Teboho Construction (PTY) Ltd V Lesotho National Development Cooperation & 3 Others (CIV/APN/0075/2024) [2024] LSHC 37 (12 June 2024)

# Teboho Construction (PTY) Ltd V Lesotho National Development Cooperation & 3 Others (CIV/APN/0075/2024) [2024] LSHC 37 (12 June 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/37/eng@2024-06-12) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/37/eng@2024-06-12) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/37/eng@2024-06-12) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/37/eng@2024-06-12) [ __](mailto:?subject=Take a look at this document from LesLII: Teboho Construction \(PTY\) Ltd V Lesotho National …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/37/eng@2024-06-12) [ Download PDF (194.1 KB) ](/akn/ls/judgment/lshc/2024/37/eng@2024-06-12/source) Report a problem __ * Share * [ Download PDF (194.1 KB) ](/akn/ls/judgment/lshc/2024/37/eng@2024-06-12/source) * * * * * Report a problem __ ##### Teboho Construction (PTY) Ltd V Lesotho National Development Cooperation & 3 Others (CIV/APN/0075/2024) [2024] LSHC 37 (12 June 2024) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Teboho Construction (PTY) Ltd V Lesotho National Development Cooperation & 3 Others (CIV/APN/0075/2024) [2024] LSHC 37 (12 June 2024) Copy Media Neutral Citation [2024] LSHC 37 Copy Hearing date 12 April 2024 Court [High Court](/judgments/LSHC/) Case number CIV/APN/0075/2024 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 12 June 2024 Language English Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU CIV/APN/0075/2024** In the matter between **TEBOHO CONSTRUCTION (PTY) LTD APPLICANT** AND **LESOTHO NATIONAL DEVELOPMENT COOPERATION 1 ST RESPONDENT** **** **OFFICER COMMANDING HA HOOHLO POLICE 2 ND RESPONDENT** **STATION** **COMMISSIONER OF POLICE 3 RD RESPONDENT** **ATTORNEY GENERAL 4 TH RESPONDENT** **** **_Neutral Citation_** : Teboho Construction (PTY) LTD v Lesotho National Development Corporation and 3 Others [2024] LSHC Civ 37 (12th June 2024) **_JUDGMENT_** **CORAM : BANYANE J** **HEARD :****12 APRIL 2024** **DELIVERED : 12 JUNE 2024** **_Summary_** Spoliation-requirements restated-jurisdiction of the High Court to hear spoliation proceedings-value of property decisive-onus to prove that matter falls within the Magistrate Court lies on the party raising the objection-application granted as prayed. **_ANNOTATIONS_** **_Legislation_** 1\. High Court [Act 5 of 1978](/akn/ls/act/1978/5) 2\. Subordinate Courts [Act 9 of 1988](/akn/ls/act/1988/9) **_Cited cases_** **_Lesotho;_** 1\. Letsie v Ntsekhe LAC (2009-2010) 422 2\. Letsie v Maseru City Council & others LAC (2015-2016) 615 3\. Jaase v Jaase C of A (CIV) 62/2017 4\. Khabo v Khabo C of A (Civ) 72/2018 5\. Mbangamthi v Sesing Mbangemthi LAC (2005-2006) 295 **_South Africa:_** 1\. Nino v Delange 1906 TS 120 156 2\. Rikhotso v Northcliff Ceramics (Pty) Ltd and others 1997 (1) SA 526 3\. Administrator Cope and another Nthwapela 1990 (1) SA 705 (A) 4\. Kotze v Pretorius 1971 (4) SA 346 5\. Chairperson, Western Cape Regional Services Council 1988 (3) SA 218 (A) 6\. Nienaber v Stuckey 1946 AD 1049 7\. Van Rooyen v Burger 1960 (4) SA 356 (C) 8\. De Vager v Farah and Nesdadt 1977 (4) SA 28 (W) 9\. Yeko v Qana 1973 (4) SA 737 **_JUDGEMENT_** **BANYANE J** **Introduction** **[1]** The dispute between the parties relates to occupation of**** plot No.12273-002 by the applicant and its employees. It is situated at the Industrial Area Maseru. The applicant has been conducting its business thereon for a period of 10 years. The 1st respondent (LNDC) claims to have title over the property. Through several written notices and physical encounters, LNDC attempted to evict the applicant and its employees from this property on grounds that the applicant unlawfully occupies this property. The latest attempt to evict the applicant and its employees was made in March 2024, with the assistance of police officers. **Relief sought** **[2]** LNDC’s latest conduct triggered the present application in terms of which the applicant approached this Court on urgent basis seeking the following reliefs: 1\. Dispensing with the rules relating to the modes of service and time limits provided for in the Rules due to the urgency hereof and disposing of the matter at such time and place and in such manner and in accordance with such procedures as this Honourable Court may deem fit; 2 That a _Rule Nisi_ issue returnable on a date and time to be determined by the honourable court calling upon the Respondents to show cause, if any, why: 2.1 The first and third respondents shall not be interdicted and prevented from evicting the applicant from the business premises at plot numbers 12273 – 002 situated at Maseru Industrial Area, Maseru 100 in the district of Maseru pending finalization hereof; 2.2 The first and second respondents shall not be interdicted and prevented from interfering with the