IN THE LAND COURT OF LESOTHO

Transcription

1 IN THE LAND COURT OF LESOTHO Held at Maseru LC/APN/152/2014 In the matter between: TSELISO MOTEBELE APPLICANT And MAMPHO MAZULU MATEKASE RESPONDENT CORAM: S.P. SAKOANE AJ DATE OF HEARING: 5 MARCH, 2015 DATE OF JUDGMENT: 16 MARCH, 2015 SUMMARY Preliminary objection of lack of jurisdiction not raised at the first court appearance as required by the rules whether the objection can be waived and is such as to prevent court from entering a valid judgment held that the objection cannot be waived and can even be raised by the court mero motu.

2 ANNOTATIONS CITED CASES: Attorney-General v. Kao LAC ( ) 656 Jobo v. Lenono And Others C of A (CIV) Bo.28 of 2010 Lephema v. Total Lesotho (Pty) Ltd And Others C of A (CIV) No.36 of 2014 Lesotho District of The United Church v. Rev. Moyeye And Others LAC ( ) 103 Makoala v. Makoala LAC ( ) 40 Masopha v. Mota LAC ( ) 59 Mphutlane v. Seoli And Others LC/APN/18/2014 STATUTES: Land Act No.8 of 2010 Land Court Rules, 2012 Land Regulations, 2011 BOOKS: Erasmus H.J. and Van Loggerenberg D.E. (1988) Jones And Buckle The Civil Practice Of the Magistrates Courts in South Africa 8 th Edition Vol.1 (Juta: Cape Town) Joubert (ed) The Law of South Africa 2 nd Edition Volume II (LexisNexis Butterworths: Durban) Joubert (ed) The Law Of South Africa 3 rd Edition Volume 4 (LexisNexis Butterworths: Durban) 2

3 RULING ON PRELIMINARY OBJECTIONS: LACK OF JURISDICTION A. INTRODUCTION [1] The respondent herein raises an objection that this Court does not have jurisdiction to grant the relief sought by the applicant. The relief the applicant seeks is: (a) An order declaring the applicant as the rightful and lawful heir to the (sic) his parents estate including the site in issue and/or owner of the site. (b) (c) (d) An order ejecting the respondent from the site and its premises. Costs of suit. Further and/or alternative relief. [2] An amendment of prayer (a) was applied for and granted to read: An order declaring applicant as the lawful and rightful owner of the site by virtue of being customary heir to his parents estate. B. SUBMISSIONS [3] Mr. Mokoena, for the respondent, raises the objection of lack of jurisdiction from the Bar. His contention is that this Court has no powers 3

4 to grant the declarator prayed for because that is an issue whose determination falls under the jurisdiction of courts other than the Land Court. [4] Miss Lesaoana, for the applicant, counters that this objection cannot be raised now at this first hearing of the application because it was not raised at the first court appearance as contemplated by Rule 66 (3) of the Land Court Rules, Rule 66 (3) provides: Where more than one objection is made under this rule, they shall be taken together and any objection not made at the first court appearance shall be considered to have been waived, unless the ground of objection is such as to prevent a valid judgment from being entered. [Emphasis added] [5] Mr. Mokoena replies that the objection is a material and important one which can and should be raised at the stage of the proceedings as it affects the adjudication capacity of the Court. [6] Counsel s submissions bring to the fore the need to interpret the rules as well as to engage with the issue of whether this Court s powers extend to granting a declarator in relation to heirship to land which forms part of an estate. Miss Lesaoana says the Court has such powers while Mr. Mokoena disagrees. 4

5 C. ANALYSIS Waiver of Objection [7] Rule 66 (3) provides that any objection not made at the first court appearance shall be considered to have been waived. This is, however, subject to the qualification that unless the ground of objection is such as to prevent a valid judgment from being entered. What this means is that the only objections that are waiverable are those whose effect does not prevent the entering of a valid judgment. In other words, the court may proceed to deal with the merits of the application and enter a judgment notwithstanding failure by a party to raise an objection which does not affect the court s power to enter a valid judgment binding the parties. [8] Conversely, objections which are not waiverable are those whose effect constitute a bar to legal proceedings usually called pleas in abatement (or special pleas). Such objections are defined as follows in LAWSA 3 rd Edition Vol.4 para 183: A special plea is one that, apart from the merits, raises some special defence, not apparent ex facie the claim and which either destroys or postpones the operation of the cause of action. If the special defence is apparent from the claim, the proper course would be to take an exception. A special plea accordingly does not raise a defence on the merits of the case but interposes some defence not apparent on the face of the pleading. This can be a statutory defence. 5

6 A special plea, which destroys a cause of action, is called a plea in abatement (or a plea in bar) and one which postpones the cause of action, a dilatory plea. Examples of pleas in abatement are extinctive prescription, non-joinder or misjoinder and res judicata. On the other hand, a plea relying on an arbitration agreement and praying that the proceedings be stayed pending the final determination of the dispute by the appointed arbitrator, or a plea of lis alibi pendens, are examples of dilatory pleas. The onus usually falls upon the party relying on a special plea to prove the allegations relied upon. The dismissal of a special plea is a judgment or order and appealable. (See Joubert (ed) The Law of South Africa, 3 rd Edition Vol.4 Lexis Nexis Butterworths: Durban) [9] To the examples of special pleas given above must be added the plea of lack of jurisdiction in respect of which the learned authors of Jones and Buckle comment thus: The objection that the court has no jurisdiction must ordinarily be raised by special plea. Such a plea may be specially set down for adjudication prior to the plea on the merits being dealt with. There is no exception that the court has no jurisdiction. However, if the fact of lack of jurisdiction appears from the summons, the defendant is entitled to except to the summons on the ground that no cause of action is disclosed. (See Erasmus and Van Loggerenberg (1988) Jones And Buckle, The Civil Practice of the Magistrates Courts in South Africa 8 th Edition Vol. I (Juta) p.34 [10] A court has power to raise mero motu the special pleas of jurisdiction, nonjoinder and misjoinder and, if proven valid, must decline jurisdiction, whether or not the plea of lack of jurisdiction has been raised by the 6

