IN THE HIGH COURT OF LESOTHO
CIV/APN/680/2010
In the matter between:-
FAROOQ ISSA APPLICANT
AND
CONSTITUENCY COMMITTEE
BNP MAFETENG 1ST RESPONDENT
NATIONAL EXECUTIVE COMMITTEE
BASOTHO NATIONAL PARTY 2ND RESPONDENT
BASOTHO NATIONAL PARTY 3RD RESPONDENT
DR. ABDULLA SHOUMAN
t/a NAZARETH ENTERPRISES 4TH RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice M. Mahase
On the 15TH March, 2011
Civil Procedure – Land Act – Sublease agreement – Interdictory relief for an order of specific performance of a sublease agreement – Urgency – Sections 35 and 36 of the Land Act 1979.
The applicant in this matter is seeking an interdictory relief against the respondents.
Founding papers were filed in the registry of this Court on the 8th December 2010 and were subsequently served upon or at the B.N.P. head office on that same day. In fact, all the respondents were served with the said papers on that day the 8th December at their respective offices.
When, on the 10th December 2010 this application was moved, Messrs Teele K.C and Rafoneke appeared on behalf of the applicant and 1st and 3rd respondents respectively. There was then no appearance for the 4th respondent.
Counsel for applicant then moved Court to grant only prayer 1, relating to dispensation with the Rules of this Court pertaining to notice and service of process due to urgency of this matter. There being no opposition prayer 1 was granted and the Rule nisi was returnable on the 21st December 2010.
On the return day, appearances were the same except that Advocate Ntsatsi appeared in Court for the 4th respondent.
One must mention at this juncture that counsel for the applicant, then withdraw an application for amendment of prayer d. He had earlier on the 10th December indicated that he would apply for amendment of same. He tendered costs for such withdrawal. He also abandoned prayers (c) and (d) of the notice of motion.
All parties having filed heads of argument, the application; which is opposed by the respondents was argued on the merits, since by consent, counsel had agreed not to canvass the points raised in limine. It is apposite to outline in brief the factual background of this application.
It is common cause that during 1998 the applicant took occupation of site No. 07471-004 situated at Mafeteng urban area. Subsequently, he had the site developed. The development consists of a shop, an office and a brick wall.
He then sublet that property to the 4th respondent from October 1999 to date. The applicant’s nephew, whose name is Essau Issa was entrusted as an agent for the applicant to administer the premises and to collect rent from the 4th respondent’s land lord since 1999.
The arrangement and the sublease tenancy went well amongst the applicant, his nephew and the 4th respondent until in November 2010. These are all matters of common cause.
It was in or around November 2010 that, the third respondent, and without having consulted and or without the consent of the applicant, demanded and collected rental from the 4th respondent. This the 3rd respondent collected and received from the 4th respondent for the months of November and December 2010. This is also a matter of common cause.
It is the applicant’s averment that he had been allowed by the third respondent to occupy and develop the site in question. This, so is the applicant’s averment was an agreement between him and the 3rd respondent that applicant and 3rd respondent should swap sites which site the applicant had acquired from one Mr. Sefali.
I pause to note that it is not clear from the papers herein filed whether or not these are adjacent sites. This is, however not the issue in this application.
It was argued on behalf of the applicant that in fact there was an agreement between applicant and the third respondent that the applicant and the third respondent should swap or exchange sites. That the third respondent was then represented by two members of its then National Executive Committee; to wit Messrs Letsie and Lekhooana.
The agreement was that the applicant should occupy and develop the site in question for a specified period of five years. In other words, the applicant took occupation of and developed the site in question with the express written consent of the third respondent who was represented by the then erst while members of its National Executive Committee. The third respondent denies this. The allegation that Messrs Letsie and Lekhooana had no authority to bind the third respondent as they did to this agreement is a bare denial, unsupported by any former member of the third respondent’s National Executive Committee.
I pause to note that the applicant is not asking this Court to enforce the swap of the sites in question. All he is asking this Court for, is to prevent the respondents from resorting to unlawful acts of self-help in their quest to exercise what they say is their right over the site in question.
In other words, the applicant does not deny the existence of the agreement in question. He is merely saying that since he is not a trespasser over this site, and because he is a bona fide occupier of the site in question, then the respondents should be stopped by an order of Court from reclaiming at his expense that which the third respondent alleges belongs to it.
It has been argued on behalf of the third respondent that since that agreement for an exchange of sites lacks ministerial consent, it is null and void ab initio and as such it cannot be enforced by a Court of law. This the third respondent alleges even though he admits that it had knowledge that such an agreement was for a limited period of five years.
It is not the third respondent’s contention that even this limited agreement of a swap of sites is subject to the ministerial consent which it alleges should have been obtained prior to the execution of the swap. This Court has not been referred to, nor is it aware of any specific provision of the Land Act relied upon by the third respondent which requires such a consent for that kind of an agreement which is to be in force for a limited period of time.
