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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) NO. 04/2025
LC/A/0003/2023
CIV/DLC/ QACHA/05/2021
In the matter between:
TEBELLO ZACHARIA KHOROMENG APPELLANT
and
LESOTHO NATIONAL DEVELOPMENT CORPORATION
(LNDC) 1ST RESPONDENT
LAND ADMINISTRATION AUTHORITY 2ND RESPONDENT
CORAM: MUSONDA AJA
CHINHENGO AJA
VAN DER WESTHUIZEN AJA
HEARD: 09 APRIL 2025
DELIVERED: 08 MAY 2025
FLYNOTE
Land Law – Bona fide possession – Right of retention – Section 62 of the Land Act 1979 – Regulation 6 of the Land Regulations 2011 – Effect of statutory deeming –
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Compensation for improvements – Absence of title – Public purposes – Vindicatory action – Equitable doctrines.
The appellant occupied and developed urban land allocated by a local authority, acting under the bona fide belief of lawful entitlement following receipt of an allocation letter and planning permission. The respondent, a statutory corporation, claimed vindicatory rights under section 62 of the Land Act 1979, asserting the land had long been reserved for public use, despite never having acquired formal title or possession. The Land Court upheld the respondent’s ejectment claim, finding the appellant’s allocation procedurally defective under section 26 of the Land Act 2010 and Regulation 6 of the Land Regulations 2011, but nonetheless recognised the appellant as a bona fide possessor entitled to compensation and a lien. The appellant appealed against the ejectment; the respondent cross-appealed against the finding of equitable entitlement.
Held, per Chinhengo AJA (Musonda and Van der Westhuizen AJJA concurring):
1.
Section 62 of the Land Act 1979 operates as a transitional deeming provision, protecting only land in actual use and occupation by the State as of 1 January 1980. It does not constitute a basis for asserting vindicatory rights absent proof of such occupation or registered title. Surveyed intention to develop, unaccompanied by use or occupation, does not suffice.
2.
Regulation 6 of the Land Regulations 2011 imposes mandatory procedural safeguards for lawful land allocation, including public notice and consideration of objections. These were not complied with in the present case. However, the administrative failure lies with the allocating authority, not the appellant.
3.
A possessor who enters land in good faith and incurs expenditure believing himself lawfully entitled is recognised under Roman-Dutch law as a bona fide possessor, with a jus retentionis until compensation is paid. The right exists not on grounds of ownership but to prevent unjust enrichment of the true owner. The equitable entitlement survives procedural unlawfulness where the possessor relied on official conduct.
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4.
The appellant, having followed administrative steps and obtained planning permission, fell within the class of bona fide possessors contemplated in Weilbach en ’n Ander v Grobler, Brooklyn House Furnishers v Knoetze, and Pretoria City Council v Modimola.
5.
The respondent’s failure to formalise title, coupled with its prolonged inaction and disclaimer of intent to develop the land, deprived it of any legal or equitable superiority over the appellant.
Appeal upheld in part: The appellant’s allocation was unlawful, but his status as bona fide possessor entitled him to a lien pending compensation.
Cross-appeal dismissed: the appellant’s equitable rights were properly recognised.
JUDGMENT
CHINHENGO AJA
Introduction
[1] This appeal and cross-appeal concern the legal status of a plot holder who, though lacking a registered title, occupied and developed a parcel of urban land under the bona fide belief that he was lawfully entitled to do so. The central question is whether such a person is entitled to retain possession of the land and claim compensation for improvements made thereon.
[2] The matter also raises broader questions regarding the proper construction of section 62 of the Land Act1, the effect of non-issuance of title to a public entity, and the procedural safeguards required before allocating land already designated for public use. The legal status of the appellant’s improvements is of equal
1 Land Act 1979.
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importance, made pursuant to planning permission but before obtaining formal title.
Factual background
[3] The appellant, Mr Khoromeng, was allocated urban land by the Qacha’s Nek Urban Council in or around 2020. He obtained planning permission and commenced construction of commercial structures. The respondent, LNDC, then instituted proceedings in the District Land Court for ejectment, asserting that the land had been surveyed and set aside for its benefit as far back as 1998, and that it retained rights over it under section 62 of the Land Act, even though no formal lease or title had ever been issued.
