Moroesi Tau-Thabane V 'Malisema Ramashamole & 2 Others (CIV/A/0007/2022) [2023] LSHC 127 (29 September 2023)

# Moroesi Tau-Thabane V 'Malisema Ramashamole & 2 Others (CIV/A/0007/2022) [2023] LSHC 127 (29 September 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/127/eng@2023-09-29) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/127/eng@2023-09-29) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/127/eng@2023-09-29) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/127/eng@2023-09-29) [ __](mailto:?subject=Take a look at this document from LesLII: Moroesi Tau-Thabane V 'Malisema Ramashamole & 2 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/127/eng@2023-09-29) [ Download PDF (428.4 KB) ](/akn/ls/judgment/lshc/2023/127/eng@2023-09-29/source) Report a problem __ * Share * [ Download PDF (428.4 KB) ](/akn/ls/judgment/lshc/2023/127/eng@2023-09-29/source) * * * * * Report a problem __ ##### Moroesi Tau-Thabane V 'Malisema Ramashamole & 2 Others (CIV/A/0007/2022) [2023] LSHC 127 (29 September 2023) Copy citation * __Document detail * __Related documents Citation Moroesi Tau-Thabane V 'Malisema Ramashamole & 2 Others (CIV/A/0007/2022) [2023] LSHC 127 (29 September 2023) Copy Media Neutral Citation [2023] LSHC 127 Copy Hearing date 3 August 2023 Court [High Court](/judgments/LSHC/) Case number CIV/A/0007/2022 Judges [Mokoko J](/judgments/all/?judges=Mokoko%20J) Judgment date 29 September 2023 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **Held at Maseru** **CIV/A/0007/2022** In the matter between **MOROESI GERTRUDE TAU-THABANE (N.O) APPELLANT** And **‘MALISEMA RAMASHAMOLE (NEE SEKOTA) 1 ST RESPONDENT** **MASTER OF THE HIGH COURT 2 ND RESPONDENT** **THE ATTORNEY GENERAL 3 RD RESPONDENT** _Neutral Citation_ : ‘Moroesi Gertrude Tau-Thabane vs ‘Malisema Ramashamole (nee Sekota) & 2 Ors No.2 [2023] LSHC 127 CIV (29th September 2023). **CORAM:** T.J. MOKOKO J **HEARD:** 03RD AUGUST 2023 **DELIVERED:** 29TH SEPTEMBER 2023**** **__SUMMARY__** _Jurisdiction- Application wrongly dismissed on lack of jurisdiction by the court a quo- Magistrate court has jurisdiction in the matter (Interdict) - Point of non-joinder wrongly upheld by the court a quo-Wrong for the court a quo to grant relief not prayed for by the party- Wrong for the court a quo to decide it had no jurisdiction- then continue with the proceedings._ **_ANNOTATIONS_** **_Cases_** __ 1. _Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)_ 2. _Bharat Amratlal kothari v Dosukhan Samadkhan Sindhi and Others AIR 2010 SC 475_ 3. _Durban City Council v Kadir 1971 (1) SA 364 (N)_ 4. _Fertilizer Corporation of India Ltd and Another v Sarat Chandra Rath and Others AIR 1996 SC 2744_ 5. _Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC)_ 6. _Jonathan v Lephole C of A (CIV) 5 OF 2017_ 7. _Kethel v Kethel_ 8. _Kibe v Mphoko 1958 (1) SA 364 (O)_ 9. _Kikillus v Susan 1955 2 SA 137 (W)_ 10. _Liau Jaase and others V Mputi Jaase and Others C of A (CIV) A/62/2017_ 11. _Mamarame Matela v Lesotho Telecommunications Authority C of A (CIV) 46/2022_ 12. _Mamokotjo Liboti v Mpoi Loboti_ C of A (CIV) No. 66/2019 13. _Marais v Munro & Co Ltd 1957 4 SA 53 (EDL)_ 14. _Matime and Others v Moruthoane and Another 1985 -1989 LAC 198 and 200_ 15. _Mophato oa Morija v Lesotho Evangelical Church 2000-2004 LAC 354_ 16. _Motor Vessel “Lillian S “V Caltex Oil (Kenya) Limited (1989) KCR 19_ 17. _Mtshali v Mtambo and Another 1962 (3) SA 469 (GW)_ 18. _Munsamy v Governor 1950 (2) SA 622 (N)_ 19. _Natalie Landboudoop Bpk v Fick 1982 4 SA 287 (N)_ 20. _NKuebe v Attorney General and Others 2000-2004 LAC 295 at 301 B-D_ 21. _Nthabeleng Taole and Another v Jimmy Mongaula and Another_ C of A (CIV) 22/2021 22. _Supreme Court of Appeal in Nico Botha v Esmerelda Andrade2009 (1) SA 259_ 23. _Tau Makhalemele v Board of Enquiry of the National Security Service C of A (CIV) 38/2022_ 24. _Thato Molomo v LIMA Rural Development Thaha J/V C of A No.90/2022_ **_Statutes_** 1. _Administration of Estates Proclamation 1935_ 2. _South African Magistrate Court Act 1944_ 3. _The Subordinate Court Act 1988_ **_Books_** 1. _Cilliers, Loots and Nel Herbestein and Van Winsen Cilliers AC_ 2. _Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5 th ed (Juta Cape Town 2009) _ 3. _Forsyth Private International Law 2 nd ed _ 4. _Jourbert (ed) Law of South Africa vol 11_ 5. _Loots C and Nel HC Herbestein and Van Winsen_ **JUDGMENT** **INTRODUCTION** [1] This is an appeal against the judgment of the Magistrate Court (Resident Magistrate Monethi), upholding the first respondent’s point in _limine_ that the court lacked jurisdiction to hear the application brought by the appellant. The trial court further upheld the point in _limine_ of non-joinder taken by the first respondent. The court _a quo_ held that the first respondent was entitled to occupy the estate property, until she is compensated as she is bona fide occupier. **FACTUAL BACKGROUND** [2] On or around December 2021 the appellant herein, who was the applicant in the court _a quo_ instituted an application in the Magistrate Court seeking the following prayers. 