Mokhutle NO v M.J.M. (Pty) Limited (CIV/T 323 of 98) [2000] LSCA 40 (2 February 2000)

CIV/T/323/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: R E T S ' E L I S I T S OE K H O MO M O K H U T LE N. O. P L A I N T I FF and M. J. M. ( P T Y) L I M I T ED T HE C O M M I S S I O N ER OF L A N DS A ND S U R V EY R E G I S T R AR OF D E E DS T HE A T T O R N EY G E N E R AL M A M A L IA J O Y CE T S E P PE 4TH 5TH 1ST 3RD D E F E N D A NT 2ND D E F E N D A NT D E F E N D A NT D E F E N D A NT D E F E N D A NT J U D G M E NT D e l i v e r ed by t he H o n o u r a b le C h i ef J u s t i ce M r. J u s t i ce J. L. K h e o la on t he 2 nd d ay of F e b r u a r y. 2 0 0 0. T h is is an e x c e p t i on by the first a nd fifth d e f e n d a n ts in t e r ms of R u le 29 of the H i gh C o u rt R u l es 1 9 80 to the s u m m o ns of the plaintiff. T he e x c e p t i on is b a s ed on the f o l l o w i ng g r o u n d s: "1.1 No basis in l aw or in fact is a d v a n c ed for the c l a im that a n n e x u re " D" w as "granted a nd issued u p on a nd after false and/or incorrect 'facts' and/or d o c u m e n ts w e re submitted to second and/or third defendants by the late ' M a m i l e ng Mosethi A na Mokhutli..." 1.2 T he allegation that the "... exact nature of the said false and/or incorrect 'facts' and/or documents.... are not k n o wn to plaintiff' clearly establishes the absence of any cause of action on the part of the plaintiff. 1.3 No basis in l aw or in fact has b e en a d v a n c ed in support of the allegations in paragraphs 12.3 a nd 12.4. 2. There is no basis in l aw or in fact for the allegation in paragraph 13 that ' M a m i l e ng M o s e t hi A n na M o k h u t li could not h a ve passed or transferred a ny rights to the property simply because no executor has allegedly b e en appointed to administer her estate. 3. There is no basis in l aw or in fact a d v a n c ed in support of the allegation in paragraph 14.3 that there w e re no g r o u n ds or iusta cause for a nd in favour of M a n t e b a l e ng Adelinah M o k h u t le to obtain any rights to the property in dispute a nd that 3rd defendant could not, in consequences, register a lease in her favour. 4. T h e re is no basis in law or in fact a d v a n c ed in support of the allegation in paragraphs 14.4 a nd 14.5 that because no executor has allegedly b e en appointed to administer her estate the late M a n t e b a l e ng Adelinah M o k h u t le could not h a ve passed or transferred any rights to the property in dispute a nd that the lease of the s a me to 1st defendant is unlawful or flawed. In his particulars of claim the plaintiff states that he is a citizen of Lesotho. His father is the late F r a nk M o e ti M o k h u t le w ho died on the 18th January, 1969. On the 19th J u ne 1 9 6 8, the third defendant duly registered a binding a nd proper certificate of title to o c c u py a nd certificate of registered title to i m m o v a b le property with reference n u m b er 5 6 01 A to a nd in favour of F r a nk M o e ti M o k h u t le (the deceased) in respect of certain i m m o v a b le properties situated a nd k n o wn a nd described as site n u m b e rs 36 a nd 37 Cathedral (Pitso A r e a) M a s e r u. It is c o m m on cause that on the 1st July, 1 9 98 the plaintiff w as appointed executor of the deceased estate of the late F r a nk M o e ti M o k h u t l e. T he plaintiff has stated that before his appointment as executor of his late father's estate no other executor w as ever appointed. He alleges that as the eldest s on of the late F r a nk M o e ti M o k h u t le he is the heir. He sues in his capacity as the executor a nd heir of the property in question. He alleges that b e c a u se no executor w as e v er appointed before his o wn a p p o i n t m e nt as such, the distribution of the d e c e a s ed estate could n e v er h a ve b e en d o ne properly. It is c o m m on cause that on the 22nd M a y, 1 9 84 the s e c o nd defendant issued a lease in t e r