Court of Appeal to pass judgment tomorrow over property wrangle between Benjamin Radiopelo Maphathe and Ashraf Abubaker
Lekhetho Ntsukunyane
THE Court of Appeal is tomorrow expected to pass judgment over a protracted case in which two prominent entrepreneurs are fighting over a Mafeteng business complex.
Benjamin Radiopelo Maphathe and Ashraf Abubaker of Mafeteng and Maseru respectively, have been battling for the control of Patsa Shopping Centre since 2009.
Mr Maphathe is seeking to inherit the property from his late father, Dr Kenneth Thulo Maphathe, but Mr Abubaker has been resisting the move. He cites a sub-lease his company, I Kuper Lesotho Proprietary Limited, signed with Dr Maphathe in 1990.
According to evidence presented in court, Dr Maphathe signed the 25-year sub-lease “with two options to renew the agreement for two further periods of 10 years each.”
Through his lawyer, Senior Counsel K.J. Kemp, Mr Abubaker further submitted that when Dr Maphathe passed away in 2000, his death did not affect the agreement “as the rights of the defendant (I Kuper Lesotho) will supersede any right that an heir to the estate would inherit.”
However, Mr Abubaker also submitted that after his appointment as I Kuper Lesotho Managing Director in July 2009, he realised that Mr Maphathe had once been appointed to manage the property.
“From the investigations that I made, it appears during or about April 2003, the defendant (I Kuper Lesotho) appointed the appellant (Mr Maphathe) as its agent to collect rentals and manage the affairs of the shopping centre.
“However, the appointment was terminated on 10 October 2008 after Du Preez Liebetrau & Co, was appointed to act on behalf of the defendant,” Mr Abubaker submitted.
He added as a result of the contract’s termination, Mr Maphathe, had “no authority or lawful right to collect rental and claim the centre or income as his property and consequently the collection thereof is fraudulent and unlawful.”
However, after the High Court ruled in favour of Mr Abubaker in 2009, Mr Maphathe appealed the decision through his lawyer, Advocate Letuka Molati. He was back in the Court of Appeal on Wednesday last week, where it was indicated judgment would be passed tomorrow, 24 October.
Advocate Molati noted in papers before the court: “The litigation went on appeal from the High Court, on prior occasions. The Court of Appeal, in its judgment on 27 April 2012, ordered the remission of the case back to the High Court.
“We submit that the enquiry which the High Court had to make subsequent to the order of the Court of Appeal was circumscribed to one which was whether or not the sublease that the respondent (Mr Abubaker) had founded his case upon was registered.
“In light of the above, the appellant’s contention per grounds of the appeal is that the respondent does not have locus standi (right) in these proceedings and further that the 1990 sublease agreement was unregistered and it was wrong for the court to have considered it.”
According to Mr Maphathe, I Kuper Lesotho filed a court application in 2009 in line with a resolution of the Board of Directors “which authorised Ashraf Abubaker to sign any court papers to enforce the rights of the company
“However, at the time the respondent filed the application, I Kuper Lesotho had already ceded all its right, title and interest to the property. It would follow therefore that the respondent did not have the necessary locus standi to havefiled the application in the first place.”
