Liteboho Ramakhula V The Chairperson-Mafeteng Urban Council (CIV/APN/344/2020) [2024] LSHC 4 (19 January 2024)

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IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/344/2020
In the matter between:
LITEBOHO RAMAKHULA 1st APPLICANT
`MAKALOSI ARIA RAMAKHULA 2nd APPLICANT
and
THE CHAIRPERSON - MAFETENG 1st RESPONDENT
URBAN COUNCIL
MAFETENG URBAN COUNCL 2nd RESPONDENT
MINISTRY OF LOCAL GOVERNMENT 3rd RESPONDENT
AND CHIEFTAINSHIP AFFAIRS
MASTER OF THE HIGH COURT 4th RESPONDENT
ATTORNEY GENERAL 5th RESPONDENT
MONA DIANA RAMAKHULA 6th RESPONDENT
`MASETS`OANA RAMAKHULA 7th RESPONDENT
KALOSI RAMAKHULA 8th RESPONDENT
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Neutral citation : Liteboho Ramakhula and Another v The Chairperson - Mafeteng Urban Board and Another [2020] LSHC 04 (19 January 2023)
CORAM : KHABO J.,
HEARD : 11/10/2022
DELIVERED : 19/01/2023
SUMMARY
Civil procedure - Writ of mandamus - to compel the Mafeteng Urban Council to publish the 1st Applicant as heir to his late grandparents’ estate in terms of Regulation 44 of the Land Regulations, 2011 - Court finds mandamus an improper remedy in the circumstances of this case on the basis that the case revolves on heirship or succession to an estate which just happens to comprise a piece of land - Court deems it appropriate for the High Court exercising its ordinary civil jurisdiction to first determine heirship or succession to the said estate - Once heirship or succession is established the law regulating land allocation procedures may be invoked, a domain that is outside the competence of the High Court’s ordinary civil jurisdiction.
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ANNOTATIONS
Statutes and subsidiary legislation
Land Regulations, 2011
Cases cited
Lesotho
Keneuoe Lepholisa v Moleleki Lepholisa and Another LC/APN/12/2012
Komane Motaba v Board of Trustees : Public Officers’ ‘Defined Contribution Fund and 10 Others CIV/APN/19/2021
Lebohang Nthethe and 15 Others v Lesotho Electricity Corporation CIV/APN/499A/2000
Mathai Setuka v Mahali Nkotsi (`Mats`episo Setuka) and 5 Others CIV/APN/102/2018
Mokhali Shale v `Mamphele Shale and 3 Others C of A (CIV) No. 35/2019
Ramakhula v Chairperson - Mafeteng Urban Council (CIV/APN/344/2020) [2022] LSHC 42 (20 June 2022)
Literature
Baxter L - Administrative Law, Juta & Co Ltd, 1984
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JUDGMENT
KHABO J.,
Introduction
[1] At the crux of this application is a nomination letter dated 30th April, 20141 which purports to nominate the 1st Applicant as an heir to his grandparents Moroa Daniel Ramakhula and `Maselemeng Ramakhula’s estate (hereinafter referred to as 1st Applicant’s grandparents) which includes a residential site situated at Matholeng, Mafeteng.
[2] The 1st Applicant is the second born son2 of the late Ts`eliso Tokonye Ramakhula (1st Applicant’s father) and `Makalosi Aria Ramakhula, the 2nd Applicant herein. 1st Applicant’s father is the eldest son of his grandparents. 1st Applicants’ grandparents died intestate. It is 1st Applicant’s case that he was nominated heir to his grandparents’ estate which included
1 Attached to the notice of motion and marked “LR 2.”
2 Para. 10.2 of the answering affidavit
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the site at Matholeng by a family council during his father’s lifetime, an assertion confirmed by his mother, the 2nd Applicant.
[3] Regulation 44 of the Land Regulations, 2011 (Regulation 44)3 require that upon the death of an allottee such death should be reported to the allocating authority together with a nomination of an heir to the land in issue. Applicants aver these were duly submitted to the Mafeteng Urban Council in compliance with Regulation 44. It is Applicants’ case that the Council is bound thereby to publish his name as heir so that whoever may have an objection to it may accordingly object and a hearing conducted.4
[4] Applicants aver that the Chairperson of the Urban Council together with the Council as an entity, 1st and 2nd Respondents herein, refuse to execute their statutory duty as stipulated in
3 Legal Notice No. 21 of 2011
4 Regulation 44 (4) of the Land Regulations, 2011
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the said Regulation, a failure they maintain prompted this application.
