LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV)83/2023
CIV/T/372/1994
In the matter between:
MAHOLA MATLOSA APPELLANT
AND
KHABELE MATLOSA 1ST RESPONDENT
COMMISSIONER OF LANDS 2NDRESPONDENT
REGISTRAR OF DEEDS 3RDRESPONDENT
ATTORNEY GENERAL 4THRESPONDENT
Coram: DAMASEB AJA
CHINHENGO AJA
VAN DER WESTHUISEN AJA
Heard: 7 October 2024
Delivered: 1 November 2024
Summary
Review application in High Court by appellant for cancellation of registration of lease of land in 1st respondent’s names alleging lease granted by 2nd respondent and registered by 3rd respondent when an adverse claim to title was still pending for determination in Land Tribunal established by the Land Act 1979; Appellant raising other issues not relevant to the review application and dealing with substantive rights of either appellant or 1st respondent to inherit the land concerned. High Court finding in favour of 1st respondent on all issues;
In respect of pendency of adverse claim in Land Court, High Court finding no evidence to prove that adverse claim was so pending when lease granted;
On appeal, decision of High Court confirmed in respect of finding that no evidence was led to prove pendency of adverse claim at time the lease was granted to 1st respondent; Court finding it was unnecessary for High Court to have dealt with the claim of substantive rights or entitlement to inherit the land as appellant’s application was essentially for review of the administrative act or decision of Land Commissioner;
Appeal dismissed with costs
JUDGMENT
CHINHENGO AJA:-
Introduction
[1] Intestate succession always presents peculiar problems of one kind or another to members of the same or extended family. In this case the grandfather of the appellant and the 1st respondent owned a large piece of land. He sub-divided it into six pieces of land and allocated one plot each to six of his children, one of whom is Charles Lelatsa Matlosa, to whom plot No.105D, Ha Hoohlo, in Maseru Urban Area, was allocated. That plot is the subject of dispute in this case.
[2] The appellant and 1st respondent’s fathers, respectively, John Nkabane Matlosa and Nicholson Ramochone Matlosa, were allocated a plot each as some of the six children, but their plots and those allocated to the other siblings are not the subject of any dispute. Appellant’s father was younger to Charles but older than 1st respondent’s father. This is significant because it was argued in this case that in the event Charles Lelatsa Matlosa died without a child, customary law of inheritance favoured the appellant’s father as the senior brother and, consequently the appellant, to inherit the plot. Henceforth I refer to Charles Lelatsa Matlosa as “Charles”, to appellant as such, and to 1st respondent simply as respondent. The real parties in this matter are the appellant and the respondent, the other respondents not having defended the action in the High Court or otherwise involved themselves in the litigation.
Background
[3] In his lifetime Charles was married under the civil law in community of property to Alice Matlosa nee Matsepe (“Alice”). The marriage was solemnized on 20 April 1976. They did not have a child. Therefore, when Charles died in 1983, he left no issue. Before he died, he had taken some steps towards donating his plot to respondent’s father or later to respondent. His widow, Alice, was aware of Charles’s intentions. After Charles’s death Alice took some further steps to give effect to her late husband’s intentions. This resulted in plot No. 105D being registered in respondent’s name as plot No. 1228-043.
[4] The dispute between appellant and respondent, as appears from appellant’s summons and declaration in the High Court, is whether the registration of the lease in respondent’s name resulted from a lawful process. Appellant’s main contention is that the registration was done before an objection or adverse claim he lodged, through his father, contesting the registration of the plot in respondent’s name, was decided by the Land Tribunal: it was pending when the lease was granted, and registration took place. His objection was based on a claim, which had yet to be established, that he is the rightful heir to the plot.
[5] To challenge the registration of the plot in respondent’s name, the appellant issued summons in the High Court in September 1994 against respondent, the Commissioner of Lands, the Registrar of Deeds and the Attorney General. As earlier indicated, the Commissioner, Registrar and the Attorney General did not participate in the litigation.
[6] In the High Court appellant claimed the cancellation of Lease No. 12281-043 registered by the Registrar of Deeds in favour of respondent on 2 March 1997. He also claimed the costs of suit. On 2 September 2023, some twenty-nine years later, the High Court (BANYANE J) dismissed appellant’s claim and ordered each party to bear its own costs. The appellant was dissatisfied with the judgment of the High Court and lodged this appeal.
