Lesotho Evangelical Church v Molaoa (CIV/T/305/89)

Case No: 
Media Neutral Citation: 
[2003] LSHC 29
Judgment Date: 
7 March, 2003




In the matter of :





Delivered by the Hon ML Lehohla, CJ. on the 07th day of March, 2003

This is regrettably a matter whose solution was delayed by a variety of reasons which resulted in its postponements time and again. The matter first attracted the attention of this Court on 1st November 1990. Then the Court noted subsequent dates and reasons for postponements.


On 1-11-1990 an interim order for contempt allegedly committed by the defendant's agent i.e. his wife was extended to 3-12-1990. The main trial was postponed to a date to be arranged with the Registrar.

On 31 -05-1994 the trial was postponed to 5-9-1994 because of a defect with the recording equipment.

On 5-9-94 the matter was postponed to 12-9-1994 for lack of appearance by either party.

The matter was set down for 30-10-1995 and postponed till 1 lth and 14th June 1996.

On 11-06-1996 Mr Matsau informed the court that Mrs Kotelo had obtained different dates of hearing i.e. 14th and 15th November 1996 because of her fear that the Judge might not be pleased with sitting on dates which offend against the rule on setting down of cases during the last week of term. This was notwithstanding that my notes reflected that I was prepared to condone the breach of that rule.


On 14th November 1996 the matter was postponed till 15th November 1996.

On 15th November 1996 it was agreed between the parties to withdraw the contempt proceedings.

It was agreed further that by virtue of the Counter-claim filed by the defendant challenging that a portion he claims as his was incorporated by mistake in the plaintiff's Form C and in turn the latter's title deed, the defendant should start first to present his case before court.

On 15-11-1996 matter was postponed to 5-12-1996.

On 5-12-1996 it was postponed to a date to be arranged with the Registrar.

On 6-9-2000 the matter was crowded out hence postponed to 30th October 2000.


On 24-11-2000 the matter could not proceed because Mrs Kotelo for the defendant had gone to attend a funeral in Swaziland. The matter was postponed to 8-12-2000. On that day it was postponed to 20-02-2002. Ultimately it was argued two weeks ago when judgment was reserved till today.

The plaintiff's summons sets out that it has instituted this matter praying for an order :

  1. Interdicting the defendant either personally or through his agents from interfering with the plaintiff's use and occupation of the plaintiff's school premises as held by the plaintiff under Title Deed number 7335 dated 17th September, 1968 at a school called Reisi Primary School situated at Reisi Ha Sekoala in the district of Mafeteng;

  1. That the Defendant should pay the costs of suit;

  1. That the plaintiff be granted such further or alternative relief that the Honourable Court may deem fit.


The Title Deed referred to in paragraph 1. above is attached to the plaintiff's papers.

On his part the defendant sets out in his Counter Claim that paragraphs 1,2 and 3 are incorporated in the Counter-Claim. I am not quite certain what paragraphs are being referred to in this connection.

However as indicated shortly above the defendant sets out that

  1. by mistake the Defendant's garden measuring 169 yards by 167 yards by 146 yards by 146 yards was incorporated into the plaintiff's Church and School site (unnumbered) at Reisi and he accordingly prays that the plaintiff's registered certificate title to occupy and certificate of Registered Title to immovable property be partially cancelled and amended to exclude the portion measuring 169 yards by 167 yards by 146 yards by 146 yards to which the defendant claims he has a right.

  2. he also claims costs of suit.


One outstanding defect in this Counter Claim is that it is flawed on grounds of non-joinder. The interested parties have not been cited; most significantly the Registrar of Deeds. Thus in the event the Counter-claim succeeds it would be embarrassing and most awkward to the Registrar of Deeds and land allocating authority including the Minister responsible to have an order resulting from a judgment obtained without their knowledge in proceedings carried out without their participation, executed against them. In all such instances our law provides that on that ground alone the party guilty of non-joinder loses the action which is thereby rendered non-suited. The reason for this being that all interested parties or parties with substantial interest in a law suit have to be joined in an action or proceedings where the relief sought might affect their interest. See C of A (CIV) NO14/98 Basutoland Congress Party & 2 ors Vs Director of Elections & 2 ors (unreported) at pages 6 and 23 respectively where the Lesotho Court of Appeal first said ".............we propose dealing with the matter more fully than would ordinarily occur in a matter such as the present which was brought so belatedly and without joining the other vitally interested political parties;" and finally concluded........... "In the first place appellants were not the only parties involved in the election. It is inconceivable that a Court could have


considered postponing the election without at least involving the other parties in these proceedings and giving them an opportunity to be heard. The appellants should therefore have been non-suited on this ground alone." (Emphasis mine)

It is worthy of mention that in the instant case this Court has taken the point of non-joinder of its own motion.