[5] Aggrieved by this purported conduct, Applicants have approached this court for a writ of mandamus (mandamus) to compel the Mafeteng Urban Council to publish 1st Applicant as heir to his late grandparents’ estate per the nomination by the family council.
[6] Applicants are before this court to seek an order of mandamus compelling the Chairperson of the Mafeteng Urban Council to publish 1st Applicant as the customary heir to his grandfather’s estate as required by Regulation 44. They are seeking the following reliefs:
(a)
An order directing and compelling the 1st Respondent and/or the 2nd Respondent to act in accordance with the Land Regulations, 2011, especially Regulation 44 thereof within a period of fourteen days (14) of this order;
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(b)
An order declaring and confirming the 1st Applicant as an heir to the estate of the deceased Daniel Moroa Ramakhula as nominated by the Ramakhula family;
(c)
Costs of suit on an attorney and client scale in the event of opposition;
(d)
Leave to lead viva voće evidence in the event of an unforeseen dispute of fact which cannot be resolved on paper; and
(e)
Further and/or alternative relief.
Factual matrix
[7] The 1st Applicant is the second born son of the late Ts`eliso Tokonye Ramakhula and the 2nd Applicant herein. His late father is the eldest son of the late Moroa Daniel Ramakhula and `Maselemeng Ramakhula, who passed on in 1979 and 1960, respectively. The former passed on around June, 2018. 1st Applicant states that he is the customary heir to the estate of his grandparents by virtue of his father being their
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customary heir. It is common cause that 1st Applicant’s grandparents died intestate.
[8] According to the Applicants, 1st Applicant’s grandparents’ estate includes a residential site situate at Matholeng in the Mafeteng Urban Area measuring approximately 17330 sq metres allocated to them in 1957. Proof of such allocation is annexed to the notice of motion and marked “LR 1.”
[9] Applicants concede that 1st Applicant’s father was never confirmed as heir to his late father’s estate nor introduced to the allocating authority as such in terms of the law, but that the Ramakhula family council, which included his late father nominated him heir to his grandparents’ estate on 30th April, 2014.5 The 2nd Applicant confirms that she was present at the meeting, and stated that only male family members appended their signatures to the minutes.
5 Per a nomination letter attached to the notice of motion and marked “LR 2.”
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[10] According to the 1st Applicant, the said nomination was confirmed by the Principal Chief of Likhoele, who in turn informed the 1st and 2nd Respondent about the nomination and directed them to confirm him as required by Regulation 44. The said confirmation letter is annexed to the notice of motion and marked “LR 3.”
[11] He further asserts that his parents were responsible for his grandparents’ property including the aforementioned plot, and that he has been occupying this plot since 1998, during his father’s lifetime to date.
[12] 1st Applicant further avers that at some stage he was invited along with his father and other members of the Ramakhula family to an interview by the 2nd Respondent regarding his nomination as an heir to his grandfather’s allotted land at Matholeng whereat the 2nd Respondent undertook to initiate a vetting process in relation to the plot following which his nomination would be published in a newspaper as required by the Land Regulations, but to no avail, despite numerous
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enquiries. He ultimately sought the intervention of his legal Counsel, who wrote6 to the 1st and 2nd Respondents through the Town Clerk who is Secretary of the Council on 13th August, 2020 but still there is no reaction.
[13] The 1st Applicant intimated to the court that during his father’s lifetime they learned that the 2nd Respondent informed the Area Chief of Matholeng that his now deceased uncle, Motlatsi Ramakhula had a title to the land, but to his surprise, the 2nd Respondent never invited the family to have the issue resolved, and to establish how his uncle acquired a ‘Form C’ to the piece of land.
[14] 1st Applicant indicates that he is prejudiced by the 1st and 2nd Respondent’s failure to act as he cannot make any meaningful development to the plot. He, therefore, seeks that they be compelled to publish the notice of his nomination in accordance with the law.