[7] As earlier stated, Charles was the lawful title holder of residential site No. 105D Hoohlo Village, Maseru registered in his names on 22 February 1978. Although he was married under the civil law to Alice he died on 15 February 1983 without issue or children. On 17 May 1985 a notice of application by respondent for a lease to be granted to him in respect of No. 105D, Hoohlo Village was published in national newspapers. This notice was in terms of s 33 of the Land Act 1979. The appellant, through his father, lodged an adverse claim to the notice of application with the Land Tribunal, contending that he was the lawful heir of Charles at customary law. As such the plot could not be given to or inherited by, the respondent under customary law. A family council had nominated him as the rightful heir. He said that respondent became aware of the adverse claim.
[8] It was appellant main contention in the court below that on 23 February 1997, the Commissioner, “wrongfully, unlawfully and intentionally issued 1st defendant [Khabele] with a lease No. 12281-043 even before the Land Tribunal could decide on the matter, which lease was registered by 3rd defendant [Registrar of Deeds] on 2nd March 1987.” On this basis appellant claimed the cancellation of the registration of the lease in respondent’s name.
[9] It is important to note that appellant’s cause of action was based solely on the allegation that the Commissioner issued the lease to respondent before his objection or claim of entitlement to the property as purported lawful heir of Charles, was determined. Clearly his challenge was that the registration of the lease in favour of respondent was premature and unlawful and had to be set aside: his objection had to be decided first and only then could the lease have been registered in respondent’s name if his objection was thrown out. His was therefore a challenge to the exercise of power by the Commissioner in circumstances where the Commissioner should have awaited a decision as to who between him and respondent was the rightful person to inherit plot No. 12281-043. The claim was properly one for review as it sought to challenge the action of the Commissioner, an administrative authority, on procedural grounds.
[10] In his defence, respondent disputed appellant’s claim that the registration of the plot in his name was unlawful or that appellant was Charles’s rightful heir. He pleaded that appellant “could not lawfully get appointed as heir of the late Charles Matlosa, as Charles Matlosa died leaving a widow who could only be the heir to her husband’s estate.”
[11] In relation to the foundational complaint that the lease was registered in his name before appellant’s objection was decided, respondent pleaded:
“Defendant has no knowledge of the allegations herein but knows that at the end of the application of lease the relevant authorities approved defendant as the owner of the said plot as a result of a donation of the site to defendant by the late Charles Matlosa during his lifetime. Plaintiff should know what happened to his adverse claim as it was in fact rejected. Plaintiff has never been declared heir of the site known as No. 105D.”
[12] It is clear that in so far as the alleged unlawful or wrongful registration of the lease in his name, respondent pleaded that appellant’s objection was rejected by the Land Court and, as a result, the lease was properly issued to him.
[13] In the replication, appellant stated that the alleged widow of Charles, Alice, was a mere concubine and that there never was a valid marriage between the two. This however was later disproved in evidence when the marriage certificate of Charles and Alice was produced. Appellant also denied that Charles donated the plot to the respondent during his lifetime and denied further that his objection was rejected by the Land Tribunal. He persisted with his claim that “he was appointed to site No. 105D as heir to the estate of the late Charles Matlosa who was the owner of the said site.” He reiterated that his objection was not rejected and, as such, respondent could not have been validly issued with the lease whilst his adverse claim was pending.
High Court decision and grounds of appeal
[14] The High Court dismissed appellant’s claim and ordered each party to bear its own costs. Appellant appealed to this Court on several grounds, which include additional grounds, later filed. The appeal was noted out of time for reasons fully explained by the appellant in an application for condonation. The condonation application was not opposed.
