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CIV/APN/27/98
IN THE HIGH COURT OF LESOTHO
In the Application of:
INVESTMENT TRIANGLE (PROPRIETARY)LTD Applicant
vs
THABO NTSANE 1st Respondent
MASERU URBAN LAND COMMITTEE 2nd Respondent
MASERU CITY COUNCIL 3rd Respondent
COMMISSIONER OF LANDS 4th Respondent
ATTORNEY GENERAL 5th Respondent
JUDGMENT
Delivered by the Hon Mr Justice M L Lehohla on the 12th day of June. 1999.
By means of a Notice of Motion served on all respondents and moved mainly against the 1st respondent, the applicant approached this Court seeking an
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order :-
Ejecting the 1st respondent from certain business premises, the property of the applicant, situate on site number 14304-994 Masianokeng in the Maseru urban area in respect of which the applicant holds a lease in terms of the Land Act 1979 bearing the said number and which is registered in the Deeds Registry, Maseru under number 24228 on the 1st June, 1994.
Directing the 1st respondent and failing him, the 2nd and the 3rd respondents to demolish a certain cement breeze block building erected by the 1st respondent on a certain unnumbered piece of land directly in front of the applicants aforesaid property on an area comprising the road reserve along the Maseru to Mafeteng highway.
(The applicant abandoned this prayer at the hearing of this matter).
Interdicting the 1st respondent from having anything to do with the aforesaid piece of land more specifically from erecting any structure thereupon; fencing it in or performing any act consistent with any claim by him of ownership or right of occupation of the same.
Directing the 1st respondent to pay the costs of this application.
Granting the Applicant further and/or alternative relief.
At the end of the day the Court found for the applicant in terms of prayers 1, 2, 4 and 5 above.
The reasons for the Courts decision are outlined below.
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In his founding affidavit and on behalf of the applicant Khoeli Motebang acting on authorisation by the Board of applicants Directors avers and the 1st respondent admits that, as set out in paragraph 3.1 :
"At the beginning of 1994 the Applicant purchased from one Lenono Lenono his business premises situate at Ha 'Nelese, Masianokeng, in the Maseru urban area and, on the 1st June, 1994, had the same transferred to its name by the Registrar of Deeds as evidenced by the Deed of Transfer a copy of which is hereunto annexed and marked "KM2" and bearing the number 14304-004. Also annexed and marked "KM2A" is a map of the said site".
In paragraph 3.2 Motebang further avers that :-
"At the time of the said sale and transfer the 1st respondent was a tenant of the said seller and in occupation of the said premises".
The 1st respondent admits the contents of this paragraph.
The 1st respondent further admits halting further operations on the site as a result of legal proceedings then instituted by the applicant against him; but states that he had title to the site in question. Consequently he denies building on a public area and asserts that the 2nd respondent had given him clearance to build and carry out business on the site which he alleges the applicant wants the Court to believe is a public area. The 1st respondent has attached annexure A1, A2, A3 and
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A4 to support his averment that these documents comprise a licence to trade granted by the various Government Departments and ministries e.g. Department of Trade and Industry, Ministry of Health etc. But all these annexures do not serve as proof of allocation. They merely indicate activities that the occupier undertakes without ascribing proper and lawful allocation by anybody to the occupier of a particular piece of land. Important as these documents may be, in my view, they focus on the mere periphery of the matter. The central point consists in the facts outlined in the applicants deponents averments in paragraph 4 stating that:
"In his defence in the said proceedings referred to as CIV/APN/436A/96 the 1st respondent admitted erecting a building at Ha 'Nelese and alleged that the site on which he did this he acquired from one Spoldene Makhoathi and that it was allocated to him by Chieftainess 'Matsekelo Makhoathi on the 9th August, 1996. He also admitted carrying on business in Applicants said building. For ease of reference I annex hereunto marked "LM3" a copy of 1st Respondents Answering Affidavit in which all this is contained, together with annexures thereto, in the said affidavit".
(Emphasis supplied)
The 1st respondent admits the contents of the paragraph quoted loc cit.
A parallel may be drawn between the instant case - as to the role played by Annexures relied on by the 1st respondent which he feels
legitimise his claim – and
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that of Lesotho Hotels International Pty Ltd vs The Minister of Tourism Sports and Culture and 4 Ors CIV/APN/18/98 (unreported) where the applicant sought to rely for his trade not on authorisations and licences issued by the Board in terms of Section 6 of the Casino Order 1989, but on "authorisation" signed underhand by the then Minister whose actions were revealed to be not above board and honest.
Both in the High Court and Court of appeal in terms of C. of A (CIV) 18 of 1998 the view taken was that in terms of Section 6 of the Casino Order the Board shall be responsible for the issue of authorisations and licences under that Order; further that
"........................the Minister of Tourism under the law was not competent to issue any authorisation under the Order under any circumstances
......................" and therefore "......................on the face of it Annexures 'B' to 'H' have no legal validity
whatsoever".
