The law firm has filed an urgent application requesting the court to interdict and restrain Kelebale from evicting them, pending the payment and/ or recovery by way of court order, the amount of P100,000.00, paid to her by the law firm in advance of rentals in anticipation of a new lease agreement.
Kelebale argues that the money was for rental arrears dating back to when the law firm was sublet into the building by the late Meshack Mthimkhulu’s D.M Mthimkhulu Attorneys. Mthimkhulu had signed a two year lease from 2017 which lapsed in 2019, and the parties had to a limited time, continued with its conditions being exercised in protraction.
The law firm on 13 June 2024 approached court through an urgent ex parte application seeking a rule nisi calling upon Kelebale to show cause to the court why several orders should not be made.
They wanted her interdicted and restrained from evicting the law firm from Plot 546, Extension IV, Gaborone pending the writ of summons for recoveries of P100,000.00 paid in advance towards rentals.
They also wanted her restrained from disturbing the daily business of the law firm and afford them undisturbed occupancy pending the reimbursement of the P100,000.00 paid in advance towards rentals.
The law firm also wanted Kelebale and / or her agents (save for legal representatives or Deputy Sheriffs serving court processes), acting directly under her instruction and influence or vicariously are restrained and interdicted from entering into the premises of the law firm and further be restrained from harassing the occupants thereat, its employees and clientele.
In the event of non- compliance, the Deputy Sheriff or his lawful assistants and/ or any attested member of the Botswana Police Service forcefully if need be cause Kelebale to comply with the court order.
To support the sought orders, they filed a founding affidavit by a Partner at the law firm Tiroyaone Sedimo who uttered that Kelebale harassed their employees daily. “There exists risk of further frustration from Respondent as she has shown fondness of resorting to and exercising self- help agaionst her wn fabricated figments of imagination,” he stated.
According to Sedimo, the dispute started in June 2023, Kelebale approached the premises and asked to see the person managing or in charge of the two firms operations and she met with Sedimo, wherein she identified herself as the ladlord and that se was in pursuit of unpaid rental arrears. Sedimo states then that he addressed her and made it categorically clear that he is not aware of any issue of that nature and he is to enquire from the partners of the firms and revert.
“The enquiry was done and the feedback was that she had taken D.M Mthimkhulu Attorneys to court for recovery of rentals and the matter was dismissed before High Court. Regardless of the same and in good faith, the Applicant facilitated a payment of P50,000.00 to the account of the Respondent whilst exploring the amicable ways of getting to the bottom of the dispute (if any),” he said.
He states that the parties would continue engaging in amicable conversations in a bid to particularise the debt and see to it that the responsible person liable to pay does right to remedy the situation in the event such arrears are qualified.
Owing to the lapsed lease agreement and Sedimo being in charge of the premises and managing the firms, Sedimo said the parties agreed to a new lease agreement which is pending conclusion.
Sedimo further states that as the National Legal Advisor tasked with bidding and International Arbitration which sits in various Jurisdictions and had been in and out of the country and likely to return temporarily as at the end of August 2024 and had hoped to have concluded the lease agreement on behalf of Masire Legal Consultants before his 16th June 2024 trip to Cameroon in transit to Paris, France.
He states that the law firm then made advance rental payments to Kelebale totaling P100,000.00 between May and June 2024.
“In a rather perplexing if not awkward turn of events, the Respondent came back to the premises the following day, being 5th June 2024 claiming that the monies as paid were factored into rental arrears which do not in any way concern the Applicant herein in so far as he had not been privy to the lapsed lease agreement. Further, the Respondent told the Applicant that he is expected to vacate the premises as at Friday 7th June 2024,” Sedimo deposed.
Responding to the shifting of goal posts in such a turn of events, Sedimo states that he then in communication via WhatsApp, requested and later demanded that that he be deposited his monies back in order to seek new premises and utilise same for payments. He states that Kelebale flatly reused and returned to the law firm premises on 10 June 2024 where she demanded keys in an attempt to evict them and only left when she heard that they had phoned Sedimo who was on his way to the premises.
He said he would contact Kelebale who would not answer the phone only to show up again demanding to be given the keys and threatening to change locks if she was not paid. He said orally a lease agreement at the monthly rate of P7,700.00 was tentatively entered into but further moved by Kelebale to P11,000.00 and P8,500.00 which was not agreed to.
Village Magistrate Court’s Principal Magistrate Bosele Busang would grant the law firm the rule nisi returnable on 21st August 2024 and ordered as they had requested.
Represented by Kitsoyaone Lekang of Lekang Motlotlegi Legal Consultancy, Kelebale would only file their opposition on 2nd December 2024. She maintains that the P100,000.00 paid by the law firm was not paid in anticipation of a lease agreement, but rather for rental arrears. “The applicant was the firm that was responsible for paying the arrears on behalf of their client D.M Mthimkhulu Attorneys,” she stated and attached a letter written by Masire Law Consultants to Kelebale’s then attorneys Thabiso Tafila Attorneys dated 18 April 2023.
In the said letter, they acknowledged breach pertaining rental arrears without conceding to amounts as per her demand as it did not reflect the actual balance as per payments deposited to Kelebale’s and those made to her estwhile attorneys.
“We humbly request a clear particularization of the debt reflective of the entire amount (arrears), payments made and the remaining balance in order for us to engage client and define a conclusive position to expeditiously deal with the matter instant,” they stated.
She argues that the remedy sought by the law firm is ill founded as it seeks to unlawfully deprive Kelebale of his right to enjoy the use of her property. ‘The applicant is employing this type of application to evade the court hearing my side of the story, so that they can mislead the court to obtain orders sanctioning the Applicant’s unlawful occupancy and possession of my property,” she stated.
Kelebale further denied agreeing on a new lease agreement with the law firm stating that the draft lease attached to court papers by the law firm was sent to them to appreciate the nature of the lease she intended to enter into with new tenants, and had appointed an estate agent to look for new tenants. To support this, she attached a letter she wrote to the D.M Mthimkhulu Attorneys on 2nd May 2024 giving them notice to vacate the premises within 30 days from 2nd May 2024.
“You are being vacated due to failure to pay rent. The current outstanding amount in arrears as at 30th April 2024 is P364,903.00,” she wrote.
She further argues that Masire Legal Consultants paid the P100,000.00 towards the arrears, to the extent that he admitted he told the respondent that he will give three months’ notice to vacate the premises if there was no rental agreed upon. She would annex WhatsApp communication as evidence.
She further argued that the matter was not urgent. “The Applicant’s recourse to recover any monies is not urgent, and should follow the normal course. Firstly, the applicant doesn’t have a lease agreement with me, secondly the remedies he is seeking are obsolete as he is in possession of my property and he has no right to preclude me from accessing my property. Further that the Applicant hasn't served any summons on my person clearly showing that there is no urgency to issue same,” she said.
