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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO. 75/2023
In the matter between:
MAIPATO MAHOHOLI APPELLANT
AND
KOPOTSO MAHOHOLI 1ST RESPONDENT
THETHUOE MAKARA 2ND RESPONDENT
RAMASHAMOLE RAMASHAMOLE 3RD RESPONDENT
MAMOSHE RAMASHAMOLE 4TH RESPONDENT
LAND ADMINISTRATION AUTHORITY 5TH RESPONDENT
CORAM: DAMASEB AJA
MUSONDA AJA
VAN DER WESTHUIZEN AJA
HEARD: 8 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Land Law – Donation under customary law – Competing claims of heirship and perfected donation – Regularisation of title through systematic adjudication – Lease issued pursuant to possession and long-standing occupation – Effect of vague and delayed nomination of heirship – Good faith purchasers – Failure to comply with appellate procedural rules.
The appellant, who had been appointed heir nearly two decades after the parents’ death, claimed a residential plot originally belonging to a deceased couple. The second respondent, the ex-wife of the appellant’s brother, had built a house and occupied the plot since 1991 with the deceased's consent. She was issued a lease in 2012 with her former husband's support. The appellant challenged the lease and a subsequent sale to third parties, relying on an heirship nomination made in 2021.
The Land Court dismissed the claim, holding that the donation to the second respondent and her husband had been perfected under customary law and regularised under statute. The Court of Appeal upheld the decision, finding that: (i) the elements of a valid donation had been met; (ii) the appellant’s heirship nomination was vague, belated, and incapable of defeating a prior perfected donation; (iii) the lease issuance complied with the Land Act 2010 through proper adjudication; and (iv) the third and fourth respondents were bona fide purchasers entitled to protection.
The Court further held that the appellant’s single ground of appeal was procedurally defective and devoid of substance. Even if properly raised, the appeal failed on the merits.
Appeal dismissed with costs to the second, third, and fourth respondents.
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JUDGMENT
P.T. DAMASEB AJA
Introduction
[1]
At issue in this appeal are two competing claims to a residential Plot No.: 15302-090 at Ha Makhoathi, Maseru, in extent measuring 869 square meters (‘the residential Plot’). The residential Plot belonged to the now deceased husband and wife: Letsatsi Mahoholi and Malebina Mahoholi.
[2]
The husband died in 1994 and the wife in 2004. The appellant and the first respondent were the children of the deceased couple. The second respondent (against whom the appellant brought a claim in the Land Court for the residential Plot) was married to the first respondent sometime in the nineties (1990’s), that is while the deceased couple was still alive.
[3]
When the second respondent married the appellant’s brother in the 1990s, they built a two-bedroom house on the residential Plot sometime in 1991, where she began living with him. Both parents of the appellant died while the second respondent still lived on the residential Plot. In fact, the second respondent and the first respondent divorced in 2000, while the mother of the appellant was still alive.
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[4]
The second respondent therefore lived on the land for 20 years. Her uninterrupted presence on the residential Plot outlived her parents-in-law and her divorce from the first respondent.
Second respondent acquired title
[5]
On 12 November 2012, the second respondent was issued a lease in respect of the residential Plot by the Commissioner of Lands pursuant to the Land Administration Authority Act 2020, read with the Land Act 2010. The lease became effective on the date of issue and is to expire after 90 years on 27 November 2102.
[6]
The first respondent’s former husband, on 14 June 2012, supported the first respondent’s application for the lease in the following terms:
‘I Khopotso Mahoholi authorise that the site be registered in the names of Thethuoe Makara who is my ex-wife’.
[7]
The first respondent’s letter of support was executed in the presence of the area Chief Mrs ‘Malentsoe Makhoathi.
[8]
On 24 January 2021, the second respondent entered into a written agreement with the third and fourth respondents for transfer of title in the land for the payment of M130 000. She received the money and the third and fourth respondents took occupation of the residential Plot land and begun improving it.
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The appellant goes to court
[9]
Relying on an appointment as heir allegedly to the residential Plot by the biological family of the deceased parents, in February 2022 the appellant instituted proceedings in the Land Court seeking the following relief:
a.
A declaration that she is the lawful heiress to the estate of the deceased Letsatsi Mahoholi and ‘Malebina Mahoholi;
b.
The Land Administration Authority is directed to cancel and or revoke Lease No. 15302-090 in the names of the first respondent and that the first respondent is directed to surrender the aforesaid lease document for cancellation.
