Liteboho Ramakhula & Ano. V The Chairperson-Mafeteng Urban Council & & Others (C of A (CIV) No 08/2024) [2024] LSCA 14 (1 November 2024)

LESOTHO

IN THE COURT OF APPEAL OF LESOTHO

 

HELD AT MASERU                                    C OF A (CIV) NO.: 08/2024

CIV/APN/344/2020

 

In the matter between:

 

LITEBOHO RAMAKHULA                                             1^ST APPELLANT

MAKALOSI RAMAKHULA                                             2^ND APPELLANT

 

 

AND

 

THE CHAIRPERSON-MAFETENG URBAN

COUNCIL                                                                        1^ST RESPONDENT

MAFETENG URBAN COUNCIL                                      2^ND RESPONDENT

MINISTRY OF LOCAL GOVERNMENT &

CHIEFTAINSHIP                                                           3^RD RESPONDENT

MASTER OF HIGH COURT                                           4^TH RESPONDENT

ATTORNEY GENERAL                                                  5^TH RESPONDENT

MONA DIANA RAMAKHULA                                         6^TH RESPONDENT

MASETSOANA RAMAKHULA                                       7^TH RESPONDENT

KALOSI RAMAKHULA                                                  8^TH RESPONDENT

 

CORAM:           DAMASEB, AJA

                        MUSONDA, AJA

CHINHENGO, AJA

 

 

HEARD:           8 OCTOBER 2024

DELIVERED:  1 NOVEMBER 2024

 

 

SUMMARY

What are the jurisdictional facts to engage the provisions of Regulation 44 of the Land Regulations 2011 – Intersection between Regulation 43 and 44 discussed.

 

 

JUDGMENT

 

DAMASEB AJA

 

Introduction

1. This appeal is concerned with whether the High Court (Khabo J) was correct to refuse an order of mandamus sought by the first and second appellants against the first respondent (Chairperson of Council) and second respondent (Mafeteng Urban Council).

 

2. The two appellants (mother and son) - respectively widow and second born son of the late Mr Tséliso Tokonye Ramakhula (Tséliso), brought an application, primarily against the Chairperson and the Mafeteng Urban Council (collectively ‘Mafeteng Urban Council’) in the High Court seeking the following relief:

‘1. An order directing and compelling (the chairperson of Mafeteng Urban Council and the Mafeteng Urban Council) to act in accordance with the Land Regulations 2011, especially regulation 44 thereof within a period of fourteen (14) days of this order.

2. An order declaring and confirming the 1^st Applicant as an heir to the estate of the deceased Daniel Moroa Ramakhula as nominated by the Ramakhula family.

3. Costs of suit on attorney and client scale in the event of opposition.

4. Leave to lead viva-voce evidence in the matter in the event there be unforeseen dispute of fact which cannot be resolved on papers’.

 

Background

3. The late Tséliso was the first-born son of the late Mr Moroa Daniel Ramakhula and the late Mrs ‘Maselemeng Ramakhula (grandparents of the first appellant). The grandparents died in 1979 and 1960 respectively. Mr Moroa Daniel Ramakhula died intestate.

 

4. The deceased grandparents left behind assets which include a residential plot at Matholeng in the Mafeteng district - measuring in extent 17330 square meters (the plot).

 

5. It is common cause that the deceased grandparents had other children apart from Tséliso, the first appellant’s father.

 

Application to compel compliance with Land Regulatios 2011

6. In the mandamus application, the first and second appellants (as first and second applicants a quo) did not cite any of Tséliso’s siblings or other offspring of the deceased grandparents.

 

7. The mandamus application was founded on the premise that Tséliso was the ‘first born son and a customary heir to the [first appellant’s] deceased’ grandparents. It is alleged that since the death of the deceased grandfather, Moreo Daniel, Tséliso and the second appellant as husband and wife ‘were the ones that were responsible for the [deceased grandfather’s] property including [the plot at Mafeteng]’. That was so, it is alleged, because Tséliso was accepted by the rest of the Ramakhula family as [his  deceased father’s] customary heir’.