applicant’s possession, use and/or business of the business premises at plot numbers 12273 – 002 situated at Maseru Industrial Area, Maseru 100 in the district of Maseru and shall not be ordered and directed to remove its security agents from the premises of the aforesaid immovable property pending finalization hereof; 2.3 The first respondent shall not be ordered and directed to restore forthwith ante omnia the applicant’s possession of the immovable property at plot number 12273 – 002 situated at Maseru Industrial Area, Maseru 100 in the district of Maseru pending finalization hereof; 2.4 The second respondent and officers subordinate to him shall not be ordered and directed to ensure full compliance with this Court order and in that regard is hereby authorized to assist to take such measures and use such force as may be necessary in the discharge of his duties contemplated herein. 2.5 The first and third respondents are not entitled to evict the applicant from the business premises at plot number 12273 – 002 without due process of law. 3\. The first and second respondents’ conduct on 20 March 2024 of going to the applicant’s business premises with security and police officers and threatening and/or coercing the applicant to evict the property is unlawful. 4\. Prayers **1.2,2.1,2.2,2.3, and 2.4** operate with immediate effect as an interim court order pending finalization hereof. 5\. Costs of suit. **[3]** On 01 Apri1 2024, the applicant successfully obtained the interim orders. On the extended return day, the respondent had filed its opposing papers. **The Preliminary objections** **[4]** LNDC strenuously opposed the application. In its opposing affidavit, the respondent raised three points _in limine,_ namely, lack of jurisdiction, non-compliance with section 6 of the High Court Act, 1978 and non-joinder of the Ministry of Finance. Because the first two points are related, I directed that they be argued together. After hearing the argument, I dismissed the objections and thereafter considered the merits of the matter. Due to the nature of spoliation proceedings (fully discussed in this judgment), I proceeded to consider the merits of the matter without deciding the point of non-joinder. On 12 June 2024, I granted the application with costs. These are my reasons for both orders. **Lack of jurisdiction** **[5]** The LNDC argued that the High Court has no jurisdiction to determine this application because spoliation proceedings fall within the jurisdictional competence of the Subordinate Courts in terms of section 18 (1) of the **Subordinate Courts Act** ,1988. It further argued that the applicant failed to plead jurisdictional facts that would confer jurisdiction to this Court, namely, the value of the property in question. Consequently, the applicant ought to have applied for leave to file the matter in this Court pursuant to section 6 of the High Court Act 1978. **[6]** The applicant’s main contention on the other hand was that the value of the property in question exceeds the jurisdictional competence of the Subordinate Court. It alleged that one of the buildings on this property is valued at M3 000 000.00 and there is a pending case in the Commercial division of the High Court in terms of which the present applicant is claiming indemnity from the Insurer against loss and damage to the property in the said amount. **[7]** Twin issues fell to be determined under this point, namely, a) whether the onus to prove existence of jurisdiction rests on the applicant or the respondent. b) whether or not the High Court has jurisdiction spoliation proceedings. **The Law** **[8]** The Power of the High Court to hear or determine spoliation applications has been stated and restated in several decisions of this Court and the Court of Appeal. According to the authorities, the value of the despoiled property is a decisive factor on the jurisdictional question. The authorities also show that the onus of establishing a point _in limine_ rests with the respondent. Accordingly, the __ respondent must prove the value of the despoiled property. **8.1** In **Jaase v Jaase**[1]**** a similar argument was raised that an applicant instituting spoliation proceedings in the High Court must first obtain leave in terms of section 6 of the High Court Act 1978[2]. The Court stated at paragraph 23 that the general unlimited jurisdiction of the High Court conferred by section 2 of the High Court Act, 1978 is qualified by section 6 with the result that a civil case within the jurisdiction of a subordinate Court may be instituted in or removed into the High Court by a Judge acting on his motion, or with his leave upon application to him by a party on notice to the other party. **8.2** As regard the instance of onus, the Court said: “[37] Counsel on both sides made submission as the instance of the onus in relation to jurisdiction of the High Court in the matter. Counsel for the