CIV\APN\350\91
IN THE HIGH COURT OF LESOTHO
IN THE MATTER BETWEEN:
MINISTER OF INTERIOR 1st Applicant
ATTORNEY GENERAL 2nd Applicant
and
TAUMANE MAKOKO Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 8th day of February. 1993
This is an application for or order in the following terms:
Directing the Respondent to allow the First Applicant or officers subordinate to him to readjust a certain unnumbered site within the Matala Selected Development Area and to work on it in accordance with the said Development Plan.
The rules of Court regarding form and service be dispensed with on the grounds of urgency and this matter be disposed of in such a manner and at such place as the Honourable Court may deem fit.
The Respondent shall not be ordered to pay costs in the event of him opposing this Application.
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Granting the Applicants such further and\or alternative relief as the Court may deem fit.
It is common cause that Ha Matala Area was declared a Selected Development Area in terms of Section 44 of the Land Act 1979. The declaration appears in Legal Notice NO.60 which is in Supplement No.1 to Gazette No.43 of the 11th May, 1990.
It is again common cause that the site belonging to the respondent falls within the Matala Selected Development Area.
The founding affidavit was deposed to by one Fumane Khabo who is a Legal Officer in the Ministry of Interior. She alleges that the respondent is one of the people whose plots need some re-adjustment in order to fall in line with the plan. However, despite all the efforts of the officers subordinate to the first applicant, the respondent is intransigent and insists that the first applicant has no right to tamper with his plot.
She deposes that the Department of Lands and Survey under the first applicant is very frustrated as the services of a developer have already been engaged. She avers that the proposed re-adjustment is in terms of the law and that the respondent's rights have been extinguished upon the declaration of the said area as a Selected Development Area,
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In his answering affidavit the respondent avers that when the alleged declaration was made he was not given the chance to be heard. Natural justice was not accorded to him. In the light thereof the purported declaration is null and void in so far as it relates to him and to his plot.
In her replying affidavit Mrs Khabo avers that a series of "pitsos" were convened under the auspices of the office of the first applicant at which people whose sites were to be affected by the proposed Selected Development Area were requested to submit their names to the Department of Lands, Survey and Physical Planning to facilitate granting of substitute rights to them. She submits that that constituted proper hearing and therefore the declaration is valid and lawful to include the site of the respondent.
Mr. Molapo, the Crown Counsel, referred this Court to the case of Ntsane Khabisi v. Minister of Interior and another CIV\APN\246\90
(unreported), which deals with the same area, and in which it was held that the applicant and all other people whose land rights were affected by the declaration development area were contacted. The Court was of the opinion that the convening of the "pitsos"
was giving the people who were affected by the declaration a chance to be heard. In the present case there is no evidence that the respondent was invited to any one
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of the "pitsos" that were held; there is no evidence that he attended any of such "pitsos"; he has made no admission
that he attended any one of them. I am of the view that this Court is not entitled to assume that he attended any of the "pitsos".
The respondent avers in paragraph 4 of his affidavit that he sees that there was a declaration made in terms of section 44 of the Land Act 1977. He avers that he was never given any hearing before that declaration was made. It is only in the replying affidavit that it is alleged that a series of "pitsos" were held. The onus was on the applicants to aver in their founding affidavit that the respondent was given a chance to be heard at the "pitsos" held under the auspices of the first applicant. It was too late to raise this issue at the replying stage when the respondent could no longer challenge the allegations.
I think that the main authority in this country regarding the interpretation of section 44 of the Land Act 1979 and other related sections is the case of Pages Stores (Lesotho) (PTY) Ltd. v. The Lesotho Agricultural Development Bank & 7 others C. of A (CIV) No. 14 of 1989 in which Aaron, J.A. came to the following conclusion at page 29;
"The conclusion I have reached is accordingly
(i) that the second respondent misdirected himself in exercising his discretion whether
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or not to make a declaration under section 44 of the Land Act, in that he did not appreciate that he needed to consider, as a matter
distinct from pubic interest, whether, bearing in mind the irremediable prejudice that the declaration would cause to the appellants, the declaration was the manner in which the public interest could best and most reasonably be served; and did not apply his mind to this question.
And (ii) that the appellant as a person who would be prejudicially affected by the declaration, had a right to be heard before it was made, and as it was not afforded this right, the manner in which the declaration was made was contrary to the principles of natural justice".
In the present case the first applicant has not filed any affidavit to set out what matters he considered before he came to the conclusion that the declaration was the manner in which the public interest could best and most reasonably be served; and did not indicate that he applied his mind to this question.
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In the result the application is dismissed with costs.
J.L. KHEOLA
JUDGE
8th February, 1993.
For Applicants - Mr. Molapo
For Respondent - Mr. Pheko.