ms of the L a nd A ct of 1 9 7 9, in respect of the s a me property in favour of a certain ' M a m i l e ng M o s e t hi A n na M o k h u t l e. T he lease w as registered by third respondent as lease N O. 1 3 2 8 3 - 2 3 2. Plaintiff alleges that as far as he c an ascertain no executor h as b e en appointed to w i nd up the d e c e a s ed estate of ' M a m i l e ng M o s e t hi A n na M o k h u t le w ho died a f ew years a g o. T he plaintiff alleges that the said certificate of lease w as granted a nd issued u p on a nd after false and/or incorrect facts and/or d o c u m e n ts w e re submitted to s e c o nd and/or third defendants by the late ' M a m i l e ng M o s e t hi A n na M o k h u t le in order to m o ve a nd c o n v i n ce s e c o nd and/or third defendants to issue a nd register the said lease a g r e e m e nt in respect of the said property to the said ' M a m i l e ng M o s e t hi A n na M o k h u t l e. T he plaintiff alleges that the exact nature of the said false and/or incorrect facts and/or d o c u m e n ts w h i ch w e re submitted to s e c o nd and/or third defendants in order to c o n v i n ce t h em to grant the said rights a nd register the said lease are not at this time k n o wn to plaintiff. T h e re w e re c o n s e q u e n t ly no g r o u n ds or iusta c a u sa for a nd in favour of the late ' M a m i l e ng M o s e t hi A n na M o k h u t le to obtain a ny rights to the relevant property a nd the only lawful rights to the property vest in the estate of the deceased's estate a nd n o w, in the plaintiff in his capacity as executor of the deceased's estate. On the 27th S e p t e m b e r, 1 9 96 a nd after the death of ' M a m i l e ng M o s e t hi A n na M o k h u t le a certain ' M a n t e b a l e ng A d e l i n ah M o k h u t le entered into a written a g r e e m e nt of sublease with the first defendant in the present case in respect of the relevant property. S e c o nd defendant c o n s e n t ed to the a b o ve sublease on the 20th M a r c h, 1 9 97 whilst third defendant registered the sublease a g r e e m e nt on the 2nd J u n e, 1 9 97 u n d er registration N o . 2 5 3 5 4. In I n k in v. B o r e h o le Drillers, 1 9 49 (2) S. A. 3 66 ( A) 3 74 it w as held that "It is the duty of the C o u r t, w h en an exception is t a k en to a pleading, first to see if there is a point of l aw to be decided, w h i ch will dispose of the case in w h o le or in part. If there is not, then it m u st see if there is an embarrassment, w h i ch is real a nd such as cannot be m et by the asking of particulars, as the result of the faults in pleading to w h i ch exception is taken. A n d, unless the excipient c an satisfy the Court that there is such a point of l aw or such e m b a r r a s s m e n t, then the exception m u st be dismissed." M r. W e s s e ls submitted that the plaintiff has primarily sued in his capacity as executor in the deceased estate of his late father. It is his duty to take custody of the property of the deceased in respect w h e r e of he has b e en appointed a nd "the executor has the s a me a nd no greater right to repossession than the deceased himself had". D. M e y e r r o w i t z: T he L aw and Practice of Administration of Estate, 5th Edit., p. 108. He submitted that the plaintiff also has an interest a nd vested right in the relevant property. " T he position under our m o d em system of administering deceased estates is that w h en a testator bequeaths property to a legatee, the latter does not acquire the d o m i n i um in the property immediately on the death of the testator, but w h at he does acquire is a vested right to claim f r om the testator's executors' at s o me future date, delivery of the legacy, i.e. after confirmation of the liquidation a nd distribution account in the estate of the testator. If, for instance, i m m o v a b le property is bequeathed to a legatee, he acquires a vested right at the death of the testator but he does not acquire the d o m i n i um in