'Makarabelo Motumi V Khatala Khatala & 3 Others (CIV/APN/0213/2022) [2024] LSHC 98 (12 June 2024)

# 'Makarabelo Motumi V Khatala Khatala & 3 Others (CIV/APN/0213/2022) [2024] LSHC 98 (12 June 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/98/eng@2024-06-12) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/98/eng@2024-06-12) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/98/eng@2024-06-12) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/98/eng@2024-06-12) [ __](mailto:?subject=Take a look at this document from LesLII: 'Makarabelo Motumi V Khatala Khatala & 3 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/98/eng@2024-06-12) [ Download PDF (346.6 KB) ](/akn/ls/judgment/lshc/2024/98/eng@2024-06-12/source) Report a problem __ * Share * [ Download PDF (346.6 KB) ](/akn/ls/judgment/lshc/2024/98/eng@2024-06-12/source) * * * * * Report a problem __ ##### 'Makarabelo Motumi V Khatala Khatala & 3 Others (CIV/APN/0213/2022) [2024] LSHC 98 (12 June 2024) Copy citation * __Document detail * __Related documents Citation 'Makarabelo Motumi V Khatala Khatala & 3 Others (CIV/APN/0213/2022) [2024] LSHC 98 (12 June 2024) Copy Media Neutral Citation [2024] LSHC 98 Copy Hearing date 29 May 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/0213/2022 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 12 June 2024 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held in Maseru** **CIV/APN/0213/2022** In the matter between **‘MAKARABELO MOTUMI APPLICANT** And **KHATALA KHATALA 1 ST RESPONDENT** **CHIEF MAGISTRATE 2 ND RESPONDENT** **CLERK OF COURT 3 RD RESPONDENT ** **ATTORNEY GENERAL 4 TH RESPONDENT ** _Neutral Citation_ : ‘Makarabelo Motumi vs Khatala Khatala & 3 Others [2024] LSHC 98 CIV (12th June 2024) **CORAM :** T.J. MOKOKO J **DATE HEARD :** 29TH MAY 2024 **DATE DELIVERED :** 12TH JUNE 2024 **__SUMMARY__** _Review - The learned Magistrate dismissed applicant’s application in the court a quo - On the same day the Learned Magistrate granted another order evicting applicant from the plot and directing applicant to facilitate transfer of the plot- The second order not consistent with the written judgment of the court granted on that day-The Learned Magistrate was functus officio- The second order set aside._ **__ANNOTATIONS__** __Cited Cases__ 1. _De Villiers and Another NNO v Boe Bank Ltd 2004 (3) 459 (SCA)_ 2. _Estate Garlick v Commissioner for Inland Revenue 1934 AD 499 at 503, Firestone South Africa (PTY) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 G – 308 A, Thompson v South African Broadcasting Corporation 2001_ 3. _Lebekoane Ntoi v Minister of Water and Others C of Appeal (CIV) 89/2022_ 4. _Philiziwe Sehlabo v Mothusi Rabale and Others C of A (CIV) 09/2023_ 5. _SA 746 (SCA) and Mostert NO v Old mutual life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA)_ **JUDGMENT** **Introduction** [1] The short genesis of this case is that applicant herein instituted an application in the court a quo seeking the following prayers; 1\. Rescinding the agreement of sale between the parties. 2\. Evicting respondent from a residential site of applicant situated at Qalakheng. 3\. That the respondent be ordered not to interfere with the applicant’s use and enjoyment of the property in issue. 4\. That applicant repay the amount of M25,000.00 to the respondent on terms to be mutually agreed by both parties. 5\. Costs of suit. 6\. Further and/or alternative relief. **Background** [2] The first respondent opposed the matter. It is a matter of common cause that the applicant and the first respondent entered into a sale agreement of a certain plot. The first respondent paid the full purchase price in the sum of M25,000.00 (Twenty-Five Thousand Maloti) to the applicant. However, applicant failed to pass transfer of her rights in this plot to the first respondent, and applicant sought to cancel the sale agreement, evict the first respondent from the site and to refund the purchase price to the first respondent. [3] There were many interlocutory applications filed in the court a quo, and I must confess that I failed to understand and appreciate all that transpired in the court a quo, due to the nature of these interlocutory applications. My problem was compounded by the fact that counsel who appeared before me were not of much assistance, because they came at a later stage after the withdrawal from the case by the two original counsel. Be that as it may, I will not deal with those interlocutory applications. I will rather