R v Molise (C of A (CRI) 3 of 2001) [2002] LSCA 135 (11 October 2002)

CIV/APN/211/92 CIV/APN/83/99 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: ' M A M O R A P E LI M O N E T HI (nee Mokhele) A ND A P P L I C A NT C H I EF B O L O K OE M O T S ' O E NE T HE C O M M I S S I O N ER OF L A N DS M I N I S T ER OF I N T E R I OR ( L O C AL 3Rd G O V E N R M E N T) A T T O R N EY G E N E R AL A S H R AF H. O. A N W A RY 4th 5th 1s tR E S P O N D E NT 2nd R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT J U D G E M E NT Delivered by the Honourable M r s. Justice K. J. G u ni On the 13th D ay of February, 2002 T he applicant and the 1st respondent entered into a very simple and straightforward agreement. It is one of the very few terms of the said agreement that the applicant should develop at his o wn cost a nd expense the portion of site N0.49 H L O T SE L I S E M E N G. T he said site belongs to the 1st respondent. T he 1st respondent should in return for the development carried out on the site by the applicant, curve out a portion of the said site a nd transfer it to this applicant. According to their agreement the portion extending from the East side of the building w h i ch w as erected by this applicant to the end of the said side-where it borders P U LE R E S T U A R A NT A ND G E N E R AL D E A L ER forms that designated area of the site to be portioned off and transferred to this applicant. These w e re the entire terms of that agreement between the parties. T he building erected by the applicant on the 1st respondent's site in accordance with their agreement, w as in M a r ch 1992, valued at seventy-four thousands a nd t wo hundred maloti ( M 74 2 00.00). This building w as erected by the applicant on that portion of the 1st respondent's site-N0.49 H L O T SE L I S E M E NG which the 1st respondent wished to retain for his o wn use after dividing the site and giving the other portion to this applicant. T he valuation process and the a m o u nt arrived at, are not in any w ay effectively or satisfactorily challenged by the 1st respondent. It is h o w e v er averred in the answering affidavit of the 1st respondent that the structure erected on the site by the applicant in terms of their agreement is "shoddy". T he 1st respondent went no further than that bare allegation suggestive of the building being substandard or poorly m a d e, without showing h ow and in w h at w ay is the structure shoddy. No alternative valuation has been suggested by the 1st respondent. T he fact of the value of the building as at the time it w as m a d e, is therefore established. T he building of the business premises on the 1st respondent's site w as completed by the application in 1989. At about the s a me time, the 1st respondent initiated the application for the ministerial consent to sublet or transfer that designated portion of his site to this applicant in accordance with their agreement. F r om 1989 the applicant rented out the said business premises which he had erected on the 1st respondent's site. T he rentals of an a m o u nt of four hundred and fifty maloti M450.00 per m o n th were received a nd used by the applicant as set off against his costs a nd expenses of installing a nd connecting water and electricity to the premises. F r om February 1992, the rentals w e re received a nd used by the 1st respondent. T he instructions to pay rentals to the 1st respondent w e re given to the tenant by the 1st respondent's wife. T he building w as in fact the 1st respondent's property in terms of the parties agreement. T he 1st respondent's wife by giving the said instructions w h i ch have been followed a nd effected, in fact took control of the said building, indicating the 1st respondent's acceptance of the s a m e. It w as at this stage that although the 1st respondent h ad applied for, and perhaps m ay have succeeded in that application for a ministerial consent to transfer portion of his site to this applicant, he in fact did not effect the said transfer. T he dispute arose. T he dispute between the parties s e e m ed to have been m a de acute by the fact that the 1st respondent w as n ow receiving the rentals w h i ch this applicant h ad been happily receiving for a few years since 1989. There w as nothing tangible in this applicant's possession by w ay of a benefit intended by the parties in their agreement. For those few years w h en the applicant had been receiving the rentals the 1st respondent also had nothing to s h ow that the use of his site by this applicant will eventually benefit h im too. Their m u t u al trust seemed to gradually slipaway. According to the 1st respondent, he unilaterally cancelled the parties' agreement. He also proceeded to cancell the ministerial consent to transfer the designated portion to the applicant. T he reason for taking the above-mentioned steps according to the 1st respondent, is because he never agreed to transfer as he insisted that the applicant abided by the agreement (see paragraph 5 of the Answering Affidavit). W h at exactly he m e a nt by that remains a mystery because he w