IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/586/95
In the matter between:-
’MANTSITSA MOHAI (born Ntokoane) Plaintiff
And
TSEKO MOHAI Defendant
JUDGEMENT
Delivered by the Hon. Mr Justice T.E. Monapathi
on the 10th day of January 2011
1. The present claim is about division of the joint estate of the parties, who had been married in community of property, and have since been divorced on the 1st May 1998. The marriage was childless and the Defendant has since died while judgement was pending. Defendant died after separation of the parties which was since about 1978. Significantly a certain Mr Ntabejane testified for Plaintiff as valuer. His report spoke of eight (8) properties valued at M1,129,662.70 (exhibit “A”) Except that Mr Ntabejane was hotly tested in cross-examination to as to how he identified the properties, he was an impressive witness.
2. The parties have allegedly been alleged possessed of about six (6) properties the ownership of which is variously disputed. It was revealed that these included the residential house on a site at Upper Thamae in Maseru which had been the matrimonial home of the parties. Substantially this was not disputed except that the Defendant had contended that certain improvements were made while Plaintiff had been away, as after the divorce. It was noteworthy that the home was built during the subsistence of the marriage.
3. Secondly, was a business site at Borokhoaneng in Maseru District near Dion Enterprises. There the Defendant, who was a trained auto-electrician, ran such a business known as Mohai Auto Electrics.
4. Thirdly, that according to Plaintiff there was a huge commercial site of Borokhoaneng near ’Melesi off-sales. The property was used for running a business used for making of cement block bricks. Building sand was also sold on the premises. The ownership of this site and property was not denied by the Defendant similar to two previous ones I have just described.
5. There was a residential site owned by the Defendant’s mother ’Matseko Mohai at Botleng Ha Seoli Maseru District. This site the Defendant as contended by Plaintiff owned it surreptitiously. Defendant that his mother had acquired the site for herself. That she had been a hard working domestic worker in the Republic of South Africa throughout her adult life. She had only come back to Lesotho in 1973. She had thoroughly managed to pay for the upkeep and the education of the Defendant at Lerotholi Technical School. Incidentally except in exhibits “F”(matrimonial) and another for garage, if not conversely four (4) form “Cs” are in the name of the Defendant’s mother except for exhibit “E”. These are “L” “K” “J” and “I”. Exhibit “G” which was also produced by Defendant was a title deed registered in the name of Daniel Phololo Sehlabo.
6. In addition to four (4) other sites, as Plaintiff testified, the parties had also owned motor vehicles namely, a truck, a Peugeot, a Landrover and a BMW. There were also four(4) sheep which allegedly belonged to the family.
7. From the observation about the form “Cs” in the name of the Defendant’s mother as said before one could easily anticipate that these would be disputed or specifically Defendant would deny that firstly, that the parties owned a two (2) roomed flat at a site situated at Thabong in Maseru District referred to an exhibit “G”. Secondly, that the parties owned a two (2) roomed flat at Lifariking referred to am exhibit “I”. Thirdly, that the parties owned a commercial site at Khubetsoana referred to as exhibit “L”. That the parties owned a rented flat on a commercial site at Ha Seoli referred to an exhibit “K”.
8. Except that Defendant admitted evenly about the issue of the ownership of that matrimonial site and the garage site, all the properties were professed by Defendant as belonging to other people on one instance for a loan or some holding on behalf of some sort. That is why Plaintiff’s counsel submitted quite appositely that Defendant had not called his mother ‘Matseko Mohai to come and lead evidence in Defendant’s support because she would be discredited. This seemed to be a reasonable inference. And Defendant had not suggested that his mother was for any reason unable to come to court and assist him.
9. The essence of Plaintiff’s case is that that the said properties form part of the joint estate dispite that most or about six (6) were registered in the names of other people except the two namely the mentioned home and the garage site. As documents show one site belonged to one Sehlabo the other to one Mohapi Mokokoane and four to Defendant’s mother. This kind of registration according to Plaintiff was merely a trick to hide the real ownership, that is that of the Defendant. It stands to reason that the Plaintiff would be unable to prove by documentary evidence because they were kept by the Defendant.
