Roma Valley Co-operative Society v Malefane and Others (CIV/T 248 of 2012) [2012] LSHC 39 (2 August 2012)

IN THE HIGH COURT OF LESOTHO CIV/T/248/2012 HELD AT MASERU In the matter between: ROMA VALLEY CO-OPERATIVE SOCIETY Applicant And LESETELI MALEFANE OM INVESTMENT (PTY) LTD THE DIRECTOR OF LAND ADMINISTRATION AUTHORITY LAND ADMINISTRATION AUTHORITY REGISTRAR OF DEEDS ATTORNEY GENERAL THE BUILDING CONSTRUCTOR (Site No. 18333-136) 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent 7th Respondent Coram Date of Hearing Date of Judgement : : : JUDGEMENT Hon. Monapathi J 25th May, 2012 2nd August, 2012 SUMMARY An applicant will not be allowed to file a land disputes, whether in the form of an application in the High Court acting in its ordinary jurisdiction because the matter belongs to the Land Court as established in 2011. It is worse where the High Court in the Commercial Division had already made the pronouncement to that effect in the some dispute between the same parties. The Applicant did not have a clear right to the claimed site. Where about two (2) similar matters were pending in different courts, it was a clear abuse of process of court. [1] I have already dismissed this application with costs on the 25th May, 2012. [2] Mr. Metsing moved this application, which was filed on the 8th May 2012. He had moved for the following prayers; namely: “1……………………………………… 2……………………………………… a) That pending finalization of action already instituted in CIV/T/248/2012 in which inter alia an order for cancellation of Lease and Sub-lease in favour of Applicant is sought, the 2nd and 3rd Respondents be jointly and severally interdicted from proceeding with works on the site in dispute namely plot no. 18333-136; b) Pending the determination of an action already instituted Applicant against the Respondents, the First Respondent be interdicted from alienating, mortgaging or pledging plot no. 18333-136; c) Costs of this application; d) Further and or alternative relief; 3. That prayer 1 and 2 (a) operate with immediate effect as interim relief.” The application was opposed. Respondents were represented by Adv. Laubscher and Mr. Tšenoli. There were points raised in-limine. They were however argued together with other points. [3] But, first, it has to be recorded that land courts have been established to hear and determine disputes, actions and proceedings concerning land in terms of the Land Administration Act No. 8 of 2010. There is a superior land court which is a division of the High Court and there are also District Land Courts. [4] These points raised by Counsel were those of lack of jurisdiction, urgency and non-disclosure and were well argued. [5] Mr. Tšenoli for the First Respondent gave a very useful historical background. It was as follows: A certain case number CCT 24/2012 between the same parties as herein had been heard on the 27th March, 2012 by Acting Mr Justice Molete in the Commercial Division, who delivered his “ruling on the court’s jurisdiction”. The learned Judge decided in paragraph 15 of his judgement that: “(a) that this being a matter relating to title or ownership of land it ought to have been instituted in the Land Courts as this court has no jurisdiction.” (My emphasis) That there was this decision of the learned Judge was common cause. There was moreover no appeal against that decision. I did not see how I could look into or re- open the matter without being seen to be reviewing that decision by the Learned Judge. It was conceded that the prayer (a) sought before Molete AJ was similar to the prayer 2 (a) herein. I thought this was significant as will be clear later. [6] Secondly, as Mr. Tšenoli submitted, that as at present there is a matter CIV/T/245/2012, being a summons, filed on the 7th May, 2012 which is still pending. There is also a trial matter CCT 24/2012 pending before the Commercial Division. All in all there are two trial matters pending. If this is not a good example of abuse of court process is difficult to imagine what it is. The trial matter, including the application disposed of by Molete AJ, seem to have the same prayers as in the present one. This also was conceded. [6] While on his feet Mr. Metsing had argued as if his intention had been to deal with all his claims before the High Court working in its ordinary jurisdiction, when Counsel replied after addresses by Counsel for Respondents it was as if his intention has been to accept the advice and pronouncement of Molete AJ and to abide by its except that “he had given wrong guidance by the Registry staff”. He conceded that the right thing should have been to comply with Land Court Rules 8, 11 and 13. That is to file his claims before the Land Court. To me it appeared that he had made his mind to file the matter as that of the High Court working in its ordinary jurisdiction. It was accordingly difficult not to feel that his intention was, in reality, not to abide by the pronouncement of Molete AJ. Regrettably I did not find any good excuse for Counsel’s attitude. [8] While it was contended that there was no urgency proved herein by the Appllicant, I had thought that it was apparent that the matter was urgent. See Sikiwe v Mutual Fire and General Insurance 1977 (3) SA 435 at 4440 and Commander LDF and Another v Matela and Another 1995-99 LAC 799. A closer reading of the proceedings would disclose that in the CCT 24/2012, which is still pending, the Applicant had stated in an annexure, being a letter dated the 7th November 2011, addressed to the Chief of Qhobosheaneng Roma, that: “It (they) saw the excavator on the 1st November 2011 at the site of Roma Valley Co-Operative Thoteng Ha Sekautu and apparently it was leveling the ground. The Secretary of Roma Valley Co-operative went there where one Leseteli Malefane arrived and explained that the site is his.” The Applicant had not disclosed this in the present proceedings. While the “harm” could have been continuing there was just something about or consistent with the Applicant having acted not out of urgency. [9] Inasmuch as the Applicant had failed to disclose that he had instituted action proceedings in CC 24/2012 referred in paragraph 7 above, a good case for material non-disclosure has been made. See Lieta v Lieta C of A No 5 of 1987. I agreed with Respondents’ Counsel that such material non-disclose in application proceedings says a lot about the Applicant not being candid with the court and Applicant not being creditworthy. For that reason as well, the application ought to be dismissed. [10] I considered the question of title to this land, to which First Respondent had a registered lease and, for which as late as 1999 Applicants on the other hand made application for allocation had resulted in the matter becoming highly contentious by demonstration of the Applicant itself. The application for allocation was attached to the summons in CCT 24/2012. It is a matter in which the Applicant fails, accordingly, to show a clear right. [11] Looking at the above circumstances, in addition I was accordingly apprehensive that I would be attracted to decide, comment or offer opinion of matter of fact which remained largely to be determined in the pending trials if the court has jurisdiction (which I doubt) or the Land Court to which the disputes rightly belong. I decide that in any event, before this court, the Applicant has not demonstrated a clear right for the disputed land as Mr. Laubscher correctly submitted. [12] I thought the above reason should dispose of the matter [13] The application should fail. Costs are awarded to Respondents. ---------------------------- T. E. MONAPATHI JUDGE For Applicant For Respondent Judgment noted by Adv. Tšenoli : : Adv. Tšenoli Adv. Laubscher 7