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Dehui v Masimolole N.O. (Civil Appeal No. 36 of 201) [2002] BWCA 6; [2001] 1 B.L.R. 253 (CA) (2 January 2002)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 36/2001 (Previously Court of Appeal Civil Appeal No. 46/2000) HIGH COURT MISCA NO. 213/99
In the matter between:
Appellant
LIN DEHUI
And
Respondent
PATRICK MASIMOLOLE
Mr. A. Modimo for the Appellant Mr. D.B. Leburu for the Respondent

JUDGMENT
CORAM: Korsah J.A
Lord Weir J.A Zietsman J.A
ZIETSMAN J.A:
On the 31st January 2001 an Order was granted by this Court confirming certain orders, numbered 8,9, 10 which had been granted against the appellant in the High Court at Lobatse. The Orders so confirmed read as follows:

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8.     
The respondent (the present appellant) is required to vacate the premises he presently occupies as his residence at the Mogoditshane yard of the estate of the late Peter Pogiso Masimolole within 30 days of the date of this judgment. Should he so wish, the respondent may remove and retain the materials used to construct this building, also within 30 days of the date of this judgment.
9.     
The respondent is hereby restrained from harassing and/or interfering with tenants on the property now known as Lot 1439, Mogoditshane.
 10.    
The respondent is to bear the costs of this application.
It is clear from the papers now before this Court that the appellant has failed to vacate the premises he occupies as his residence at Mogoditshane.
On 16 May 2001 the respondent launched an application in which he sought an order:-
 (a)     ordering and directing the respondent (the present appellant) to be in contempt of court.
 (b)     committing the respondent to prison for a period of 30 days.
 (c)     ordering and directing the police at Mogoditshane to assist in the eviction of respondent.
 (d)     ordering and directing respondent to pay the costs of this application.
The application, which was opposed by the appellant, was heard by Dibotelo J in
the High Court at Lobatse, and on 5th October 2001 he granted an order in the
following terms:
(a) The respondent is adjudged to be in contempt of paragraph 9 (this should clearly read paragraph 8) of the Court of Appeal order dated 31st January 2001 directing him to

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vacate the premises he occupies as his residence at the Mogoditshane yard of the estate of the late Peter Pogisego Masimolole within 30 days of the 31st January 2001;
(b)    
The respondent is committed to prison for a period of 30 days but the term of imprisonment is suspended on condition that he vacates the premises referred to in (a) above within 48 hours;
(c)    
In the event of the respondent failing to vacate the premises it is directed that the Station Commander, Botswana Police, Mogoditshane, or any police officer duly authorised by him, assist the Deputy Sheriff to evict the respondent from the premises;
 (d)    
Costs of this application are awarded to the applicant.
It is against this order that the appellant now appeals.
The argument advanced on behalf of the appellant is that the order by this Court required him to vacate only that part of his residence that stands on property which belongs to the estate of the late Peter Pogisego Masimolole, or in respect of which the estate of the late Peter Pogisego Masimolole has occupational rights. (For the sake of convenience, I shall refer to the late Peter Pogisego Masimolole as Peter, and to the property which belongs to his estate, or over which his estate has occupational rights, as Peter's property).
The appellant states in his affidavit opposing the application that it is only part of his residence, namely the kitchen, that stands on Peter's property, and he alleges that he has vacated the kitchen.

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It becomes necessary to deal briefly with the facts of this matter.
The part of the appellant's residence which he alleges does not stand on Peter's property stands on Tribal Lot 1187 at Mogoditshane.
On 17th October 1990 Tribal Lot 1187 was leased by the Land Board to Peter. The lease was registered in the deeds registry. A certain Mr. Chiu wanted to build a Chinese restaurant on a portion of Lot 1187 which was not being used by Peter. Peter and Chiu then agreed that the Land Board would be requested to subdivide Lot 1187 and to lease to Chiu the portion required by him. The Land Board was approached and the intention was to divide Lot 1187 into two portions which would then be labelled Tribal Lot 1440 and Tribal Lot 1439. The two portions were surveyed, but owing to an error a portion of Lot 1187 was not included in Lot 1440 or Lot 1439. The portion not included is conveniently referred to as "the excluded area."
The area required by Chiu was the area to be labelled Tribal Lot 1440.
It was then discovered that a bond had been passed over Lot 1187. A lease over the area labelled 1440 could not legally be registered until the said bond had been cancelled. However, owing to an error made by the Land Board, a lease in respect of Lot 1440 was in fact registered in the name of Chiu's Company, Happy Palace Restaurant (Pty) Ltd. No other leases were registered and a lease in

