HIGH COURT OF LESOTHO
OF INTERIOR 1st Applicant
GENERAL 2nd Applicant
by the Honourable Mr. Justice J.L. Kheola on the 8th day of February.
an application for or order in the following terms:
the Respondent to allow the First Applicant or officers subordinate
to him to readjust a certain unnumbered site within
Selected Development Area and to work on it in accordance with the
said Development Plan.
rules of Court regarding form and service be dispensed with on the
grounds of urgency and this matter be disposed of in such
and at such place as the Honourable Court may deem fit.
Respondent shall not be ordered to pay costs in the event of him
opposing this Application.
the Applicants such further and\or alternative relief as the Court
may deem fit.
common cause that Ha Matala Area was declared a Selected Development
Area in terms of Section 44 of the Land Act 1979. The
appears in Legal Notice NO.60 which is in Supplement No.1 to Gazette
No.43 of the 11th May, 1990.
again common cause that the site belonging to the respondent falls
within the Matala Selected Development Area.
founding affidavit was deposed to by one Fumane Khabo who is a Legal
Officer in the Ministry of Interior. She alleges that the
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.
deposes that the Department of Lands and Survey under the first
applicant is very frustrated as the services of a developer
already been engaged. She avers that the proposed re-adjustment is in
terms of the law and that the respondent's rights have
extinguished upon the declaration of the said area as a Selected
answering affidavit the respondent avers that when the alleged
declaration was made he was not given the chance to be heard.
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
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.
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
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
respondent was invited to any one
"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".
respondent avers in paragraph 4 of his affidavit that he sees that
there was a declaration made in terms of section 44 of the
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
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.
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
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
the declaration was the manner in which the public
interest could best and most reasonably be served; and did not apply
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
made, and as it was not afforded this right, the manner in which the
declaration was made was contrary to the principles
present case the first applicant has not filed any affidavit to set
out what matters he considered before he came to the
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.
result the application is dismissed with costs.
Applicants - Mr. Molapo
Respondent - Mr. Pheko.
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