6 “LR 4” to the Notice of Motion
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[15] This application is vehemently opposed by the 6th to the 8th Respondents. They dispute 1st Applicant’s father’s customary heirship to the estate of his parents, and by implication, 1st Applicant’s succession to it. The 1st and the 2nd Respondents have not filed any opposing papers.
6th to 8th Respondents’ case
[16] 6th to 8th Respondents challenge 1st Applicant’s heirship to his grandparents’ estate on the following grounds:
(a)
That his nomination is flawed in that his father 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 “the person answerable and accountable” to his late parents’ estate (1st Applicant’s grandparents) was erroneous;
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(b)
That the alleged family members who witnessed 1st Applicant’s nomination were but an extended family with no close relationship to them and /or unknown to them. 6th to 8th Respondents further complain that the two surviving children and daughters in law of 1st Applicant’s grandparents were not invited to this meeting, hence, not part of the nomination process;
(c)
That 1st Applicant’s late father cannot give away property over which he has no title; and that
(d)
1st Applicant’s 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.
[17] As aforementioned, Applicants have approached this court by way of a mandamus application for an order compelling 1st and 2nd Respondent to publish the 1st Applicant as heir to the plot in Matholeng and to invite any objections as required by law.
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Mandamus as a concept
[18] Baxter in his work on administrative law7 states that mandamus serves two purposes: of compelling a public functionary to perform “a specific statutory duty: and to remedy the effects of unlawful action already taken.” Aptly put in Lebohang Nthethe and 15 Others v Lesotho Electricity Corporation8 mandamus is an order directing a public authority to comply with a statutory duty or its own decision.
[19] The procedure for inheritance of title to land is regulated by Regulation 43 and 44. Applicants, therefore, seek the enforcement of Regulation 44 (1) which provides that:
7 Baxter L - Administrative Law, Juta & Co Ltd, 1984 at p. 690
8 CIV/APN/499A/2000
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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 a 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 the records of the allocating authority.
[20] Mandamus is a relief that will only be granted against a public official where there is a clear statutory duty to perform a particular action.9 The issue at this juncture is whether the Mafeteng Urban Council failed to execute its statutory duty under Regulation 44 attracting a writ of mandamus.
Whether the 1st and 2nd Respondents failed to execute their statutory mandate under Regulation 44
[21] This enquiry is dependent on whether the dispute involves title to landed property or heirship and succession to the estate of
9 Komane Motaba v Board of Trustees : Public Officers’ ‘Defined Contribution Fund and 10 Others CIV/APN/19/2021 at p. 14 para 16
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1st Applicant’s grandparents, a determination10 already made by this court on in a preliminary objection to jurisdiction raised by the 6th to 8th Respondents.
[22] In founding his case, the 1st Applicant states at Para 5.1 of his founding affidavit that:
5.1 Following my grandfather’s demise in 1979, my father Ts’eliso and mother, the 2nd Applicant, were the ones that were responsible for the deceased’s property including the aforementioned plot since my father was accepted by the rest of the family as my grandparents’ customary heir (emphasis added);
5.2 In the year 2014, l was nominated by the Ramakhula family council, including Ts’eliso Ramakhula to be an heir to the estate of Daniel Ramakhula including a residential plot named above ... (emphasis added)
10 Ramakhula v Chairperson - Mafeteng Urban Council (CIV/APN/344/2020) [2022] LSHC 42 (20 June 2022)
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[23] Without risking the repetition of the judgment on jurisdiction, 1st Applicant clearly seeks to be declared “to be an heir to the estate of Daniel Ramakhula including a residential plot named above.” The word “including” in 5.1 and 5.2 above is telling. It’s clearly indicative that Applicants’ claim is more that the site at Matholeng, the latter is subsumed. The estate could comprise both movables and immovables.
[24] The line between inheritance based on land vis á vis one based on heirship can be very thin in some cases. The determining factor is the nature of the dispute that the court is faced with. The case of Mokhali Shale v `Mamphele Shale and 3 Others11 in which the Appellant claimed ownership to certain landed property by virtue of his heirship gives a clear distinction between a dispute over land and title thereto and one over heirship or succession.