 

8. The appellants further alleged that, in 2014, the first appellant ‘was nominated by the Ramakhula family council, including Tséliso Tokanye Ramakhula to be an heir to the estate of Daniel Ramakhula including the plot’. The purported nomination of first appellant by Tséliso is dated 13 May 2014, addressed to the ‘chief of Matholeng, Mafeteng’, and date stamped by that Chief.

 

9. On June 2014, according to that document attached to the founding affidavit, the Principal Chief of Likhoele, Mafeteng, wrote to ‘the Manager, Mafiteng Urban Council’, thus:

 

‘I present and pass to you Liteboho Mothibe Arthur Ramakhula who seeks that a plot of the deceased Daniel Moroa Ramakhula situated at Motholeng, be endorsed and confirmed in his name as his heir. I hereby attach the family letter, agreement’.

 

10. It is alleged that the above statement was intended to confirm the nomination of the first appellant ‘in terms of the law, especially regulation 44 of the 2011 Land Regulations’.

 

11. The appellants assert that despite an undertaking given by the second respondent in June 2014, to cause the first appellant’s nomination to be published in a newspaper in accordance with regulation 44 of the Land Regulations, no such publication took place. The first appellant alleges that he remained in occupation of the plot ‘since around the year 1998’ whilst his father, Tséliso, was still alive.

 

12. The appellants’ case in the founding papers was that, in terms of regulation 44 (1), upon receipt of the Chief’s letter, the Mafeteng Urban Council was obliged to publish a notice ‘for the purpose of bringing it to the attention of all persons who may have claims or objection and shall record the manner of such publication in records of . . .  the 2^nd respondent’ - in its capacity as the ‘allocating authority’.

 

13. The failure by the Mafeteng Urban Council to act as aforesaid, it is alleged, is a breach of its ‘legal duties’ and justified the High Court to compel the Mafeteng Urban Council to publish the notice in terms of Regulation 44.

 

14. In her supporting affidavit, the second appellant alleged that since the death of the deceased grandfather, the Ramakhula family resolved that as a customary heir to his parents, her husband Tséliso ‘should inherit all of his parents’ properties including the plot and that the ‘plot then became ours and we did everything we desired on it’. According to her, Tséliso ‘was never confirmed as such in terms of the law; neither was he introduced to the allocating authority but the whole Ramakhula family approved him and considered him as an heir’.

 

Joinder of 6^th to 8^th respondents

15. By consent order, following a jointer application, three members of the Ramakhula family (6^th to 8^th respondents) were joined on 3 March 2021 as having a direct and substantial interest in the matter.

 

16. The significance of this jointer is that ‘Manoa Diana Ramakhula (sixth respondent), in an answering affidavit, disclosed that there previously was litigation between her and the first appellant in the District Land Court of Mafeteng in terms whereof, on 24 July 2020, the magistrate ruled that the court did ‘not have jurisdiction until the issue of heirship has been resolved by the relevant bodies and not the Courts’. The first appellant was the applicant in that proceeding against inter alia ‘Maona Diana.

 

17. In the High Court, Mona Diana also raised a point in limine that the High Court had no jurisdiction to grant the order of mandamus. According to her, the matter fell within the competence of the Land Court.

 

18. As Khabo J records in her judgment:

 

‘this application is vehemently opposed by the 6^th to the 8^th Respondents. They dispute 1^st Applicants’ father’s customary heirship to the estate of his parents, and by implication, 1^st Applicant’s succession to it’.

 

19. Khabo J summarised the sixth to eighth respondents’ challenge on the merits to the application to compel as follows:

‘(a) [1^st Applicants’] nomination is flawed in that his father [Tseliso] had never been nominated heir to his late parents’ estate and that the nomination done by his late father on the basis that he was ‘’the person answerable and accountable’ to his late parents’ estate (1^st Applicant’s grandparents) was erroneous.