1\. Dispensation with the rules relating to notice and service of process of the court on account of urgency. 2\. That the rule Nisi be issued returnable on the date to be determined by the court, calling upon the respondents to show cause (if any) why the following prayers shall not be made final. (a) 1st respondent shall not be restrained and or interdicted forth with from making developments on the site at Qalaheng store, Ha Mabekenyane belonging to the estate of the late Mamojalefa Julia Sekota without due process of law. 3\. That prayers 1, 2 and 2 (a) operate with immediate effect as an interim order. 4\. Ejectment of 1st respondent from the Estate site known as Qalaheng store, Ha Mabekenyane site. 5\. costs of suit. [3] The 1st respondent opposed the application and duly filed an opposing affidavit, in which she raised the following points in _limine_. A- **Lack of Jurisdiction** 1. The first respondent pleaded that the Magistrate Court has no jurisdiction to deal with the applicant’s application by reason of the fact that the value of the estate, the subject matter hereof is worth One Million Maloti. 2. The site, the subject matter hereof, is a commercial property which comprises of a complete store which had recently been renovated, a piggery farm and a shop, valued more than One Million Maloti, and cannot be estimated to the value of Twenty-Five Thousand Maloti. 3. The overall costs for the recent renovations are worth about Three hundred Thousand Maloti. 4. The Magistrate Court does not have jurisdiction to entertain an application for interdict where the subject matter of the dispute exceeds the monetary ceiling of the Subordinate Court, as the jurisdiction of the subordinate court is circumscribed by its monetary jurisdiction. B**\- Non-Joinder** 1. That applicant has failed to join the two testamentary executors, namely, Seutloali Makhetha and Paseka Nketoane, as they have a direct and substantial interest in this matter and the outcome of this application will certainly affect them. C- **Lack of Locus Standi** 1. That the applicant has no locus standi to institute this application, as she does not have any legally enforceable right by her until such time that the executors appointed in the will had declined their appointment. [4] The record of the court _a quo_ does not reflect whether this point (Locus standi) was argued or abandoned as nothing was said about it. Even on appeal it was not argued by the parties. **ISSUES FOR DETERMINATION** [5] The central issues in this appeal are whether the court _a quo_ was correct in holding that it did not have jurisdiction to entertain the application before it, and whether it was correct in upholding the point of non-joinder, whether the court could correctly granted the first respondent the prayer she had not sought and lastly, whether it was correct for the court _a quo_ having decided that it had no jurisdiction, it could proceed to find that the first respondent was a bona fide occupier of the site. **JURISDICTION- THE LAW** [6] It is important to say something about the defence of the lack of jurisdiction. Ordinarily, a party instituting proceedings bears the burden of proving that the court has jurisdiction to hear the matter. In our law, an interdict founds jurisdiction, and lack of jurisdiction cannot prevent a court from granting an interdict in terms of which the recognised requirements for an interdict are satisfied by facts establishing the jurisdiction of the court.