focus on the final judgment of the court a quo and the second court order granted on the 2nd June 2022, marked annexure **MM 11**. However, for purposes of this matter, I should make special reference to the notice of application in terms of Rule 52 and 53 filed in court a quo on the 2nd December 2021. This is so because the second order (**annexure MM 11**) which is challenged by the applicant in this matter, seems to have reproduced the prayers sought in the said notice of application. In this notice of application, the first respondent sought the following prayers. (a) That an order of variation to applicant’s main answering affidavit be granted to plead jurisdiction to prayer 2 of the Notice of Application dated the 18th November 2020. (b) That an order for a counter claim to applicant’s notice of application dated the 18th November 2020 to be granted and same to be pleaded as follows; (i) That respondent be ordered to join hands with applicant (respondent in main application) (ii) That respondent be evicted from the plot (unnumbered forming subject matter hereof). (c) That respondent be ordered to pay costs of this application. [4] The record from court a quo shows that on the 14 April 2022 the two points of law, namely; lack of jurisdiction and existence of dispute of facts were dismissed. On the 19th May 2022 the merits were argued. The matter was then postponed to the 2nd June 2022 for delivery of the judgment. On the 2nd June 2022 the trial court delivered its judgment. The ruling of the trial court reads as follows: _“Application for rescission/cancellation is dismissed with costs. Applicant has failed to prove that she is the aggrieved party or that she did not get her consideration out of the contract. She has been paid in full on the agreed sum on money and has to keep her obligations under the contract. Application dismissed with costs”._ M. Kolobe Chief Magistrate. [5] Pursuant to this ruling a court order dated the 2nd June 2022 before Magistrate Kolobe was issued. It reads as follows. “**The matter herein is dismissed with costs”**. This court order is marked annexure “**MM 10”**. **** It is a matter of common cause that the court order reflects the ruling of the trial court.**** On the same day, the 2nd June 2022 the second court order (**annexure MM 11**) was issued by Magistrate Kolobe. It reads as follows: _1\. The matter herein is dismissed with costs._ _2\. The applicant is ordered to join hands with the respondent to facilitate transfer of the plot herein._ _3\. The applicant is evicted from the plot (unnumbered forming subject matter hereof)._ By Order of Court Magistrate- Kolobe [6] At paragraph 14.1 of the founding affidavit applicant says the following: _“The 2 nd respondent committed an irregularity to grant an order which was not sought before court in the main application in that the 1st respondent had directed that I join hands with the 1st respondent to facilitate transfer of the plot forming subject matter herein. In this regard 1st respondent ought to have filed counter application in motivation”._ [7] On the other hand, the first respondent said the following at paragraph 4.8 of his opposing affidavit: _“Contents therein are vehemently denied, and applicant is put to the proof thereof. The applicant herself has attached annexure**MM 7** wherein I specifically prayed for granting of prayers as granted in annexure **MM 11**. I therefore aver that annexure **MM 7** was indeed a counter claim and it was therefore properly granted”._ [8] It is the first respondent’s contention that the second court order - **MM 11** was properly granted, because the trial court granted the counter claim, as reflected in **MM 7**. [9] The salient question for determination in this matter is whether the Learned Magistrate in his ruling of the 2nd June 2022, dismissed the applicant’s application and granted the counter claim. The answer to this question lies right in the ruling of the Learned Magistrate. From the reading of the ruling of the trial court, my understanding is that the Learned Magistrate dismissed the applicant’s application, on the ground that the applicant having received the full purchase price from the first respondent in terms of the sale agreement, the applicant should perform her obligations under the contract, which is to pass the transfer of rights on the site to the first respondent. The ruling of the Learned Magistrate does not reflect that the trial court considered the counter claim, as submitted by