 

2. That the alleged family members who witnessed 1^st Applicants’ nomination were but an extended family with no close relationship to them and/ or unknown to them.  6^th  to 8^th Respondents further complain that the two surviving childen and daughters in law of 1^st Applicant’s grandparents were not invited to this meeting, hence, not part of of the nomination process.

 

3.  That 1^st Applicant’s late  father cannot give away property over which he has no title; and that

 

4. 1^st Appellants’ parents were both alive at the time his father purported to nominate him, and that it was improper that he could inherit whilst his parents were still alive’.

 

20. Khabo J concluded that an order of mandamus was not competent because she had no jurisdiction. She reasoned:

 

“[30] It is, therefore, this court's considered opinion that the invocation of the Regulation 44 procedure is improper in the circumstances. It would be appropriate if 1^st Applicant's claim revolved on the landed property at Matholeng. In the court's view, a determination over heirship must be made by this court exercising its ordinary civil jurisdiction.

 

[31] It is only after this that 1^st Applicant may invoke the procedure envisaged under Regulation 44 if he has been found to be an heir to his grandparents' estate. The court tends to hold a contrary view to his that the 1^st step is to publish the nomination and then following objections, if any, any disputes will be resolved through the mechanism provided by Sub- Regulation 44 (4). 1^st Applicant's nomination as heir to the plot at Matholeng is subsidiary to the determination of his heirship and can only be considered once the succession issue is cleared.”

 

21. Clearly, this reasoning sustained the in limine point taken in the answering affidavit by the sixth to eighth respondents that the dispute before court was ‘a Land Court matter’ and that the High Court ‘has no jurisdiction to hear this matter wherein the Applicants are praying the Court to compel the Land Allocating Authority … to act in terms of the Land Regulations of 2011, specifically Regulation 44…There are other jurisdictions which established(sic) to hear all matters relating to land.’

 

22. It is apparent therefore that the ratio for Khabo J’s declination of jurisdiction was that (a) there was an unresolved heirship dispute between the first appellant and the sixth to eighth respondents; and (b) that the heirship dispute fell to be resolved by the High Court.

 

23. Before I proceed to consider the appeal, I wish to explain how the sixth to eighth respondents dealt with what in my view are very crucial allegations made by the appellants in support of the case they made to justify the engagement by the Mafeteng Urban Council of the Regulation 44 machinery.

 

24. The first appellant’s founding affidavit was supported by a Mr Daniel Ramakhula who described himself as the ‘head of the entire Ramakhula family council’ and that the ‘deceased Tseliso Ramakhula was a head of his deceased father’s family only.’ The answering affidavit states that these allegations are ‘noted’.

 

25. Mr Daniel also alleged that in 2014 the Ramakhula family council ‘resolved to nominate [Liteboho] as the late [grandfather’s] heir and he was duly introduced to the Area Chief as well as the Principal Chief who accepted and endorsed such nomination and same was communicated to the [Mafeteng Urban Council] in accordance with the law.’ The answer to this allegation is that the deponent, Daniel, ‘had no right or capacity to have been part of the alleged Ramakhula family/ council to convene and nominate heir in our absence, all surviving children of the late [great grandfather] and their wives. He should have followed the lawful procedures for the competent family members to nominate the 1^st Applicant as an heir. The Chef of Matholeng and the Principal Chief of Likhoele had no information when they acted the way they did and that cannot validate the unlawful and invalid nomination.’

 

26. It becomes apparent then, not only that the first appellant was nominated as heir to the grandfather’s allotted plot, but also by some members of the Ramakhula family who are related or are a connection to the late grandfather. The only issue really is that the respondents take the view that his nomination as heir is invalid.

 

The appeal

27. Aggrieved by the outcome, the appellants lodged an appeal to this Court relying on the following grounds of appeal.

 

“1.     The High Court disregarded the fact that the estate forming subject matter before was in the form of a plot situated at Matholeng in the Mafeteng district, that is, estate in respect of which it ought to have decided, related to a landed property.