[1] The founding affidavit attached to the notice of motion must, among other things, state facts that establish the court’s jurisdiction[2]. If the court is not satisfied with the facts stated in the application that it has jurisdiction, it will not entertain the proceedings[3]. **CONSIDERATION OF THE APPEAL** [7] The appellant contended that the court _a quo_ erred in holding it had no jurisdiction to entertain the interdict, restricting the first respondent from making developments at Qalaheng store, Ha Mabekenyane. Before I deal with this ground, I wish to refer to what the Court of Appeal said in the case of ‘** _Mamarame Matela v Lesotho Communications Authority and Others_**[4], the court stated that in our law, an interdict founds jurisdiction, and a lack of jurisdiction cannot prevent a court from granting an interdict in terms of which the recognised requirements for an interdict are satisfied.[5] It is trite that jurisdiction is determined based on the pleadings and not the substantive merits of the case[6]. [8] It was the applicant’s case in the court _a quo_ that on or around the 17th September 2021, she was appointed executrix, following executors testamentary repudiation of their appointments. To prove this appointment applicant attached Letters of Administration issued by the office of the second respondent. At paragraph 5.2 of her founding affidavit applicant stated as follows: “ _On the 7 th December it came to my attention that there are developments being made on the estate property at Qalaheng store, Mabekenyane site registered no. 11182 dated 13 October 1975_”. [9] At paragraph 5.3 of the founding affidavit, she says: “ _Upon investigation I learned that the developments are being made by 1 st respondent, who is the daughter of the late Mamojalefa Sekota. She is making these developments without the authority of the Master or my consent as the Executrix_”. [10] At paragraph 5.4 of the founding affidavit, applicant says: “ _I approach this court in my capacity as lawfully appointed executrix of the estate Mamojalefa Julia Sekota for an order interdicting and restraining the first respondent from making developments at Qalaheng Store, Ha Mabekenyane_ ”. [11] On the other hand the first respondent raises a point of law of lack of jurisdiction, on the ground that the value of the estate, which is the subject matter hereof is worth more than One Million Maloti. Prayer 2 (a) of the notice of application was seeking an interdict. The first respondent goes further to submit that the court _a quo_ lacked jurisdiction because the cost of the renovations which she had effected are worth about Three Hundred Thousand Maloti. [12] The first respondent submitted that in terms of _section 17 (1) (d) read with section 18 (1) of the Subordinate Court Act 1988_ , the Magistrate Court shall have jurisdiction over any action which the value of the subject matter in dispute does not exceed the amount specified in paragraph (b), which is M25,000.00 as amended. The first respondent therefore submitted that the estimated value of the estate together with the cost of improvement was about One Million Maloti and three hundred thousand Maloti, and obviously the magistrate court had no jurisdiction to hear the interdict. [13] Appellant submitted that this was a simple interdict whose subject matter is not land, but a prohibitory interdict, restraining the first respondent from carrying out the developments on the estate property. [14] _Section 18 (1) of the Subordinate Court Order_ provides that: “ _Subject to the limits prescribed by this order, the court may grant against persons and things, orders for arrest tanquam suspectus de fuga, attachments, interdicts and mandament van spolie_ ”. [15] _Section 17 (1) of the Subordinate Court Order 1988_ provides that: “ _Subject to this order, the court, with regard to causes of action, shall have M25,000.00 in the case of Chief Magistrate (as amended)”._ [16] Adv. Musi-Mosae, counsel for first respondent, submitted that since interdict is included in the list of actions where Magistrate court has jurisdiction over, the court _a quo_ was correct in holding that it had no jurisdiction as the value of the estate coupled with the developments done on the site, exceeded the jurisdiction of the magistrate court. [17] The argument raised by the first respondent in this matter, was similarly raised in the **_Supreme Court of Appeal in Nico Botha v Esmerelda Andrade_**[7]. The appellant, an owner of a small farm, obtained a prohibitory interdict in the magistrate’s court restraining the first two respondents, owners of a neighbouring farm, from committing certain unlawful activities associated with the conduct of a sawmill business and a brick making business on their property. The complaint was in relation to an alleged nuisance and the usage of the farm contrary to the municipal zoning of the