matter is the same appellant as in case No. 30/1998.
His father died intestate intestate in 1969. Appellant was appointed executor in 1998. His father owned a property.
In an action instituted in the High Court appellant alleged in his particulars of claim that first respondent is in possession of the property in terms of a sub-lease granted to it by one Mantebelang. He alleged that Mantebelang had no right to the property and that the consent of the Commissioner of Land to a sub-lease in her favour must have been obtained on the basis of false information placed before him.
He sought an order setting aside the lease in favour of Mantebelang and ejecting 1st respondent. He sought further declaratory orders to the effect that the property was an asset in his late father's estate.
An exception to the particulars of claim was upheld by Kheola CJ. Appellant appealed against the judgment of Kheola CJ.
In upholding the exception Kheola CJ. found that the law of succession was governed by section 8(2) of the Land Act. As the deceased died long before the Land Act was passed in 1992, that Act did not govern the succession to the deceased's estate.
Respondent's counsel sought to argue that the particulars of claim did not contain an averment that the Administration of Estates Proclamation applied to this estate. However, in view of the fact that the Master of the High Court states in the
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Letters of Administration issued to appellant and annexed to the particulars of claim that he is appointing appellant in terms of the Proclamation, the maxim omnia praesumnitur rite asse acta applied. Accordingly there was a sufficient allegation that the estate was governed by the Proclamation.
In a judgment prepared by my brother Friedman with which my brother Gauntlett and I concur, the appeal is upheld and the court a quo 's order is altered to read: "The exception is dismissed with costs."
C of A (CIV) No.15 of 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
RETS' ELISITSOE KHOMO MOKHUTLE N.O APPELLANT
and
MJM (PTY) LIMITED 1st RESPONDENT
THE COMMISSIONER OF LANDS AND SURVEY 2nd RESPONDENT
REGISTRAR OF DEEDS 3rd RESPONDENT
THE ATTORNEY; GENERAL 4th RESPONDENT
MAMALIA JOYCE TSEPPE 5th RESPONDENT
Held at Maseru
Coram: Friedman, JA
Gauntlett,JA
Ramodibedi, JA
JUDGMENT
FRIEDMAN, JA
This is an appeal against the judgment of Kheola CJ upholding an exception
by first and fifth respondents to appellant's particulars of claim. The relevant averments in the particulars of claim are as follows:
Appellant, who is a citizen of Lesotho, is the eldest son of the late Frank Moeti Mokhutle (the deceased) who died on 18 January 1969. Prior to his death the deceased's marriage to appellant's mother had been dissolved. On 19 June 1968 third respondent (the Registrar of Deeds) registered a certificate of title to occupy and a certificate of registered title to immovable property to and in favour of the deceased in respect of the properties known and described as sites numbered 36 and 37 Cathedral (Pitso area), Maseru (the property).
The deceased died intestate. On 1 July 1998 appellant was appointed as executor of the deceased's estate under letters of appointment issued by the Master of the High Court. The estate has not been wound up and distributed. At the time of his death the deceased was the lawful occupant of the property and the terms and conditions of the aforesaid certificates were of full force and effect. In terms of the laws of Lesotho appellant is the deceased's heir. In his capacity as executor of the deceased's estate appellant is obliged and entitled to collect the property and to distribute the assets of the estate to the deceased's heir(s).
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On 22 May 1984 the Commissioner of Lands and Survey (second respondent) issued a lease in terms of the Land Act, 1979, in respect of the property in favour of one Mamileng Mosethi Anna Mokhutle (Mamileng). This lease was registered by the Registrar of Deeds. Mamileng died some years ago and as far as appellant is able to ascertain, no executor has as yet been appointed to her estate.
Appellant alleges that the lease in favour of Mamileng -
"was granted and issued upon and after false and/or incorrect "facts" and/or documents were submitted to the Commissioner
of Lands and Survey and/or the Registrar of Deeds by the late Mamileng in order to move and convince the Commissioner of Lands and Survey and/ or the Registrar of Deeds to issue and register the said lease......
The exact nature of the said false and/or incorrect "facts" and/or documents which were submitted to [the said officials] in order to convince them to grant the said rights and register the said lease are not at this time known to [appellant]."
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Appellant goes on to allege that-
"had the true facts and circumstances been known to the said officials no rights would have been granted to the late Mamileng...
and a deed of lease......would not have been registered. Therefore annexure "B" (the registered title in favour of the
deceased) would not have been superceded by the lease in favour of Mamileng."
Appellant avers that there were consequently no grounds or justa causa for and in favour of the late Mamileng to obtain any rights to the property. The rights to the property vest in the deceased's estate and in appellant in his capacity as executor. In the premises the late Mamileng could not have transferred any rights in the property to anyone.
On 27 September 1996 after the death of the late Mafikeng, Mantebaleng Adelinah Mokhutle (Mantebaleng) entered into a written agreement of sublease in respect of the property with first respondent (MJM (Pty) Ltd). On 20 March 1997 the Commissioner of Lands and Survey consented to the transaction. On 2 June 1997 the Registrar of Deeds registered the sublease.
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Appellant alleges that he could not establish whether the Registrar of Deeds registered a deed of lease in respect of the property in favour of Mantebaleng. However, there were no grounds or justa causa in favour of Mantebaleng entitling her to obtain any rights to the property.
Mantebaleng died in 1997 and, as far as appellant could establish, no executor has been appointed to her estate. Mamalia Joyce Tseppe (fifth respondent) claims to be her heir.
