Taelo Kolisang V Thabiso Mahase & 4 Others. (C of A (CIV) 55/2019) [2025] LSCA 22 (2 May 2025)

# Taelo Kolisang V Thabiso Mahase & 4 Others. (C of A (CIV) 55/2019) [2025] LSCA 22 (2 May 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/22/eng@2025-05-02) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/22/eng@2025-05-02) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/22/eng@2025-05-02) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/22/eng@2025-05-02) [ __](mailto:?subject=Take a look at this document from LesLII: Taelo Kolisang V Thabiso Mahase & 4 …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/22/eng@2025-05-02) [ Download PDF (272.0 KB) ](/akn/ls/judgment/lsca/2025/22/eng@2025-05-02/source) Report a problem __ * Share * [ Download PDF (272.0 KB) ](/akn/ls/judgment/lsca/2025/22/eng@2025-05-02/source) * * * * * Report a problem __ ##### Taelo Kolisang V Thabiso Mahase & 4 Others. (C of A (CIV) 55/2019) [2025] LSCA 22 (2 May 2025) Copy citation * __Document detail * __Related documents Citation Taelo Kolisang V Thabiso Mahase & 4 Others. (C of A (CIV) 55/2019) [2025] LSCA 22 (2 May 2025) Copy Media Neutral Citation [2025] LSCA 22 Copy Hearing date 7 April 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) 55/2019 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Mathaba AJA](/judgments/all/?judges=Mathaba%20AJA) Judgment date 2 May 2025 Language English Summary ###### Flynote FLYNOTE Judgment — Interpretation of Court Orders — Functus Officio — Judicial finality practice — Final judgment — Whether Court may alter or clarify judgment after it has been delivered — Principle of functus officio — Whether clarification amounted to alteration of substance. Read full summary * * * Skip to document content ###### Flynote FLYNOTE Judgment — Interpretation of Court Orders — Functus Officio — Judicial finality practice — Final judgment — Whether Court may alter or clarify judgment after it has been delivered — Principle of functus officio — Whether clarification amounted to alteration of substance. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C of A (CIV)55/2019 In the matter between: TAELO MICHAEL KOLISANG APPELLANT AND THABISO VICTOR MAHASE 1ST RESPONDENT FILL THE GAP HEALING MINISTRIES 2ND RESPONDENT LAND ADMINISTRATION AUTHORITY 3RD RESPONDENT CHIEF HLATHE MAJARA (NO) 4TH RESPONDENT LESOTHO BANK IN LIQUIDATION 5TH RESPONDENT CORAM: MOSITO P MUSONDA, AJA MATHABA, AJA HEARD: 7 APRIL 2025 DELIVERED : 2 MAY 2025 2 FLYNOTE Judgment — Interpretation of Court Orders — Functus Officio — Judicial finality practice — Final judgment — Whether Court may alter or clarify judgment after it has been delivered — Principle of functus officio — Whether clarification amounted to alteration of substance. The applicant sought a clarification of paragraph (1) of a previous final order of the Court of Appeal, arguing ambiguity as to whether compensation should be based on the market value or cost of improvements on land he had developed. The previous order had been made following a finding that the land in question was unlawfully sold to the applicant by one without title. The Court, however, had allowed for compensation to the applicant for developments, offset by rental income earned. Held, dismissing the application: 1. A final judgment cannot be corrected, altered or supplemented once pronounced except in limited instances such as clerical or arithmetical errors — the court becomes functus officio; 2. The proposed deletion of the word “cost” from the phrase “evaluated price cost of the buildings” would amount to a substantive alteration of the judgment, converting the compensation basis from cost to market value; 3. Such alteration would undermine judicial comity by effectively overruling the findings of the High Court and extending relief to a party who did not approach the Court with clean hands; 4. The Court made only grammatical corrections to clarify rather than alter the judgment’s substance and remitted the matter to the High Court to determine compensation with assistance from quantity surveyors. Application dismissed. No order as to costs. 3 JUDGMENT MUSONDA AJA Introduction [1] This was an application to this Court seeking the following reliefs: The order of this honourable court granted on the 30th October 2020 in particular paragraph (1) thereof be clarified as to its meaning and application. The application was not opposed. [2] Background The applicant was the appellant in case NO C of A (CIV) 55/2019. Briefly the applicant bought land from one Lillian Mahase who did not have title. The land belonged to her son. The land was hypothecated to Standard Bank in liquidation. Despite the seller having no title to the land the Chief issued form C to the buyer (applicant herein) without demanding title from seller. The land belonged to the deceased child of the seller and the seller being a surety and co-principal debtor to the hypothecated land. Applicant in the court below being heir to the estate of deceased brother, after the High Court so declared him on 8th February 2001. The disputed land formed part of his deceased brothers’ estate. 