property under the town planning scheme. [18] In their opposition, the respondents raised two points in _limine_. Of relevance is the jurisdiction of the Magistrate’s court to determine the matter. The respondents contended that the magistrate had no jurisdiction to grant the interdict in that the value of the matter in dispute was in excess of the R100,000 jurisdictional limit of the magistrate’s court. The respondents contended that _section 29 (1) (g) (_ same as our _section 17(1) (b))_ , which sets the jurisdictional limit at R100 000 was applicable and adduced evidence which established that the sawmill business generated a net annual profit of more than R180 000 and that the brick-making business had a monthly turnover of approximately R100 000. [19] In the same token, the first respondent in _casu,_ contended the magistrate court had no jurisdiction to grant the interdict in that the value of the estate was above One Million Maloti and the value of the renovations on the site was Three Hundred Thousand Maloti, therefore the value of the matter in dispute was in excess of the Twenty-five thousand Maloti, jurisdictional limit of the magistrate’s court. [20] In **_The Supreme Court of Appeal in Botha case_ **(_supra_) the court was called upon to interpret provisions of the _South African Magistrate Court Act 32 of 1944_ _in pari materia_ with our _section 17 (1) (a) and 18 (1)_. The court had to consider the extent to which the jurisdiction of the Magistrate’s court to grant an interdict under their _section 30 (1), (_ same as _section 18 (1)_) is limited by section _29 (1) (g)_(same as our _section 17 (1) (b)),_ which sets a monetary limit on the value of the subject in dispute. The court stated that the central question was how to determine “the value of the matter in dispute”. The court stated that, although the court below correctly identified the issue as being the alleged nuisance, it attached value to the business rather than the subject matter in dispute, which was the abatement of the unlawful activities. The court found that the court below therefore erred. It was that conduct or the cost of the abatement of the unlawful activities to which value had to be attached and not the business per se. If the cost of abating the nuisance was in excess of R100 000, the magistrate would clearly have had no jurisdiction in the matter. [21] The same analogy will apply in this case, because the court _a quo_ attached value to the cost of the renovations or development which had already been done, and the value of the site together with the structures thereon. It should be remembered that in her pleadings, appellant in the court _a quo_ , wanted the first respondent to be restrained from making further developments, as the application was not concerned about the developments that had already be done. [22] In _**Liau Jaase and others V Mputi Jaase and Others**[8]****_**,** the court of appeal was faced with the jurisdiction of the Subordinate court in relation to persons and causes of action and in relation to orders, interdicts and _mandament van spolie_. The court in this matter relied on the judgment of the **_Supreme Court of Appeal in Botha_** (_supra_), in which the respondents contended in _limine_ that the court lacked jurisdiction to grant the order since the value of the matter in dispute exceeded the court’s monetary jurisdiction. At 264 I – 265 B, the Supreme Court of Appeal in **Botha** case (supra) addressed the issue of the onus and stated at paragraph [18] as follows- “ _The onus was on the respondents to prove that the matter fell beyond the jurisdiction of the Magistrate’s court. The substantive plea challenging the jurisdiction (**exception fori declinatoria**) was raised by the respondents and they accordingly bore the onus of proving facts upon which their plea was based- **Munsamy v Governor**[9]**** ”_. [23] In general, as stated in **_Hoffman and Zeffert_**[10], 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_**** _**[11]**_****_._** In that case the appellant sued the respondent for ejectment and the respondent raised the question of the court’s jurisdiction under _section 29 (1)_ in the Magistrate’s Court, Act _32 of 1944_ , which is in _pari materia_ to our _section 17. In**Kadir case**[12]****_ the court held the “onus was upon the defendant to establish the facts upon which the exception for _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 such onus. [24] The principles enunciated in **_Jaase_** and **_Botha_** cases (_supra_) referred to above, are that the first respondent upon raising in _limine_ that the court _a quo_ lacked jurisdiction to grant the interdict since the value of the matter in dispute exceeded the court’s monetary jurisdiction, the first respondent bore the onus to prove facts upon which her plea was based. It is worth mentioning that the first respondent’s contention is that the estate is worth about a Million Maloti and that the developments effected on the estate are worth Three hundred Thousand Maloti. It is a matter of common cause that these are the facts on which her plea is based. It is of great importance to state that, the appellant ’s case was about prohibitory interdict, and not about the developments that the first respondent had already made on the site. This court therefore holds that the first respondent failed to discharge the onus on her in this regard, because the first respondent failed to prove the facts upon which the court could find that the value of the subject matter of the interdict was beyond the jurisdiction of the magistrate’s court. It is for this reason that I find that the court _a quo_ erred in holding that it had no jurisdiction to hear the matter. **Non-Joinder** [25] The first respondent in court _a quo_ contented that the testatrix- Mamojalefa Sekota appointed Seutloali Makhetha and Paseka Nketoane to be the executors of her Will, but applicant failed to join them in the proceedings, as they have a direct and substantial interest in this matter. [26] In reply the appellant contented that only the second respondent has the power and authority to appoint executors. The testatrix nominates executors which the second respondent confirms by an appointment and issues letters of administration. (Paragraph 9,1 of the Replying Affidavit). The appellant stated further that both executors indicated that they do not want to assume office as executors. Mr. Paseka Nketoane was approached, and he indicated that he does not want to be executor as indicated in the supporting affidavit of Hlalele Tau. Assuming without conceding that Mr. Nketoane had not been approached then he has failed and or neglected to present himself to the Master of the High Court and seek appointment as an executor. (Paragraph 9.2 of the Replying affidavit). The appellant went further to state that the deceased passed away in 2011 but since then the estate was not administered, hence her appointment. (Paragraph 9.3 of the Replying affidavit). Lastly applicant contended that the Master of the High Court has acted in accordance with the law to appoint an executrix and the review or appeal of such has not been made. In the circumstances, applicant remains a lawfully appointed executrix, therefore it is unnecessary to join the testamentary executors, for they have no direct and substantial interest in the administration of the estate. That in fact, this action is in their interest should they one day successfully challenge the appointment of the applicant, as it is the interest of the estate that the estate is not unlawfully tempered with. (Paragraph 9.4 of the Replying Affidavit). **The Law-Non-Joinder** [27] In the case of **_Nthabeleng Taole and Another v Jimmy Mongaula and Another_**** _**[13]**_**, when dealing with non-joinder the Court of Appeal had this to say: “ _The law of joinder is well settled. This court has pronounced itself clearly on this point. In**Matime and Others v Moruthoane and Another******[14]****, the court expressed the point in the following terms:_ _“This (non-joinder) is a matter that no court, even at the latest stage in proceedings can overlook, because the court of Appeal cannot allow orders to stand against persons who may be interested but who have had no opportunity to present their case_[15]”. [28] In the **_Taole_** case **_(_** s _upra_) the Court of Appeal referred to the case of **_Jonathan v Lephole**[16]**_** , where the Court of Appeal remarked as follows: “ _There is however, another reason why the appeal should be dismissed. It is that of non-joinder. It is settled practice of this Court that it can raise mero motu the question of non-joinder to safeguard the interest of third parties as was done in**Amalgamated Engineering Union v Minister of Labour**[17]****. As indicated above, the issue of non-joinder of Rakolo Investment (PTY) Ltd was raised by this court with the counsel for the appellant. He answered that it could not be joined because it no longer