as receiving rentals from the building erected by the applicant. He continues to reap benefits from the applicant's performance of his obligations in terms of their agreement. There w as no evidence that he ever complained of n o ne compliance with the agreement to the applicant. In 1992 the applicant - J O HN T AU L E F U ME M O N E TH died. Prior to his death, he h ad approached this court by w ay of motion proceedings. This application w as filed on the 11th J u ne 1992. He sought an order of this court in the following terms:- 1. That the First Respondent be ordered to obtain ministerial consent for sub-division a nd transfer of the m a r k ed portion of his commercial site n u m b er 49 Lisemeng, Leribe District; 2. That the Third Respondent be ordered to consider the application in order to issue the said ministerial consent to the First Respondent; 3. That the Second Respondent be e m p o w e r ed to sign all documents for purposes of obtaining the said ministerial consent and transfer to the Applicant; 4. T he First Respondent pay costs hereof. Other Respondents pay costs only in the event of their opposition hereof. 5. Further and or alternative relief. Only the 1st respondent filed a N O T I CE OF I N T E N T I ON to Oppose the said application. T he other three respondents have not filed any papers. Their interests if any is to abide by the judgement of this court. No further papers w e re filed in this matter until seven years late - in 1999 w h en the 1st respondent filed the answering affidavit. According to the applicant in the replying affidavit, she w as substituted for her late husband in C I V / A P N / 8 3 / 99 unopposed. She further avers that after the filing of this application with this court, the 1st respondent indicated to her late husband that he w as prepared to settle the matter out of court by effecting the transfer as agreed. E v en after the death of J O HN T AU L E F U ME M O N E TH the deponent of the replying affidavit alleges that the 1st respondent still persisted to her that he w as going to settle the matter out of court by effecting the transfer of that portion as agreed. In 1993, w h en this matter between the parties w as already before this court but before the 1st respondent filed a ny opposing or answering affidavit, he proceeded to enter into another agreement to sublease the whole site (including that portion w h i ch he h ad designated for transfer to this applicant,) to M A H O M ED S A L IM K A R I M. In 1998 the 1st respondent w e nt further and entered into a contract of sale of the whole site with one A S H A R AF H U S S A IN O S M AN A N W A RY with the knowledge a nd consent of M A H O M ED S A L IM K A R I M. T he applicant w h en all these m a n o e u v r es w e re being carried w as never informed, consulted or her consent sought even though this application w as still pending before this court. M e a n w h i le the applicant w as being strung along with promises to settle the matter out of court but in terms of their agreement. T he attempt to reach out of court settlement w as unsuccessful. T he 1st respondent then filed an answering affidavit on the 16th N o v e m b er 1999 - seven years out of time, without the consent of the applicant or the leave of this court. Another answering affidavit by A S H R AF H U S S A IN O S M AN A N W A RY w as filed perhaps in N o v e m b er or D e c e m b er 1999. It w as also hopelessly out of time. He claims he w as allowed to intervene as a respondent by court order as is the case with the application for substitution of this applicant. There is no allegation that an application to join h im as a respondent w as m a de a nd granted. There is no citation given of any application for joinder. There are no particulars of the application that w as m a de to join him. T he facts of this case s h ow that he w as not involved in this matter w h en it first c a me to court in 1992. Be that as it m a y, he is n ow the 5th respondent. He further claims in his affidavit that the agreement between the applicant a nd 1st respondent fell through. He alleges, without proving the s a m e, that the applicant never complied with the terms of the contract. He claims again without proof that there w as no valid contract between the applicant and the 1st respondent. He further raises an issue of substitution of ' M A M O R A P E LI M O N E T HI for her late h u s b a nd J O HN T AU L E F U ME M O N E T H I. This is irrelevant. T he issue should h a ve been raised a nd dealt with in C I V / A P N / 8 3 / 99 w h i ch w as granted unopposed. Perhaps even at that stage the 5th respondent h ad not yet c o me into the picture. T he filing of opposing papers by h im took place at the end of 1999. At the hearing of this matter, the application to strike off the answering affidavit as an irregular process w as m a de from the bar, orally and argued. T he Rules of this court h a ve prescribed the procedure to be followed by parties in motion proceedings. H I GH C O U RT R U L E S, Legal Notice N0.9 of 1980; (Rule 8.