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TLOKWENG LAND BOARD v MATSETSE AND ANOTHER 2007 (2) BLR 850 (CA)
Citation: 2007 (2) BLR 850 (CA)
Court: Court of Appeal, Lobatse
Case No: Civ App 5 of 2007
Judge: Zietsman Moore and Twum JJA
Judgement Date: July 26, 2007
Counsel: I Bahuma for the appellant. K N Monthe for the respondent.
Flynote
Contract - Mistake - Dispute as to extent of property leased - Whether matter capable of
determination on application.
Headnote
The appellant approached the High Court for a declaratory order that the first respondent had
leased from it a smaller area than that reflected as the leased property in the common law lease
agreement between them on the ground that, at the time of conclusion of the agreement, the first
respondent had misrepresented to the appellant that he was entitled, under customary law, to the
larger area reflected as the leased property in the agreement, whereas, in fact, he was entitled
only to the smaller area. The High Court refused to refer the matter to oral evidence on the
ground that there were no material disputes of fact between the parties and dismissed the
application. The appellant appealed against that decision to the Court of Appeal.
2007 (2) BLR p851
Held: (1) Clearly, there were material disputes of fact between the parties, notably, the dispute as
to the extent of the property to which the first respondent was entitled under customary law
when he applied for a common law lease.
(2) Whether or not the appellant was entitled to escape the agreement depended on whether the
first respondent's representation as to the extent of the property to which he was entitled under
customary law was correct or incorrect. However, the dispute as the truth or otherwise of the
first respondent's representation could not be determined on the papers.
(3) There was thus a material dispute of fact which could not be resolved on the papers and oral
evidence was necessary in order to resolve the dispute.
Case Information
Cases referred to:
Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) SA 164 (D)
Barclays Bank of Botswana Ltd v Siviya [1997] B.L.R. 834, CA
National and Overseas Distributors Corporation (Pty) Ltd v Potato Board 1958 (2) SA 473 (A)
Sonday v Surrey Estate Modern Meat Market (Pty) Ltd 1983 (2) SA 521 (C) APPEAL against a
decision in the High Court. The facts are sufficiently stated in the judgment.
I Bahuma for the appellant.
K N Monthe for the respondent.
Judgement
ZIETSMAN JA:
It is common cause that the first respondent enjoyed rights to certain property within the
Batlokwa Tribal Territory. During the year 1990 the first respondent applied to be granted a
common law lease in respect of his property. His application was approved. A lease was drawn
up and signed by the appellant and by the first respondent after the Minister's consent had been
obtained. The lease was then, at the instance of the first respondent, registered in the deeds
office. The dispute in this case concerns the extent of the property to which the first respondent
was entitled.
There are two areas of land referred to in the papers. The first piece of land measures 4 479
square metres. It is not disputed that the first respondent is entitled to a common law lease in
respect of this land. The case for the appellant is that when the first respondent applied for a
common law lease he wrongfully produced a survey plan of a much larger piece of land
measuring 1.7588 hectares. This 1.7588 hectares includes the 4 479 square metres referred to
above. In addition to the 4 479 square metres the 1.7588 hectares includes lots 5798-5800 and
lots 5801-5810. This total area is described in the papers as lot 647.
It is common cause that a lease agreement was signed by the appellant and by the first
respondent and that the area of land referred to in the lease agreement is lot 647. It is this lease
that was registered. The appellant's case is that the first respondent is not entitled to the area
described as lot 647 but
2007 (2) BLR p852
ZIETSMAN JA
is entitled only to the land measuring 4 479 square metres. It alleges that it signed the lease
agreement in the belief that it referred to the 4 479 square metres and that the reference to the
larger area in the lease agreement was an error which must now be corrected. The appellant
accordingly applied for an order declaring that the first respondent has no rights to lots 57985800 and 5801-5810 and the area between them. The error alleged by the appellant was
discovered by the appellant when its workers sought to work on access roads running
between lots 5801-5810 and 5798-5800 and were stopped by the first respondent and by his
brother, the second respondent, who alleged that the land belonged to the first respondent.
In the court a quo the appellant's application was dismissed. An application that the matter be
referred for the hearing of oral evidence was refused on the ground that there were no real and
substantial disputes on facts material to the determination of the matter.
There clearly are disputes of fact in the affidavits filed by the parties. The essential dispute
concerns the extent of the property to which the first respondent was entitled under customary
law at the time when he applied for a common law lease. The appellant alleges that the first
respondent was entitled only to the 4 479 square metres. The first respondent alleges that he had
acquired the larger area of lot 647 from his father. In this connection there is a contradiction in
the affidavits filed by the first respondent. In his initial affidavit he states that he inherited the
land from his father who died in 1990. In a later affidavit he states that the land was given to him
by his father in 1988 and in 1990.
There are documents filed by the first respondent which are not consistent with his allegations, or
which add to the confusion.