exists. There was simply no evidence to support this statement. Yet, as appears in **Kethel v Kethel** estate, when once the court realises that a third party might be affected, it sets aside the lower court’s order and refers the case back to that court to be dealt with afresh after the third party has been joined, and it orders the plaintiff to join him_[18]”. [29] When dealing with non-joinder in the case of **_Amalgamated Engineering Union v Minister of Labour_**[19], **Fagan AJA** states: “ _Indeed, it seems clear to me that the court has consistently refrained from dealing with issues in which a third party may have a direct and substantial interest without either having that party joined in the suit, if the circumstances of the case admit of such a course, taking other adequate steps to ensure that its judgment will not prejudicially affect that party’s interests_[20]”. [30] Coming to this matter, the following are matters of common cause. 1\. That the late Mamojalefa Sekota appointed Seutloali Makhetha and Paseka Nketoane as executors of her Will. 2\. That the late Mamojalefa Sekota passed on in 2011. 3\. That on the 17th September 2021, appellant was appointed executrix to administer the estate of the late Mamojalefa Julia Sekota, and the letters of administration was issued to appellant. [31] The issue to be determined is whether the court erred in upholding the point in _limine_ of non-joinder of the two testamentary executors. [32] The principle enunciated in the cases referred to above is that courts should not allow orders to stand against persons who may be interested, but who have not been given an opportunity to present their case. The principle enunciated in the above cases is that a third party who has a direct and substantial interest in the matter, must be joined in such proceedings, to guard against having an order against the party who never presented his or her case. [33] It is worth mentioning that Seutloali Makhetha and Paseka Nketoane were appointed as executors of the Will of the deceased. The implication of the execution of the Will by the deceased, is that the administration of the estate of Mamojalefa Sekota should as a matter of law be enforced in terms of the _Administration of Estates Proclamation 19 of 1935_ as amended. [34] _Section 31. (1) of the Administration of Estates Proclamation_ provides that: _“The estates of all persons dying either testate or intestate shall be administered and distributed according to law,_under letters of administration granted by the Master in the form “B”in the First Schedule to this Proclamation._ Such letters of administration shall be granted to the executors testamentary duly appointed by persons so dying or to such persons as, in default of executors testamentary, are appointed, as in this Proclamation described, executors dative to the persons dying”._ (2) _Letters of administration shall authorise the executor to administer the estate wherever situate._ [35] As already alluded to, Seutloali Makhetha and Paseka Nketoane were appointed by the testatrix as testamentary executors. The question that should follow is whether, letters of administration were ever issued to them. And the answer is in the negative. Then the next question is whether Seutloali Makhetha and Paseka Nketoane, should have been joined in the proceedings as people who have direct and substantial interest in the administration of the estate of the late Mamojalefa Sekota. Would these two gentlemen be affected by any order that the Magistrate Court, would have made in relation to the estate of the late Mamojela Sekota. The answer to this question is in the negative. It has been demonstrated that the late Mamojela Sekota died in 2011, and until 2021 when the appellant was appointed as the executrix by the Master of the High Court, nothing had moved in so far as the administration of the estate of the deceased was concerned. [36] At paragraph 4.1 of his supporting affidavit Paseka Nketoane says: “ _I must take this Honourable Court into my confidence and disclose that the testamentary will that is attached to the applicant’s application was only brought to my attention by the first respondent herein sometime around November 2021 after it was brought to her attention by the applicant herein_ ”. At paragraph 4.2 he says: “ _I had an occasion to peruse same and I only became aware that I and Seutloali Makhetha had been appointed by the late Mamojela Julia Sekota as the Executors of the said Will and I only