Mojaki and Others v KEL Property Company (Pty) and Others (CIV/APN 476 of 93) [1994] LSCA 150 (28 September 1994)

CIV/APN/476/93 IN THE HIGH COURT OF LESOTHO In the matter of: LABANE MOJAKI 'MALABANE MOJAKI ALEXIS MOKOTJOMELA and K. E. L. PROPERTY COMPANY (PTY) MINISTER OF INTERIOR AND HOME AFFAIRS COMMISSIONER OF CHIEFTAINESS 'MANTOETSE PEETE CHIEF SEBILI HLAJOANE 'MAMERIAMA LEKOMOLA LandS RULING 1ST APPLICANT 2ND APPLICANT 3RD APPLICANT 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT Delivered by the Honourable Mr. Justice T. Monanathi Mr. T. Monapathi on the 28th September. 1994 I cannot pretend that I am not aware that the rule in this matter ought to be discharged with costs to the 1st Respondent. I will file my full reasons later on which will concern the questions of urgency, absence of clear right res judicata; the notice in terms of section 13(2) of the Land Act and Others. It may not be all of them. Most of the issues will not support confirmation of the rule. The clear reason that I have now springs from a concession that the Applicants have made at paragraphs 81 of the Applicants' Founding Affidavits at pages 8-9 (Labane Mojaki), at page 15 (of Malabane Mojaki) and at pages 24-25 of the record. They are all similar and they read as follows: "8.1 On or about 1992, First Respondent applied to the Magistrate's Court, Teyateyaneag requesting that I and the said other field owners be interdicted from ploughing or in anyway using same. On or about the 28th January 1993 judgment was entered in its favour and on ejectment order to that effect issued out of the same Court. This Order is still operative and I intend to have same reviewed as soon as I raise enough funds for prosecution of the same" (My underlining) Indeed it became common cause that on the 28th day of January 1993 the Plaintiff obtained an ejectment order against the Applicants before the Magistrate's Court of the District of Berea. (See KEL CO. PTY LTD vs ALEXIS MOKOTJOMELA & Four OTHERS cc 298/92) It is clear that in order to have or be possessed of a prima facie right in the circumstances the Appplicants shall first have to apply for review of the order of the magistrate and in a way to declare it irregular and unlawful. This is conditional or would be a basis the Applicants would be able to be effectively possessed of a prima facie right. In the absence of such a right the Court ought not to grant them the rule. (See CoalCor (Cape) (Pty) Ltd vs Boiler Efficiency Services cc 1990 (4) SA 349). It is also demonstrable, therefore, that it was against a balance of convenience to have allowed the Rule Nisi in the first place. This is so, when other aspects of the case which would have been brought to light are considered. This would have been made possible had the Applicants not proceeded ex carte on an urgent basis. The rule is discharged with costs. Full reasons will follow. T. MONAPATHI JUDGE