[4] The court a quo upheld LNDC’s claim and ordered the appellant’s ejectment. The appellant now appeals that decision. Conversely, LNDC cross-appeals the finding that the appellant was a bona fide possessor entitled to compensation and a lien.
Issues for determination
[5] The appeal raises the following interrelated questions:
(a) Whether the Land Court erred in applying section 62 of the Land Act 1979 to the effect that LNDC retained vindicatory rights over the disputed plot despite holding no formal title;
(b) Whether the Land Court erred in finding the appellant’s allocation invalid for failure to comply with section 26 of the Land Act 2010 and Regulation 6 of the Land Regulations 2011;
(c) Whether the appellant, notwithstanding the unlawfulness of the allocation, is a bona fide possessor entitled to compensation and a right of retention (jus retentionis).
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[6] These issues must be resolved through a careful engagement with the applicable statutory framework, including the interpretive scope of section 62 of the Land Act 1979, the procedural and substantive requirements under section 26 of the Land Act 2010 and Regulation 6 of the Land Regulations 2011, as well as the common law principles governing bona fide possession and the jus retentionis. It is to these legal principles that I now turn."
The Law
[7] The legal significance of section 62 of the Act arises primarily in contexts where the State or its instrumentalities assert a residual entitlement to land which, although not formally allocated or registered in their favour, has historically been used or occupied by the organs of government. The provision is a deeming clause—legislative shorthand for ascribing a particular legal status to land held under certain factual circumstances, thereby altering the ordinary requirements of proof of title. The provision reads:
"62. All land, other than land to which title is held by a person other than the state, used and occupied by the state on the commencement of this Act shall be deemed to have been set aside for public purposes under this Act, and an endorsement to that effect shall be made by the Registrar on any deed relating to such land which may have been registered in the name of the government, or of a Ministry, department or agency of the government, or of any person acting for and on behalf of the government."
[8] A close reading reveals four key components of this provision, each requiring elaboration. The first analytical feature is the phrase “shall be deemed to have been set aside for public purposes.” It is a legal fiction that serves to confer upon land a legal character it may not possess at common law or under prior
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legislation. In this case, it retrospectively categorises land used and occupied by the state as having been formally appropriated for public purposes. The effect of such a deeming clause is to displace the necessity for the ordinary procedural formalities—notice, consultation, gazetting—normally required for expropriation or reservation of land for a public utility. This fiction does not merely declare a state of affairs; it constructs one with substantive consequences. It must, however, be confined strictly to the circumstances delineated by the statute.
[9] The second feature worthy of scrutiny is the temporal limitation embedded in the phrase “on the commencement of this Act.” Section 62 is not a roving mandate to appropriate land through occupation in perpetuity. It applies only to land that was in the actual use or occupation of the state as when the Act commenced. For present purposes, that is 1 January 1980.
[10] This temporal anchoring renders the provision historical rather than forward-looking. It thus cannot be relied upon to justify state claims to land merely because a state organ has intermittently expressed interest in a site or intends to develop it in the future. The operative condition is factual occupation or use by the state as at the commencement date of the Act. It follows that land surveyed or earmarked for state use, but never physically occupied or utilised before 1 January 1980, would not qualify for the protective deeming effect of this section.
[11] Thirdly, section 62 requires actual use and occupation, not speculative interest or prospective development. These terms must be interpreted in their ordinary sense: use suggests positive and
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beneficial activity upon the land (e.g., construction, agriculture, administrative function); occupation implies physical presence and control. A mere survey conducted with future development in mind or correspondence indicating interest or planning falls short of the statutory threshold.
[12] In the context, such as in casu, for instance, while the land had been surveyed in 1998 for potential use by the Lesotho National Development Corporation (LNDC), the LNDC itself had expressly disclaimed its intention or capacity to proceed with development. There was no physical occupation or utilisation of the land, much less in 1980. It would be a misapplication of the statute to stretch the meaning of “occupation” to include such nascent or abortive expressions of interest.