became aware about same around November 2021, it cannot therefore be true and correct that I had repudiated my appointment aforesaid when nobody had bothered to notify me about my appointment aforesaid_ ”. [37] Having said this I wish to refer to _section 31.1 of the Administration of Estates Proclamation_. It says that letters of administration shall be granted to the executors testamentary duly appointed by persons dying or such persons as, in default of executors testamentary are appointed. What this section means is that the appointment of testamentary executor should be followed by letters of administration issued by the Master of the High Court. In the absence of letters of administration having been issued to the Seutloali Makhetha and Paseka Nketoane, I do not find any reason why they should have been joined in the proceedings, while their interest would have been to ensure that the estate is administered in terms of the law. Any decision that the court _a quo_ could make would not have affected them in any manner, as they did not have a direct and substantial interest in the matter, which was primarily to safeguard the interests of the estate of the late Mamojela Sekota. To join them in these proceedings would not serve any purpose, on the backdrop of the fact that the letters of administration have been issued to the appellant herein. [38] I have considered the fact that Paseka Nketoane stated in his affidavit, as shown above that he became aware of his appointment as the testamentary executor, sometime in November 2021, but to date he has not challenged the repudiation of his appointment. His conduct is a prima facie proof that even the repudiation of his appointment does not directly and substantially affect him as a person, that is why he has not even taken steps to challenge it. This court finds that Seutloali Makhetha and Paseka Nketoane do not have a direct and substanatial interest in this matter, and their rights would not have been affected adversely by the order the court _a quo_ would have made. Even if Seutloali Makhetha and Paseka Nketoane had been joined in these proceedings, their joinder would not have served any purpose, simply because letters of administration had been issued to the appellant, in relation to the estate of Mamojalefa Sekota. Further what would be the purpose of joining them when no relief is sought against them and would not be adversely affected by the order of the court. I hold that to join them would have achieved nothing, except to expose the appellant to unnecessary costs. It is for these reasons that this court concludes that court _a quo_ erred in upholding the point of non- joinder. [39] It is the appellant ’s further contention that the magistrate erred and misdirected himself in holding that the first respondent is a bona fide occupier, therefore has a lien over the estate property at Qalaheng Store, in Mabekenyane. [40] There are two difficulties with this finding. The first is that the first respondent did not seek the relief that she is the bona fide occupier, therefore she has lien over the estate property. Put differently, can a party be granted a relief that he or she has not prayed for. [41] Though the court has very wide discretion in granting relief, the court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner[21]. [42] Dealing with the same issue, in **_Fertilizer Corporation of India Ltd and Another v Sarat Chandra Rath and Others_**** _**[22]**_**, the Supreme Court held that the High Court ought not to have granted reliefs to the respondent which they had not prayed for. [ Para No. 32] [43] In the same vein the Court of Appeal, when dealing with the similar issue in the case of **_‘Mamokotjo Liboti v Mpoi Liboti_**[23], reiterated its position in several of its decisions that the court also deprecated the practice of granting orders which are not sought by the litigants. See **_NKuebe v Attorney General and Others**[24]**_** , **_Mophato oa Morija v Lesotho Evangelical Church**[25]**_**. In the **_Mophato oa Morija_** case, the court stated that the relief which a court may grant a litigant in terms of such a prayer (prayer for further and or alternative relief) cannot be extended to relief which he has never asked for and which is not even remotely related to what he has already asked for. The court stated further that it was equally clear that the order was not granted at the request of the respondent, and it does not appear on what grounds the court _a