See page 12 in CIV/APN/18/98.
The applicant/appellant in the cases cited above sought to make a merit of
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the fact that the ongoing fraud had been committed openly for no less than two years. But in answer the Court said
"....................But at the end of the day the question is whether on that score............it could be said the applicant was entitled to trade without a licence".
Needless to say this deliberative question was answered in the negative.
Likewise in the instant application it would be imprudent to grant legitimacy to the 1st respondents claim, notwithstanding the apparent taint of illegality attendant on it in the face of clear indications that allocations of sites in urban areas is the responsibility of Urban Land Committees and not of chiefs. Thus acquisition of title to land in such areas would be regarded as valid if and only if deriving from such committees and no one else.
Putting side by side the 1st respondents claim that the site he erected a building on was acquired in August 1996 and the concrete evidence of proof of transfer by means of a Deed of Transfer in favour of the applicant effected on 1st June 1994 in respect of a site shown to be in Maseru Urban Area raises grave doubts whether in fact the site falling in such area i.e. Urban Area could have been
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properly obtained from a Chief by the 1st respondent later than in 1994. These grave doubts arise from the fact that no chief has power of allocation of sites in urban areas; such power being vested in the proper authority of Maseru Urban Land Committee in respect of allocations relating to Maseru Urban Area.
The Applicants 1st deponents averment legitimately earns a favourable consideration of this Court where it is asserted in paragraph 4.3 that the erection of the said building by the 1st respondent is wrongful and unlawful in that as set out in 4.3.1 "It does not enjoy the permission of the 3rd respondent".
Indeed in support of the above assertion the applicant has called in aid to Khoeli Motebang's Replying Affidavit, the supporting affidavit of Qhobela Selebalo the Chief Surveyor in the Department of Lands, Surveys and Physical Planning of the Lesotho Government.
Qhobela Selebalo avers that his duties entail having in his custody all maps of plots within the Maseru Urban Area and that these documents are prepared and kept up to date by him and/or members of his staff. This deponent positively states that he has satisfied himself that the plot in dispute is within the boundaries
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of the Maseru Urban Area and that it is the plot referred to in Lease number 14304-004.
This evidence adequately supports the applicants main deponents aversion in paragraph 4.3.2 that the unlawfulness and wrongfulness of the 1st respondents erection of the building in question consist in the fact that
"It is effected on land not lawfully allocated to the 1st respondent inasmuch as, at the time of its purported allocation, if any, it fell within the Maseru Urban Area in which only the 2nd respondent has powers to allocate land".
Part of the 1st respondents major problems consists in the fact that in CIV/APN/436A/96 he did not accept the fact that the applicant had any premises or site under lease in the area in question. He went as far as to adopt the attitude that perhaps there is salvation in self-delusion and self-induced blindness. In his opposing affidavit paragraph 5(a) he said
"As far as I am aware the site which the Applicant claims as his belongs to Chief Lenono".
Whether or not he called Chief Lenono to support him in this assertion is not stated. But what is clear in the instant application CIV/APN/27/98 and which
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stands in stark contrast with the 1st respondents averment is Chief Lenono's firm
support of Khoeli Motebang's founding affidavit. Chief Lenono goes further to indicate at 3.1 that he confirms selling the property in dispute to the applicant. He also states categorically that the 1st respondent "knows well that this property now belongs to the applicant and that his denials of this fact are not genuine nor truthful". Emphasis supplied.
The axiom posed by Mr Sello on behalf of the applicant is indefectible that if the place in question falls outside the Maseru Urban Area then it cannot be the case that the erection of a building by the defendant on it is something that should disturb peaceful enjoyment of the applicants legitimate rights on his own site.
Conversely if the erection of that building disturbs such enjoyment then it stands to reason that the building is not outside the Maseru Urban Area. In any case the Chief Surveyor's evidence gives full support to this converse proposition. Consequently this contention bears upon the propriety of the authority that allocated the defendant the site in dispute. The simple answer is that propriety is lacking.
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The 1st respondents insistence that the site in question was allocated to him by the Chief has the effect of brazening it out before Court that he has not acquired that site properly because allocation of sites in that area is the exclusive function and office of the 2nd respondent to perform.
The 1st respondents denials of his structure or building being erected on a road reserve, or being effected at a place where it denies the applicant access to its own site and thus resulting in an obstruction of the view of applicants premises from the main road, tend to be irrelevant when looked at from the point of view that his erection of a building which is at variance with the applicants peaceful enjoyment of its rights is unlawful as it does not seem to enjoy permission of the 3rd respondent nor does allocation to 1st respondent of the site in question seem to derive from proper authority i.e. the 2nd respondent.
It was for the above reasons that Judgment was entered in favour of the applicant in terms specified earlier therein.
JUDGE
12th June, 1999
For Applicant: Mr Sello
For Respondent: Mrs Kotelo