(10) (a) (b) (c), provides as follows:- Any person opposing the grant of any order sought in the applicant's notice of motion shall: (a) Within the time stated in the said notice, give applicant notice in writing that he intends to oppose the application, and in such notice he must state an address within five kilometers of the office of the Registrar at which he will accept notice and service of all documents. (b) Within fourteen days of notifying the applicant of his intention to oppose the application deliver his answering affidavit (if any), together with any other documents he wishes to include; and (c) If he intends to raise any question without any answering affidavit, he shall deliver notice of his intention to do so, within the time aforesaid, setting forth such question. T he 1st respondent filed his A n s w e r i ng affidavit Seven (7) years after notifying the applicant of his intention to oppose the application. This application w as brought on Notice to all respondents. In terms of rule 8(10) H I GH Court Rules (Supra) A S H R AF H U S S A IN O S M AN A N W A RY should h a ve complied with the procedure set out in this rule... T he rule is applicable a nd binding to him. He is opposing the granting of an order sought by this applicant. That is w hy I underline these w o r ds " A ny person opposing the grant of a ny order sought in the applicant's Notice of Motion Shall''. It is therefore obligatory that these respondents w ho oppose the granting of the order sought by this applicant, should h a ve filed their answering affidavits within the period prescribed by the rules. W h en this application w as filed 5th respondent h ad not yet contracted to b uy the site in question. N o ne of these parties w ho have appeared before court in this matter have paid the necessary attention to the rules of this court. For an example rule 30(1) H i gh Court Rules (Supra) provides as follows :- (1) Where a party to any cause takes an irregular or improper proceedings or improper step any other party to such cause may within fourteen days of the taking of such step or proceeding apply to court to have it set aside: Provided that no party who has taken any further step in the cause with knowledge of the irregularity or impropriety shall entitled to make such application. (2) Application in terms of sub-rule (1) shall be on notice to all parties in the cause specifying particulars of the irregularity or impropriety involved. (3) If at the hearing of such application the court is of the opinion that the proceedings or step is irregular or improper, may set it aside in whole or part either as against all the parties or as against some of them, and grant leave to amend or make any such order as it deems fit, including any order as to costs. (4) Until a party has complied with any order of court made against him, he shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order. (5) Where a party fails to comply timeously with a request made or notice given pursuant to these Rules, the party making the request or giving the notice may notify the defaulting party that he intends after the lapse of seven days, to apply for an order that such request or notice be complied with, or that the claim or defence be struck out. Failing compliance within the seven days application may be made to court and the court may make such order thereon, as it deems fit. Without any formal application in terms of rule 30-(2) application to strike out as irregular the A n s w e r i ng affidavit in this matter, w as m a de from the bar at the hearing of this m a in application. This w as itself an irregular step a nd cannot be considered against the previous irregularity. By not taking an appropriate action at an appropriate time the applicant committed the s a me offence against the rules. W h at is the use for the kettle to call the pot black or vice versa. By filing the replying affidavit, the applicant condoned the irregularity. Thereafter, the matter w as set d o wn for hearing as if everything w as in order. It is therefore proper to dismiss that application to strike off the answering affidavit. T he proviso, in rule 30 (1) (Supra) disentitle the party from applying to strike off the irregular process, w h en by its o wn actions, such party has condoned an irregularity complained of. N o w, I h a ve to go into the merits of the m a in application. T he applicant's case s e e ms to be as follows: - First of all, there is an agreement between this applicant a nd the 1st respondent. A m o n g st the terms of the said agreement, is that the applicant w as obliged to develop the 1st respondent site on the portion that the 1st respondent w as going to retain for himself. T he undeveloped portion w a s, in terms of the agreement between the parties, to be cut off and transferred to this applicant. It is clearly s h o wn on the sketch plan m a de to a c c o m p a ny the application for issuing of a lease and transfer of the said designated portion to this applicant. (See A n n e x u re C to the founding affidavit). O n ce the applicant had developed the said portion, the 1st respondent w as obliged to transfer