This Court is fortified in the correctness of the approach it has taken in this regard by two things. First, the contents of C.J. Classen's works in the Dictionary of Legal Words and Phrases Volume 2 E-M at page 289 where the learned Lexicographer says Amalgamated Engineering Union Vs Minister of Labour 1949 (3) SA 637 " is authority for the proposition that the point of non-joinder might and should be taken by the Court of its own motion, and even against the will of the parties, and even if the matter has already reached the stage of appeal." Next the Court of Appeal itself in Basutoland Congress Party and Ors above took this point mero motu.


I may just mention also that during the course of proceedings on 1-9-1998 the Court went to the disputed site to inspect it and the adjoining areas. The Court took down some notes and drew a diagram. In this exercise the Court relied on the sworn evidence of PW 2 Alina Phakisi for the plaintiff.

Following this exercise it can safely be said it is common cause that the place in dispute was rendered identifiable to the parties and indeed to the Court as reflected at page 10 of my handwritten notes as the portion simply marked Teacher's Yard bounded to the East by the Evangelist's yard along whose West border are some aloes and toilets appearing roughly around the middle of this boundary.

On the North side of the boundary to the Teacher's Yard (the Disputed area) is the Teacher's house 80 paces to the East of which is a Red brick house, North East of which and 100 yards from the upper portion of the Teacher's house is a Church. Directly South of this Church is an old stone house East of which is an old school directly North of which is a cement block school. About 200 metres East of these two schools and


North of the Eastern portion of the Evangelists' yard are Evangelists' toilets.

In opposition to the defendant's Counter-claim the plaintiff in its plea at pages 20-21 of the paginated record denies that the Defendant's plot measuring 169 x 167 x 146 x 146 yards or any dimension whatsoever was ever incorporated into the plaintiff's plot set out in the Form C and Title Deed. Plaintiff accordingly puts the defendant to the proof of his allegation.

In an endeavour to measure up to this challenge the defendant relied on and led his own evidence and that of his witness DW2 Mr Senna Albert Ntsohi. At the close of the evidence supporting the defendant's Counter­claim Miss Thabane for the defendant in reconvention applied for the absolution from the instance.

The central core of the defendant's evidence in support of his Counter­claim which in order to succeed places an onus of proof on him, is that when he grew up the site in dispute was used by the Church. He stated that it came to his attention later that this site originally belonged to his


ancestors. In support of this allegation he called on the 82 year old man DW2 who briefly stated that he lives at Masite Ha Ntsohi and that in his early life he attended school at Reisi Matekeleng up to standard IV before leaving to work at Gauteng as a young man.

He testified that he knew the yard in dispute. His source of knowledge of the ownership of this yard is what he heard his teacher Mr Samson Mathule say; further that as a punishment for breaching school rules he was made to plant aloes to prevent pigs destroying crops.

The upshot of DW2's evidence is that his relationship with this yard was that he worked in it as a student serving his punishment. In my view DW2's evidence does not advance the defendant's Counter-claim to any degree. DW1 himself in his effort to support his claim stated that he used the plot in question from 1967 till 1986. In his desparate effort to substantiate his claim to this land he merely mentions that the land allocating committee members at Reisi Matekeleng from 1964 to 1970 were:


  1. Mr Nthako Lepheta (Still alive)

  1. Mr Libete Majoro (Still alive)

  1. Mrs Mathabo Rasekoai (Since late)

  1. Mr Mathews Kotelo (Since late)

  1. Mrs Mamalabulabu Majoro (Still alive)

  2. Mrs Mathobetsi Kotelo (Still alive)

The point is that even though the defendant acknowledges that some of these land allocating committee members are still alive he made no effort to call any of them to at least say in what connection and under what colour of right to their knowledge the defendant was using this land as he claims. One may speculate that even if indeed he used this land that act alone could not prevail against the title bestowed on the plaintiff by the document that places its claim beyond dispute.

