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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