[10]
The appointment instrument dated 23 December 2021 in terms of which the appellant claims to be heir reads:
‘We as the Mahoholi family confirm and appoint Maipato Mahoholi as the heir to the estate of Letssatsi and ‘Malebina Mahoholi. The inheritance is the residential site situated at Ha Makhoati’.
[11]
This appointment was confirmed by the Qiloane Community Council A01 on 11 January 2022.
[12]
According to the appellant, she had by virtue of the letter of appointment become heir to the residential Plot and that the second respondent had no claim of right to it. She alleged that the residential Plot had always remained the property of her deceased parents and never formed part of the community of
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property between her brother and the second respondent. As a result, the first respondent had no right to authorise registration of the residential Plot in the name of the second respondent. Accordingly, the second respondent had not acquired the lease lawfully and could therefore not lawfully transfer it to the third and fourth respondents.
Opposition
[13]
The application was opposed by the second respondent and the third and fourth respondents.
Second respondent’s defence
[14]
The second respondent’s pleaded case is that the residential Plot was donated to her former husband and her by her deceased parents-in-law; that the donation was perfected during the lifetime of the parents-in-law; that she lawfully and with the support and consent of her former husband acquired a lease over the land, and lawfully entered into an agreement to pass title in the land to third and fourth respondents.
[15]
According to the second respondent, when she got married to the appellant’s brother, her now deceased parents-in-law ‘allocated’ the residential Plot to her and her husband. At the same time, she alleged, her husband’s elder brother, Lebina Mahoholi had ‘already been allocated part of the plot within the residential home’ of the late parents-in-law. Because the residential Plot was allocated to her and her husband, they built a two-room house in 1991 and therein lived as husband and
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wife and raised their children. At no time, she said, was that ownership contested, including after the death of her parents-in-law.
[16]
Her marriage to the appellant’s brother was dissolved in 2000. Her former husband also at no stage contested her right to the residential Plot. She even went on to rent out the residential Plot and collected rentals and used the proceeds to support herself and the children of the marriage with the appellant’s brother. She adds, for good measure, that neither the ‘applicant… nor any member of the family …complained …or showed any dissatisfaction’.
[17]
She then in 2012, with the support of her former husband, applied for and had a lease issued in her name in respect of the residential Plot. By supporting as he did, she stated, her former husband ‘renounced all rights and interest in the land and/or the plot initially owned by the parties and forming part of the joint estate’.
[18]
The second respondent states that she has been in peaceful undisturbed possession and ownership of the residential Plot for 20 years with the full knowledge of the former husband and the appellant. She asserts that the appellant ‘cannot be the heiress’ to the residential Plot as it was allocated to her and her former husband by the late parents-in-law. The residential Plot had, upon such allocation ceased to form part of the estate of her late parents-in-law.
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[19]
The second respondent by way of collateral challenge to the appellant’s purported appointment as heir states that such appointment is ‘irregular’.
[20]
Crucially, the second respondent asserts that the appointment letter relied on by the appellant ‘does not describe and/or stipulate clearly which residential plot situated in Ha Makhoathi is being inherited by the applicant.’ This is more so as the late [parents-in-law] had a residential plot wherein the deceased had built their residential home and were staying during their lifetime. It therefore follows that the residential plot referred to in the family letter and minutes of Qiloane Community Council is not that of the second respondent but that which the late [parents-in-law] had built ‘a residential home.’
Third and fourth respondents
[21]
Their case is that they are bona fide purchasers for value relying on the apparent lawfully granted lease over the land to the second respondent.
The evidence
[22]
Both the appellant and the respondents testified at the trial of the matter. The learned Judge (Banyane J) recorded that according to the appellant, her:
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‘…deceased parents owned a substantial piece of land. Her mother later subdivided the land because she intended to set up a chicken run on the portion occupied by the respondents. It is her testimony that when her brother married the 2nd respondent in the early nineties, their parents allowed them to build their own house on this disputed portion of land using their parents’ building material.
…
After she retired in 2020, she planned to carry out the chicken run project. She the approached the Mahoholi family membes to nominate her as heir.
…
When she sought to register the land in her name ,she dscovered that the 2nd respondent had registered a lease to the plot’.
[23]
Banyane J continued:
‘[8]The applicant’s primary complaint about the registration of the disputed plot is that her brother had no right to authorize the registration of the plot in the name of the 2nd respondent because it was never allocated to them.
