HIGH COURT OF LESOTHO
natter of :
by the Hon. Mr. Justice M.P. Mofokeng on the 18th day of April, 1986.
an application for mandament van spolie.
Applicant seeks an Order in the following terms.
Respondent in his capacity as
the legal representative of Lesotho Government to restore forthwith
to Applicant House No. 604/C at Thaha-Bosiu staffing House
Applicant's property locked therein
the periods of notice required by the Rules of Court,
Respondent further and/or alternative relief, and that Applicant's
attached hereto will be used in support hereof.
founding affidavit , the Applicant avers that he was in peaceful and
undisturbed occupabion of House No. 604/C at Thaba-Bosiu
Housing near Lakeside Hotel Maseru Urban Area in the district of
Maseru until on or about the 7th April 1986 when Mochochoko
Letsoela of the Conservation Division of the Ministry of Agriculture
(who were acting with the scope of their employment with
wrongfully and unlawfully took part of his property and left the
other in the house.
they locked the door of the said house in such a way that he could
not gain access thereto. He proceeds to itemize the
were locked in the said house totally the value of M10,000,00 (Ten
Thousand Maloti). There was also a sum of M3.500.00
and Five Hundred Maloti only) in hard cash in the locked house in a
shelf of the headboard. He alleges that by
their action the two
Government officers mentioned have resorted to self-help or
spoliation which action in law is not allowed.
The notice required by
the Rules of this Court was dispersed with.
opposing this application the Respondent alleges that the two
Government officers were acting in accordance with law, that is
say Public Service Regulations 1985 (Legal Notice No. 136 of 1985).
It is denied that any money was taken from the said house.
It is not
denied that the said house was entered into in the absence of the
Applicant and the property removed prcSV^c-Vd to belong
to him and
the rest were left and locked inside the said house. On the 7th April
1986 Mochochoko alleges that he met Applicant
at their offices. At 5
p.m. he, Applicant and one Ramaqele (who has not made any affidavit)
proceeded to the house in order that
Applicant should point out his
property. They then left the house. One Marite was to be called to
identify property belonging to
one of the Government officers took what they were told was the
property of Applicant and put it outside. Prior to their
"repeated" notices to vacate the said premise. The
Applicant was finally
from the said house on the 7th April 1986 pursuant to the provisions
of "Legal Notice No. 71 of 1983 of the Public
No.3) Regulations 1983 sub-regulation "D" read together
with Regulation 65 of Public Service Regulations
1985 Legal Notice
No. 136 of 1985". Ho further alleges that the Applicant had been
given "sufficient written notice to
vacate and the procedure for
ejectment which followed the terms of the said legal notices."
Applicant's contention in quite a simple one, namely that when the
two officers took possession of the said property, they acted
according to the principles of self-help or committed an act of
spoliation. He was no longer,an officer in terms of the
section of the Public Service Commission Rules 1970
which merely says that an officer means a "Public Officer".
countered this contention by saying simply that the
Applicant's possession was not peaceful.
64(5) (b) says that a dismissed officer from Public Service shall
vacate his quarters with effect from the date of dismissal.
65(1) deals with procedure to be followed if the officer refuses to
vacate the premises.
sections are clear and unambiguous and must be applied. The question
is to whom? They are not of general application. They
apply to a
particular class of people namely officers in the government service
i.e. "Public Officer". Non-public officers
are not affected
by these regulations. To them the normal procedure which upholds the
rule of law must apply. In other words the
law must take its course. The principle of self-help is not
tolerated. The ordinary courts must hear an application if there
any interference with one's possession,even if it is alleged that his
possession is unlawful. It is for this reason that the
a property by a thief is protected against the whole world including
the owner of the said property. Ownership is
not considered where a
person has been dispossessed. Possession must first be restored to
the dispossessed person.
to annexures attached to the affidavit of Letsoela many "sufficient
written notices were written to the Applicant."
Annexure A1 was
written to the ' Applicant is dated 17th December 1984 where it is
alleged that Applicant had been dismissed from
the Public Service on
the 7th November 1984, and that he should vacate the said house. This
was one month and ten days after the
Applicant's dismissal. The
second letter was written to Applicant on the 23rd September 1985
asking the Applicant to vacate the
said house (Annexure A2). This is
ten (10) months after Applicant had been dismissed from the service.
It requested him to vacate
the house. The next letter was written on
29th November 1985 (Annexure A3). This is after a year and twelve
days after the dismissal
of the Applicant. The last letter was
written on the 4th April 1986 (Annexure A4).
must have been a reason for this inordinate dela The reason, in my
view, is that it must have been realised that the Applicant
ceased to be a public officer and hence not amenable to be dealt with
in terms of the law which
specifically meant to apply to public officers. The section under
which the Applicant was dealt with is vicious and oppresive.
ordinary rules of procedure is not to be followed. Certain class of
officers of the government are allowed to perform acts
which is totally denied by members of the general public. The
Applicant had ceased to be the public officer to whom
regulations are apply In that even, therefore, the two officers
resorted to self-help which they should not have since the
rules of procedure had now to be followed. The regulations are meant
to apply to public officers and to nobody else. However,
cause injustice to those to whom they apply, they have to be followed
by those effected by them. (Principal Immigration
Officer v Blnila,
1931 A.D. 323 at 336-7). These regulations have to be strictly
construed in favour of the person affected by
them. I have adopted
that approach in this Application.
is hereby granted as prayed with costs.
Applicant : Mr. Pheko
Respondent : Mr. Mpopo.
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