the undeveloped portion as indicated in the agreement a nd as sketched out on the plan. T he parties e m b a r k ed on the performance of their obligations in terms of the agreement round about 1989. T he applicant performed fully and the 1st respondent began to enjoy the fruits of their agreement from February 1992. Instead of effecting the transfer to the applicant of the undeveloped portion of the site as agreed, the 1st respondent claims in his affidavit that he cancelled the agreement a nd also the ministerial consent he had obtained pursuant to the agreement to transfer the s a me to this applicant. T he grounds for this u n b e c o m i ng behaviour have been pointed out earlier on - A n n e x u re C. T he 1st respondent's case s e e ms to be that there is no agreement between the parties. If there is an agreement it is vague a nd unenforceable. Should the court find otherwise, the 1st respondent have n ow committed himself to n ew a nd valid contracts by reason of w h i ch he will find it impossible to comply with the order to transfer the portion of his site as agreed. O ne of those individuals he has entered into n ew contracts with, is opposed to the granting of this application on the grounds that the w i d ow of late J O HN T AU L E F U ME M O N E T HI - is not his heiress and therefore not entitled to succeed after her late husband or inherit their estate. He further claims that he entered into a valid contract with the 1st respondent without k n o w i ng that the applicant had a ny right to that site. He avers he has put up a building worth well over a Million Maluti first of all, the question of whether or not the w i d ow of the applicant is entitled to be substituted should have been answered in CIV/APN/83/99. Neither the 1st respondent nor M r. A S H R AF H U S S A IN O S M AN A N W AY O P P O S ED the granting of that application for substitution of ' M A M O R A P E LI M O N E T HI for her late husband J o hn T au L e f u me Monethi. This M r. A. H. 0. A N W A RY believes that substitution of the applicant does not m a ke her the heir: T he relevant portion of the rule governing substitution reads as follows:-" (1) No proceedings shall terminate merely by reason of the death, marriage or change of status of any party thereto unless the cause of such proceedings is thereby extinguished. (2) Whenever by reason of death or any change of status becomes necessary or proper to introduce a further party in such proceedings either in addition to or in substitution for the party to whom such proceedings relate, any party to such proceedings may forthwith by notice to such further person and to every other party and to the registrar, add or substitute such further person to the proceedings, and subject to any order made under sub-rule (6) of the Rule, such proceedings shall thereupon continue in respect of the party thus added or substituted as if he had been a party from the commencement thereof. All steps validly take before such addition or substitution shall be of full force and effect". He m ay be right. T he question of w ho is the heir of the late J o hn T au L e f u me Monethi does not arise here. Definitely it does not fall for determination by this court in this application. T he land Act 1979 as a m e n d ed by the L a nd ( A m e n d m e n t) Order 1992, Section 5 subsection (2) in fact give the w i d ow the s a me right in relation to land as her deceased husband. T he question of w ho is the deceased's heir is not available as a defence against this applicant's claim. This applicant relied on the contract between the parties. T he onus of proving the terms of the said agreement between the applicant and the 1st respondent rests u p on the applicant. M . C. Williams V First Consolidate Holidings ( P T Y) Ltd 1982 (2) SA 1 (A). Applicant has A n n e x ed to his Founding Affidavit copies of the signed contract. Both parties signed the said contract in its completed form. Da Silva V Jonowski 1982 (3) SA 205 (A) . T he 1st respondent alleges that there w e re details, w h i ch were to be taken care of by their oral agreement. He has not proved any of those details. He is the one w ho claims that there w e re additions. T he onus rests u p on h im to establish his allegations. M r. A. H. O. A N W A RY on the one h a nd claims that the contract between the applicant and the 1st respondent fell through because applicant never complied with its terms. Almost in the s a me breath M r. A N W A RY alleges that without k n o w i ng that the applicant has any rights on the site in question, he entered into a contract with the 1st respondent. These averments bring M r. A N W A R 's b o na fides into question. He s e e ms to k n ow that there w as an agreement between the applicant and the 1st respondent. He even k n ew the terms of their agreement because he alleges that it fell through because applicant never complied with those terms. Did he satisfy himself with the correctness and truthfulness of the allegations he is m a k i n g? He m u st have. If he did not he w as reckless in m a k i ng the same. T he applicant