Malefetsane Mafole V Majoalane Mafole & 3 Others (LC/APN/0005/2022ND) [2025] LSHC 252 (6 December 2025)

# Malefetsane Mafole V Majoalane Mafole & 3 Others (LC/APN/0005/2022ND) [2025] LSHC 252 (6 December 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/252/eng@2025-12-06) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/252/eng@2025-12-06) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/252/eng@2025-12-06) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/252/eng@2025-12-06) [ __](mailto:?subject=Take a look at this document from LesLII: Malefetsane Mafole V Majoalane Mafole & 3 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/252/eng@2025-12-06) [ Download PDF (392.9 KB) ](/akn/ls/judgment/lshc/2025/252/eng@2025-12-06/source) Report a problem __ * Share * [ Download PDF (392.9 KB) ](/akn/ls/judgment/lshc/2025/252/eng@2025-12-06/source) * * * * * Report a problem __ ##### Malefetsane Mafole V Majoalane Mafole & 3 Others (LC/APN/0005/2022ND) [2025] LSHC 252 (6 December 2025) Copy citation * __Document detail * __Related documents * __Citations 5 / - Citation Malefetsane Mafole V Majoalane Mafole & 3 Others (LC/APN/0005/2022ND) [2025] LSHC 252 (6 December 2025) Copy Media Neutral Citation [2025] LSHC 252 Copy Hearing date 1 December 2025 Court [High Court](/judgments/LSHC/) Court registry [Commercial Division](/judgments/LSHC/LSHC-commercial-division/) Case number LC/APN/0005/2022ND Judges [Dr. Shale J](/judgments/all/?judges=Dr.%20Shale%20J) Judgment date 6 December 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Arbitration and Alternate Dispute Resolution](/taxonomy/case-indexes/case-indexes-commercial-arbitration-and-alternate-dispute-resolution) * [Appeals](/taxonomy/case-indexes/case-indexes-commercial-arbitration-and-alternate-dispute-resolution-appeals) Summary Read full summary * * * Skip to document content **IN THE LAND COURT OF LESOTHO** **(NORTHERN DIVISION)** **HELD AT LERIBE****LC****/A/00****05****/202****2****ND** **In the matter between:** **MALEFETSANE MAFOLE****APP****E****L****L****ANT** **AND** **‘MAJOALANE MAFOLE************1 ST ****RESPONDENT** **MATSIETSO KHOELI (aka JOALANE MAFOLE)****2 ND RESPONDENT** **MATSOKU COMMUNITY COUNCIL****3 RD RESPONDENT** **LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY****4 TH RESPONDENT** Neutral citation: Malefetsane Mafole v ‘Majoalane Mafole & 3 Others[[2025] LSHC 336](/akn/ls/judgment/lshc/2025/336) LC/A/0005/2022ND (1 December 2025) **CORAM: DR I. SHALE J** **HEARD********:****6 th August****2025** **DELIVERED********:****1 December****2025** **_SUMMARY_** _Appeal against a District Land Court judgment in which relief not sought was granted_ _-__Appellant sought an interdict preventing ex-wife and_ _daughter_ _from interfering with property_ _which he inherited from his late parents post-divorce -____The district_ _Land_ _Court made an order dividing the property in question although such was not sought by any of the parties -__Court held that the trial magistrate misdirected himself_ _. Appeal upheld_ **ANNOTATIONS:** **_Cited Cases_** * _Nala Capital Advisors Pty (Ltd) and Another v Director of Public Prosecutions and Another_ C of A (CIV) 91/2022 [[2023] LSCA 1](/akn/ls/judgment/lsca/2023/1)(17 November 2023); * _Mosa Mosao and Another v Thabiso Mosao_ CIV/APN/0192/2024 [[2024] LSHC 20](/akn/ls/judgment/lshc/2024/20) (26 November 2024) * _Lemena v Mahomed and Others_ CIV/APN/423/1992 [[1994] LSCA 177](/akn/ls/judgment/lsca/1994/177) (2 December 1994) * _M_ _amabusane Mabusane v Moro Chambers & 4 others_ C of A(CIV) 65/2022 * _Mamokotjo Liboti v Mpoi Liboti_ C of A (CIV) No. 66/2019 * _Mantahli Jonathan V 'Masefaloane Jonathan_ (C of A (CIV) No 35/2024) [[2024] LSCA 29](/akn/ls/judgment/lsca/2024/29) (1 November 2024) * _Mophato-oa Morija v Lesotho Evangelical Church_ (2000-2004) LAC 354 * _Ramatlapeng v Jessie_ C of A (CIV) 15 of 2016 * _Setlogelo v Setlogelo_ 1914 AD 221 * _Shale v Shale_ C of A (CIV) 35 of 2019 [[2019] LSCA 45](/akn/ls/judgment/lsca/2019/45) (1 November 2019) **_Journal Articles_** * A Godwin ‘Non ultra petita’ (August 2024) _China Business Law Journal_ available on <https://law.asia> (accessed