HIGH COURT OF LESOTHO
'MAPHAKISO MPOTA Applicant
LITABE 1st Respondent
MAKARA MOJAKI 2nd Respondent
COMMISSIONER OF LANDS 3rd Respondent
REGISTRAR GENERAL 4th Respondent
ATTORNEY GENERAL 5th Respondent
Applicant : Mr. T. Molapo
Respondent : Mr. N. Putsoane
by the Honourable Mr. Justice T. Monapathi on the 5th day of
an application in which this Court was approached for the prayers
shown on as follows:
That a rule nisi be issued calling upon the Respondents to show
cause, if any, on a date to be determined by the Honourable Court –
the 3rd and 4th Respondents shall not be ordered to cancel and
expunge from their records a certain lease no. 13282-65 Ha Mabote
Maseru Urban Area issued in favour of the Respondent who is
intending to transfer it to the 2nd Respondent.
the 1st Respondent shall not be restrained from transferring the
said lease to the 2nd Respondent, or anyone, pending the
determination of this application and the 3rd Respondent shall not
be restrained from issuing the Minister's consent to transfer the
said lease to either the 1st or 2nd Respondents.
the event of the Deed of transfer having been registered already,
the 3rd and 4th Respondents shall not cancel the same as well.
1st Respondent shall not be ordered to pay costs of this
and or alternative relief."
were that the applicant was allocated a site on or about the 15th
February 1980. Proof of allocation was evidenced by annexure "A"
to the founding affidavit. It was copy of a form "C"
(certificate of land allocation in rural areas) Mr. Molapo contended
that the allocation would be supported by the Applicant's chief
inasmuch as the document even bore the local chiefs signature and the
stamp. Counsel would not go to the extent of saying that that would
be borne by the chief's own affidavit, by register or minutes book.
But I understood it to be on common ground that there had in fact
been such allocation to the Applicant despite the
of so many things I have referred to.
Applicant's allocation was also supported by the affidavit of
Marikabe Litabe (Marikabe) who was the original allottee of the field
out of which the site allocation originated. The lady was the same
allottee that the First Respondent say his allocations were caused
out of her field. The Second Respondent was said to have subsequently
bought the same site from First Respondent who caused the transfer to
the Second Respondent.
the story of the Applicant that when she attempted to apply for a
land lease on the basis of the Form C that she had she discovered
that a land lease had already been issued in the names of the First
Respondent who is the son of Marikabe . This meant that the said
Marikabe must have caused the allocation to be made to her own son.
Applicant's story is that the site was allocated to her. This
deprivation she discovered when she approached the relevant
authorities to apply for he own land lease. That Marikabe already had
a lease. Applicant could not therefore be able to have her own
processed on top of the one that was already in existence. The
Applicant was attempting to apply for he own lease before she could
go any further she discovered that there was another lease in
existence over the same plot. This had preceded her own application
and had been issued in the name of the First Respondent.
version of the First Respondent was that the same piece of land had
been allocated to him. However I was asked to note that somewhere at
paragraph 4 at page 13 of the record the Respondent's answering
affidavit the Third Respondent seemed to suggest that the Form "C"
on which the Applicant bases her
would not possibly be a document relating to the same piece of land.
submitted that the supporting affidavit of Marikabe who was the owner
of the field or allottee or which the sites were allocated supports
the Applicant's story that indeed she had actually caused allocation
of the site to the Applicant. This is the aspect that was not
gainsaid by the Respondents. It was not refuted. The further
submission was that in the absence of any evidence controverting the
evidence of Marikabe this Court will be persuaded that in fact the
allottee was the Applicant. That would mean that as a consequence the
land lease allocation to anyone other than the Applicant was
irregular. This Suggested as well that both leaseholder and his
transferee must have rushed to get their deeds before Mr. Molapo's
client. Suggesting further as Mr. Molapo did submit that all others
were therefore irregular.
support Mr. Molapo cited the case of Tahlo Matooane v Motlatsi
Qhomane and Another CIV/T/279/83 (unreported) (date of judgment not
mentioned). Mr. Molapo suggested that possession of a lease is not a
conclusive proof that a person in possession of such a lease is in
fact in possession of an absolute title to the land. I agreed that
the case of Majoro v Sebapo 1981 (1) LLR 150 which spoke about
possession of a Form C had enunciated that without further support a
Form "C" could not be conclusive as proof of allocation
where there was a dispute.