[25] Paragraph 2 of the judgment throws light on this distinction, where the apex court stated that:
11 (C of A (CIV) 35/19) [2019] LSCA 45 (01 November 2019)
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[t]he property in respect of which the appellant sought relief in the court a quo was identified as 3 fields belonging to his great uncle’s parents in the Matseng area. One at Lithakong and the other 2 at Beona. There was a homestead at Matseng, a large garden separate from the homestead as well as some tree plantations.
[26] Despite the Appellant having acquired heirship over property including land, a house and tree plantations, the issue in the case revolved on title to the three fields. The Appellant in the case challenged 1st Respondent’s acquisition of certificates of allocation over the three fields, contending that title thereto was acquired unlawfully and irregularly.
[27] The following dictum from Shale (supra)12 also reflects a distinction between a dispute over title to land and one impinging on heirship:
From the pleaded facts there cannot be any denying that the gravamen of the appellant’s case in the court below was the assertion of title to landed property. He challenged the 2nd respondent’s
12 At p. 4 para 9 (2019 C of A)
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allocation to the 1st respondent and the consequential invalidation of 1st respondent’s certificates of title over the same land. The dispute over land and title thereto. It did not matter that the assertion of title is through inheritance.
This case was cited with approval in Mathai Setuka v Mahali Nkotsi (`Mats`episo Setuka) and 5 Others.13
[28] In the same breadth, in casu, much as the 1st Applicant is claiming title over the Matholeng site, he generally seeks to be declared an heir to his grandparents’ estate, which happens to include the site. His move to enforce the procedure entailed in Regulation 44, which in the court’s view is a procedure that relates to nomination to succession to land is inappropriate. The problem with the matter before us is that it relates to 1st Applicant’s nomination to heirship generally, hence prayer (b) that 1st Applicant be declared heir to the estate of his grandparents, not specifically to the Matholeng plot.
13 CIV/APN/102/2018 para 8 at p. 5
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[29] This calls for an enquiry into 1st Applicants heirship to his grandparents’ estate. The first hurdle to pass before the 1st and 2nd Respondents can be expected to carry out their statutory mandate under Regulation 44 is to establish whether the 1st Applicant is the rightful heir to the estate of his late grandparents, an issue dependent on whether his late father was the rightful customary law successor to the estate of his grandparents.
[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 1st Applicant’s claim revived 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 1st 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 1st step is to publish the
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nomination and then following objections, if any, any disputes will be resolved through the mechanism provided by Sub - Regulation 44 (4). 1st 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.
Conclusion
[32] The court reiterates that Regulation 44 is a mechanism invoked when what is stake is strictly a piece of land. The 1st Applicant is claiming his entitlement to a site at Matholeng as an heir to his grandparents’ estate, an heirship the court feels must first be determined.
[33] The court is further fortified in its finding by the case Keneuoe Lepholisa v Moleleki Lepholisa and Another14 where the Land Court per my sister Mahase J., declined jurisdiction in a
14 LC/APN/12/2012 At para 14 (unreported)
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matter pointing out that: the “crux of applicant’s application is based on inheritance or succession … she cannot succeed on this because she has not been appointed an heir to that estate.”
[34] The court went further at paragraph 16 to state that:
The court does not clearly have jurisdiction to deal with disputes relating to claims based on inheritance and/or succession, nor can it deal with matters regarding declaratory orders based on heirship. Such issues can be adjudicated by the High Court exercising its normal civil jurisdiction.
[35] The court has already assumed jurisdiction on the matter, land is but incidental to this dispute. This is not a case of heirship over land per se. This calls for viva voće evidence to determine heirship and succession to the estate in issue estate. The issuance of a mandamus relief by this court would be tantamount to usurping the powers endowed on land authorities. This matter must come to finality.
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ORDER
[36] The court makes the following order that:
(a)
The mandamus application is dismissed; and
(b)
Costs shall follow the event.
F.M. KHABO
JUDGE
For the 1st and 2nd Applicants : Adv., T.A. Lesaoana
For the 1st to 5th Respondents : No representation
For the 6th to 8th Respondents : Mrs L.M.A Lephatsa