Put conversely, this Court has not been specifically referred to any section or clause in the said Land Act which makes it a prerequisite condition that ministerial consent has to be obtained even in situations as in the obtaining land transaction in the instant application.
It has been argued on behalf of the third respondent that the applicant has, despite notice to vacate the site in question on the expiry of or after five years, the (applicant) refused to do so. The applicant denies that he was ever notified by the third respondent to vacate the site in question.
This Court declines to deal with the issue whether or not such a notice for applicant to vacate the site in question after the expiry of five years from the date when it took occupation of same was ever made. This issue should, in the view of this Court be canvassed at the anticipated trial which applicant will institute in order to proof its expenses brought about as a result of the developments he allegedly effected on the site in question.
This then brings me to the issue pertaining to the urgency of this application. The third respondent denies that there is urgency herein. He argues that the existence of that alleged urgency is self-created by the applicant.
It is the applicant’s argument that the urgency in this application is brought about by the sudden deprivation of him of his only means of livelihood. This so, the argument goes has been brought about by the unlawful self-help actions of the third respondent which he complains about in the instant application.
It is argued that applicant is suffering a huge economic loss as a result of the self help actions resorted to by the third respondent who is denying him a right to collect rental which accrues from the development of the site in question.
In other words, the applicant’s argument is that this continuing economic loss is the basis for the urgency of the application in question. Vide paragraph 6.1 of the applicant’s head of argument where it has been submitted that the continuing wrong committed against the right of the applicant is enough basis for urgency vide:
- ‘Malibuseng ‘Nona and Others v. Makhulong Multi Finance (PTY) LTD. and Others CIV/APN/270/2009 consolidated with CIV/APN/271/2009 and CIV/APN/272/2009.
- Sefika High School v. Maama Masupha CIV/APN/77/1992 (unreported).
The deponent to the third respondent’s application denies that the applicant is entitled to the interdict sought on urgent basis. The reason for and in support of the above allegation being that the applicant has failed to establish that he will suffer irreparable injury; and that he has a clear right to the site in question.
Reliance in support of this averment or allegation is placed upon the case of Setlogelo v. Setlogelo 1914 A.D. 221 at page 227 (page 10 of third respondent’s heads of argument)
- see also: Joubert÷ The law of South Africa, 2nd Edition, Volume 1, paragraph 397.
I observe that a further and proper reading of the passage quoted in support of the third respondent’s case, does not actually support the third respondent’s argument.
In fact, it has already been indicated above that the applicant’s right over the site in question is not open to doubt. It has not been denied by the third respondent that the applicant has derived a right over the site in question however, much limited, it is, from the then members of the National Executive Committee as well as the Mafeteng Constituency Committee of the first, second and third respondents.
To allege as the third respondent does that the applicant has no right at all and that as such he cannot be heard to say he is suffering irreparable injury for as long as this injury continues upon or against him is untenable and a distortion of the facts and circumstances which brought about the launching of this application against the respondents.
Even the contents of the third respondent’s paragraph 7.2 of its answering affidavit; and in which the meaning of the word/noun “injury” as described in the shorter Oxford Dictionary, support the applicant’s case. There it is stated that…
“the noun “injury” describes wrongful action or treatment; violation of another’s right; suffering or mischief intentionally inflicted”
There is no denying that in the circumstances of this application, there has been a continuing interference, infringement and or an invasion of the applicant’s right to the enjoyment of the benefits derived from the swap in question.
It is accordingly a considered view of this Court that due regard being had to the circumstances of this application and the attendant facts, the applicant has successfully established a clear right, however much limited it is, and which right requires protection of law.
It should further be stated that a distinction should be made to the effect that most of the cases herein cited and relied upon by the third respondent in support of its case deal with circumstances where the crux of the matter centered on the agreement or a transaction between a lessor and a lessee in the strict sense of the words. There is no doubt therefore that the ministerial consent, in such cases has to be obtained – see the case of Mothobi v. Sebotsa, C of A. (CIV) No. 3 of 2008 per Melunsky JA, where it was stated that:-
I underscore the words….
It is correct to hold, therefore, that a contract for the disposal of lease without the consent of the Minister is of no force or effect. Moreover this is the interpretation that has been given to these provisions in two decisions of this Court.
I now deal with the issue pertaining to the locus standi of the first to the second respondent.
It is a matter of common cause that annexure “D” was executed by and on behalf of the BNP constituency of Mafeteng district, while ex facie annexure “E” it clearly emanates from the second respondent, which is the decision making organ of the third respondent.
The third respondent has neither denied nor challenged the existence nor the authenticity of these documents/annexures. The third respondent through the deponent to the answering affidavit has not pleaded issuably to the existence and the authenticity of these annexures.