10. The Defendant said the sheep were stolen a long time ago. As regards the vehicles that they were useless wrecks which no longer functioned. This is very probable.
11. It was indisputable that the sites held by many of Form C’s had been held in the names of Defendant’s mother and others were not registered at the Deeds Registry in accordance with lawful requirements and within the stated periods. This included the residential site at Ha Thamae. The question would be why would this mean that the sites that did not belong to the Defendant as much such as the Plaintiff, being part of the community. What are the probabilities?
12. Defendant having denied possession or ownership of all the sites except the matrimonial site and the garage site, went on to raise three (3) legal points during the proceedings. The first one was that Plaintiff was non-suited for having not sought the joinder of Sehlabo, in favour of whom title deed registered. One in favour of Mohapi Mokokoane (by Form C) and Defendant’s mother (in favour of whom about six (6) sites were registered). Defendant says the site belong to the threesome. But it is only as regards Sehlabo that the Defendant complaint as in that legal point raised.
13. The Second point raised by the Defendant was to submit that by virtue of failure to have the sites registered in terms of the Deeds Registry Act 1967, even if they belonged to the Defendant, that failure does not make the properly part of the joint estate. I have already posited that if they belong to Defendant they could as well have become part of the joint estate. So then is the fallacy of the argument.
14. The third point was whether the Plaintiff had proved her case as to whether the sites allegedly valuated on her behalf was the ones referred to by the Defendant. The point was not that PW2 Mr Ntabejane (valuer) referred to different and unknown sites. It was said regard had to be the fact that no “tenurial identification” of the sites allegedly evaluated was available to PW2. The difficulty with this argument is clear. It is that it was not suggested that the sites identified by PW2 were wrong or non existent. Most unfortunately for Defendant the witness was cross-examined at length. I formed the impression that he was honest and had gone about his report in the best possible way. He could not be faulted.
15. The fourth point raised by Defendant was that Plaintiff ought to have been non-suited. The reason was that a person holding any interest in land in Lesotho as an allotted has a direct and substantial interest in the outcome of the present proceedings. Thus the said Sehlabo (of the site with title deed) and Defendant’s mother (of sites with Form C’s) ought to have been joined as soon as the question of the nature of the interest was raised. It was the duty of the Plaintiff to apply for this joinder. I was referred to Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) 66. That this point puts the case to rest as submitted. I did not agree. Firstly, the issue arose during PW1’s evidence who could be believed prima facie joint on the basis that the site had been in possession of the Defendant. If that was doubtful or incorrect this was known and had been known to Defendant. This should have been raised or pleaded beforehand or otherwise those people i.e, Sehlabo and Defendant’s mother should have been called to testify. This is the reason why I would put the Defendant’s submission on this point to rest.
16. The fifth point raised by the Defendant has already been alluded to. Counsel has argued from this fact that the sites are situated in Maseru urban area. Since all the sites held by Defendant were under Form “C” save for one held by Sehlabo there were not registered by law. They were not properly registered as required by law. Those sites cannot therefore, by operation of law form part of joint estate between the parties. I was referred to section 15 (2) (4) of the Deeds Registry Act 1967 and Retšelisitsoe Molapo v Mohlerepe C of A (CIV) No. 11 of 2003. Defendant argued that it followed that the only site which Plaintiff could claim as falling within the joint state is that of Borokhoaneng as it is held by title deed. I have already said that the Defendant cannot speak of his rights by non-existent and by extension the Plaintiff having no interest in the property of the community. It is quite ironical.
17. I thought the Defendant should have a convincing reason why he has possession of each and every item of property that is in his possession. This could be done most easily by calling the people whose names the sites as registered. Otherwise that the sites belong to him as registered by others or in the name of other by subterfuge or trickery would remain demonstrated.