 

2.       The Court a quo is wrong to have found that the 1^st and 2^nd Respondents did not have the power to resolve the issues concerning heirship over landed property and estate.

 

3.       The lower Court misdirected itself by disregarding the fact that the Parties before it were ad idem that the 1st and/or 2nd Respondent had not published the 1st Applicant's nomination as an heir in accordance with the provisions of Regulation 44 of the Land Regulations 2011.

 

4.       The High Court was wrong to dismiss the Applicants' application for mandamus since mandamus was an appropriate remedy in the circumstances of this case due to the 1st and/or 2 Respondents' failure to act in accordance with Regulation 44.

 

5.       The lower Court misdirected itself be failing to resolve the dispute before it yet it had the jurisdiction to do that.”

 

28. It bears mention that the appeal grounds do not pursue the relief that was sought in para 2 of the notice of motion.

 

29. The appeal is opposed by the sixth to eighth respondents who, for their part, support the judgment and order of Khabo J.

 

Issue to be decided

30. The issue that falls for determination is whether the court a quo was correct to decline to compel the Mafeteng Urban Council to act in terms of Regulation 44 of the Land Regulations. Put differently, does the law require that the issue of heirship first be determined by the High Court before the Mafeteng Urban Council can engage the machinery of the Land Regulations 43 and 44?

 

Analysis

31. Curiously, counsel for the respondents, without having cross-appealed the judgment and order of Khabo J, rehashed certain propositions made in the opposing affidavit a quo : that the proper legal bases why the appellants could not succeed was that the issue of ownership of the disputed land had already been adjudicated and determined by the magistrates court; that the first appellant was not a lawfully nominated heir because not all eligible family members took part in the nomination; and that the land in question had already been lawfully allocated to other persons. Those propositions were not the bases on which the appellants failed in the High Court. They failed because the High Court took the view that the issue of heirship over the disputed plot remained unresolved and that as a result it lacked jurisdiction.

 

The statutory backdrop

32. Regulations 43 and 44 of the Land Regulations, 2011 read as follows:

 

“Regulation 43:

1. Whenever an allottee dies intestate, the nearest relative or connection of the deceased or in default of any such relative, the person who at or immediately after the death has the control of the land formerly held by the deceased, shall within 6 months thereafter notify the allocating authority of the death.
2. . . .

 

3. The notice referred to in subregulation (1) shall show:

 

(a)      the date of death, place of origin and the last place of residence of the deceased;

(b)      the relationship of the informant to the deceased;

(c)      the name and sex of the heir of the deceased;

(d)      the names and particulars of the heir and whether the heir was nominated by the allottee or family members of the deceased allottee;

(e)      whether the allocated land is to be occupied by the minor children of the deceased; and

(f)      relevant particulars to identify the locality of the allocated land."

 

Regulation 44:

Processing of notice and allocation procedure

1. Upon receipt of the notice referred to in regulation 43(1), the Chairperson of an allocating authority having jurisdiction shall publish the notice in such manner as he may consider reasonably adequate and most effective including the posting of the notice on the allocated land affected for the purpose of bringing it to the attention of all persons who may have claims or objections to claims and shall record the manner of such publication in records of the allocating authority.

 

2. Upon receipt of the notice referred to in regulation 43(2), the Commissioner shall refer the matters to the Chairperson of the relevant allocating authority who shall proceed as provided in subregulation (1).

 

(3) The notice referred to in subregulation (1) shall in addition to the information required under regulation 43(3) contain the following: (a)name the place and fix the period at and within which claims and objections to claims may be lodged and such period shall not be less than 6 weeks;

(b)set the time and date thereafter when the hearing and examination of the evidence relevant to the disposition of the allocation will commence at the said place or any other place so specified.

 

(4) An interested person may be given a reasonable opportunity to be heard, call and adduce evidence before the allocating authority and such person may be heard either personally or through his agent deputed in writing for that purpose.