He only contents himself with stating that neither any of the former executive committee members of the third respondent therein named had given authority or consent to, the swap in question. This he alleges without being supported in anyway by any of the former Executive Committee of the third respondent. There is therefore no dispute of fact create din this regard – vide: Sechele v. Sechele C. of A. (CIV) No. 6 of 1988; also see: Roomhire Co v. Jeppe Street Mansions 1949 (3) S.A. 1155 at 1162.
The unsupported allegations in this regard are inadmissible hear say evidence which stand to be ignored. No evidential weight should be placed upon them. In the absence of anything to the contrary to disproof this fact, this Court has come to the unavoidable conclusion that the two organs of the third respondent; namely: the first and the second respondents have been correctly cited and sued in the instant application.
They, in fact have a direct substantial interest in the outcome of this application due to the fact that they all stand to benefit from the swap and the developments effected thereat, see paragraphs 2.1 and 2.2 of the founding affidavit.
None of the respondents have denied the above fact. This therefore has to be taken as having been an admitted fact. Vide: Plascon – Evans Paints (PTY) LTD. v. Van Riebeeck Paints 1984 (3) 623 at 634-5.
In fact, the third respondent is blowing hot and cold over the existence or not of the swap/agreement in question - refer- applicant’s heads of argument paragraph 3.2 and 3.3.
It is further a matter of common cause that it has since been held and settled in this jurisdiction specifically; that constituency committees have locus standi in judicio. Vide: Stadium Area Constituency No. 31 v. Molapo Qhobela and 18Others 1999 – 2001 LLR at 1019.
Also see: BCP v. Mosisili and Others CIV/APN/84/96 (unreported). See also the provisions of Rule 13 (10) of the High Court Rules in this regard.
It is unchallenged that the applicant exercised possession and control of the site in question through his tenant, - the fourth respondent. The legality of such an arrangement has not been gainsaid. In fact this is perfectly lawful – vide: - De Jager v. Harris No and the Master 1957 (1) S.A. 171 at 180 E – F.
It is the considered view of this Court, that in the circumstances of this Court, the status quo (ante) between the applicant and the fourth respondent should and must be preserved and maintained until such time that the third respondent has, through lawful means, regained possession and control of the site in question. Vide: Fletcher and Fletcher v. Bulawayo Waterworks LTD. 1915 A.D. 636 at 654.
See also De Jager v. Harris No (supra).
The other contentious issue raised and relied upon by the respondents in support of their case is that the applicant has failed to exhaust other available remedies before seeking recourse in a Court of law – vide Pietermarizburg City Council v. Local Road Transport Board 1959 (2) S.A. 758 (N) at 772 ( - 773 C).
- Francis v. Roberts 1973 (1) S.A. 507 CR, A.D. at 512 D – E.
- Masuku v. Minister Van Justicie an Andere 1990 (1) S.A. 832 at 840 J – 842 A.
While the legal principles therein in above cases are clear and the cases as cited in support of the respondents’ case, it is noted that in fact it is the respondents themselves who have violated the law by resorting to illegal, unlawful means of self-help in trying to regain possession of what they allege lawfully belongs to them. The principle therein in these cases does not support nor does it advance the respondents’ case any further.
On the contrary, it is the applicant who has acted in consonance with the law enunciated in these cases.
Last but not least, it has been submitted and argued on behalf of the respondents that the applicant has raised a new issue in reply, which step is irregular for reasons state at paragraph 10.1 of the respondents answering affidavit; page 14 thereof.
Be that as it may, the issue pertaining to the monetary value of the property in question is not the real reason why the applicant approached the court as it did. He approached the Court as he did in order to ask the Court to prevent the injury and harm which were committed upon him by the respondents unlawfully. This Court declines to deal with this issue of the value of this property in the instant application.
The issue pertaining to the monetary value of the property in question cannot be decided on application proceedings. It is trite that respondents must be clearly and fairly informed of the case they are to meet, so as to avoid one party being taken by surprise by the other party. Vide:
- Frazers Lesotho Limited v. Hatabutle (PTY) LTD 1999 – 2000 LLR – LB (LAC) p65 at p68.
- Maletothli Josephine Sekhonyana and Another v. Standard Bank of Lesotho LTD. 1999 LLR – LB (LAC) p416 at p420.
and
- Attorney General v. Michael Tekateka and Others C of A (CIV) No 7 of 2001; where it was stated that:
“It is trite that an applicant must make out his or her case in the founding affidavit and that a Court will not allow an applicant to make out a different case in reply or still less, in argument”.
Having made the above observations, and regard being had to the circumstances of this case, the applicant’s application is granted as prayed in the notice of motion, in terms of prayers 2 (a) and (b) with costs to the applicant.
M. Mahase
Judge
For Applicant - Advocate M.E Teele K.C with Adv. S. Ratau
For First up to third Respondent – Dr. K.E. Mosito K.C
For Fourth Respondent - Advocate M.J. Ntsatsi