that property until it is transferred to h im by the executor." S ee G r e e n b e rg a nd O t h e rs v. Estate G r e e n b e r g, 1 9 55 (3) S A 3 61 A . D. at 3 64 G. In A n k in v. B o r e h o le Drillers - supra - it w as held that "it is the duty of the Court, w h en an exception is taken to a pleading, first to see if there is a point of law to be decided w h i ch will dispose of the case in w h o le or in part." It is n ow pertinent to consider whether in the present case there is such a point of law. Section 3 5 ( 3) of T he L a nd A ct 1 9 79 provides that - In the event a lessee dying intestate - (b) w h e re the lessee qualifies thereunder the disposition of his estate shall be governed by the written law relating to succession; or (c) w h e re the lessee does not qualify under paragraph (a), section 8(2) a nd (3) shall apply as if he w e re an allottee a nd the C o m m i s s i o n er shall thereupon request the Registrar of D e e ds to endorse a ny registered lease or other registered d o c u m e nt of title accordingly." Section 8 (2) reads as follows: "(2) Notwithstanding subsection (1), w h e re an allottee of land dies, the interest of that allotted passes to, (a) w h e re there is a w i d ow - the w i d ow is given the s a me rights in relation to the land as her deceased h u s b a nd but in the case of re-marriage the land shall not f o rm part of any c o m m u n i ty property and, w h e re a w i d ow re-marries, on the w i d o w 's death, title shall pass to the person referred to in paragraph (c); (b) w h e re there is no w i d ow - a person designated by the deceased allottee; (c) w h e re paragraphs (a) and (b) do not apply - a person nominated as the heir of the deceased allottee by the surviving m e m b e rs of the deceased allottee's family;". Mr. W e s s e ls submitted that the plaintiff's claim is simple. He alleges that, since the deceased b e c a me the registered o w n er of the i m m o v a b le property, h ad been such at the time of his death and since no executor had been appointed for his estate, the rights w h i ch he had obtained a nd possessed at the time of his death, could not, lawfully, h a ve been passed to the relevant persons, in particular, ' M a m i l e ng M o s e t hi A n na M o k h u t l e; therefore and since the later d e ed w as issued, the later deed m u st h a ve been obtained, granted and issued u p on a nd after false and/or incorrect facts and/or d o c u m e n ts w e re submitted to second and/or third defendants. M r. W e s s e ls s e e ms to be under the impression that unless an executor is appointed i m m o v a b le property/land w h i ch forms part of a deceased estate, cannot be distributed or transferred. This perception is not in accordance with the law. Section 35 (3) of T he L a nd A ct 1979 m a k es it clear that if the lessee qualifies the disposition of his estate shall be governed by the written l aw relating to succession. T he law of succession appears in Section 8 (2) of T he L a nd A ct as stated above. U n d er Section 8 (2) (a) w h en the allottee dies the interest in the land passes to the w i d o w. In the present case we k n ow that the m o t h er of the plaintiff w as divorced before the deceased died. For that reason there w as no w i d ow w h en the deceased died. U n d er Section 8 (2) (b) it is provided that w h e re there is no w i d ow the land shall pass to a p e r s on designated by the d e c e a s ed allottee. T he plaintiff h as n ot m a de a ny p r o p er inquiries at the L aw Office to find out u n d er w h at circumstances the title to the property in question w as transferred to ' M a m i l e ng M o s e t he A n na M o k h u t l e. W as ' M a m i l e ng not designated by the late father of the plaintiff? S u ch information is readily available at the L aw Office ( D e e ds Registry Section). Section 8 (2) (c) provides that w h e re 8 (2)(a) a nd 8(2)(b) do not apply the property shall be transferred to a p e r s on n o m i n a t ed as heir