[13] The final clause provides that an endorsement to the effect of land being set aside for public purposes “shall be made by the Registrar on any deed relating to such land which may have been registered in the name of the government or its agencies.” This clause is declaratory and administrative in function. It ensures that the legal status conferred by the deeming provision is accurately reflected in the public records.
[14] However, this function is not discretionary. The Registrar's role is ministerial, to record what the law has already presumed. But where no deed exists—because, for instance, no lease or Form C was ever issued—the Registrar has nothing to endorse. The provision does not contemplate the creation of a title where no documentary manifestation of such a title previously existed.
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[15] Section 62 must be construed as a transitional provision aimed at regularising state-held land at the threshold of the statutory land reform regime. It protects land genuinely in state use and occupation as of 1 January 1980 by deeming such land set aside for public purposes, thereby exempting it from the procedural formalities of section 54 of the Act.
[16] However, it does not—and cannot—substitute for formal allocation or registration of title for lands not occupied at that material date. It is a shield, not a sword. It does not entitle state agencies, by mere invocation of past surveys or intentions, to displace third parties in actual possession, particularly those who entered the land through colourable administrative acts. Nor does it provide a juridical shortcut for asserting vindicatory remedies without proof of ownership.
[17] As with all deeming provisions, section 62 must be interpreted narrowly, per its language, statutory context, and the principle that legal fictions, while sometimes necessary, are not to be extended beyond their clear intent.
[18] In both South African and Lesotho law—where Roman-Dutch private law prevails—it is now well settled that a bona fide possessor occupies property under the genuine and reasonable belief that he is lawfully entitled to do so. Such a person, although lacking title, is not a trespasser. Rather, the law acknowledges that he has engaged with the property in good faith and often to his own detriment.
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[19] Drawing from Voet and Grotius, the South African courts have long upheld this doctrine. In Weilbach en ‘n Ander v Grobler2 the court, after thoroughly reviewing historical sources, set out various categories of occupiers entitled to compensation, including those who mistakenly but reasonably believe themselves to be owners.
[20] Similarly, in Brooklyn House Furnishers v Knoetze and Sons,3 The court confirmed that the bona fide possessor may not be summarily evicted without regard to their equitable claims. Compensation and retention rights prevent unjust enrichment.
[21] A jus retentionis, or right of retention, is not a right of ownership, but a right to remain in possession until expenditure incurred in good faith has been reimbursed. As Jansen JA remarked in Pretoria City Council v Modimola, this doctrine “serves to do justice between the parties when one has, in mistaken but innocent belief, improved another’s land.”4
Application of the law to the facts
[22] The appellant’s possession was neither clandestine nor violent. On the contrary, he followed what he believed to be proper legal procedures—applying to the local council, receiving an allocation letter, and obtaining planning permission. The fact that the allocation process failed to comply with the competitive and transparent procedures mandated under section 26 and Regulation 6 does not, without more, transmute his conduct into
2 Weilbach en ‘n Ander v Grobler 1982 (2) SA 15.
3 Brooklyn House Furnishers v Knoetze and Sons 1970 (3) SA 264 (A).
4 Pretoria City Council v Modimola 1966 (3) SA 250 (A).
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mala fides. There is no evidence that he acted fraudulently or surreptitiously. In further elaboration of the procedural safeguards required for lawful land allocation, Regulation 6 of the Land Regulations 2011 prescribes a mandatory process by which such allocations must be undertaken. The provision reads:
"6. Procedure for allocation of land
(1) A Land Committee shall, upon receipt of an application for allocation of land, publish a notice in a newspaper widely circulating in the area or in such manner as it considers appropriate, indicating the intention to allocate the land and calling upon any person with interest in the land to make representations within a period of 30 days from the date of publication.
(2) After the expiry of the period referred to in subregulation (1), the Land Committee shall consider the application together with any representation made and may allocate the land to the applicant or reject the application.
(3) Where the Land Committee decides to allocate the land, it shall notify the applicant in writing and cause the allocation to be recorded in the Allocation Register."