18. In conclusion I am satisfied that the following inferences can safely be drawn from the evidence.
18.1 Firstly, there is no question that the sites in terms of which Plaintiff gave evidence belong to the parties. That is why the Plaintiff and PW2 thoroughly and convincingly knew about this descriptions and the improvements thereon. If the sites belonged to other people Plaintiff would not have known about them or assumed that they did not belong to her ex-husband. It is also surprising that the Defendant had made no effort to disabuse the Plaintiff of any such assumption.
18.2 I agreed that the reason why Defendant failed to call his mother who should have borne the brunt to prove that the sites and property belonged to her in that the Defendant knew that his mother would not stand up to testify in claim that the sites belonged to her. She probably did not know any thing about how they were acquired.
18.3 That about four (4) sites had been developed into commercial sites made it very probable that it is the Defendant who developed and improved those as his own sites. The improbability that that is could not be the Defendant’s mother who owned let alone development of the sites is again demonstrated. This is not by way of denying that she was a hardworking domestic worker who carried the Defendant through his young life and schooling.
18.4 That the sites were registered in Defendant’s mother’s name must have been a kind of self protection on the part of the Defendant. Therefore in obtaining Form C’s in his mother’s name Defendant took no risk or guarded against the risk of losing the sites to any person (during his own lifetime) because since he was the only child of his mother no one (as Defendant believed) could lay claim to any site even after his mother’s death. Most interestingly the Form C’s have all along been in Defendant’s possession or custody.
18.5 There is no other inference except that even the site at Thabong in the name of Daniel Sehlabo also belonged to Defendant despite that title deed the possession of the site was with Defendant. He was the only one who could try to convince the court that the site belonged to someone else than the family. Tersely put it was only Sehlabo’s evidence which could swing the pendulum in favour of Sehlabo himself that the site belonged to him. Defendant had even gone to admit that he made improvements on the site. The admission ran like that Mr Mohai built (at Thabong) a two roomed house and a garage.
18.6 There is no way the Defendant is to be believed (other than believe his contradiction) that the site at Qoaling near Lethale’s and Seipobi’s plots (Annexure “H”) belonged to him. That site like others is part of the estate of the Plaintiff and Defendant.
18.7 Without challenging on the part of Defendant and having regard to the valver’s testimony it is to be believed that the value of the estate is a good One Million Two Hundred and Twenty Nine Thousand Six Hundred and Sixty Two Maloti and Seventy Lisente (M1, 229,662.70) as per valuation.
18.8 What again would appeared strange, and it did, was one site being developed by Defendant, it being rented for his employees because this was meant to enable him to recover costs. All this means that Defendant would scout for every reason to convince that the sites were not his except for mere occupation and possession. That then would be such a high number of those lends a lie to his contention.
18.9 Regarding one of the site it is interesting that the Form C exhibited as “H” shows the allottee as being one Mokokoane while alleged the site would remain with Simon Komane. Nowhere nor it is explained why the site would be in the hands of the Defendant as it has virtually or as a matter of fact been.
19. According I concluded that the Plaintiff has discharged the onus and has through her evidence showed that she and Defendant owned property spread over seven (7) commercial sites and one residential site. Plaintiff has also discharged the onus to prove that they had owned four (4) motor vehicles. I believed however those including the four 4 sheep cannot have survived the rigours of time. Alternatively no cogent of proof would trace them.
20. This property should be divided between Plaintiff and Defendant heir. Should Defendants heirs fail to offer Plaintiff property that mount to half of the joint state or should there be no settlement, a liquidator should be appointed to arrange the sale of the entire estate and that this proceed be divided between these parties. Or the parties can agree about a simpler division of the property.
21. There will be no order as to costs.
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T. E. Monapathi
Judge
For Plaintiff : Mrs Kotelo
For Defendants : Mr Mosito/Phafane