7 respondent/defendant or proprio motu stay the proceedings until an interested party has been joined or intervened or has waived the right to be joined or intervene, or has consented to be bound by the outcome of the case. (See Jones and Buckle (supra) pp ; Masopha v. Mota LAC ( ) 59; Attorney-General v. Kao LAC ( ) 656 at paras [13]-[18]; Lesotho District of The United Church v. Rev. Moyeye And Others LAC ( ) 103 at paras [16]-[17]; Makoala v. Makoala LAC ( ) 40 at para [6]) [11] Since the special plea of jurisdiction is not confined to the intio litis stage of proceedings but remains alive up to the stage of appeal proceedings, there is no merit in the contention of Miss Lesaoana that it cannot be raised after the first court appearance. In Attorney-General v. Kao (supra) the Court of Appeal held that the defence of lack of jurisdiction may be raised at any time, even on appeal. Failure by a litigant to raise this defence does not have the effect of conferring jurisdiction where none exists. [12] In any event, the court has the power to raise the point mero motu and I indeed welcomed its raising by Mr. Mokoena after I had looked at the relief being sought by the applicant. The court directed applicant s Counsel to Regulation 43 of the Land Regulations, 2011 to find out whether the applicant had complied with it. This regulation provides that: 7

8 (1) Whenever an allottee dies intestate, the nearest relative or connection of the deceased or in default of any such relative, the person who at or immediately after the death has the control of the land formerly held by the deceased, shall within 6 months thereafter notify the allocating authority of the death. (2) Whenever a lessee dies intestate leaving land held under a lease evidenced by a deed of lease and such leased land is not governed by any written law relating to succession, a person who believes he is the lawful heir or any other interested person shall within 6 months of the death of the deceased lessee cause a notice of death to be delivered on transmitted to the Commissioner. (3) The notice referred to in subregulation (1) shall show: (a) (b) (c) (d) (e) (f) the date of death, place of origin and the last place of residence of the deceased; the relationship of the informant to the deceased; the name and sex of the heir of the deceased; the names and particulars of the heir and whether the heir was nominated by the allottee or family members of the deceased allottee; whether the allocated land is to be occupied by the minor children of the deceased; and relevant particulars to identify the locality of the allocated land. [Underlining mine] 8

9 [13] The underlined paragraphs (a), (c) and (d) of subregulation (3) enjoin nearest relatives of the deceased or persons in control of such deceased s land to provide the allocating authority the date of death, name and sex of the heir and specify whether such an heir was nominated by the deceased or family members of the deceased. This must be done within a period of 6 months after the death of the allottee. [14] Although the pleadings indicate that the applicant was confirmed by the family as the heir to his parents land in the estate after the funeral of his deceased father, there is nothing pleaded to indicate that the allocating authority has been notified about the deceased s death nor given the names of the applicant as the nominated heir. It is mandatory for this to have been done and done within a period of 6 months after the death (and not funeral) of his father. [15] The papers are silent about this remissness on the part of the applicant or the family members. He now seeks the intervention of the Court in what is clearly a family matter that must be taken to the allocating authority. In this the Court cannot render any assistance as the competent authority is the family and the allocating authority. Disputes in regard to the claims 9

10 over the land must be heard and resolved by the allocating authority in terms of Regulation 44. [16] This Court, though a division of the High Court, is a creature of statute whose jurisdiction is conferred by the Land Act, 2010 under section 73. Unlike the High Court, it does not have inherent unlimited jurisdiction. Its original jurisdiction is confined to land dispute involving claims to the title, derogations from title and claims to rights overriding title. (See Lephema v. Total Lesotho (Pty) Ltd And Others C of A (CIV) No.36/2014 delivered on 24 October 2014 (as yet unreported); Mphutlane v. Seoli And Others LC/APN/18/2014 delivered on 25 November 2014 (as yet unreported)) In principle, therefore, it also has jurisdiction to deal with any other matter if ancillary to a land dispute like actions for ejectment. [17] But because the claim for ejectment is ancillary and consequential to the declarator for ownership by virtue of heirship which is fundamental to the application, this Court cannot determine until and unless the question of heirship is resolved in terms of Regulation 43. (See Jobo v. Lenono And Others C of A (CIV) No.28/2010 delivered on 20 April 2011 (as yet unreported); Joubert (ed) The Law of South Africa 2 nd Edition Vol.II Lexis Nexis Butterworths: Durban) para 527) 10

11 D. DISPOSITION [18] I then hold that the point of lack of jurisdiction taken by the respondent is valid and must be sustained. The application is therefore dismissed. Since this is a family matter, no costs are awarded. S.P. SAKOANE ACTING JUDGE For the Applicant: For the Respondent: T.A. Lesaoana P.M. Mokoena 11