[15] The grounds of appeal are that the court erred and misdirected itself in finding or holding –
“(1) … that after the demise of appellant’s senior uncle Lelatsa Matlosa succession to the deceased estate of the latter, with particular reference to the site in question [plot No. 1228-043], fell to be governed by the Administration of Deceased Estates Proclamation 1955, as oppose to Basotho customary law of succession;
(2) … that according to the Land Act 1979, after the demise of the appellant’s senior uncle, Lelatsa Matlosa, succession to the deceased estate of the latter vested in his widow, ‘Matsepe Matlosa, as opposed to the appellant, in terms of the Basotho customary law of succession;
(3) … that the donation of the rights and interest to the land in question in favour of the 1st respondent was a designation; alternatively, if it was, nevertheless, the court erred and misdirected itself in holding that the designation was of the nature of a testamentary disposition or will;
(4) … that the donation of rights and interest in the land in question in favour of the 1st respondent, which, as a matter of common cause, was not consented to by the Minister in terms of section 35(b)(1) of the Land Act 1979, or registered in a deed of transfer in terms of s 16 of the Deeds Registry Act 1967, was, nevertheless, of legal force and conferred rights and interest upon the 1st respondent to the site;
(5) … that following upon the demise of the appellant’s senior uncle, Lelatsa Matlosa, succession to his deceased estate did not fall for determination by members of the family but vested in his widow or the 1st appellant;
(6) … that Matlosa family did not lawfully nominate the appellant as heir of the site and that, as such, erroneously finding that the 1st appellant was not the heir to the site;
(7) … that Lease No. 12281-043 was [regularly] issued to the 1st respondent, was [not] null and void and, as such, [not] worthy of cancellation to the extent that its issuance to the 1st respondent was devoid of justification and lacked merit, including that the issuance violated the mandatory provisions of section 23(3) of the Land Act 1979 as at the time of issuance there was an adverse claim still pending before the Land Tribunal.
(8) … that the death-aborted donation of the plot in question by appellant’s senior uncle Lelatsa Matlosa to the 1st respondent amounted to wishes and/or instructions in the context of after-death distribution of property and/or a donation mortis causa, which, on the facts, was not the case, but a donation of property between the living simpliciter;
(9) …
(10)… that the processes emanating from ‘Matsepe Matlosa, the widow of the deceased Lelatsa Mahlosa, for purposes of decision making by the Urban Land Committee in relation to the plot in question for the benefit of the 1st respondent, were of any legal consequences where the said widow had no right in terms of s 8(2)(b) of the Land Act to inherit the plot in question, save as such right could be conferred on her by the family council in its wisdom;
(11) … that because the adverse claim was admittedly lodged prior to the publication of lease applications under section 21 to 23 as well as 33, as opposed to within one (1) month of such publication as prescribed under section 23)1) of the Act, then the adverse claim was a nullity and of no legal force and effect; such finding being made by the court albeit that the provisions of section 23(1) are plainly directory and empowering in nature as opposed to peremptory and mandatory;
(12)… that the Commissioner of Lands was notified of the existence of an adverse claim pending in the Tribunal regarding the plot in question only on 5 August 1987, when the fact of the matter, on record, is that such notification had been made by the clerk of the Tribunal on 2nd September 1986, and duly received by the Commissioner of Lands or, at least the department of which he was head, on 4 September 1986, as per the evidence of the court’s own witness, Molelekeng Mohajane [an officer of the Land Administration Authority].”
[16] Ground of appeal number 9 which I have omitted from the above listing is to the following effect-
“(9) Regard being had to the changes to customary rules of succession as brought about by section 8(2)(b) of the Land Act 1979 (the Act), the court a quo erred and misdirected itself in effectively finding that the rules of natural justice applied and were denied the widow of the deceased, ‘Matsepe Matlosa, in the making of the decision to nominate the appellant as heir to the plot in question; and/or in effectively finding that there was prejudice to the widow in the making of the decision in her absence, such finding being in circumstances where the widow had no right to inherit the plot, save as such right could be conferred on her by a decision of the family council, if deemed desirable by the family council.”
[17] The record of proceedings does not clearly disclose why the matter took so long to resolve. The judge a quo however briefly stated that she became seized with it from February 2022 after it was re-opened pursuant to an order of the Court of Appeal. Teele KC gave a fuller explanation in his heads of argument.[1] He said the claim was first instituted in September 1994. The High Court heard the claim and dismissed it. The appellant noted an appeal but the record was lost and could not be reconstructed. The parties ended up agreeing before the Court of Appeal that the matter should commence de novo before a different judge. This Court then gave the resumption order in Mahola Matlosa v Khabele Matlosa and others.[2] The matter was then heard afresh by BANYANE J resulting in the order now appealed against.