…
Consequently, the sale between the 2nd respondent, 3rd and 4th respondent is null and void.
[9] The second pillar of her case is that her mother allotted this land to her during her lifetime and she was nominated as heir in December 2021’.
[24]
As for the second respondent’s evidence, it materially mirrored her ‘Answer’ which I already summarised. As I will demonstrate presently, the third and fourth respondents’ claim
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of being bona fide purchasers has been conceded in argument on appeal and it is unnecessary to detail their evidence.
The Land Court’s findings
[25]
The court a quo considered the requirements for a valid allocation under customary law, which include the donor's firm intention, the presence of the prospective heir, and publicity within the donor's family. The court found that the first and second respondents met these requirements through their long-term occupation and use of the land, the traditional housewarming ceremony, and the uninterrupted control of the residential Plot.
[26]
The Land Court also considered the ‘systematic regularisation project’ initiated by the Government of Lesotho in collaboration with the Millennium Challenge Corporation (MCC). This project aimed to formalise land rights held informally under customary tenure. The court noted that the first respondent authorized the registration of the lease in the name of the second respondent under this project, and the lease in the name of the second respondent was issued accordingly.
[27]
The Land Court found that the regularisation process was intended to formalise existing rights acquired through prior allocation, inheritance, or long possession. The court found that the regularisation project aimed to formalize rights acquired under customary tenure, and the registration of the lease in
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favor of the second respondent was consistent with that objective.
[28]
The court a quo referred to s 65 of the Land Act 2010, which provides that every registration of a lease under regularisation shall be preceded by an adjudication of rights relating to that land. The court found that the second respondent's lease was issued in compliance with this provision, as the first respondent's authorisation letter was part of the adjudication process.
[29]
With regard the alleged donation and nomination, the Land Court considered the appellant’s prolonged inactivity and the timing of her assertion of rights. The court noted that the appellant was nominated as heir in December 2021, almost 10 years after the lease registration and 30 years after the first and second respondents' occupation of the residential Plot.
[30]
The court a quo determined that under Sesotho custom, land donations or allocations are valid even without written documentation. However, for a donation to be legally recognized, certain conditions must be met: the donor must have a firm intention to make the gift, the prospective heir must be present at the time of donation or informed afterward, and the donation must be publicized within the donor’s family to serve as evidence in case of a dispute.
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[31]
The appellant alleged that her mother donated the disputed land to her between 2002 and 2003. However, the court found her evidence insufficient. She failed to clarify the conditions under which her brother occupied the land, did not establish key elements of a valid donation under customary law, and provided no explanation for her failure to take legal possession from the tenants to whom the second respondent had rented the house after the alleged donation.
[32]
The court found that the appellant’s nomination as heir could not ‘retrospectively affect the lease granted to the second respondent’ or the rights the first and second respondents had acquired through long-standing occupation. The nomination occurred nearly 19 years after the death of the last parent in 2004 and 30 years after the first and second respondents first occupied the land in 1991, weakening the appellant’s claim.
[33]
The court concluded that the residential Plot had been allocated to the first and second respondents. They established residence thereon, their parents hosted a traditional housewarming, and they occupied the land without interruption for thirty years. Even after their divorce, the second respondent retained control, renting out the property for nearly a decade without any objection from the applicant.
[34]
The court determined that the third and fourth respondents were bona fide purchasers, having acted in good faith, relying on the lease and authorization letter from the second
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respondent, and being unaware of any defects in the seller’s title. The court held that as bona fide purchasers the third and fouth respondets are entitled to retain possession of the property until they are compensated for improvements made in good faith.
[35]
The court concluded that the appellant failed to prove the existence of a valid donation or allocation under customary law. Conversely, the evidence supported the first and second respondents' claim that the land was allocated to them by the deceased couple in 1991. Thus, the court dismissed the appellant’s application.
Grounds of appeal
[36]
Agrieved, the appellant appealed to this Court and advanced the following ‘ground of appeal’:
‘The Learned Judge in the Court a quo, erred and misdirected herself in dismissing the Appellant’s case in circumstances wherein the application should have been granted on the facts of the case taken as a whole’.
[37]
Although the appellant expressly reserved ‘the right to file further and better grounds of appeal upon receipt of a written judgment,’ that was not done. The appeal was therefore heard based on the above most meaningless ‘ground of appeal’.