of the d e c e a s ed allottee by the surviving m e m b e rs of the d e c e a s ed allottee's family. T h e re is no indication w h a t s o e v er that the plaintiff w as so n o m i n a t e d. It s e e ms to me that after the death of his father the plaintiff disinherited h i m s e lf or failed to claim his right for a b o ut thirty years. In 1 9 92 the L a nd A ct 1 9 79 w as a m e n d ed by O r d er N o. 6 of 92 w h i ch provides that w h e re there is a w i d ow the rights of the d e c e a s ed allottee pass to her, w h e re there is no w i d ow the rights pass to a person designated by the d e c e a s ed allottee. W h e re there is neither a w i d ow n or a person designated by the allottee the rights pass to a p e r s on n o m i n a t ed as the heir by the surviving m e m b e rs of the d e c e a s ed allottee's family. It is m o st probable that ' M a m i l e ng M o s e t hi A n na M o k h u t le w as so n o m i n a t e d. T he first g r o u nd for the exception is that " no basis in l aw or in fact is a d v a n c ed for the c l a im that A n n e x u re " D" w as granted a nd issued u p on a nd after false a n d / or incorrect facts and/or d o c u m e n ts w e re submitted to s e c o nd a n d / or third defendants by the late ' M a m i l e ng M o s e t hi A n na M o k h u t l i ." I h a ve already stated a b o ve that the availability of d o c u m e n ts supporting the issue or granting of A n n e x u re " D" is not a p r o b l em b e c a u se t h ey are k e pt by the L aw Office. T he plaintiff w o u ld h a ve no difficulty to obtain t h e m. He w o u ld not be speculating that false or incorrect d o c u m e n ts w e re s u b m i t t ed to s e c o nd and/or third defendants by ' M a m i l e ng before A n n e x u re " D" w as issued. T he question is w h e t h er w i t h o ut the production of s u ch d o c u m e n ts it c an be said that the plaintiff's particulars of claim disclose a c a u se of action. T he a n s w er is obviously in the negative. T h e se d o c u m e n ts f o rm the very basis of the plaintiff's c a se a nd w i t h o ut t h em it c a n n ot be said that his particulars of claim disclose a c a u se of action. He actually confesses that the exact nature of the said false a n d / or incorrect facts and/or d o c u m e n ts are not k n o wn to plaintiff. I agree that this clearly establishes the a b s e n ce of a ny c a u se of action on the part of the plaintiff. T h e re is s o m e t h i ng in this action w h i ch n e e ds an explanation but the plaintiff has decided not to give such an explanation. His father died on the 18th January, 1968. T he plaintiff did not do anything to claim his title to the property for m o re than thirty years until the 1st of July, 1 9 98 w h en he w as appointed the executor a nd authorised to administer the estate of his late father. (See A n n e x u re " A " ). I find it very strange that for thirty years after the death of his father the plaintiff just lay l ow a nd did nothing to have himself appointed as the executor of the deceased estate. In the m e an time on the 22nd M a y, 1 9 84 ' M a m i l e ng M o s e t hi A n na M o k h u t le w as granted a lease over the s a me property n ow in dispute. T he lease w as granted in terms of section 29 of T he L a nd A ct 1979. T he lease w as registered under N o. 1 3 2 8 3 - 2 32 in the D e e ds Registry under the D e e ds Registry A ct 1967. Section 29 reads as follows: "29. (1) W h e n e v er a person to w h om section 28(1) or (3) applies is desirous of granting or creating any interest in the land held by h im or w h e n e v er section 30 or 31 applies to that person, he shall apply to the C o m m i s s i o n er for the issue of a lease and shall produce with his application: - (a) evidence that he is qualified to hold land under section 6; (b) a description of the b o u n d a r i es of t he l a nd in question (by reference to a plan or o t h e r w i s e ); a nd (c) a ny o ne of the following d o c u m e n t s: - (i) a