appellants contended that the onus to establish the jurisdiction of the Court lay with applicant. Counsel for the 1st respondent contended that the onus was on the appellants. The answer is to be found in Botha’s case (supra). In that case, per the headnote, the appellant applied in the Magistrate’s Court for a prohibitory interdict restraining the respondents from conducting a sawmill business and a brick making business on their farm on the grounds that the business caused a nuisance and entailed usage of the farm contrary to municipal zoning of the farm under the town planning scheme. The respondents contended _in limine_ that the court lacked jurisdiction to grant the order since value of the matter in dispute exceeded the court’s monetary jurisdiction. The High Court set aside the Magistrate’s decision but an appeal to the Supreme Court of Appeal the Magistrate’s order was reinstated. At 264 I – 265 B the SCA addressed the issue of onus and stated at paragraph [18] as follows: “The onus was on the respondent to prove that the matter fell beyond the jurisdiction of the Magistrates Courts. The substantive plea challenging the jurisdiction was raised by the respondents and they accordingly bore the onus of proving facts upon which their pleas was based **Munsamy v Govender**.” [38] In this case the 1st respondent, as the applicant in the court _a quo_ did not aver, as practice would require him to do, that the court had jurisdiction. The appellant, as respondent therein did not challenge the jurisdiction of the court. In general, as stated in Hoffman &Zeffert; the South African law of evidence, 4th ed at p 510, the onus rests on the party who avers that a court has no jurisdiction, and in this regard, the learned authors refer to **Durban City Council v Kadir**. In that case, the appellant sued the respondent for ejectment, and the respondent raised the question of the court’s jurisdiction under section(sic) in the Magistrates’ Court 32 of 1944, which is in _pari materia_ to our section 17. At 366 D, the Court held that “the onus was upon the defendant (respondent on appeal) to establish the facts upon which the _exceptio fori declinatoria_ pleaded is based”. It went on to say, “Thus if in his plea the defendant avers the existence of certain facts which, if proved, will defeat the jurisdiction, the onus of proving such facts rests upon the defendant on peril of having the plea decided against him if he fails in discharging onus”. [39] The appellants in this case raised the issue of jurisdiction for the first time on appeal, and it being a point of law, they are entitled to do so. Nonetheless, as would have been the case had they raised the same issue in the High Court, the onus of proving that the High Court had no jurisdiction was upon them. They had therefore to set out facts which would show that the High Court had no jurisdiction…” **8\. 3** In **Letsie v Ntsekhe**[3]** **the Court of Appeal held that: While it is true that the subordinate court have jurisdiction to adjudicate spoliation disputes in terms of section 18 (1) of [Act 9 of 1998](/akn/ls/act/1998/9), such jurisdiction is limited to the value of the despoiled property as provided in section 17 (1) (b) of that Act. If the value of the despoiled property is in excess of the values prescribed for the subordinate courts’ jurisdiction, the High Court is entitled to assume jurisdiction in terms of the High Court Act 1978. **8.4** **Letsie v Maseru City Council**[4]** **cited**Letsie v Ntsekhe**[5]** **with approval and held that because the basis of jurisdiction in the Subordinate Court is the value, if the value is M 10 000,00 and below, the Subordinate Court has jurisdiction. If the value is more than M 10,000.00, the High Court has**** jurisdiction.**** The Court further said: “… [22] It was for the appellant to provide the value of the tent. The respondents would have borne that onus if they were challenging the jurisdiction of the subordinate Court. As rightly conceded it was for the appellant to demonstrate that the value of the tent the jurisdiction provided by section 17 (1) (b). It is a time-honoured procedural concept that he who asserts must prove. Jurisdictional facts must be established at the time of filing not after. **Application of law to the facts** **[9]** The decided cases show clearly that the party raising a plea of lack of jurisdiction must establish facts or adduce evidence supporting their objection. In the instant matter, LNDC argued, without providing the value of the property, that the matter falls within the jurisdiction of the Magistrate’s Court. Absent the evidence of the value of the property concerned, the respondent’s objection is unsubstantiated and must, therefore, be rejected. **The merits of the case** **[10]** I turn now to the merits of the case. The essence of the applicant’s case is that it occupies this property under a sub-lease agreement