the first respondent. Put simply, the Learned Magistrate did not consider the counter claim in his judgment. [10] The next issue for determination is whether the trial court having delivered its judgment/ruling, was not _functus officio_ in relation to annexure**MM 11**. **The Law** [11] In the case of **_Lebekoane Ntoi v Minister of Water and Others_** _**[1]**_, the Court of Appeal held that the general, well-established rule is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter or supplement it - it becomes _functus officio**[2]**_. However, the principal judgment or order may be supplemented in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the court overlooked or advertently omitted to grant[3]. [12] In the **_Lebekoane Ntoi_** case _(supra)_ the Court of Appeal remarked further at paragraph 17, page 9 that there can be no doubt that , a court may clarify its judgment or order, if, or a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise, uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment or order. [13] The Court of Appeal stated that it is also established that, a court may correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention. The court’s true intention is clear from the terms of the order it gave in its judgment. It was therefore not necessary for the learned judge to change her orders and sign the other orders she signed which are variance with the ones in judgment[4]. [14] In **_Philiziwe Sehlabo v Mothusi Rabale and Others**[5]** _**the Court of Appeal held that the later order was a nullity as the learned judge was _functus officio_. The court remarked further that in the same vein, when **Makhetha J** later purported to modify the invalid printed order of her sister judge, she was also _functus officio_ as the High Court. [15] I have already alluded to the fact that the judgment of the learned Magistrate in the court a quo was that the applicant did not prove that she was the aggrieved party, as she was paid the agreed purchase price in full, therefore she must perform her obligations under the contract. The application was therefore dismissed with costs. The later order (**annexure MM 11**) which is the subject of dispute, evicted the applicant from the site in question, and the applicant was ordered to join hands with the respondent to facilitate transfer of the plot herein. [16] The authorities above show that it is a well-established rule that once a court has duly pronounced a final judgment or order, it has no authority to correct, alter or supplement it, as it becomes _functus officio_. Based on these authorities, I hold that the trial court duly pronounced a final judgment or order, therefore it had no authority to alter or correct or supplement its order, as it was _functus officio_. [17] It is a well-established principle that a court may clarify its judgment or order or a proper interpretation or meaning thereof, to give effect to its true intention, as long as it does not alter the sense and substance of the judgment or order. I thereby hold that the later order (**annexure MM 11**) altered the sense and the substance of the judgment or order of the Learned Magistrate, especially the order evicting the applicant from the plot. The later order was a completely different order which changed the meaning, sense and the substance of the judgment or order of the trial court. It is for this reason that I find that the learned Magistrate had no authority to correct, alter or supplement his judgment, as he was _functus officio_. I therefore hold that the later order (**annexure MM 11**) was a nullity as the Learned Magistrate was _functus officio_. **ORDER** 1. The order (**annexure MM 11**) granted on the 02nd June 2022, by the Learned Magistrate, is set aside. 2. Each party to bear its own costs. ___________________ T.J. MOKOKO JUDGE **FOR THE APPLICANT :** ADV. L. KETSI **FOR THE RESPONDENT :** ADV. P. LIBE * * * [1] _C of A (CIV) 89/2022_ [2] Estate Garlick v Commissioner for Inland Revenue 1934 AD 499 at 503, Firestone South Africa (PTY) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 G – 308 A, Thompson v South African Broadcasting Corporation 2001 (3) SA 746 (SCA) and Mostert NO v Old mutual life Assurance Co (SA) Ltd 2002 (1) SA 82 (SCA) [3] De Villiers and Another NNO V Boe Bank Ltd 2004 (3) 459 (SCA) at p. 463 at para 7 [4]_Lebekoane Ntoi v Minister of Water and Others_ C OF A (CIV) 89/2022 para 18 at page 9 [5] C of A (CIV) 09/2023 #### __Related documents ▲ To the top >