Businessmen fight over Mafeteng building
TWO prominent businessmen who have been at each other’s throats over a property worth of millions of maloti in Mafeteng will face off before High Court judge Lisebo Chaka-Makhooane on 29 November this year.
Messrs Ben Radiopelo Maphathe and Ashraf Abubaker have been at loggerheads over the Patsa Shopping Centre since 2009 when the Land Administration Authority (LAA) purportedly posthumously renewed the sublease agreement between the former’s late father, Dr Kenneth Thulo Maphathe and I. Kuper, a company which is owned by Mr Abubaker.
Dr Maphathe died in 2000 and the contract between him and the I. Kuper, which expired in 2015, was renewed in 2009, giving the I. Kuper Managing Director, Mr Abubaker, grounds to petition the courts that same year to grant him the right to occupy, control and collect rentals accruing from the commercial site.
On the other hand, Mr Maphathe is fighting to retain the ownership of the property he inherited from his father. He is also fighting for the enforcement of the October 2014 Court of Appeal judgement which confirmed that Mr Abubaker does not have a right to collect rentals from Patsa Shopping Centre.
Patsa Shopping Centre has been at a centre of a long drawn out court battle between Messrs Maphathe and Abubaker over a host of issues related to the interpretation of a sublease agreement signed in 1990 between the late Mr Maphathe and I. Kuper (Pty) Ltd. The agreement expired in 2015.
And in October 2014, a three-member Court of Appeal panel ordered that I. Kuper must account to Mr Maphathe for all the monies received by the company from the tenants at the Patsa building.
“The procedural history of this matter is Byzantine in its complexity. This is the third occasion on which this case has featured on the roll of this court…The appeal is allowed, with costs,” part of the 2014 judgement states.
“The first respondent is ordered to account to the applicant for all monies received by the first respondents from tenants at the Patsa Shopping Centre, Mafeteng from 1 April 2003 to 10 October 2008, to debate such account with the applicant and to pay to the applicant any balance which may be found to be due to the applicant after such accounting and debate,” the 2014 judgement further states.
But Mr Abubaker did not take this judgement lying down as one of his companies – Mafeteng Property Group – instituted a new High Court case seeking to have full control of Patsa Building. In May this year, the High Court granted him all his prayers.
Mr Maphathe has since appealed the decision in the Court of Appeal and in the meantime, he wants the High Court to grant him a stay of execution of its May 2018 judgement pending finalisation of the case in the apex court.
He said that the purpose of the court application was to recognise and protect his rights of ownership and rights to collect rentals.
“I categorically seek interdictory protection by way of stay of execution of the judgement of this honourable court dated 17th May 2018 and against further unlawful conduct and acts of violence by the 1st respondent’s managing director (Mr Abubaker) who is threatening to take rentals by physical violence from persons occupying my business building at Mafeteng,” Mr Maphathe states in his court papers.
Mafeteng Property, Mafeteng Police Station, Commissioner of Police, LAA and Attorney General are cited as 1st to 5th respondents respectively in the in the impending lawsuit.
Mr Maphathe is also seeking “an order authorising the 2nd and 3rd respondents to ensure that members of the police force take all reasonable steps to prevent any lawlessness that can result in the violation of the existing judgements of the Court of Appeal of Lesotho”.
He also wants the court to interdict, prohibit and restrain Mr Abubaker’s Mafeteng Property Group from “damaging, entering, occupying, taking control or being in possession of the property”.
He also wants the court to interdict Mr Abubaker from “assaulting, threatening to assault, intimidating, by way of violent action or otherwise instigating others to assault, threaten or intimidate any of the applicant’s staff, tenants, customers, workmen, contractors and or representatives”.
He also wants the court to decide whether or not the LAA can posthumously renew the sublease agreement. He said that this was a material consideration because “the sublease my late father had with the predecessor of 1st respondent expired around 2015”.
In his answering affidavit, Mr Abubaker argues that “the issue of ownership (of the Mafeteng property) has already been decided by this honourable court and the only recourse available to applicant is to the appeal same and not to claim something he has been dismissed.
“The order of the court is clear as to the fate of the tenants. I respectfully submit that applicant is abusing court processes because he failed to prosecute his case.
“This is a clear attempt to resuscitate the dismissed application which is tantamount to abuse of court process… The court was addressed and if the argument is that it came to a wrong conclusion, the only remedy is to appeal and not to re-argue the matter.”
The case will be heard on 29 November this year by Justice Chaka-Makhooane.