concluded with the Ministry of Finance on 03 December 2014. From 2014 until now, the applicant peacefully occupied the property and conducted business thereon. During this period, it significantly developed this property. On 02 February 2024, the applicant received an eviction notice in terms of which it was directed by LNDC’s CEO to vacate the plot by 29 February 2024 on grounds that its occupation is unauthorized. This letter is attached to the applicant’s founding affidavit. **[11]** On 14 February 2024, the applicant responded to the letter justifying its occupation. It stated that it occupies the property under a sub-lease agreement concluded with the Ministry of Finance. **[13]** On 19 February 2024, the LNDC requested the applicant to favour it with a copy of the sublease agreement. This was a follow-up request of the sub-lease agreement. The applicant replied on 23 February 2024, regurgitating the grounds for occupation. **[14]** After this exchange of correspondence, the LNDC, through its agents/employees, on 20 March 2024, showed up on the business premises accompanied by police officers. The agents threatened the applicant’s employees and directed them to vacate the property. One of the applicant’s employees (a general manager) told these employees that their act was unlawful and that they should seek recourse from the courts of law. LNDC’s employees ignored him and attempted to lock the entrance gate by placing a chain and lock thereon, although the applicant’s security guards resisted this act. The LNDC then left two security guards on the premises to control the movement into and out of the premises. These officers were heavily armed hence their presence was intimidating and threatening to the applicant’s employees. On the next day, 21 March 2024, the LNDC employees placed locks and chains on the entrance gate, denied people access to the property, and directed the applicant’s employees to vacate the property. **[15]** The LNDC’s brief response to these allegations is that the applicant has never enjoyed any peaceful and undisturbed possession of this property because its occupation is unlawful. LNDC holds a lease over the property and claims that the respondent occupies its land without permission. LNDC also denies having resorted to self-help and deposes that it made several notifications to the applicant to vacate the property. In its answering affidavit, correspondence dating as far back as June 2020 is annexed. LNDC conversely asserts that the applicant and its agents resorted to self-help by continuing to occupy the property despite being warned of the unlawfulness of their occupation. **The law on spoliation** **[16]** Spoliation is an act by which a person is unlawfully or wrongfully deprived of possession.[6] Unlawfulness or wrongfulness for the purpose of _mandament_ means any person, on account of alleged or supposed rights, deprives another of possession against his will and without recourse to the legal process, so that it can be said that such a person acted as his own Judge by taking law into his own hands. [7] **[17]** In **Rikhotso v Northcliff Ceramics (Pty) Ltd and others******[8]******** It was held that: “The remedy afforded by a _mandament Van Spolie_ expressed in the maxim _spoliatus ante_ _omnia restituectus est_ , is generally granted where one party to a dispute concerning possession of property seizes the property pursuant to what he believes to be his own entitlement thereto. In such cases a court will summarily order return of the property irrespective of either party’s entitlement to possession, and will not entertain argument relating to their respective rights until this has been done. The principle underlying the remedy is that the entitlement to possession must be resolved by the courts, and not by a resort to self-help.” **[18]** The _mandament van spolie_ is a possessory remedy, meaning it protects possession solely separate from the right of ownership. It is not concerned with the rights of the parties, so it decides no rights of ownership. The court does not even enter into the lawfulness of the possession or the question of ownership. The requisites of the spoliation order are that the applicant must have been in peaceful and undisturbed possession. The ‘possession’, in order to be protected by a _spoliatory_ remedy, must consist of the _animus_ \- the ‘intention of securing some benefit to the possessor; and of _detentio_ , namely the ‘holding’ itself.[9] **[19]** Mandament is available at least to any person who is a) making physical use of the property to the extent that he derives a benefit from such use; b) intends by such use to secure the benefit to himself; c) is deprived of such use and benefit by a third person.[10] **[20]** The purpose of the remedy is to prevent unlawful self-help or discourage people from taking the law into their own hands.