[18] The learned judge a quo’s appreciation of appellant’s case is that he makes two claims in his declaration –
(a) that he is the late Charles’s heir under customary law by decision of the Matlosa family council, his father having been the senior brother of the late Charles. Further in this regard, that respondent was not appointed by the family council as heir of the late Charles, nor could he be the beneficiary of a valid donation by late Charles; and
(b) that the lease was issued to respondent wrongfully and unlawfully when an objection or adverse claim lodged with the Land Tribunal had not been determined.
[19] The above characterisation of appellant’s case is not entirely correct having regard to the declaration and replication or the pleadings as a whole. I have already stated that, according to the pleadings, appellant’s cause of action was merely that the issuance of the lease to respondent should be set aside for the reason that it was issued before his objection was disposed of by the Land Tribunal.
[20] The learned judge understood respondent’s defence to be that the land in dispute was donated to him by the late Charles and that the process of making the donation had not been completed when Charles passed on. She understood that his defence was also that the late Charles was legally married to Alice, who was the rightful heir to the estate, with the result that appellant could not have been validly appointed as the heir of that estate and the widow excluded. Respondent said that the family decision to appoint appellant as heir of the late Charles “was made by distant relatives of the Matlosa family, to the exclusion of Charles’s siblings and his wife.” The defence is further that after Charles died, his widow notified the Urban Land Committee about Charles’s death and Charles’s designation of respondent as his heir.
[21] The learned judge analysed the evidence given by the two parties and by an officer of the Land Administration Authority in whose possession the records of the plot now are. She dealt with the submissions of the parties’ legal representatives and, consistent with her understanding of the case, she rendered herself in regard to the issues for determination, thus -
“[36] The primary issue for determination is whether the lease was wrongfully and unlawfully issued and registered in favour of the 1st defendant [Khabele]. Two sub-issues emerge from this issue. The first is whether the plaintiff [Mahola] is entitled to inherit the disputed plot and consequently to receive the title thereto. The second is whether the Commissioner of Lands issued the lease during the pendency of the proceedings before the Land Tribunal contrary to section 23(2) of the Land Act 1979.”
[22] In framing the issues as she did the learned judge side-tracked herself. The ‘primary issue” identified by her could, consistent with the pleadings, have been disposed of upon a determination of the second ‘sub-issue’. The pleadings clearly show that appellant’s case was that the Commissioner did not ensure that the adverse claim was finally adjudicated upon before he issued the lease to the respondent. The question as to who between appellant and respondent had the right to have the lease registered in his name, whether by inheritance through the decision of the family council, or as a result of the donation process commenced by Charles and pursued by his widow, was therefore the very question that had to be determined by the Land Tribunal. Appellant’s summons and declaration did not seek a declaration from the court as to who was the rightful person to be granted the lease of plot No. 1228-043: what appellant sought was the setting aside of the registration of the lease in respondent’s name thereby opening the way for a determination of who was entitled to succeed to the plot. As later argued by respondent’s legal representative, in essence the single issue before the court was a review of the Commissioner’s decision, it being appellant’s challenge that the Commissioner had caused the registration of the plot in respondent’s name before the adverse claim pending in the Land Tribunal was decided upon.
[23] The learned judge a quo analysed the evidence before her and the law of inheritance and applicable statutory law. She came to the conclusion that Alice, the late Charles’s widow, was the rightful heir to the estate and that appellant’s nomination as heir by the family council “is legally untenable and cannot therefore advance his case.” Having reached this conclusion, the learned judge then examined the procedural propriety of the registration of the plot in respondent’s name. And she did so by considering whether respondent “received title to the disputed plot when Charles’s wife was still alive.”