As it stands the highest watermark of the defendant's claim is based on two unsatisfactory pillars, namely hearsay and on his mere say so pitted against the solid evidence provided by the title deed in proof of ownership. Under such circumstances it would not be wrong to infer that the defendant failed to call any of the surviving members of the land allocating committee


because he must have known that none of them would testify in support of the veracity of his claim. See CIV/APN/338/91 Florio Vs The Minister of the Interior & Chieftainship Affairs and anor (unreported) at pg 10 to the following effect: "Furthermore the inference the applicant wishes to be drawn against Chief Mathealira's failure to testify for the respondents is in the circumstances of this case a double-edged sword that cuts both ways because similarly an inference can and should be drawn against the applicant that the said Chief Mathealira could not testify for the applicant if in the process he ran the risk of perjuring himself. In such circumstances the rule upholds the opposing party's contention".

I accept Miss Thabane's submission that the defendant's endeavours cannot stand against the requirement to produce a Form C as a prima facie proof of his claim or a 90 year lease as proof of his ownership. He bears the onus to do this. But in my view he has lamentably failed to discharge it.

It is not enough for purposes of a claim laid to a right in a case such as the defendant's to merely say the site belonged to his grandfather and supply the dimensions designating the site the existence of which is denied by the other party. The dimensions in these circumstances may suffer an additional blow


that they are flawed because in any case they are arbitrary thus making it unsafe to find in favour of the party relying on them for fear that doing so might tempt virtually anybody to approach court hoping by such unreliable means to gain advantage over legitimate title holders to land. In my view it would be imprudent to base an important aspect such as title to land ownership on so precarious a footing as counsel for the defence is advocating. I therefore am disinclined to that view and therefore must turn down the invitation to countenance it favourably.

In CIV/T/260/99 Masupha Vs Masupha (unreported) at pages 2 and 3 in dealing with an application for an absolution at the end of the plaintiff's case (for purposes of the instant matter read defendant-in-reconvention's

case for plaintiff's case) this court said "...................one of the most important factors to take into account when refusing an application for absolution is that there may be something that would strengthen the case for the plaintiff emanating from the defence side even if the court was wrong in finding that the plaintiff at the close of his case had established a prima facie case." However in the instant case it is patently clear to the court that the defendant has dismally failed to establish a prima facie case in support of his Counter-claim.


Miss Thabane in moving for the dismissal of the defendant's case sought reliance on CIV/77281/95 The standard Bank Vs E R Sekhonyana & 2 ors (unreported) at page 3 where a passage was extracted from the Superior Courts Practice (Service 4/1955) where H.J. Erasmus et al at Bl-292 in reference to Rule 39 of the Uniform Rules of Court in South Africa have this to say concerning applications for absolution from the instance at the close of the plaintiff's case:

" When absolution from the instance is sought at the close of the plaintiff's case the test to be applied is not whether the evidence established what would finally be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should, or ought to) find for the plaintiff." I am in respectful agreement with this invaluable exposition of the law.

It is the feature of the evidence for the defendant that no reliance can be placed on it to sustain the claim he is seeking to enforce if granted an order by this Court for the purpose.


Van Winsen et al in The Civil Practice of the Superior Courts In South Africa 3rd Ed atp. 462 make reference to Gascoyne Vs Paul and Hunter 1917 TPD p.170 and say [This case] "contains the following formulation : 'At the close of the case for the plaintiff, therefore, the question which arises for the consideration of the court is : Is there evidence upon which a reasonable man might find for the plaintiff?... The question therefore is, at the close of the case for the plaintiff, was there a prima facie case against the defendant, Hunter; in other words was there such evidence before the Court upon which a reasonable man might but not should give judgment against Hunter?' It follows from this that the court is enjoined to bring to bear on the question the judgment of a reasonable man, and Ms bound to speculate on the conclusion at which the reasonable man of [the court's] conception not should, but might or could arrive.........'.........."

The learned authors go on at pg.463 to say : (and this is important for the instant case)

"The principle enunciated in Gascoyne Vs Paul and Hunter has been repeatedly followed. Moreover, the principle is equally applicable to the case where the onus is on the defendant. If the court considers that a reasonable man might, on the evidence led by the defendant, find in his


favour, the court cannot enter judgment for the plaintiff before he has given evidence in rebuttal or closed his case."

The plaintiff has satisfied the above requirement in that it closed its case after the defendant had given his evidence which as 1 have earlier stated, was found wanting in the essential requirement to discharge the onus placed on him.

The counter claim is dismissed with costs. Judgment is entered for plaintiff as prayed in the main claim.

It is so ordered.


07 March, 2003