C of A
read by Rmodibedi A.J.
LIMITED & OTHERS
in this matter is the same appellant as in case No. 30/1998.
father died intestate intestate in 1969. Appellant was appointed
executor in 1998. His father owned a property.
action instituted in the High Court appellant alleged in his
particulars of claim that first respondent is in possession of
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
an order setting aside the lease in favour of Mantebelang and
ejecting 1st respondent. He sought further declaratory orders
effect that the property was an asset in his late father's estate.
exception to the particulars of claim was upheld by Kheola CJ.
Appellant appealed against the judgment of Kheola CJ.
upholding the exception Kheola CJ. found that the law of succession
was governed by section 8(2) of the Land Act. As the deceased
long before the Land Act was passed in 1992, that Act did not govern
the succession to the deceased's estate.
counsel sought to argue that the particulars of claim did not contain
an averment that the Administration of Estates
to this estate. However, in view of the fact that the Master of the
High Court states in the
of Administration issued to appellant and annexed to the particulars
of claim that he is appointing appellant in terms of
Proclamation, the maxim omnia praesumnitur rite asse acta applied.
Accordingly there was a sufficient allegation that the estate
governed by the Proclamation.
judgment prepared by my brother Friedman with which my brother
Gauntlett and I concur, the appeal is upheld and the court a
order is altered to read: "The exception is dismissed with
C of A
(CIV) No.15 of 2000
COURT OF APPEAL OF LESOTHO
ELISITSOE KHOMO MOKHUTLE N.O APPELLANT
LIMITED 1st RESPONDENT
COMMISSIONER OF LANDS AND SURVEY 2nd RESPONDENT
OF DEEDS 3rd RESPONDENT
ATTORNEY; GENERAL 4th RESPONDENT
JOYCE TSEPPE 5th RESPONDENT
an appeal against the judgment of Kheola CJ upholding an exception
and fifth respondents to appellant's particulars of claim. The
relevant averments in the particulars of claim are as follows:
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).
deceased died intestate. On 1 July 1998 appellant was appointed as
executor of the deceased's estate under letters of appointment
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).
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.
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
Survey and/ or the Registrar of Deeds to issue and register the said
The exact nature of the said false and/or incorrect "facts"
and/or documents which were submitted to [the said officials]
order to convince them to grant the said rights and register the said
lease are not at this time known to [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
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
September 1996 after the death of the late Mafikeng, Mantebaleng
Adelinah Mokhutle (Mantebaleng) entered into a written agreement
sublease in respect of the property with first respondent (MJM (Pty)
Ltd). On 20 March 1997 the Commissioner of Lands and Survey
to the transaction. On 2 June 1997 the Registrar of Deeds registered
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.
died in 1997 and, as far as appellant could establish, no executor
has been appointed to her estate. Mamalia Joyce Tseppe
respondent) claims to be her heir.
Mantebaleng could not have transferred any rights in the property to
first respondent, the so called sublease on which first
relies and in terms whereof it occupies the major portion of the
property, is unlawful or flawed and should be declared
null and void.
relief claimed by appellant in his capacity as executor of the
deceased's estate is as follows:
order setting aside or alternatively deleting from the records the
deed of lease in favour of Mantebaleng and any subsequent
granting rights in and to the
property to Mantebaleng.
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
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.
order ejecting first respondent from the property.
against the respondents who oppose the action.
exception was taken to the particulars of claim on behalf of first
on the ground that the particulars of claim do not disclose a cause
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
35(3) of the Land Act provides that -
the event of a lessee dying intestate -
the lessee qualifies thereunder the disposition of his estate shall
be governed by the written law relating to succession;
the lessee does not qualify under paragraph (a), section 8(2) and
(3) shall apply......"
deceased died in 1969. In terms of section 28 of the Land Act, the
estate of the deceased, not the deceased, became the lessee
property. The deceased died long before the Land Act came into
operation. It cannot be said that the estate, which had become
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.
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.
3(b) of the Administration of Estates Proclamation reads as follows:
This Proclamation shall not apply -
the estates of Africans which shall continue to be administered in
accordance with the prevailing African law and custom of
Territory: Provided that such law and custom shall not apply to the
estates of Africans who have been shown to the satisfaction of the
Master to have abandoned tribal custom and adopted a European
life, and who, if married, have married under European law."
support of the allegation in paragraph 1.3 of the Particulars of
Claim that he is suing in his capacity as duly appointed executor
the deceased's estate, appellant annexed a copy of the Letters of
Administration issued to him. The Letters of Administration
the Master of the High Court on 1 July 1998, state that they are
"Issued under sections 31 and 34 of the Administration
Estates Proclamation, 19 of 1935." The facts pleaded in
paragraph 1.3, read with the annexure, justify the application
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
purposes of deciding whether particulars of claim support a cause of
action the allegations contained therein must be accepted
can be led which can disclose a cause of action alleged in a
pleading, the pleading will only be excipiable on the basis
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.
the question of the applicability of the Administration of Estates
Proclamation and the validity of appellant's appointment
in terms thereof be disputed, evidence could be led on the issue. The
particulars of claim are therefore not excipiable
on this ground.
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
provides that "The grounds upon which the exception is founded
must be clearly and concisely
it is necessary to deal with a ground of exception not argued by Mr
Sello but which was relied on by the learned Chief
upholding the exception. In regard to the allegation in the
particulars of claim that the exact nature of the false
incorrect facts and/or documents which were submitted
Commissioner of Lands and/or the Registrar of Deeds in order to
convince them to grant rights to Mamileng, the learned Chief
"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......"
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."
respect, this is not the correct approach to adopt in deciding on the
excipiability or otherwise of a pleading. As indicated
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
Mamileng after false facts and/or documents were submitted to the
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
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."
at Maseru this 13th day of October 2000
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