[24] She accepted respondent’s evidence that, during his lifetime, Charles initiated the transfer of the plot to him by applying for a lease and the necessary consent to transfer the plot. By so doing Charles expressed his clear intention to pass on his rights and interest in the plot to respondent. Appellant, she found, did not adduce evidence to contradict that of the respondent. In the result, relying on the decision of the High Court in Khechane v Mosuolle and others[3], also referred with approval by respondent’s counsel in his heads of argument, she determined that although no deed of transfer was executed or registered, a donation is permissible under customary law and need not be in writing. She said that whereas the transfer or donation process was terminated by Charles’s death, his widow elected not to take over the plot and decided instead to pass the rights in the plot to the respondent in line with her late husband’s wishes. She found that the widow had properly invoked the inheritance procedure under regulation 7 as read with regulation 9 of the Land Regulations 1980 by filing her late husband’s death notice and recording therein the respondent as the rightful heir per designation of the deceased himself. The notice was published in August 1983 in terms of regulation 8. Appellant’s father did not object to the publication of the notice but filed a separate report of the death of Charles identifying therein the appellant as the rightful heir. Thereafter on 27 February 1986, the Urban Land Committee invited appellant’s father and Charles’s widow for a meeting on 4 March 1986. They both attended the meeting, but the minutes thereof were not produced in court. Thereafter, on 13 March 1986, the Committee decided to issue the lease respondent and sent a letter to him communicating its decision. On the strength of the Committee’s letter, respondent applied for the lease. His application was published in a newspaper in November 1986. The appellant’s father was undaunted and took the next step. He addressed a letter dated 7 July 1986 to the Clerk of the Land Tribunal and objected to the decision of the Committee.
[25] After setting out these facts the learned judge then said:
“[56] It is clear from the facts of this matter that the Urban Land Committee afforded a hearing to all the interested parties, including the plaintiff’s father and Alice before deciding as it did. The process leading to the issuance of the impugned lease seems to be compliant with Regulations 7, 8, 9 and 10 of the Land Regulations 1980, thus legitimate. The next question to address is whether there were pending proceedings before the Land Tribunal in March 1987 when the lease was issued and registered.”
[26] This led her to an examination of the provisions of the Land Act 1979, sections 21, 23 and 33 and the Land Regulations 1980, regulations 7 to 10. She stated that it was not in dispute that the Commissioner published respondent’s lease application on 2 November 1986 in terms of s 33 of the Land Act 1979. She proceeded analysed a Form handed in by appellant’s father as proof that he lodged the adverse claim. She noted that “on 1 July 1986, the plaintiff authorized his father to acting on his behalf in all matters concerning site 105D” and that the father completed the Form on 8 July 1986. She also noted that the Clerk of the Land Tribunal issued a notice to the Commissioner regarding the objection lodged but the date thereof was not clear on the faint copy of the notice presented in court. The notice informed the Commissioner that an adverse claim had been lodged under s 23 of the Land Act 1979 in triplicate and requested the Commissioner to acknowledge receipt by signing and returning the Form. The Commissioner acknowledged receipt of the notice of adverse claim on 5 August 1987 after the lease had long been issued in February 1987. The learned judge’s conclusion was-
“[63] Although the plaintiff asserts that the Commissioner issued the lease contrary to section 23(2) of the Act, the documents tendered by both parties do not support this assertion. The first part of the form (handed in by the plaintiff’s father as proof of lodgement of the adverse claim) suggests that the plaintiff’s father filed the claim in reaction to a notice dated 17 May 1985. However, no such notice was handed in by the plaintiff. The only publication dated 17 May 1985, is a notice of inheritance issued in terms of Regulation 8 of the Land Regulations 1980.
[64] My reading of sections 21 to 23 as well as section 33 of the Land Act 1979, is that adverse claims may only be filed against publications of lease applications, or where land is available for grant of title and members of the public are invited to apply. The section 23 procedure is not intended to challenge inheritance notices. Inheritance notices are challengeable before the Land Committee in terms of regulations 8, 9 and 10 of the Land Regulations 1980. And according to the documents tendered, the plaintiff’s father appeared before the Urban Land Committee in March 1986 before the Committee’s decision on inheritance was made.
[65] The evidence also revealed that the 1st defendant only applied for a lease after the decision of the Urban Land Committee to issue him with title documents for the plot. The application was publicized alongside others only in November 1986. So, the only notice/publication of the lease applications made under section 33 is the one dated 2 November 1986.
[66] Absent a notice dated 17 May 1985, it is concludable that the plaintiff’s father prematurely and improperly filed the adverse claim without a section 33 or 21 publication. It therefore seems to me that no adverse claim challenging the 02 November publication was in existence at the time the lease was issued.
