Ntaote/Lebuso v Ntaote (CIV/APN/526/02 )

Case No: 
CIV/APN/526/02
Media Neutral Citation: 
[2003] LSHC 56
Judgment Date: 
13 May, 2003

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CIV/APN/526/02

IN THE HIGH COURT OF LESOTHO


In the matter between:

MABATAUNG NTAOTE/LEBUSO APPLICANT

AND

BATAUNG NTAOTE RESPONDENT


JUDGMENT


Delivered by the Honourable Mr Acting Justice T. Nomngcongo On the 13th day of May 2003


This application was brought on a certificate of urgency by applicant's attorney. The reasons for urgency are couched in the following terms:


  1. Respondent has taken over applicant's rental flats, applicant and the minor children are destitute. Applicant has already lost R32,000.00 as a result of Respondent's actions and she stands to loose more if respondent is not interdicted from taking her rent.


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The orders sought are:


  1. That a rule nisi be issued returnable on a date to be determined by this Honourable Court calling upon the respondent to show cause if any, why.


    1. The rules and modes of service of this Honourable Court shall not be dispensed with on the grounds of urgency.


    1. The respondent shall not be interdicted from collecting rent or in anyway interfering with applicant's rental flats situated at Naledi Ha Mabote pending finalization of this matter.


    1. The respondent shall not be ordered to vacate applicant's flats situated at Ha Mabote.


    1. The respondent shall not be ordered to pay costs of this application.


  1. That prayer 1 (a) and (b) shall operate immediately as an interim relief.


The applicant's attorney duly appeared before my brother Peete J. and obtained immediate interim relief in terms of prayer 2 of her notice of motion, no doubt on the declared urgency of the matter. The grounds for urgency are said to be the destitution of the applicant and her minor children, and the fact that the respondent has already made off with R32,000 and is


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destined to take more in rental collections from properties that she claims to be hers.


The facts of this case briefly are that applicant was married in community of property to the late father of the respondent who passed away in May 1999. She re-married the very following year, on the 1st September 2000. During the previous marriage to respondent's father two sites were acquired. These sites have been registered in the applicant's name. On one of these sites, the subject matter of this application, there is a number of flats which yield a sum of Rl,900 in rentals per month. It is from these flats that the applicant seeks an interdict from collecting rental and also ejectment. According to the applicant she had been collecting rent from these flats until May 2001 when she was chased away from the site by the Headman of Naledi Ha Setimela. In the meantime it appears that in April of that year an application had been launched by the present respondent against the applicant in which he sought inter alia, to interdict the applicant (respondent in that case) from "alienating and disposing of a five roomed house situated at Ha Mant'sebo and nineteen roomed flats situated at Naledi in the Maseru district pending realization of this application". (CIV/APN/14/2001)


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It would appear that some relief was granted because at par. 5.2 of his founding affidavit applicant says:


"I took the papers to Mr Monyako who explained to me that the papers interdicted me from collecting rent from the flats. He told me that he would file papers for me but that the best way to deal with the matter was to make a will".


The applicant says nothing further in her founding affidavit about the fate of this application which is for all intents and purposes in similar vein with prayer 1 (b) of her own notice of motion in the present case other than to make two embarrassingly vague observations. These are (1) at par. 6. 5:- "It was explained to me that the application papers were irregular in that Mr. Monyako appeared as the attorney for both the respondent and myself and this was not possible in law". (2) at par. 7.5 : " I did not come to court earlier because I was under the illusion that this Honourable Court had ordered that I do not take the rent".


Now, this equivocation, in my view amounts to non-disclosure on a material fact, for if this case has been decided for or against either party there would have been no need for these proceedings, or if not, it would still be pending in court with the same result that this court should not be seized with it. It is trite law that:


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" The utmost good faith must be observed by litigants making ex parte applications in placing material facts before the court, so much that if an order has been made upon an ex parte application and it appears that material facts have been kept back, whether wilfully and malafide or negligently, which might have influenced the decision of the court whether to make an order or not, the court has a discretion to set the order aside with costs on the ground of non-disclosure" (Herbstein & Van Winsen - The Civil Practice of the Supreme Court of South Africa: 4th Ed. and the authorities therein referred to.)


It is no answer for the applicant to say in her replying affidavit that the applicant has not prosecuted that application, if only for the reason that applicant stands of falls by his or her founding affidavit.


But that is not all. The applicant says her claim is based on the fact that the property or properties were registered in her own name and further that by virtue of the Land (amendment) Order 1992 Sec. 5 (a) amending the Principal Law (The Land Act 1979 Section 8). As to the first, applicant is treading on dangerous ground by relying on an apparent illegality to get re­dress from his court. Her registration of the property in her own name is in contravention of The Deeds Registry Act 1967 Section 14 (3) which reads:-


"(3) Subject to the provisions of sub-section (6) hereof, immovable property, bonds or other rights shall not be transferred or ceded to, or registered in the name of, a woman married in community of property,


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save where since property, bonds or other rights are by law or by a condition of a bequest or donation excluded from the community".


The fact of registration in her own name cannot in the circumstances come to her assistance.


As to the second (reliance on the Land (amendment) order, it is misconceived as the property in question is situated in an urban area as clearly appears on the lease documents. The amendment applies only to land in rural areas. The amended section 8 of the Principal act - The Land Act - falls under Part II of the Act. Section 7 of the Act reads.


"7. This part applies only to land in rural areas"


It might even be argued that it applies to land only as opposed to immovable property i.e. land with improvements thereon. But I say no further than I have, in this regard:

For an applicant for an interdict to succeed, he must, inter alia establish a clear right. In cases where an applicant seeks interim relief as in the present one obviously he/she must have & prima facie right. It has been said in this regard.


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"It has, up to now, been accepted that in order to establish & prima facie right entitling an applicant to an interim interdict, an applicant has to make out a case that he is entitled to final relief. If on the facts alleged by the applicant and the undisputed facts alleged by the respondent a court would not be able to grant final relief, the applicant has not established a prima facie right and is not entitled to interim protection". Per Streicher J. in Ferreira v Levin NO & Others; Vryenhoek & Others v Powell NO & Other 1995 (2) SA 813 (W) at 817 F-H.


On the facts of this case it would seem that the applicant is only entitled to succeed to the estate of her late husband ab intestato. She, having been married in community of property, would be entitled to her half share of the joint estate and of the residue, a child's share. She would not be entitled to the sole enjoyment of the whole estate as she would have this court order in her notice of motion. She would not therefore be entitled to final relief.


I cannot end this judgment before adding to the perennial lament of the courts of law of not only this jurisdiction but other jurisdictions as well regarding the wanton invocation of urgency where it does not exist. This is


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one such case. Litigation on the same subject started as long ago as April 2001. The very following month, May, the applicant was placed in exactly the same position as when she first approached court and life went on pretty much as usual including sending children to school in South Africa. Yet more than a year and half later, in November 2002, the very same circumstances suddenly produced an emergency. This cannot be. This is the more lamentable because these applications are brought under a certificate by legal practitioners who vouche for their urgency. It seems to me that these practitioners succumb to emotional pressures from their clients rather than be guided by professional considerations. I caution that in appropriate cases these practitioners risk being malcucted with costs de bonis propruis.


There was no urgency in this application. For this and the other reasons the rule nisi is discharged with costs.


T. NOMNGCONGO

ACTING JUDGE

13th May, 2003


Ms M Ramafole : For Applicant

Mr A.T. Monyako : For Respondent


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