on 20 November 2025) **_Statutes_** Land Court Act 2010 Land Court Rules 2012 **JUDGMENT** **INTRODUCTION** [1] This is an appeal against the judgment of the District Land Court delivered by the learned Resident Magistrate Hlabanyane on 7 March 2022. The judgment dealt with an application instituted by the appellant, whose primary objective was to restrain the first and second respondents—his former wife and their daughter—from interfering with his rights in certain immovable property he claims to have inherited from his late parents. Instead of addressing the interdict application, the Magistrate proceeded to make extensive orders redistributing the fields and forestry plantations between the parties, directing the family to reallocate the estate, and confirming the first respondent’s occupation of the matrimonial home as ordered by the Local Court at the time of divorce. [2] The appellant contends that the learned Magistrate misconceived the nature of the application before him, and instead of determining the interdict, irregularly granted substantive and far-reaching relief not sought by any party. This, according to the appellant, constituted a serious misdirection which warrants interference by this Court. [3] The appellant sets out six grounds of appeal. Read holistically, they challenge the Magistrate’s failure to decide the interdict application and the granting of _ultra petita_ relief. The appellant now urges this Court to set aside the impugned judgment in its entirety and to substitute it with an order granting the interdict he originally sought. **BACKGROUND FACTS** [4] The essential facts are largely common cause. The appellant and the first respondent married by customary rites around 1977. Their marriage subsisted for several decades until it was dissolved by the Local Court in 2014. During the divorce proceedings, the Local Court ordered a division of the joint estate. The matrimonial home and its movable household contents were awarded to the first respondent. The appellant continued to reside at his parents’ homestead. Importantly, at this stage the appellant’s mother was still alive, and no inheritance had yet arisen. [5] In 2019, approximately five years post-divorce, the appellant’s mother passed on and according to appellant, the Mafole family appointed him heir to his late parents’ estate, which included the house, fields, and tree plantations (forests). These fields and forests were affected by the 4th Respondent’s (Lesotho Highlands Development Authority) project, entitling the appellant to compensation. [6] The appellant’s difficulties began when the first respondent, alleging that the landed property had been given to the couple jointly during the marriage, wrote to the 3rd and 4th respondents, asserting entitlement to compensation. She relied on alleged family arrangements during the marriage, even though no such arrangement had been documented, nor had such property been included in the 2014 division of the joint estate. The appellant regarded these representations as unlawful interference with his rights as heir, prompting him to seek an interdict from the District Land Court. **DISTRICT LAND COURT PROCEEDINGS** [7] The appellant lodged his interdict application on 4 August 2021. He sought a straightforward order restraining the first and second respondents from interfering with his rights in the fields and forestry plantations. [8] Despite service, none of the respondents filed answering papers. The first respondent initially appeared with legal representation and later appeared in person, but still without filing pleadings. The Magistrate exercised his discretion to permit her to participate orally and lead evidence notwithstanding the absence of a response. The propriety of that course is not the subject of this appeal. [9] The appellant led testimony from two witnesses, including evidence that the family had nominated him heir under the Land Act and that the disputed property was inherited after the divorce. The first respondent similarly led oral testimony from two witnesses who largely relied on alleged verbal gifts made decades earlier during the subsistence of