In his written application entitled 'Application for Common Law Land Rights' question number
12 refers to the size of plot required by the applicant. The answer given is 'as per sketch (85.11 x
53.12)'. The survey plan submitted has, at the top, 'area = 1.7588 ha'. However, immediately
underneath the plan the measurements '80 x 66 x 58 x 66.3' appear. These are the measurements
of the 4 479 square metres piece of land. The second respondent, the first respondent's older
brother, has filed an affidavit in which he states, inter alia:
'I particularly wish to confirm that the entire piece of land measuring 1.7588 hectares belongs
to my younger brother Monty Raphephe Matsetse.' There is however a document described as
'Allocation Report Format' which is witnessed by the second respondent and is dated 18 January
1991. In that document the dimensions of the first respondent's land are given as 80 x 66 x 58 x
66.3 (the size of the 4 479 square metres piece of land). The minutes of various meetings held by
the land board (the appellant) reflect the mistake alleged by the appellant. In a minute of which
only the relevant page is included in the papers, and which does not include the date of the
meeting, the following is stated:
'Mr Monty Matsetse applied for conversion of his plot as per sketch he
2007 (2) BLR p853
ZIETSMAN JA
attached measuring 85.11 x 53.12 in 1990. The Board allocated him 80 x 66 x 58 x 66.3 m on
18 January 1991. However, when the lease was prepared the measurements were erroneously
increased to cover areas not applied for and not allocated. This affected Naledi Podile's (nephew)
plot already allocated in 1989. Mr Monty Matsetse agreed that he was the one who submitted the
application in 1990 and said that it was up to the Land Board to resolve the matter as it saw fit
and as appropriate.' It is not denied by the first respondent that Naledi Podile was given his piece
of land by the first respondent's father in 1989, and that Naledi's piece of land falls within plot
647. The question arises how the first respondent's father could have given the first respondent
land which he had already given to Naledi, or how the first respondent could have inherited
from his father land which had already been given to someone else. The first respondent
concedes that Naledi Podile is entitled to a lease in respect of his piece of land and he states that
this land must be extracted from plot 647.
There are clearly disputes of fact concerning the extent of the land acquired by first respondent
from his father and the extent of the land he held under customary law, and these disputes of fact
cannot be resolved on the papers before the court.
The judge in the court a quo states in his judgment that if the appellant made a mistake in signing
a contract of lease for the larger piece of land, it cannot rely upon its mistake to have the contract
set aside. He refers to the case of National and Overseas Distributors Corporation (Pty) Ltd v
Potato Board 1958 (2) SA 473 (A). The following is stated at p 479G-H of that case:
'Our law allows a party to set up his own mistake in certain circumstances in order to escape
liability under a contract into which he has entered. But where the other party has not made any
misrepresentation and has not appreciated at the time of acceptance that his I offer was being
accepted under a misapprehension, the scope for a defence of unilateral mistake is very narrow,
if it exists at all.'
In the present case it is the appellant's allegation that the first respondent did misrepresent to the
appellant that he was entitled to the larger piece of land. The decision in the Potato Board case is
thus not applicable to the facts in the present case.
As I see the matter, if there has in fact been a misrepresentation on the part of the first respondent
which has led to the appellant signing the contract for the larger plot in error, this would entitle
the appellant to have the contract of lease set aside. Whether or not the first respondent was
guilty of a misrepresentation will depend upon whether he had lawfully acquired the larger piece
of land from his father. As I have indicated above, this is a question of fact which cannot be
resolved on the papers as they stand.
It is also possible that a determination of the facts may disclose a bona fide error on the part of
both parties. If this is the case then clearly the appellant will be entitled to have the agreement set
aside. See, for example, the case of Allen v Sixteen Stirling Investments (Pty) Ltd 1974 (4) SA
164 (D).
2007 (2) BLR p854
ZIETSMAN JA
The judge in the court a quo also came to the conclusion that the appellant's claim is met by the
principle of estoppel. His conclusion was that having signed the agreement of lease the appellant
is estopped from disputing the validity thereof.
The requirements of estoppel are a material misrepresentation which is accepted (believed) by
the representee and which induces the representee to alter his position to his prejudice. These are
the requirements for estoppel in both English and South African law. See the case of Sonday v
Surrey Estate Modern Meat Market (Pty) Ltd 1983 (2) SA 521 (C) at p 532F-H. In the case of
Barclays Bank of Botswana Ltd v Siviya [1997] B.L.R. 834, CA it was held by this court that
these are also the requirements for estoppel in Botswana.
In the present case, if there was a misrepresentation it was made by the first respondent who is
alleged to have misrepresented to the appellant the extent of the property over which he had
customary rights. There was no misrepresentation by the appellant. The appellant signed the
lease agreement on the strength of information furnished to it by the first respondent. If there was
a misrepresentation the appellant was the victim of the misrepresentation and not the author
thereof. The principle of estoppel cannot in this case be relied upon by the first respondent.
My conclusion in this matter is that there is a material dispute of fact which cannot be resolved
on the papers as they stand. The essential dispute concerns the extent of the land acquired by the
first respondent from his father, and also whether such land was lawfully acquired by him. In
order to resolve these issues, oral evidence is necessary. I would make the following order:
1. The appeal succeeds with costs and the orders granted by Gaongalelwe J* are set aside.
2. The matter is referred back to the High Court for the hearing of oral evidence, on such terms
as the High Court may determine, and thereafter for the determination of the following
issues: (a) whether the deceased (the respondents' father) had any right or title to lot 647 or
to lots 5798-5800 and 5801-5810 referred to on the papers;
(b) whether the first respondent lawfully obtained any rights to any of the said lots by way of
a gift or inheritance from his father; (c) whether, in the light of the established facts, the
applicant is entitled in law to any of the orders sought by it in its notice of motion;
(d) whether the first respondent is entitled to any of the orders sought by him in terms of his
counter-application.
3. The costs incurred in the court a quo are reserved for decision by the High Court after its
determination of the issues referred to above. Moore and Twum JJA concurred.
Appeal upheld.
2007 (2) BLR p855