HIGH COURT OF LESOTHO
JOYCE VALENTINE Applicant
PROJECT 1st Respondent
SURVEY 2nd Respondent
GENERAL 3rd Respondent
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of February,
arguments were heard counsel for the respective parties informed
Court as follows :-
matter before Court is partly agreed on in that the respondents wish
the applicant to surrender her Form C to the respondents
purposes of processing and of eventual issuing of a lease. The
applicant is willing to so surrender her Form C.
dispute however remains unresolved in so far as the respondents wish
the boundary be reduced from where it presently is.
parties sought an order encompassing their desire that compliance by
the respondents with terms agreed on in (1) above should
within three months of the applicant's surrender of her Form C or
alternatively on or before 29th March, 1992 whichever
is the later.
applicant filed an application ex-parte and later obtained an interim
order calling upon the respondents to show cause why :
1st respondent should not be ordered and compelled to immediately
survey the applicant's site situate at Ha Mabote, Khubetsoana,
2nd respondent should not be ordered and compelled to process a
lease in favour of the applicant immediately upon compliance
1st respondent with the prayer loc cit.
it was prayed and ordered that the 1st and 2nd respondents should
accept and\or approve the survey made by Mr. Lesenyeho.
application is opposed by the respondents who even raised a point of
law in limine set out as follows and argued on the grounds
applicant's alleged title to the site at Khubetsoana became
extinguished in terms of the law when the area, which includes
alleged site, was declared a selected development area by the
Minister" (See Annexures "A" and "B"
attached to the respondents' papers).
consequently, applicant has no cause of action against respondents
in the absence of an allegation and proof thereof that
for and was granted substitute rights within the area by the
Minister after the aforesaid declaration".
consequently, applicant illegally built the house at Khubetsoana
within the Mabote Project Area particularly because she
informed that the site falls within the Mabote Project and she
disregarded the warning".
respondents accordingly sought a Court order declaring the applicant
to be in illegal occupation of the site at Khubetsoana
Mabote Project Area and dismissing the application as well as
discharging the rule with costs on attorney and client
applicant relies mainly on her affidavit supported by that of her
attorney Miss Mofolo.
has noted at paragraphs 6 to 11 of Miss Mofolo's affidavit that she
has laid serious charges of indifference by the officers
of 1st and
second respondents to her repeated requests to give her and or her
client the necessary service required of a public
office. Instead she
kept on being fobbed off with this or that other excuse culminating
in no service being rendered to her. Had
she prayed for costs
exigible personally from the named culprits, I would not have
hesitated to grant them for her pains and frustration.
takes this attitude because in reply to Miss Mofolo's charge at
paragraph 9 that "following our failure to have the
surveyed, I made numerous attempts to see Mr. Langa but in vain"
the deponent Langa Tomane's nonchalant and cavalier
paragraph 7 is "contents herein are not within my knowledge".
attitude becomes even the more intolerable because it does not
address itself to the amount of time Miss Mofolo makes
in paragraph 8 showing that she saw Langa at 8.00 a.m. and the latter
undertook to follow her immediately to the site
where she waited till
11.00 a.m. without any Langa in sight.
coming to the merits of the case it would seem the applicant's
contention that the size of her plot should remain as it
the Declaration of Selected Development Area law came
effect is untenable. The effect of her contention is that she does
not recognise the reduction of the size of her plot which
as a result of the law passed by a competent authority in the land.
Mapetla for the respondents conceded that the Crown is prepared to
grant a lease to the applicant in terms of a survey done
in terms of
the Mabote Project. He contended that this in fact was the condition
upon which the Crown agreed to grant that lease.
Hence the point of
law raised by him is that it would not be correct that the point of
law raised earlier but which was not "Proceeded
with first in
this proceeding as it should rightly have been, fell away as soon as
the agreement was made because ' the applicant's
site fell within the
Selected Development Area.
the site in question fell within the Selected Development Area all
rights affected by the Declaration in question became
regrettable that the applicant did not avail herself of the proper
procedure to challenge the Declaration if she so wished.
In terms of
the relevant procedure set out in the law affected persons are at
large to apply for substitute right or compensation
case may be.
seem therefore that there is merit in Mr. Mapetla's contention that
Mabote Project is charged with the responsibility of
infrastructure of the area in question. In the
it stands to reason that sizes of sites within the area would be
affected especially when roads are being constructed in
satisfied that if the applicant's view were to be entertained then an
absolute nonsense would thereby be made of the law whose
purpose in being enacted is the realisation of results opposed to the
it were still to remain within the rights of people affected to have
their sites surveyed repeatedly and their leases
enacted law would be as good as non-existent or inoperative.
Mr. Mapetla's contention that the applicant has no right in law to
demand that her site be surveyed again and her lease
treated as it was before the enactment of the law.
was made to the question of a septic tank and. toilet on the
applicant's site. It was brought to the Court's attention
two things were erected by the applicant only after she had been made
aware of the new boundary resulting from the survey
made by the
Mabote Project. Instead of there and then challenging this state of
affairs in Court she disregarded the new boundary.
In this regard one
would think she had only herself to blame.
Mofolo contended that the applicant had a right to bring this case as
the reading of Section 46(2) of the 1979 Land Act seems
She buttressed her contention by arguing that
under the Mabote Project was for residential purpose. As at the time
of its inception people were already residing there.
Had there been
no section similar to Section 46 above people residing there could be
thrown out to make way for others coming in.
That, she contended,
would be the height of absurdity. Thus it would seem this section
militates against arbitrary action by the
Mofolo further invited the Court to consider that the width of the
road at the particular area is quite sufficient and need
extended to encroach on the applicant's property. But the Court's
attitude is that the issue of determination of sizes of
terras of the Roads Act 1969 is not a matter for this Court.
relevant law under which the Mabote Project is undertaken makes
provision for compensation of affected parties but the applicant
denied herself benefits flowing from such law in the event that her
rights were adversely affected.
Mofolo pointed out that the applicant complied with Section 54 of the
1979 Land Act saying persons should submit their claims
Minister. She further stated that it was never indicated to the
applicant that her claim was extinguished and other rights
there is merit in Miss Mofolo's submission that respondents failed to
make certain communications to applicant and instead
which there is no denial of in papers. Thus no
respondents be heard to say the applicant has failed to comply with
those terms. To my mind this failure signifies the intolerable
on the part of the 1st and 2nd respondents which I alluded to earlier
in reference to Langa's indifference that it beggars
However this failure does not go to the essence of the matter before
referred to the Court's displeasure at the unwholesome treatment to
which an officer of this Court was subjected by servants
of the Crown
when she was dutifully trying to pursue the rights of this Kingdom's
subject. It is about time that such displeasure
was seen not to be
limited to mere oral admonition. It cannot be proper to suffer any
public officer to manifest callous disregard
of the interests,
anxiety and suffering of others and let him get away with it.
application that the 1st respondent be compelled to survey the
applicant's site and further that upon compliance therewith the
respondent be compelled to issue a lease in favour of the applicant
because of the trouble that the applicant and her attorney were put
to by the attitude of Jack-in-office manifested by the Crown
there will be no order as to costs.
agreement in terms of Clause (1) between the parties and
incidental clause flowing therefrom are made order of Court.
Registrar of this Court is ordered to deliver copies of this judgment
to the relevant department heads of the 1st and 2nd respondents
in turn should bring home to their subordinates the grim light in
which this Court views their actions.
Applicant : Miss Mofolo
Respondents: Mr. Mapetla
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