the marriage. [10] After hearing the evidence, the Magistrate found that not all of the fields formed part of inheritance and declared annexure MM2, a family letter confirming the appellant as heir, invalid for lack of authorisation by the area chief. Without addressing whether the requirements for a final interdict had been satisfied, the Magistrate proceeded to divide the fields and forests between the parties and issued extensive directions concerning the reallocation of the estate. [11] It is this order, issued wholly outside the scope of the relief sought, that forms the subject of this appeal. The said order was couched as follows: Prayer 1 as it appears in the notice of motion is partially granted in the following manner: 1. Out of the three fields involved, two at Motsekuoa and one at Sekoting, the Applicant is to get the proceeds of the latter field while the 1st Respondent shall get the proceeds of the two fields at Motsekuoa 2. Similarly, regarding the three forests involved, the Applicant shall get the proceeds of two forests and the 1st Respondent to get proceeds of one. 3. The Applicant is interdicted from interfering with the 1st Respondent on the site of their matrimonial home where she was granted by the Lejone Local Court which for over 40 years while they were living together encompassed the original two plots into one. 4. The family of Mafole under the stewardship of elders such as RW2 to re-sit and accordingly allocate the estate of the later Mafole Mafole and ‘Mamahasele Mafole in the most fair and transparent way and leaving the properties which were previously allocated to other people by the late Mafole Mafole and ‘Mamahasele Mafole or those which do not belong to them. **GROUNDS OF APPEAL** [12] The grounds of appeal are as follows: 1. The learned Magistrate erred and/or misdirected himself in failing to grant or dismiss an interdict which had been sought by the Appellant. 2. The learned Magistrate erred and/or misdirected himself in purporting to divide a “joint estate” between the Appellant and the 1st Respondent, who are not even married. Regard must also be had that he did not even have jurisdiction to do so. 3. The learned Magistrate erred and/or misdirected himself in granting the order that none of the parties had sought. 4. The learned Magistrate erred and/or misdirected himself in holding that the author of annexure “MM2” is unknown. Regard must be had to the fact that the court a quo did not ask AW2-Mafole Mpo to disclose the name of the author. 5. The learned Magistrate erred and/or misdirected himself in granting the judgment which is ambiguous in that it did not even specify who between the Appellant and 1st Respondent should take which forest and why. Prayers (a) and (b) also are in conflict with prayer (d). 6. The Appellant asks this Honourable Court to set aside the court a quo’s judgment and/or to grant the Appellant the interdict he had sought. **ISSUES FOR DETERMINATION** [13] Two primary questions arise: a) Whether the learned Magistrate erred by granting relief that had not been sought (ultra petita); and b) Whether, on the evidence placed before the District Land Court, the appellant was entitled to the final interdict he sought. **LEGAL PRINCIPLES** **1\. Ultra Petita and Confinement to Pleadings** [14] It is foundational that judicial officers may only resolve the disputes placed before them by the parties and may not, on their own initiative, grant relief not pleaded or argued. The principle is encapsulated in the maxim _ultra petita non cognoscitur_ which is used in civil law. Although this principle is not expressly recognized in common law jurisdictions, the courts recognize similar principles in practice, in that a party cannot be granted a relief that has not been specifically sought in the pleadings; hence there are even restrictions as to amendment of pleadings.[1] [15] In **Mophato oa Morija v Lesotho Evangelical Church** , Grosskopf JA articulated the principle clearly, holding that even where a notice of motion contains a prayer for “further and/or alternative relief,” this cannot justify granting relief neither sought nor related to the case made out.