[11] Mandament is grantable against anyone who committed unlawful spoliation, including the owner of the property.[12] **[21]** Regarding deprivation of property, it was held in **Van Rooyen** **v Burger**[13] that: “It is not necessary that a person who possesses property should have altogether lost the property of the possession or control thereof, or the use or the enjoyment thereof, before he can claim a _mandament van spolie_. He is entitled to this relief if he is deprived of a part of his property or of his right of possession thereof, such as the use or control, or the enjoyment thereof. Any important or serious encroachment on the rights of possession of a possessor will probably be protected by a _mandament van spolie_ as this generally constitutes a deprivation of such rights.[14] **[22]** In **Naidoo v Moodley,**[15] it was stated that when unlawful possession is indeed protected, it does not mean that the court approves of such possession. It is merely a result of the application of the principles of a possessory remedy that offers interim protection only. The position was explained as follows in **Khabo v Khabo******[16]**** , quoting the remarks by Millin J in **De Jager & Ors v Farah & Nestadt** 1947 (4) SA 28 (W) at 35 where he said: “[14] … What the court is doing is to insist on the principle that a person in possession of property, however unlawful his possession may be and however exposed he may be to ejectment proceedings, cannot be interfered with in his possession except by the due process of law, and if he is so interfered with, the court will restrain such interference pending the taking of action against him for ejectment by those who claim that he is in wrongful possession. The fact that the applicants have no legal right to continue to live in this slum and would have no defence to proceedings for ejectment, does not mean that proceedings for ejectment can be dispensed with, nor does it make any difference to the illegality of the respondents’ conduct that the occupation by the applicants carries with it penal consequences.” **Discussion** **[23]** I proceed to apply these principles to the facts of the present matter. It is undisputed that the applicant is in occupation of and has been conducting business on plot No.12273-002, to which the LNDC claims to hold title. Based on the alleged title, LNDC asserts that the applicant’s occupation is unlawful and thus made several attempts to evict the applicant from this property without recourse to the Courts. It is also undisputed that in March 2024, the LNDC, assisted by police officers, attempted to forcibly evict the applicant from the property. **[24]** The authorities cited show that where a spoliation remedy is sought, the possessor’s entitlement to the property plays no role because spoliation protects bare possession and is available to all types of possessors. It follows that however unlawful the applicant’s possession may be and however exposed it may be to ejectment proceedings, its possession cannot be interfered with except by due process of the law. As the authorities show, _mandament_ is grantable against anyone who committed unlawful spoliation, including the owner of the property. **[25]** Instead of submitting their dispute or claim to this land to a court of law, LNDC resorted to self-help by seeking to evict the applicant from the premises without intervention of the Court. _Mandament_ remedy discourages resort to self-help and encourages the parties to submit their dispute to a court of law.**** **Disposal** **[26]** For these reasons, I am satisfied that the applicant satisfied the requirements for spoliatory relief namely, it was in possession of the property, making physical use of the property and operating its business thereon; thus derived a benefit from such use. Because LNDC interfered with the possession without recourse to the courts, its conduct amounts to spoliation. **Order** **[27]** As a result, the rule is confirmed, and the application is granted with costs. **_____________** **P. BANYANE** **JUDGE** For Applicant : Mr. Fiee For Respondent : Advocate Mothibeli * * * [1] C of A(CIV)62/17 [2] No 5 of 1978 [3] Letsie v Ntsekhe LAC (2009-2010) 422 [4] Letsie v Maseru City Council and others LAC (2015-2016) 615 at 618 E-F [5] supra (fn 1 above) [6] Van Rooyen v Burger 1960 (4) SA 356 (C) at p360, Kotze v Pretorius 1971 (4) SA 346, at 348 H – 350A [7] Nthwapela v Chairperson, Western Cape Regional Services Council 1988 (3) SA 218 (A) 225 B – F [8] 1997 (1) SA 526 at 532 G-H [9] Khabo v Khabo C of A (CIV) 72 of 2018 [10] Mbangamthi v Sesing Mbangamthi LAC (2005-2006) 295 at 304 [11] Nino v Delange 1906 TS 120 156) [12] Yeko v Qana 1973 (4) SA 735 (A) 739 G [13] Van Rooyen v Burger 1960 (4) SA 356 (C) 363 B – F, see also Nienaber v Stuckey 1946 AD 1049, 1059 [14] p 356 [15] Naidoo v Moodley 1982 (4) SA 82 (T) [16] Khabo v Khabo C of A (Civ) 72/2018 #### __Related documents ▲ To the top >