Molapo submitted further that since Marikabe was the one who had
caused allocation of Form C or original allocation she must have
contributed in an underhand way the registration of land lease to
First Respondent as against the Applicant and as was submitted
further that for those reasons the issuance of the land lease to the
First Respondent had been irregular hence the prayers as in the
referred Mr. Molapo as to what the effect would have been if the
place was declared a Selected Development Area (SDA) as was in
reality the circumstance of the case. His reply was that it was
common cause that when the Mabote Project development estate that was
facilitated by the SDA all the people who already had tide were
invited to submit a list of their holdings or names. Applicant was
one of the people who was supposed to register her name although in
terms of the document annexed to the answering papers the Applicant's
name does not appear. That document was not prepared by Applicant
obviously but was prepared by the office of the Land Survey and
Physical Planning Department the progenitor of the Mabote Project or
the Mabote Project itself or whichever inasmuch as Applicant was
herself uncertain. It would equally be uncertain as to what happened
when the names were submitted and when the leases came out. The
person who submitted the lists was the only one would know Applicant
declined responsibility for such as a mishap.
submitted therefore that in the absence of any other evidence
controverting that of Marikabe who was the original allottee of the
field, that should therefore be taken as conclusive proof that the
site was allocated to Applicant inasmuch as Marikabe supported
Applicant. I thought it was not that easy.
Putsoane for Respondents submissions were very brief. He said when
the area was declared an SDA all owners of fields were invited to
submit lists of people who had been allocated sites from their
fields. Marikabe accordingly did so like all others. The purpose was
that a registration or re-division would be made in accordance with
the designs of Mabote Project. It meant that when the
was made for submission of lists the Applicant's name was most
probably omitted. Mr. Putsoa ne for Respondents did quite fairly not
rule out the possibility that Marikabe could also be the one who
excluded Applicant's name. Counsel and his client did not know what
exactly happened. As a fact on page 15 of the record it is shown
clearly what the list ended looking like. For whatever reason the
Applicant's name did not appear in the list.
Putsoane's submissions despite all concessions is that even if
Applicant was indeed allocated the site once the place was declared
an SDA all allottees' rights within the area became extinguished in
the manner of section 44 of the Land Act No. 17 of 1979. The section
"Where it appears to the Minister in the public interest to do
so for purposes of selected development the Minister may by notice in
the Gazette declare any area of land to be a selected development
area and, thereupon, all titles to land within the area shall be
extinguished and substitute rights may be granted as provided under
Putsoane did not end there. He said there is a further provision in
the Act No.6 of 1984 which allows for revival of an allocation once
extinguished. It is meant that this had to be done by re-application.
I also read section 44 to say that substitute rights may be applied
for. But as at present we are handling the Applicant's claim as it
exists without those option or alternatives. My understanding is that
even though she may have not outrightly applied for substitute rights
she has not been ousted.
I did not
understand Mr. Putsoane's reply to a simple question concerning that
question of application for revival. Supposing First Respondent (by
said SDA) actually occupies the same piece of land that was
previously occupied by Applicant; what would be the position? The
reply was that the tide could be revived over the same piece of land.
I thought that was unrealistic. In my view if there had to be any
revival of title at all it have to would be over a different piece of
land in the spirit or effect of extinction of title and application
of a substitute right I gave Mr. Putsoane is simple picture that if
Applicant had a Form C the Form C became virtually been extinguished
because in its place had become a land lease.
revival in the loose sense would mean firstly cancelling the existing
lease, or granting a different title both of which could not have
been in contemplation of section 44. How would a revival be done over
this piece of land that has already been leased to First Respondent?