[2] This Court has consistently reiterated the narrow and conservative scope of “further and/or alternative relief.”[3] [16] Likewise, in **Mamokotjo Liboti v Mpoi Liboti** , the Court of Appeal stressed that a judicial officer acts irregularly when they step outside the bounds of the dispute presented by the litigants. Parties are bound by their pleadings, and courts are similarly bound when determining the issues.[4] **2\. Interdicts** [17] The requirements for the grant of a final interdict are well settled: a) the existence of a clear right; b) an injury actually committed or a reasonable apprehension of imminent injury; and c) absence of an adequate alternative remedy. [18] These requirements were set out in **Setlogelo v Setlogelo** and have been endorsed repeatedly by this jurisdiction’s apex court, most recently in _‘_**Mantahli Jonathan v ‘Masefaloane Jonathan** wherein the court reiterated that an applicant for an interdict must demonstrate a clear and enforceable right and that such is likely to be infringed.[5] Lastly, the applicant must demonstrate that there is no other satisfactory remedy available. **3\. Inheritance Under the Land Act** [19] Sections 15 and 35 of the **Land Act 2010** govern inheritance of land. Section 15(3) sets out the procedure where an allottee dies intestate. Regulation 43 requires timely notification of the death and empowers the family to nominate an heir whose designation must be communicated to the allocating authority.[6] [19] In **Ramatlapeng v Jessie** , the Court of Appeal confirmed that the Land Act comprehensively regulates both testate and intestate succession to land.[7] Accordingly, any claim to land—especially in the context of compensation for compulsory acquisition—must be assessed through the lens of the Act. **4\. Procedural Fairness and Issues Raised Mero Motu** [20] A court may raise a legal issue _mero motu_ , but basic fairness requires that the parties be invited to address it. In **Retselisitsoe Molapo v Nkherepe Molefe,** the Court faulted a lower court for relying on a statutory provision never raised by the parties, without inviting their submissions.[8] Similarly, **Mamabusane Mabusane v Moro Chambers** reaffirmed that judicial intervention must never undermine the audi principle.[9] **ANALYSIS** **A. Whether the Magistrate Granted Relief Not Sought** [21] The record is clear: the appellant sought an interdict. He did not seek a redivision of the marital estate, nor did the first respondent counterapply for any relief. The District Land Court was thus seized solely with determining whether the appellant had established a basis for an interdict. [22] The Magistrate, however, declined to address that question. Instead, he issued orders that: * allocated specific fields and forests to each party, * reaffirmed the first respondent’s rights to the matrimonial home (an issue already settled in 2014), and * directed the appellant’s extended family to reconvene and reallocate the estate of the deceased. [23] None of these issues were before the Court. Neither party raised them in pleadings or evidence as relief sought. The orders materially altered the rights of the parties, extended beyond the dispute as framed, and constituted a substantial reconfiguration of property interests without jurisdiction or procedural basis. [24] Even if the Magistrate believed such orders were equitable, courts are not at liberty to craft remedies divorced from pleadings. The case of **Mophato oa Morija** is decisive: a prayer for “alternative relief” does not entitle a court to act outside the parties’ pleaded disputes. [25] This Court must therefore conclude, unequivocally, that the Magistrate acted _ultra petita_. This is a reviewable irregularity warranting appellate interference. **B. Whether the Appellant Established Entitlement to an Interdict** **(i) Clear Right** [26] The appellant’s case is that he inherited the disputed fields and forests from his late parents after the divorce. The first respondent’s case rests on an alleged verbal gift made during the marriage, but she produced no supporting documentation, nor was such property included in the 