 

(5) The Chairperson of the allocating authority shall within seven days of its determination publish the decision and cause the register of allocations to be endorsed accordingly, and in the case of land held under a lease, the allocating authority shall forward its determination to the Commissioner for issuance of a lease in accordance with the determination and subsequent forwarding to the Registrar.

 

33. Sakoane AJ (as he then was) correctly interpreted these regulations thus in Motebele v Matekase (LC/APN/152/2014) [2015] LSHC 23 (16 March 2015):

 

“paragraphs (a), (c) and (d) of sub-regulation (3) enjoin nearest relatives of the deceased or persons in control of such deceased's land to provide the allocating authority the date of death, name and sex of the heir and specify whether such an heir was nominated by the deceased or family members of the deceased. This must be done within a period of 6 months after the death of the allottee."

. . .

 . . . although the pleadings indicate that the applicant was confirmed by the family as the heir to his parents' land in the estate after the funeral of his deceased father, there is nothing pleaded to indicate that the allocating authority has been notified about the deceased's death nor given the names of the applicant as the nominated heir. It is mandatory for this to have been done ...."

 

The papers are silent about this remissness on the part of the applicant or the family members. He now seeks the intervention of the Court in what is clearly a family matter that must be taken to the allocating authority. This Court cannot render any assistance as the competent authority is the family and the allocating authority. Disputes in regard to the claims over the land must be heard and resolved by the allocating authority in terms of Regulation 44.”  (My underlining for emphasis)

 

34. Sakoane AJ’s correct statement of the law puts paid to the basis on which Khabo J non-suited the appellants. The appellants were entitled to ask the High Court to come to their assistance if they satisfied the jurisdictional facts for the invocation of Regulation 44 but were denied assistance by the Mafeteng Urban Council.

 

What were the applicants to establish to engage Regulation 44?

35. On the facts before us, the threshold requirements that the appellants had to meet were the following: 

 

1.  That the allottee (the grandfather) died intestate;

 

2.  A notice of the allottee’s death to the allocating authority by the persons mentioned in sub-regulation (1);
3.  Family relationship of the informant to the deceased allottee.

 

36. The following allegations in the founding affidavit of the appellants were either common cause or not denied:

1. The first appellant’s grandfather was the allottee and he died intestate.
2. There was a notice of the allottee’s death to the Mafeteng Urban Council by family members of the deceased allottee;
3. The notice of the death included nomination of the first appellant as heir to the grandfather’s intestate estate.

 

37. No doubt, the answering affidavit calls into question the first appellant’s nomination as heir. But that is not an issue for the Mafeteng Urban Council to resolve at the threshold stage. Once the machinery of Regulation 44 kicks in, the rightful heir to the estate of the grandfather will be decided by adjudicating the competing claims after objections have been lodged to the first appellant’s nomination as heir.

 

38. I am satisfied therefore that the High Court misdirected itself in not granting the order sought by the appellants.

 

39. During oral argument, counsel for the appellants conceded that paragraph 2 of the relief sought in the notice of motion was incompetent and could in any event not have been granted because the High Court had no jurisdiction to decide heirship and that that issue will be determined by the allocating authority. It is therefore proper that that issue is not pursued in the grounds of appeal.

 

Costs

40. It was accepted by the parties that this being a family matter, costs should not be granted against the losing party.

Order

41. It is accordingly ordered that:

 

1. The appeal succeeds in part and the judgment and order of the High Court is set aside and replaced by an order that:

 

‘The 1^st and 2^nd respondents are ordered to act in accordance with Regulation 44 of the Land Regulations 2011 within 14 days from the date of this order. There is no order as to costs’.

 

2. There is no order of costs in the appeal.

 

_____________________________

PT DAMASEB

ACTING JUSTICE OF APPEAL

I agree:    

_____________________________

P MUSONDA

ACTING JUSTICE OF APPEAL

I agree:    

_____________________________

M. Chinhengo

ACTING JUSTICE OF APPEAL

For the Appellants:                 Adv T.A Lesaoana with

Adv Ntaote

       

For the 6^th – 8^th Respondent: Mr. T. Mohasoa