HIGH COURT OF LESOTHO
TRIANGLE (PROPRIETARY)LTD Applicant
NTSANE 1st Respondent
URBAN LAND COMMITTEE 2nd Respondent
CITY COUNCIL 3rd Respondent
OF LANDS 4th Respondent
GENERAL 5th Respondent
by the Hon Mr Justice M L Lehohla on the 12th day of June. 1999.
of a Notice of Motion served on all respondents and moved mainly
against the 1st respondent, the applicant approached this
the 1st respondent from certain business premises, the property of
the applicant, situate on site number 14304-994 Masianokeng
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.
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.
applicant abandoned this prayer at the hearing of this matter).
the 1st respondent from having anything to do with the aforesaid
piece of land more specifically from erecting any
thereupon; fencing it in or performing any act consistent with any
claim by him of ownership or right of occupation
of the same.
the 1st respondent to pay the costs of this application.
the Applicant further and/or alternative relief.
end of the day the Court found for the applicant in terms of prayers
1, 2, 4 and 5 above.
reasons for the Courts decision are outlined below.
founding affidavit and on behalf of the applicant Khoeli Motebang
acting on authorisation by the Board of applicants Directors
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,
in the Maseru urban area and, on the 1st June, 1994, had
the same transferred to its name by the Registrar of Deeds as
by the Deed of Transfer a copy of which is hereunto annexed
and marked "KM2" and bearing the number 14304-004. Also
and marked "KM2A" is a map of the said site".
paragraph 3.2 Motebang further avers that :-
the time of the said sale and transfer the 1st respondent was a
tenant of the said seller and in occupation of the said
respondent admits the contents of this paragraph.
respondent further admits halting further operations on the site as a
result of legal proceedings then instituted by the
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
support his averment that these documents comprise a licence to trade
granted by the various Government Departments and ministries
Department of Trade and Industry, Ministry of Health etc. But all
these annexures do not serve as proof of allocation. They
indicate activities that the occupier undertakes without ascribing
proper and lawful allocation by anybody to the occupier
particular piece of land. Important as these documents may be, in my
view, they focus on the mere periphery of the matter.
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
'Nelese and alleged that the site on which he did this he acquired
from one Spoldene Makhoathi and that it was allocated to
Chieftainess 'Matsekelo Makhoathi on the 9th August, 1996. He also
admitted carrying on business in Applicants said building.
of reference I annex hereunto marked "LM3" a copy of 1st
Respondents Answering Affidavit in which all this is
together with annexures thereto, in the said affidavit".
respondent admits the contents of the paragraph quoted loc cit.
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
Lesotho Hotels International Pty Ltd vs The Minister of Tourism
Sports and Culture and 4 Ors CIV/APN/18/98 (unreported)
applicant sought to rely for his trade not on authorisations and
licences issued by the Board in terms of Section 6 of
Order 1989, but on "authorisation" signed underhand by the
then Minister whose actions were revealed to be
not above board and
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
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
......................" and therefore "......................on
the face of it Annexures 'B' to 'H' have no legal validity
12 in CIV/APN/18/98.
applicant/appellant in the cases cited above sought to make a merit
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
entitled to trade without a licence".
to say this deliberative question was answered in the negative.
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
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.
side by side the 1st respondents claim that the site he erected a
building on was acquired in August 1996 and the concrete
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
obtained from a Chief by the 1st respondent later than in 1994. These
grave doubts arise from the fact that no chief has
allocation of sites in urban areas; such power being vested in the
proper authority of Maseru Urban Land Committee in
allocations relating to Maseru Urban Area.
Applicants 1st deponents averment legitimately earns a favourable
consideration of this Court where it is asserted in paragraph
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
enjoy the permission of the 3rd respondent".
support of the above assertion the applicant has called in aid to
Khoeli Motebang's Replying Affidavit, the supporting
Qhobela Selebalo the Chief Surveyor in the Department of Lands,
Surveys and Physical Planning of the Lesotho Government.
Selebalo avers that his duties entail having in his custody all maps
of plots within the Maseru Urban Area and that these
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
Maseru Urban Area and that it is the plot referred to in Lease number
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
"It is effected on land not lawfully allocated to the 1st
respondent inasmuch as, at the time of its purported allocation,
any, it fell within the Maseru Urban Area in which only the 2nd
respondent has powers to allocate land".
the 1st respondents major problems consists in the fact that in
CIV/APN/436A/96 he did not accept the fact that the applicant
premises or site under lease in the area in question. He went as far
as to adopt the attitude that perhaps there is salvation
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".
or not he called Chief Lenono to support him in this assertion is not
stated. But what is clear in the instant application
in stark contrast with the 1st respondents averment is Chief Lenono's
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".
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.
if the erection of that building disturbs such enjoyment then it
stands to reason that the building is not outside the
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.
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
respondents denials of his structure or building being erected on a
road reserve, or being effected at a place where it
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
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.
for the above reasons that Judgment was entered in favour of the
applicant in terms specified earlier therein.
Applicant: Mr Sello
Respondent: Mrs Kotelo
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