2014 division of the joint estate when the parties divorced. [27] It is significant that in 2014, when the joint estate was divided, the appellant’s mother was still alive. The property could not, as a matter of law, have been inherited at that time. The Local Court judgment dividing the joint estate contains no reference to the fields or forests now in dispute. [28] Under section 10 of the Land Act, spouses married in community of property may acquire joint title only where land is allocated or acquired in accordance with the Act. A verbal allocation without documentation is common particularly in the context of rural communal land. However, in _casu_ , there is no evidence that any joint allocation ever took place as such property was not included in the division of the joint estate in 2014. [29] What the evidence does show is that upon the death of appellant’s mother in 2019, the family nominated him as heir in accordance with section 15(3) of the Land Act. The family letter, MM2, though criticised by the Magistrate, was never challenged on procedural grounds by the respondents, and its validity was never canvassed with the parties as required by the _audi_ principle. [30] On the probabilities, the appellant established that he holds the clear right required for a final interdict. **(ii) Injury or Reasonable Apprehension of Harm** [31] Harm need not have materialised; a reasonable apprehension suffices. In this case, the first respondent wrote to LHDA asserting entitlement to compensation. These representations had tangible consequences: LHDA withheld final processing pending clarification. This constitutes clear interference with the appellant’s rights. [32] The first respondent had no court order, no documentary title, and no legal basis to assert such rights. Her conduct amounted to unlawful interference, establishing the second requirement for an interdict. **(iii) Absence of an Alternative Remedy** [33] The appellant had no adequate alternative remedy. The LHDA required certainty regarding the rightful beneficiary before issuing compensation. Without a court order, the appellant risked protracted suspension of compensation and ongoing interference. An interdict was therefore the only effective remedy. **CONCLUSION** [34] The Magistrate misdirected himself by granting relief wholly outside the scope of what was pleaded and by failing to determine the interdict application before him. The appellant established all the requirements for the grant of a final interdict. [35] The judgment of the District Land Court cannot stand and must be set aside. **ORDER** [36] In substitution for the order of the District Land Court, the following order is issued: a) The judgment of the learned Magistrate is set aside in its entirety. b) The appellant’s application for a final interdict is granted. c) There is no order as to costs. **___________________________** **Dr. I. Shale J** **Judge of the High Court** For Appellant: Mr. T Nteso * * * [1] A Godwin ‘Non ultra petita’ (August 2024) _China Business Law Journal_ available on <https://law.asia> (accessed on 20 November 2025) [2] _Mophato oa Morija v Lesotho Evangelical Church_ __(2000-2004) LAC 354 __ [3] _Nala Capital Advisors Pty (Ltd) and Another v Director of Public Prosecutions and Another_ C of A (CIV) 91/2022 [[2023] LSCA 1](/akn/ls/judgment/lsca/2023/1)(17 November 2023); see also _Lemena v Mahomed and Others_ CIV/APN/423/1992 [[1994] LSCA 177](/akn/ls/judgment/lsca/1994/177) (2 December 1994) [4] _Mamokotjo Liboti v Mpoi Liboti_ __ C of A (CIV) No. 66/2019 [5] _Mantahli Jonathan v ‘Masefaloane Jonathan_ __(C of A (CIV) No 35/2024) [[2024] LSCA 29](/akn/ls/judgment/lsca/2024/29) (1 November 2024) [6] Shale v Shale C of A (CIV) 35 of 2019 [[2019] LSCA 45](/akn/ls/judgment/lsca/2019/45) (1 November 2019); see also Mosa Mosao and Another v Thabiso Mosao CIV/APN/0192/2024 [[2024] LSHC 20](/akn/ls/judgment/lshc/2024/20) (26 November 2024) [7] _Ramatlapeng v Jessie_ __ C of A (CIV) 15 of 2016 [8] _Retselisitsoe Molapo v Nkherepe Molefe_ __ C of A (CIV) No 11/2023 [9] _Mamabusane Mabusane v Moro Chambers_ C of A(CIV) 65/2022 #### __Related documents ▲ To the top >