[23] The procedural defects in the allocation process are not merely technical. As demonstrated by the express provisions of Regulation 6 of the Land Regulations 2011, the law requires that the Land Committee publish notice of the intended allocation before any lawful allocation, invite public representations, and formally record its decision. These requirements serve vital democratic and administrative purposes: to ensure transparency, to guard against arbitrariness, and to give affected or interested persons an opportunity to be heard. In the present case, the Qacha’s Nek Urban Council failed to comply with these statutory prerequisites. While this renders the appellant’s allocation unlawful in strict legal
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terms, it also places the procedural failing squarely at the feet of the allocating authority. Having acted on the strength of official correspondence and planning permissions, the appellant could not reasonably have known of this defect. Thus, the statutory breach, though fatal to the lawfulness of the allocation, cannot displace his equitable claim as a bona fide possessor, nor extinguish the protective doctrines of compensation and jus retentionis to which he is entitled.
[24] As Jansen JA put it in Pretoria City Council v Modimola,5 the right of retention exists not because the occupier has any entitlement to ownership, but because equity requires that a person who has incurred expenditure in the bona fide belief of right should not suffer unjust enrichment at the hands of the true owner. The remedy is not founded on the validity of the acquisition but on the justice of preventing loss to the possessor.At page 263E–G, Jansen JA articulates the principle underlying the jus retntionis:
“...the principle that a bona fide possessor who has made useful improvements is entitled to remain in possession until compensation is paid is founded not on ownership or contract, but on equity—preventing the unjust enrichment of the true owner.”
[25] The learned judge in the court a quo erred in treating the failure to follow procedural requirements for allocation as dispositive of the appellant’s equitable claim. The failure of the Qacha’s Nek Urban Council to adhere to the mandatory publication and competitive allocation process cannot fairly be laid
5 Pretoria City Council v Modimola 1966 (3) SA 250 (A)
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at the appellant's door, who lacked legal training and relied on administrative guidance.
[26] His reliance on official documents and permissions gave rise to a reasonable and sincere belief that he was entitled to develop the land. This places him squarely within the category of bona fide possessors contemplated in Weilbach, Modimola, and Voet’s Commentaries. Accordingly, he is entitled both to claim compensation for useful improvements and to retain possession pending satisfaction of such claim.
[27] The LNDC relies upon section 62 of the Land Act 1979, which deems all land occupied by the state at the commencement of the Act to be land set aside for public purposes. It was contended that LNDC, as a statutory body, benefited from this deeming provision, even though it held no lease or title.
[28] While LNDC is a public body, it is trite that a vindicatory action requires proof of ownership or a right superior to the possessor's. In Minister van Waterwese v Mostert6, the Appellate Division emphasised that rei vindicatio lies only where the plaintiff proves ownership and that the defendant’s possession is unlawful.
[29] No lease, title deed, or Gazette notice exists in LNDC’s name. Its right to the land was never formalised beyond a surveyed intention. It declined the opportunity to develop the land in 1998 due to a lack of funds and never pursued formalisation thereafter. Its vindicatory claim falters in these circumstances and absent evidence of continuing state occupation or control.
6 Minister van Waterwese v Mostert 1964 (2) SA 656 (A).
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Disposal
[30] The appeal must therefore succeed in part. The finding that the appellant’s allocation was unlawful stands. However, the learned judge erred in granting summary ejectment in the face of a plausible defence of bona fide possession.
[31] Conversely, the cross-appeal fails. The learned judge correctly held that the appellant had a compensable claim and a right of retention.
Order
[31] The appeal is upheld in part.
[33] The order of the Land Court is set aside and substituted with the following:
“a. The appellant is declared a bona fide possessor of Plot No. 41581–222.
b. The appellant has a right of retention over the property pending payment for useful improvements.
c. The appellant may institute proceedings for compensation in a competent court within two (2) months of this judgment.”
[34] The cross-appeal is dismissed.
[35] Each party shall bear its own costs.
__________________________________
M H CHINHENGO
ACTING JUSTICE OF APPEAL
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I AGREE
__________________________________
P MUSONDA
ACTING JUSTICE OF APPEAL
I AGREE
__________________________________
J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV T LESAOANA
FOR 1ST RESPONDENT: MR Q LETSIKA ass by M LEROTHOLI