In the end Mr. Putsoane agreed that his instructions were that the
project would have to grant Applicant another site if the
interpretation of section 44 of the Land Act accorded with the
reasoning. This meant, by way of repetition, that Applicant would
have to be granted another piece of land. Mr. Putsoane's submission
finally became that Applicant was virtually ousted by operation of
the law unless there was cancellation of the First and Second
Applicants titles which was completely untenable.
reasoning which I accept, that Applicant clearly lost out on her
title impinges upon the viability of the interim interdict which the
Applicant may have obtained. It proves that interdict did not have a
sure base and I thought it ought to have been discharged. Firstly, if
Applicant's title was extinguished by operation of section 44 of the
Land Act 1979 she no longer had a clear right. Applicant appeared to
be no longer in possession of the land. This brought me to the
requirements which the Applicant should have satisfied besides that
of a clear right. It was in addition that the Applicant should have
had a fear that her right
was to be
violated. By operation of the law whatever injury she feared had
already resulted and there was nothing to protect. And finally that
attempt of protecting her right by the interdict was clearly an
exercise in futility. For this reason the application ought to have
been discharged. See Setlogelo v Setlogelo 1914 AD 221 and the
invaluable commentary by C B Priest in The Law and Practice of
Interdicts, 1st Edition pages 34-41.
says the measurements of the plot which he has does not even
correspond with those of the Applicant. That the Applicant's Form G
it was 30 metres x 30 whereas the site registered in First
Respondent's name is now 18.4 metres x 18.4 metres x 29.2metres. That
while Applicant's whole metreage (as she alleges) was 900 square
metres, First Respondent stood at 578 square metres. This means it is
two different types of "animals" the parties are haggling
over. The short significance of this is that, if the Applicant is to
be believed, there has even been a lot of dismembering of this
Applicant's site that the effectiveness of restoring her to what she
originally had would be unreasonable if not downright impossible. By
way of illustration what remains was little more than half of what
Applicant would retain if this application is allowed.
Putsoane later brought what was indeed a complicating factor, not to
say it made it difficult to solve the matter. He said that it had in
fact been two plots allocated by Marikabe. One was to the Applicant
and one to the First Respondent. According to Counsel there would
have been no reason why Respondent would suddenly occupy that plot of
Applicant. Indeed Applicant has always had a bigger plot while First
Respondent had a smaller or so much as the present one. The
probability is that the one belonging to Applicant which she has
virtually lost out has now been chopped up and changed by re-surveys
and re-allocations to different people but certainly not to the First
Respondent. That the Applicant's name did
appear on the list of applicants under the new regime (SDA) must have
finally sounded her death knell.
persuaded that accepting the unexplained misfortune of the
Applicant's name not appearing on the list for fresh applicants in
the SDA, the law in section 44 of the Land Act was clearly against
her. Indeed it had never been denied that:
"8 acquired the said plot from Mrs Marikabe Litabe which was
part of her land. She introduced me to the chief and the plot was
thereafter allocated to me according to the law."
at what is said in paragraph 5 by Marikabe Litabe
"JOSHUA (1st Respondent) has got his own plot which he could
lawfully transfer instead of depriving MAPHAKISO of her rights to her
look at Applicant's replying affidavit 3 AD PARA 5 THEREOF
reiterate my depositions in paragraph 8 of my founding affidavit."
Shouldn't there have been a better reply?
taxed further as to what is credibly objective that can demonstrate
that it was two plots (allocated to two different people) and not one
that is beside the word of Marikabe as shown above (paragraph 5) Mr.
Putsoa ne referred me to the Applicant's Form C whose measurements
were not even consistent with the survey diagram at page 16 of the
record. I was not quite sure that the Mabote Project
spoke of identifying two sites that is one belonging to Applicant and
one belonging to First Respondent. Perhaps there are other
explanations. One which fortunately comes to my mind being that
Applicant's name was in fact mistakenly excluded from those sent for
re-registration. Perhaps one can only pass a moral judgment from the
question as to why Applicant's name was not included.
already pointed out many things that indicated against the success of
this application. In addition I agreed with Mr. Putsoane that in
reaching the decision the decision the Court must adopt the approach
in Plascon Evans Paints Ltd v Van Riebeeck Paints 1994(4) SA 623 (AA)
when Van Wyk stated:
".......... where there is a dispute to the facts and a final
interdict should only be granted in notice of motion proceedings if
the facts and a final interdict should only be granted in Notice of
Motion proceedings if the facts stated by the Respondents together
with the admitted facts in the Applicant's affidavit justifying such
an order...... where it is clear that the facts, though not formally
admitted, cannot be denied, they must be regarded as admitted."
with both Counsel that a lot of prejudice has resulted in this
application not having been dealt with earlier.
clear in the circumstances that the application ought to be dismissed
noted by Mr. S. Phafane and Mr. L Kotele
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