[67] Even assuming in favour of the plaintiff that the adverse claim was lodged with the clerk of the Land Tribunal after November 1986, the evidence established that the Commissioner was only notified of the same long after the lease was issued. I am, therefore, unable to accept the plaintiff’s assertion that at the time the lease was issued, an adverse claim was pending before the Land Tribunal. In other words, the evidence adduced does not conclusively establish that the lease was issued contrary to section 23(2). It follows in my view that the second ground for challenging the lease is unsubstantiated and must also be rejected.”
In summing up the whole case the learned judge was satisfied that the evidence established Charles’s desire to pass on his rights in the plot to the respondent; it proved Charles’s marriage to Alice; and on the basis of the marriage, Alice was entitled, as the person next in line of succession, to either enforce her rights to the plot or to carry out her husband wishes. She chose the latter and so, her “participation in the inheritance process” after Charles’s death validates the registration of the impugned lease in respondent’s name.
[27] Counsel for the respondent submitted that the High Court order is correct the nature of the appellant’s claim as pleaded was aimed at reviewing the Commissioner’s decision. It was not a claim for a declaration of rights or entitlement to the rights and interest in the plot. The assertion by the appellant that he was the lawful heir of the late Charles by appointment of the family council was not the basis of his claim as appears in the summons and declaration but only a foundation upon which he could assert his right or standing to sue. That is borne out by his prayer which did not seek a declaration that he was the lawful heir and successor to the plot, and did not seek the ejectment of respondent on that account. Further, the summons and declaration did not attempt to challenge the basis upon which respondent acquired title to the plot as opposed to the registration of the lease in his name. The summons and declaration merely challenged the procedural or administrative impropriety of the issuance of the lease to respondent by the Commissioner and its registration by the Registrar of Deeds. This is why appellant asserted that the the application for a lease was publicized in terms of s 33 of the Land Act 1979 and he, in turn, filed an adverse claim in the Land Tribunal protesting that the Commissioner had issued the lease “even before the Land Tribunal could decide on the matter”. He followed this up with a claim for cancellation of the lease.
[28] The respondent’s plea was that appellant could not inherit the plot ahead of and in place of Charles’s widow and that the adverse claim was rejected by the Land Tribunal. He also stated that the plot had been donated to him by Charles before his death. In the replication appellant denied the allegation that his claim had been rejected and called upon respondent to prove his assertion. He again stated that respondent could not have been properly issued with the lease whilst his claim was pending before the Land Tribunal.
[29] Respondent’s counsel referred to ground number 7 of the grounds of appeal as showing beyond doubt that appellant relied on s 23(3) of the Land Act 1979, which provides that until an adverse claim is determined by the Land Tribunal or by the High Court on appeal from the Tribunal, the application for lease shall be kept in abeyance. This shows that the essence of his claim was that the lease was granted prematurely and not in accordance with the laid down procedure. Counsel went on to submit:
“16. This having been an action for review the appellant bore the onus of proof. He had to adduce proof. He had to adduce proof that the provisions of section 23(3) of the Land Act 1979 had been breached, in that the lease to the respondent was issued during the pendency of the dispute in the Land Tribunal and, further that the Commissioner was aware of the pendency of the adverse claim when he issued the lease. It is only if he was aware that he would have acted irregularly.”
[30] As I have indicated above with reference to what the judge actually said, the adverse claim was lodged on 8 July 1986 with the clerk of the Urban Land Committee, and it came to the attention of the Commissioner on 5 August 1987 after the lease had been issued in February of that year. The judge found that there was no other evidence to establish that the Commissioner became aware of the adverse claim earlier. The date, 2 September 1986, mentioned by witness Molelekeng Mohajane was not, on the evidence, proved to be the date when the Commissioner received notice of the adverse claim. There was simply no reliable evidence on this. In fact, when a question was put by the High Court as to when the Commissioner received the notice, Mohajane confirmed that it was on 5 August 1997. Further appellant’s counsel did not pursue, either during the trial or in his argument before the High Court or this Court, the point that the Commissioner was notified of the adverse claim on 2 September 1986. The upshot was, as submitted by respondent’s counsel, that the High Court could not grant the order sought in the review application when no reliable or conclusive evidence of what happened to the adverse claim was before it. No documents were found or produced by appellant on how the adverse claim ended up. Apart from the judge’s finding that the Commissioner became aware of the adverse claim long after the lease was issued, the lack of evidence of what became of the adverse claim would in any event have militated against success of the review.