4 [3] In the court below and in this Court Thabiso Victor Mahase was declared the lawful title holder to plot NO 13272-672 as heir to the estate of his brother Kelly Mahase. [4] The applicant had developed the land. There were commercial buildings built on the site. This Court therefore made the following order: (1) The applicant shall be compensated any amount exceeding the evaluated price cost of the buildings less than what he has earned in rentals, as he used as commercial buildings. [5] The court further ordered in (ii) The receivable from rentals of the buildings shall be set-off from the cost of improvements, the amount in debt to pay the other. The matter is remitted to the High Court to determine the amounts involved with the help of quantity surveyors, whose costs shall be borne by the parties equally. [6] The applicant is his founding affidavit avers that he has difficulty in understanding paragraph (i) of the order nor has his attorneys understood the order. His interpretation of the order is that: “compensation is the total value of land as developed, less rent collected” 5 While the respondent understanding is that: “applicant shall be compensated for development less value of land as under-developed and rental collected” [7] Mr Ndebele submitted that the only jurisdiction that a court has to make incidental or consequential corrections1 The position of the law was stated that: “In general, the court will not recall, vary or add to its own judgement once it has included a final adjudication on the merits”2 The court may correct a clerical, arithmetical or other error in its judgement or order, so as to give effect to its true intention. The exception is confined to the mere correction of an error in expressing the judgement order.. The court may correct a clerical, arithmetical or other error in its judgement or order so as to give effect to confined to the mere correction of an error in expressing the judgement or order, it does not extend to altering its intended sense or substance.3 1 Majalefa Rakomotsi v Sello Rakometsi C of A (CIV) No 54/2011 2 1977 (4) SA 798 (A) 306 3 Ibid p 307 6 [8] In West Rand Estates Ltd v New Zealand Insurance Co Ltd4, it was states that: “The court can, however, declare and interpret its own order or sentence and likewise correct the wording of it by substituting more accurate or intelligent language so long as the sense and substance of the sentence are in no way affected by such correction, for to interpret or correct is held not to be equivalent to altering or amending a definitive sentence once pronounced” [9] In SV Wells5, the principles were restated as follows: According to the strict approach a judicial official is functus officio upon having pronounced his judgment which is a sentential strich saris and as such incapable of alteration, correction, amendment or addition by him in any manner at all ------A variant of this strict approach permits a judicial officer to effect linguistic or other minor corrections to his pronounced judgement without changing the substance thereof. [10] Mr Ndebele prayed for the deletion of the word ‘cost’ in paragraph (i). It is going to read ‘evaluated price of the building. [11] The issue in this application is whether this court is competent to delete the word cost. 4 1926 AD 173 5 1990 (1) SA 816 7 [12] If the word ‘cost’ in paragraph (j) is removed, it is going to read, ‘evaluated price of the building, which is the market value. That will alter the original intention and substance. The court was influenced by the applicant's conduct, which the learned judge Sakoane J, as he then was,6 put thus: “Even the process followed in issuing 1st respondent Form C is legally suspect. There is no proof of an application for allocation of the site that was necessary in terms of Section 12 of the Land [Act No. 20 of 1973](/akn/ls/act/1973/20)” [13] To order market value compensation which will be the effect of removing the word cost, will be contrary to “Judicial Comity” as that will be undermining the judgement of a fellow judge and what is more we will be altering the judgment. [14] In both Lesotho and South Africa, the principal of functus officio generally prohibits judges from altering their judgements and upholds the integrity of the judicial process. In Safintra South Africa (Pty) Ltd v Prince7, the Eastern Cape High Court emphasized that a judge becomes functus officio after delivering a final order. Considerations of the application 6 Para 232 of Sakoane’s judgement dated (12th August 2019) 7 [2021] ZAECHHC 8 [15] The removal of the word ‘cost’ would substantially change the quantum from cost to market value, which was unintended as the applicant did not come to court with clean hands. The court cannot succor the applicant, who engaged in a shady land acquisition. Disposal [16] Application is refused, grammatical corrections are made in para 1, to read: (1) “The applicant shall be compensated in any amount not exceeding the evaluated price cost of the buildings less than what he has earned in rentals, as he used the buildings for commercial purposes”; (2) The parties to engage a quantity surveyor within thirty (30) days from the date of judgment. (3) The matter is remitted to the High Court to determine the amounts involved with the help of the quantity surveyors, whose fees shall be borne by the parties; and (4) There will be no order as to costs.” _________________________ P MUSONDA ACTING JUSTICE OF APPEAL 9 I agree _________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL I agree _______________________ AR MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLAN: ADV K. NDEBELE with ADV KELEPA FOR THE RESPONDENT: NO APPEARANCE #### __Related documents ▲ To the top >