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respect of the whole of Lot 1187 remained registered in Peter's name. When Peter died this lease became an asset in his estate.
While some confusion existed regarding the rights to the portion of Lot 1187 labelled Lot 1440, there was no confusion about the remainder of Lot 1187. It was leased to Peter, it was occupied by him; and it became an asset in his estate.
The premises occupied by the appellant as his residence stands partly on "the excluded area" and partly on other property which the appellant concedes belongs to Peter's estate. He alleges that it is only the kitchen that stands on this last-mentioned property.
One of the questions, that had to be determined when the eviction order was sought was whether the rights to "the excluded area" belonged to Peter's Estate. The appellant laid claim to this property. He alleged that he had a company known as T & C Construction (Pty) Ltd and that this company had purchased the lease over the whole of Lot 1187 from Peter. The trial court, after considering the evidence placed before it, rejected this claim by the appellant and found as a fact that the appellant had no right to occupy any portion of Lot 1187. This finding by the trial court was confirmed by this Court in its judgment delivered on 31st January 2001. The following is stated specifically in the said judgment of this Court:

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"In view of what I have stated above it is my conclusion that the appellant has no rights to the properties in question, and that an order evicting him therefrom was correctly granted."
In his affidavit opposing the order for his committal for contempt of court the appellant again makes the allegation that Lot 1187 belongs to his company T & C Construction (Pty) Ltd and that he has the right to occupy the said property. This allegation is in direct conflict with the finding of the trial court and the earlier judgment of this Court. He alleges further in his affidavit that the order made by this Court requires only that he vacate that portion of his residence that does not stand on Lot 1187.
Dibotelo J had no difficulty in interpreting the order made by this Court and in rejecting the appellant's allegations. He held, correctly, that in failing to vacate the building which the appellant is occupying as his residence he had failed to comply with the court order.
In an alternative argument advanced to this Court the appellant's counsel Mr. Modimo, submitted that the order made by this Court is not clear, and that if in fact the order meant that the appellant was obliged to vacate the whole of his residence it was not so understood by the appellant. His submission was that if the appellant misunderstood the order, and thought he had complied with the order by vacating his kitchen, his failure to comply with the order was not wilful and was therefore not done in contempt of the court's order.

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To obtain an order committing a person to a term of imprisonment for contempt of court it is necessary to prove an intention on his part to act in wilful disregard of the court's order. In this case, if the appellant genuinely misunderstood the court order, and thought that he had complied with it, he would not be guilty of contempt. The question to be asked is whether it is possible that the appellant could have misunderstood the order.
Mr. Modimo pointed to the fact that this court set aside certain of the orders
made by the trial judge. One of the orders set aside was order No. 4 which reads
as follows:
"4. The lease of the said Tribal Lot 1187, Mogoditshane, thereby reverts to the original lessee, Peter Pogiso Masimolole, and his estate."
Nowhere is it stated in the trial judge's judgment that the rights to Lot 1187 had ever been acquired by the appellant.
The judgment of this Court delivered on 31st January 2001 makes it quite clear that a lease of Tribal Lot 1187 to Peter was registered in the deeds registry; that a lease of Lot 1440 was incorrectly granted to Chiu's company; that it was then discovered that there was a bond over Lot 1187 and that no other leases were granted or registered. It is clear therefore that the lease of Lot 1187 to Peter had not been cancelled and that it was not necessary to grant an order that Lot 1187 revert back to Peter. The judgment goes on to state that the appellant has no rights to the properties in question, that the order evicting him was correctly

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granted, and that he does not stand to gain anything from the setting aside of the other orders granted by the trial judge.
The judgment of this Court makes it clear that the appellant was required to
vacate "the premises he presently occupies as his residence". There is no
possibility that the order could be understood to mean that he is required to
vacate one room only of his residence. That the appellant correctly understood
the effect of the court's order is borne out by a letter written by the appellant's
attorney to the respondent's attorney on 16th February 2001. In that letter the
following is stated:
"It is our client's intention to vacate the premises by the end of February 2001. As you are undoubtedly aware, client has been living in these premises for a period of over 9 years now and he has no alternative accommodation."
It is clear from this letter that the appellant was fully aware of the fact that he was obliged to vacate "the premises" and not merely one room in the house. The appellant has failed to vacate the premises and this constitutes a wilful disregard by him of the court order.
In the result we find that the order granted by Dibotelo J was justified and the
appeal is accordingly dismissed. The following order is made:
(a) The appellant is adjudged to be in contempt of paragraph 8 of the order granted by this Court directing him to vacate the premises he occupies as his residence at the Mogoditshane yard of the estate of the late Peter Pogisego Masimolole;

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(b) The appellant is committed to prison for a period of 30 days but the term of imprisonment is suspended on condition that he vacates the premises referred to in (a) above within 48 hours calculated from 1800 hours on Wednesday the 30th day of January 2002. The premises the appellant is required to vacate include the land and the entire building or buildings presently occupied by him as his residence;
(c)    
In the event of the appellant failing to vacate the premises it is directed that the Station Commander, Botswana Police, Mogoditshane, or any Police Officer duly authorised by him, assist the Deputy Sheriff to evict the appellant from the premises;
(d)    
The appellant is ordered to pay the costs of the application heard by Dibotelo J and the costs of this appeal.
DELIVERED IN OPEN COURT THIS 30™ DAY OF JANUARY 2002
N. W. ZIETSMAN (JUSTICE OF APPEAL)
K.R.A KORSAH (JUSTICE OF APPEAL)
LORD WEIR (JUSTICE OF APPEAL)

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