As Mantebaleng could not have transferred any rights in the property to first respondent, the so called sublease on which first respondent relies and in terms whereof it occupies the major portion of the property, is unlawful or flawed and should be declared null and void.
The relief claimed by appellant in his capacity as executor of the deceased's estate is as follows:
An order setting aside or alternatively deleting from the records the deed of lease in favour of Mantebaleng and any subsequent deeds granting rights in and to the
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property to Mantebaleng.
An order declaring that:
2.1 the registered certificate of title and registered title to the property in favour of the deceased to be of full force and effect.
2.2 The property to be an asset in the deceased's estate and vesting in appellant in his capacity as executor.
2.3 First respondent's claim to and occupation of the property to be unlawful and null and void.
An order ejecting first respondent from the property.
Costs against the respondents who oppose the action.
Ac exception was taken to the particulars of claim on behalf of first and fifth
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respondents on the ground that the particulars of claim do not disclose a cause of action.
Kheola CJ, in upholding the exception, stated that the law of succession appears in section 8(2) of the Land Act, No.17 of 1979. This is not correct. In terms of section 28 of the Land Act titles to land in urban areas (and the property, being situated in Maseru, is in an urban area) lawfully held by any person on the date of the commencement of the Act shall be converted into leases. In terms of this section the deceased estate's rights in respect of the property were converted into a lease between the State and the deceased's estate.
Section 35(3) of the Land Act provides that -
"In the event of a lessee dying intestate -
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......"
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The deceased died in 1969. In terms of section 28 of the Land Act, the estate of the deceased, not the deceased, became the lessee of the property. The deceased died long before the Land Act came into operation. It cannot be said that the estate, which had become the lessee, died. Section 35(3) accordingly has no application in the present case. Mr Sello, who appeared for respondents, correctly
conceded that this was so.
Mr Sello confined his argument to one point, namely that the particulars of claim failed to contain an allegation that the estate qualified to be administered in terms of the Administration of Estates Proclamation No.19 of 1935 and that appellant had accordingly failed to establish that he had been lawfully appointed as executor.
Section 3(b) of the Administration of Estates Proclamation reads as follows:
"3. This Proclamation shall not apply -
to the estates of Africans which shall continue to be administered in accordance with the prevailing African law and custom of the Territory: Provided that such law and custom shall not apply to the
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estates of Africans who have been shown to the satisfaction of the Master to have abandoned tribal custom and adopted a European mode of life, and who, if married, have married under European law."
In support of the allegation in paragraph 1.3 of the Particulars of Claim that he is suing in his capacity as duly appointed executor of the deceased's estate, appellant annexed a copy of the Letters of Administration issued to him. The Letters of Administration issued by the Master of the High Court on 1 July 1998, state that they are "Issued under sections 31 and 34 of the Administration of Estates Proclamation, 19 of 1935." The facts pleaded in paragraph 1.3, read with the annexure, justify the application of the presumption of regularity expressed in the maxim omnia praesumuntur rite esse acta. The fact that a public official such as the Master of the High Court issues Letters of Administration in terms of the Proclamation, gives rise, in my judgment, to a presumption that he has satisfied himself that the estate in question is one to which the Proclamation applies.
For the purposes of deciding whether particulars of claim support a cause of action the allegations contained therein must be accepted as correct. If
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evidence can be led which can disclose a cause of action alleged in a pleading, the pleading will only be excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action. See The Law of South Africa. First Reissue vol 3 Part 1 paragraph 186; Mc Kelvey v Cowan N O 1980(4)SA 525 (Z) at 526 D-E.
Should the question of the applicability of the Administration of Estates Proclamation and the validity of appellant's appointment as executor in terms thereof be disputed, evidence could be led on the issue. The particulars of claim are therefore not excipiable on this ground.
I should point out, in any event, that this point was not raised as a ground of exception. See Rule 29 (1) (b) of the High Court Rules which provides that "The grounds upon which the exception is founded must be clearly and concisely
stated."
Finally, it is necessary to deal with a ground of exception not argued by Mr Sello but which was relied on by the learned Chief Justice in upholding the exception. In regard to the allegation in the particulars of claim that the exact nature of the false and/or incorrect facts and/or documents which were submitted
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to the Commissioner of Lands and/or the Registrar of Deeds in order to convince them to grant rights to Mamileng, the learned Chief Justice stated:
"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......"
He went on to conclude:
"The question is whether without the production of such documents it can be said that the plaintiffs particulars of claim
disclose a cause of action. The answer is obviously in the negative."
With respect, this is not the correct approach to adopt in deciding on the excipiability or otherwise of a pleading. As indicated above the correctness of the allegations in the pleading in question has to be accepted and if evidence can be led on those allegations in order to establish a cause of action, the pleading will not be excipiable. The allegation in the particulars of claim that rights granted to Mamileng after false facts and/or documents were submitted to the officials
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concerned, is clearly a question on which evidence can be led. The fact that plaintiff states that "at this time" he does not know the nature of the alleged disinformation, cannot render the pleading excipiable.
The appeal is upheld with costs and the order of the court a quo is deleted and is substituted with the following:
"The exception is dismissed with costs."
G.Friedman
JUDGE OF APPEAL
I agree
J.J. Gauntlett
M.M. Ramodibedi
Delivered at Maseru this 13th day of October 2000