has produced a signed agreement between the parties. This is the prove of the contract a nd its terms. (McWilliams V First Consolidated Holdings (Pty) Ltd (Supra). Contrary to the claims m a de by the respondents the applicant has produced before this court the signed d o c u m e n ts - as proof of their agreement a nd its terms. Therefore it is established that there w as an agreement w h o se terms are those contained in the d o c u m e n ts produced before this court. T he 1st respondent alleges that he cancelled that agreement for the breach of its terms. M e re allegation of the breach of the contract is not enough. There m u st be proof of the alleged breach. In addition the alleged breach m u st be proved to be material. N A R AN & Another v. P I L L AI N0.1974 (1) SA 283 (D). Alternatively there m u st be a cancellation clause w h o se provisions the 1st respondent m u st establish that he fully complied with in carrying out the alleged cancellation of the agreement. Venter V Venter 1949 (1) SA 768 (A) V an Zyl V R o s s o uw 1976 (1) SA 773 (NC). E v en though the 1st respondent is relying on the alleged cancellation of their agreement, he does not allege a nd prove that he gave the applicant Notice of this alleged cancellation for the breach of their agreement. It m u st be clearly spelled out in the 1st respondent's papers that unequivocal notice of the alleged cancellation of the agreement w as given to this applicant. S W A RT V V O S L OO 1965 (1) SA 100 A. M I L L ER a nd M I L L ER V D I C K I S N S ON 1971 (3) SA 5.81(A). T he applicant w as not given any notice of the alleged breach by the 1st respondent. On the contrary the 1st respondent's wife is alleged to have instructed the tenant w ho occupied the building constructed by this applicant on the 1st respondent's site, to deceased from paying rent to the applicant but to pay the s a me to the 1st respondent or herself. This, she m u st have done as the o w n er of the property. F r om February 1992 the rent w as being paid to the 1st respondent. This is not denied. T he applicant alleged that at no time, during the construction of the building or after its completion did the 1st respondent complain about the building as being a "shoddy structure". Accepting rentals from the tenant of the Boutique 1st respondent left no doubt in the applicant's m i nd that he accepts compliance with the terms of the agreement by the applicant. This clearly indicates his acceptance of the building. He cannot say he has not accepted it. Therefore it is only proper, that he also performs his obligations. As far as the claim for retention by M r. A N W A RY on the grounds that he has put up a building worth over (1) one million, there is no proof. If he put up the building on the grounds that the applicant has no rights on that site because the agreement between the applicant and the 1st respondent fell through , without satisfying himself about the correctness of the s a m e, he cannot be heard to claim any right on that basis. He took a deliberate and calculated risk. He k n ew that this application is pending before this court. He should have pursued and finalised the matter pending before this court before embarking on the alleged development. His actions w e re m a de to defeat the enforcement of the court order sought. He just cannot be heard to complain. But he is not totally with a remedy. He can sue the person w ho gave h im that incorrect believe and claim d a m a g es from him. He cannot use his alleged investment to deprive the applicant of her legitimate right on the site - J OY TO T HE W O R LD V. N EO M A L E F A NE C of A (CIV) N0.5 of 1996. It is not established whether or not the alleged improvements by this M R. A N W A R Y, are situated on the portion of the site designated for transfer to this applicant or not. If they are on the portion that the 1st respondent intended to retain for himself the matter does not concern this application. If the improvements are on the portion that w as to be transferred to this applicant parties m ay negotiate if there is proof that that portion of the site is enhanced in its value. T he burden of proving the e n h a n c e m e nt of the value a nd its extend rests u p on the respondents. This they have not proved. T he points in limine raised by the 1st respondent are also dismissed for the following reasons:- (a) T he alleged dispute of fact is nothing but m e re allegations. No fact in dispute has been put before this court. There is no disputed fact w h i ch cannot be resolved by this court, with proper consideration of all the evidence contained in the papers filed of record. (b) T he terms of the agreement on w h i ch this applicant relies are contained in the documents produced before this court. (c) T he question of whether or not the applicant w as involved in any kind of marriage does not arise or and/or fall for determination in this application. Therefore the application m u st succeed. It is granted as prayed with costs. K. J. G U NI J U D GE For applicant - For Respondent - K. K. M o h au T. Hlaoli & C o m p a ny 23