registered certificate of title issued by the Registrar of D e e ds u n d er the D e e ds Registry A ct 1 9 6 7; (ii) a registered d e ed of transfer or a certified c o py thereof if the registered d e ed is lost; (iv) an affidavit by the C h i ef or other p r o p er authority that the applicant lawfully uses or o c c u p i es the land; (v) an affidavit by three p e r s o ns resident for o v er 30 years in the locality in w h i ch the land is situated to the effect that it is to their personal k n o w l e d ge that the applicant a nd his predecessors h a ve b e en o c c u p y i ng a nd using the land for a period of at least 30 years. (va) a certificate of verification of title issued by the C o m m i s s i o n er or an Allocating Authority in the f o rm " C C 2" as prescribed in the T h i rd S c h e d u l e ." (vi) a ny other official d o c u m e nt evidencing that the applicant is in lawful occupation of the land. (2) W h e r e, u p on e x a m i n a t i on of the d o c u m e n ts p r o d u c ed u n d er subsection (1), the C o m m i s s i o n er is satisfied of the b o na fides of the applicant, he shall so inform the Minister a n d, shall cause a lease to be prepared for issue to the applicant." It s e e ms to me that the C o m m i s s i o n er of L a n ds w as satisfied of the b o na fides of ' M a m i l e ng M o s e t he A n na M o k h u t le that she w as entitled to the grant of a lease for the property in question. S he m u st h a ve p r o d u c ed s o me of the d o c u m e n ts prescribed in section 2 9. If she h ad failed to p r o d u ce the necessary d o c u m e n ts no lease w o u ld h a ve been issued. T he plaintiff in the present case has m a de no attempt to obtain those d o c u m e n ts from the D e e ds Registry but merely speculates that those d o c u m e n ts m u st be false. That speculation d o es not disclose any cause of action. T he second ground in support of the exception is that there is no basis in l aw or in fact for the allegation in paragraph 13 that ' M a m i l e ng M o s e t he A n na Mokhutli could not h a ve passed or transferred any rights to the property simply because no executor has allegedly been appointed to administer her rights. Earlier in this j u d g m e nt I pointed out that in terms of section 8 (3), 2 8, 29 a nd 35 of T he L a nd A ct 1 9 79 there is no need for an appointment of an executor w h en land has to be transferred to a person w ho has to inherit the estate of a deceased person. In other w o r ds there w as no need in l aw that an executor o u g ht to h a ve b e en appointed w h en ' M a m i l e ng M o s e t he A n na Mokhutli died. After her death the property w as passed or transferred to o ne Adelina 'Mantebaleng M o k h u t le w ho entered into a sublease agreement with the first defendant. In that sublease agreement it is alleged that she holds title to the property. T he plaintiff confesses that he could not establish w h e t h er third defendant registered a deed of lease in respect of the property in favour of 'Mantebaleng A d e l i n ah M o k h u t l e, b ut in the e v e nt this being s o, it is alleged that, h a v i ng regard to the allegations set out a b o v e, third d e f e n d a nt c o u ld not h a ve registered s u ch a lease as there w e re no g r o u n ds or iusta c a u sa for a nd in favour of ' M a n t e b a l e ng A d e l i n ah M o k h u t le to obtain a ny rights to the relevant property. T h is is again m e re speculation b e c a u se in the sublease it is stated that ' M a n t e b a l e ng A d e l i n ah M o k h u t le held title to the property. A l t h o u gh it is not stated w h at k i nd of title s he held it c an be reasonably a s s u m ed that it m u st h a ve b e en a lease in t e r ms of section 2 8 ( 1) of T he L a nd A ct 1 9 7 9. F or the reasons stated a b o ve the exception is u p h e l d. T he action is dismissed w i th costs. J. L. K H E O LA C H I EF J U S T I CE 7th February, 2000. - For Applicant For Respondent - Mr Sello Mr Wessels