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Letsie v Ntsekhe (C OF A (CIV) NO.27 OF 2009)

Media Neutral Citation: 
[2010] LSCA 15
Judgment Date: 
23 April, 2010

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IN THE COURT OF APPEAL OF LESOTHO

C OF A (CIV) NO.27 OF 2009

In the matter between:

‘MAMASUPHA LETSIE APPELLANT


and


NTHABELENG NTSEKHE RESPONDENT


Coram: RAMODIBEDI, P

SCOTT, JA

HOWIE, JA


Heard : 16 April 2010

Delivered: 23 April 2010


SUMMARY

Appeal against spoliation order. Merits of the dispute between parties as to ownership of property removed not an issue. Subordinate Courts Act does not exclude jurisdiction of High Court.


JUDGMENT


SCOTT, JA

[1] On 18 April 2009 the respondent sought and was granted ex parte a rule nisi in the High Court calling on the appellant to show cause why she should not be directed to restore all the property that she had removed from the respondent’s residence and why she should not be restrained from harassing the respondent in any manner or going to her premises or coming within five metres of her, and why she should not pay the costs of suit. The appellant filed answering affidavits and on the postponed return day the matter came before Mofolo J who confirmed the rule. The appellant appeals against that order.


[2] As appears from the appellant’s answering affidavit, it was common cause that on 8 April 2009 the appellant, accompanied by a number of helpers, went unannounced to the respondent’s flat and in her absence and without the consent of the respondent’s brother who was present in the flat at the time, removed a number of items including a lounge suite, a flat-screen television set, a persian rug and a desk-top and a lap-top computer. The appellant sought to justify her conduct on the basis that the property in question belonged to her late husband and was therefore hers. She said that her late husband, before his death, had lived with the respondent but was not married to her. She said, too, that the flat occupied by the respondent had been rented by her late husband.


[3] Whether or not the appellant is entitled to the property she removed is not the issue. Maybe in due course it will be established that she is. But what the respondent sought and what was granted was an order that the appellant restore the status quo ante prior to any inquiry into the merits of the dispute.


[4] The legal principle involved in matters of this kind are well established both in this country and in South Africa. More than 100 years ago Innes CJ in Nino Bonino v De Lange 1906 TS 120 at 122 expressed it thus:


It is a fundamental principle that no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the Court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.’


In the present case the respondent was in undisturbed possession of the property. The appellant took the law into her own hands by seizing and removing it without the consent of the respondent. She was not allowed to do so. If the appellant is indeed the owner of the property she must recover it by way of the ordinary legal process.


[5] In her answering affidavit, the appellant made it clear that if needs be she would return to the respondent’s home and ‘take that which belongs to me’. In these circumstances, the respondent was entitled in my view to the additional order that the appellant be restrained from coming on to her premises or otherwise harassing her.


[6] In his heads of argument, counsel for the appellant argued that the appellant denied that the property in question belonged to the respondent and pointed out that the respondent had not adduced evidence to rebut the assertion that the property was the appellant’s. He contended, too, that the respondent had failed to disclose all the relevant facts concerning the appellant’s claim to the property. However, counsel wisely did not persist in these contentions. Instead, he confined his argument to two technical points. The first was that the High Court had no jurisdiction to entertain the application. In support of this contention he referred to the provisions of s 18 (1) of the Subordinate Courts Act 9 of 1988 in terms of which jurisdiction to entertain mandamenten van spolie is conferred on a subordinate court. However, that jurisdiction is subject to the limits prescribed in the order. Those limits include the limits as to the values prescribed in s 17 (1) (b). There is nothing in the papers to suggest that the value of the property removed was less than those values. On the contrary, having regard to the nature of the items removed it seems likely that their total value would have exceeded the prescribed values. In any event, and even if they did not, the learned judge in the court below was entitled to assume jurisdiction in terms of s 6 (a) of the High Court Act 5 of 1978. It follows there is no merit in this contention.


[7] The second point was somewhat novel. Counsel contended that the affidavits filed on behalf of the respondent had to be disregarded as the commissioner of oaths who signed them, Adv. M.J. Makara, had an interest in the matter as she practised in the same set of chambers as counsel who appeared on behalf of the respondent. In this Court counsel for the respondent, who had also represented the respondent in the court below, assured us from the Bar that while she and Adv. Makara shared certain facilities and the expenses associated with such facilities, each practised on her own account and Adv. Makara accordingly had no interest in the matter. We accept this assurance and the point must therefore fail. It is worth noting, however, that the facts referred to in paragraph 2 above, and on which the respondent relied, were in any event confirmed by the appellant in her answering affidavits and therefore common cause.


[8] It follows that the appeal must fail. It was pointed out, however, that the appellant in her answering affidavit denied the allegation that the sum of M500 in cash had been removed from the respondent’s home. This dispute of fact cannot be resolved on the papers and the order of the court a quo must accordingly be read as not including that sum of money.


[9] The appeal is dismissed with costs and the order of the court a quo is confirmed, subject to the qualification referred to above.


D.G. SCOTT

JUSTICE OF APPEAL


I AGREE:

M.M. RAMODIBEDI

PRESIDENT OF THE COURT OF APPEAL


I AGREE:

C.T. HOWIE

JUSTICE OF APPEAL



Counsel for the appellant : E.T. Potsane

Counsel for the respondent : P.S. Makhera