[31] The respondent’s counsel made submissions on the other issues raised by the appellant out of an abundance of caution. Those issues – whether a donation was effectively made by Charles at common law or at customary; whether Charles’s widow was the rightful person to take the plot, and whether the meetings of the Matlosa family at which it was decided that appellant was the rightful heir were proper – were unnecessary to canvass or for the High Court to deal with. They were not part of the case on review but the for the authority vested with the power to decide those issues, being Urban Land Committee or, after an objection, the Land Tribunal. There was no need for the High Court to have determined them. The matter before the court, as correctly submitted by Adv. Teele KC was a review of the regularity or legality of the Commissioner’s decision. Having concluded that the registration of the plot in respondent’s names had been done procedurally in the absence of a live and pending adverse claim in the Land Court, that should have been the end of the review application. If the High Court had found that the lease was granted when the adverse claim was pending in the High Could all it would have done was to set aside the Commissioner’s decision and direct that the adverse claim before the Land Court be finalised.
[32] At the hearing of the appeal the submissions of appellant’s counsel, Adv. Makhethe, proceeded from a wrong premise as to what appellant’s case for review in the High court actually was. He contended that the Commissioner and Registrar had unlawfully issued and registered the lease in favour of the respondent when the rightful heir was the appellant, when, at the same time, he also submitted the acts impugned were the issuance and registration of the lease in respondent’s name whilst the adverse claim was pending in the Land Court. He therefore argued the substantive merits of the issuance and registration of the lease and not the procedure, which on his client’s pleading was the only issue on review. He clearly misconceived his client’s case by dealing at length with the substantive issue of ownership of the rights and interest to the plot which was not the point of the review application. That is why he set out the issues for determination on appeal as whether the donation inter vivos to respondent was valid; whether upon Charles’s death his widow automatically inherited the plot by operation of law and thereby acquired the right to transfer the plot to the respondent; and whether the family meetings which resulted in the nomination the appellant as heir were proper. Counsel was emphatic that the single issue for decision by this Court was whether, at the time of Charles’s death, the law vested in the widow the automatic right to inherit the plot. That clearly was not the case on review and could not have been the case on appeal.
[33] The High Court’s conclusion that there was no evidence to establish that the adverse claim was pending in the Land Tribunal at the time that the plot was registered in respondent’s names cannot be faulted. That too was the contention respondent’s counsel. I accept it. The High court should have dismissed the review on that basis only. There was no need for it to have dealt with all the other collateral issues. The appeal must therefore fail.
[34] Appellant’s counsel submitted that no costs order should be made on appeal as this case involves members of the same family. Respondent’s counsel asked for costs of appeal in favour of respondent.
[35] I cannot say that this is a family case as compels the Court not to make an order of costs. This case involves members of the extended family, and the considerations must be different from a case in which siblings or child and parent are pitted against each other. The appeal against the decision of the High Court had no merit. The appellant should have recognised that the appeal was against a decision of the High Court as a review court and should have confined his arguments, even if they had no merit to matters relevant to an appeal against a review decision of a lower court. Whilst I grant condonation only because it was not opposed.
[36] I am satisfied that costs of appeal must follow the result. Accordingly, I make the following order-
(a) The condonation application is granted.
(b) The appeal is dismissed with costs.
__________________________
MH CHINHENGO
Acting Justice of Appeal
I agree:
_________________________
PT DAMASEB
Acting Justice of Appeal
I agree:
___________________________
J VAN DER WESTHUISEN
Acting Justice of Appeal
FOR THE APPELLANT: Adv. T Makhethe KC
FOR THE 1ST RESPONDENT: Adv. M.e Teele KC
[1] Paras 2, 3 and 4 of heads of argument
[2] C of A (CIV) 77/2018 [2020] LSCA 45 (30 October 2020)
[3] CIV/T/142/90
Cited documents 1
Judgment 1
| 1. | Matlosa v Matlosa (C of A (CIV) 77 of 2018) [2020] LSCA 45 (30 October 2020) | 1 citation |