quo_ could order the respondent. [44] In view of the above authorities, on the issue that the court cannot grant a relief which has not been prayed by the parties, I conclude that the court _a quo_ erred in granting the first respondent a relief she had not prayed for. [45] Another difficulty posed by the judgment of the court _a quo_ , was that the magistrate held that the first respondent was entitled to remain on the plot until compensated for the necessary expenses incurred, as she is the _bona fide_ occupier and developer on the site, the subject matter. Having found that the first respondent was the _bona fide_ occupier, the court a quo decided that it had no jurisdiction to entertain this matter. If the magistrate court had no jurisdiction in the matter, it is trite law that there was nothing further that the magistrate could do in the matter other than to dismiss the matter and deal with the question of costs** _. In Owners of the_** **_Motor Vessel “Lillian S V Caltex Oil (Kenya) Limited_**** _**[26]**_**, the court stated that jurisdiction is everything, without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings. A court of law downs tools in respect of the opinion that it is without jurisdiction. In **_Thato Molomo v LIMA Rural Development Thaha J/V_**** _**[27]**_**, Court of Appeal reiterated that once the court lacks jurisdiction it cannot entertain the matter for any reason and the only possible order is to dismiss it. [ Page 15 at Para 42]. **Conclusion** [46] On the basis of the cases referred to above, I conclude that once the court a quo decided that it had no jurisdiction over the matter, it was wrong to have continued with the proceedings and made findings in the matter, where the court had decided it lacked jurisdiction to entertain the matter. [47] I have already indicated above in this judgment, that nothing is said about the point of _locus_. The record does not disclose whether this point was abandoned or not. Even in this court this point was not pursued. I therefore need not say anything on this point. [48] I hold that the Magistrate Court erred in holding that it had no jurisdiction to entertain the matter. The court a quo further erred in upholding the point of non- joinder. The court a quo erred in granting the first respondent a relief that the first respondent had not sought. Lastly the court a quo erred in holding that the first respondent should continue to stay on the estate property, until she is compensated, when the court a quo had found that it had no jurisdiction in the matter. **Order** [49] In the result the following order is made: (a) The appeal is upheld with costs. (b) The matter is remitted to the Magistrate Court to proceed with the aspects of the case. **______________________** **T.J. MOKOKO** **JUDGE** **FOR APPELLANT** : ADV. P. N. THABANE **FOR 1 ST RESPONDENT**: ADV. M. ‘MUSI-MOSAE * * * [1] Mtshali v Mtambo and Another 1962 (3) SA 469 (GW); Kibe v Mphoko 1958 (1) SA 364 (O); Jourbert (ed) Law of South Africa vol 11 para 419; Forsyth Private International Law 2nd ed at 200-2. [2] Kikillus v Susan 1955 2 SA 137 (W); Marais v Munro & Co Ltd 1957 4 SA 53 (EDL); Natalie Landboudoop Bpk v Fick 1982 4 SA 287 (N). [3] Cilliers, Loots and Nel Herbestein and Van Winsen Cilliers AC, Loots C and Nel HC Herbestein and Van Winsen: Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa 5th ed (Juta Cape Town 2009) at 438. [4] C of A (CIV) 46/2022 [5] Tau Makhalemele v Board of Enquiry of the National Security Service C of A (CIV) 38/2022; Gcaba v Minister of Safety and Security 2010 (1) SA 238 (CC) at 263. [6] “Mamarame Matela v Lesotho Telecommunications Authority (supra) at page 5. [7] 2009 (1) SA 259 [8] C of A (CIV) A/62/2017 [9] _1950 (2) SA 622 (N) at 624_ [10] The South African Law of Evidence, 4th ed at page 510 [11] _1971 (1) SA 364 (N)_. [12] Kadir (supra) at 366 D [13] C of A (CIV) 22/2021 [14] 1985 -1989 LAC 198 and 200 [15] Nthabeleng Taole and another v Jimmy Mongaula and another C of A (CIV) 22/2021 at Page 5 [16] C of A (CIV) 5 OF 2017 [17] 1949 (3) SA 637 (A) at 659 [18] Nthabeleng Taole and another v Jimmy Mongaula another (supra) at Page 5. [19] 1949 (3) SA 637 (A) [20] 1949 (3) SA 637 at Page 659. [21] Bharat Amratlal kothari v Dosukhan Samadkhan Sindhi and Others AIR 2010 SC 475 [22] AIR 1996 SC 2744 [23] C of A (CIV) No. 66/2019 [24] 2000-2004 LAC 295 at 301 B-D [25] 2000-2004 LAC 354 [26] (1989) KCR 19 [27] C of A No.90/2022 #### __Related documents ▲ To the top >