[38]
Rule 4 of this Court’s Rules states:
‘4. The notice of appeal shall:
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(a)
state whether the whole or part of the judgment or order is appealed against. If a part only of the judgment or order is being appealed against, the notice of appeal shall state which part; and
(b)
set forth concisely and clearly the grounds of objection to the judgment or order and such grounds shall set forth in separate numbered paragraphs the findings of fact and conclusions of law to which the appellant objects and shall also state the particular respects in which the variation of the judgment or order is sought.
(5) The appellant shall not argue or rely on grounds not set forth in the notice of appeal, unless the court grants him leave to do so. The court, in deciding the appeal, may do so on any grounds, whether or not set forth in the notice of appeal and whether or not relied upon by any party.’
[39]
In the heads of argument, the appellant relies on several grounds which do not appear in the ‘ground of appeal’ to impugn the court a quo’s judgment and order. That is not permissible under this Court’s rules. A notice of appeal without graounds of appeal is a nullity.1 The appeal is therefore liable to be struck for that reason alone, but in any event is without any merit.
[40]
Where a court has not been shown to have misdirected itself, the presumption is that its conclusions and order are correct. The appellant has not pointed us in her grounds of appeal to any misdirection on the part of the court a quo and the
1 Compare: Metropolitan Life v Masophe LAC (1995 -99) 551 and Hashe v Minister of Justice and Another 1957(1) SA 670 at 675.
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presumption is that the factual conclusions arrived at and the order are correct.2
[41]
The Land Court made one important factual finding and one determination of law. As to the former, it found that by the time the appellant was purportedly appointed heir, the donation to the second respondent and her former husband had been perfected. The legal consequence of that is that the donation and the appellant’s purported heirship were irreconcilable. Since it was prior in time, the donation to the second respondent prevails.
[42]
As to the second, the court a quo held that, as a matter of law, a donation such as the second respondent relied on was permissible under customary law, could be regularised under the Land Administration Act and the Land Act, was duly adjudicated upon, and was lawfully regularised.
[43]
Neither the factual finding nor the determination of the legality of the donation have been impugned in the ‘ground of appeal’.
[44]
What Banyane J held in effect is that by the time that the appellant was purportedly appointed heir, the second respondent’s title arising from the donation had been perfected. The learned judge held that such a donation was possible under
2 Rex v Dhlumayo and Another 1948 (2) SA 677 (A) and Worku v Equity Aviation (Pty) Ltd 2010 (2) NR 621 (SC).
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Sesotho law as long as certain conditions were met. The learned judge in a very carefully reasoned judgment set out those conditions and explained how they were met in respect of the donation to the second respondent. In particular, the learned judge explained that two important requirements are the donor’s intention to donate, accompanied by publication to the rest of the family.
[45]
What clearer evidence of the intention to donate and publication could there have been than the parents-in-law allowing the second respondent and her husband to live on the land, make a home thereon, raise a family, and being allowed without any protestation or hindrance (even after divorce from the the first respondent) to live on the residential Plot and even renting it out to others for profit?
[46]
There is yet another factor that supports the order of the High Court. Even on the appellant’s own version, the piece of land to which the second respondent lays claim was part of a much bigger parcel of land. As the appellant testified, it was subdivided by her mother from the bigger part. That testimony corroborates the second respondent’s version that she and her husband were donees of a clearly defined piece of land.
[47]
The appellant’s purported letter of heirship is so vague and undefined, and certainly does not support the claim that it relates to the part of the land donated, and since allocated, to the second respondent.
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[48]
For all of the above reasons, the appeal has no merit and should fail, with costs.
[49]
Although the appellant persisted on appeal that the third and fourth respondents are not bona fide purchasers, during oral argument her counsel conceded that in the event that it is found that the second respondent had not acquired valid tiltle, the third and fourth respondents clearly were bona fide purchasers and would be entitled to compensation for the improvements they made to the land. The third and fourth respondents are therefore entitled to their costs for opposing the appeal.
Order
[50]
The appeal is dismissed, and the appellant is ordered to pay the costs of the second, third, and fourth respondents.
––––––––––––––––––––––––––––––––––––––
P.T DAMASEB
ACTING JUSTICE OF APPEAL
I agree
_______________________________________
P. MUSONDA
ACTING JUSTICE OF APPEAL
I agree
____________________________________
J. VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
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FOR APPELLANT: ADV L. MASOEU
FOR 1st RESPONDENT: ADV N.B. PHEKO
FOR 3rd & 4th RESPONDENTS: ADV. L.D. MAKHALANYANE