On rival claims to title over land originally allocated under customary law, High Court holding that failure to register lease in terms of land registration act 1967 read with deeds registry Act 1967, rendering lease void and possessor of Form C having prior title over land. Held that the registration regime under two acts not necessarily rendering unregistered lease void and that, in any event, Form C title established on balance of probabilities to have been acquired fraudulently.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) NO. 53 OF 2017
In the matter between:
KEL PROPERTY APPELLANT
AND
MONKI LETHOLE RESPONDENT
Coram: PT Damaseb, AJA
Dr P Musonda, AJA
M Chinhengo, AJA
Heard: 13 OCTOBER 2020
Delivered: 30 October 2020
Summary
________________________________________________________________
JUDGMENT
PT Damaseb AJA:
Common cause facts
Pre-trial minute
Onus and standard of proof
[I]n finding facts or making inferences in a civil case, it seems to me that one may . . . by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable, even though that conclusion be not the only reasonable one.’
‘The technique generally employed by courts in resolving factual disputes [is the following]. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’ candour and demeanour in the witness-box, (ii) his bias latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extra-curial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’ reliability will depend, apart from the factors mentioned under (a) (ii) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail’.
The trial
High Court’s findings
What must be borne in mind, however, is that the conclusion which is reached …must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be unreliable; and some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.’
‘Section 13(1) of the Land Procedure Act, 1967 instructively exempts things (including allocations) done under customary law, from being invalidated by the provisions of the Act. It is the appellant’s case that the [Church] was allocated the disputed piece of land in 1884 when it established the TY mission station. Allocations done at the time were done according to customary law and would not have been evidenced by a certificate of allocation as contemplated under section 11 of the Land Procedure Act, 1967. The appellant’s allocation is thus covered, and saved from invalidity, by s 13 of the Land Procedure Act, 1967.’
‘If it was the intention of the Legislature to compel the registration of allocations made under customary law failing which they were to become invalid, section 15 would easily have said so. It is …trite that provisions that curtail rights have to be interpreted restrictively. ..
The Deeds Registry Act 1967…was enacted with a view to affirming, and not detracting from rights to immoveable property. Registration of title under section 15 does just that; and in the same spirit of affirming title, subsection 15(4) while providing that failure to register a certifacte of allocation will result in it becoming null and void…goes on to empower the Registrar and the court to extend the period within which to register title. It is significant that section 15(4) does not require the extension to be made before the expiry of the three months period provided for under section 15(3).’
The order
‘The application is dismissed.’
_______________________________
P T DAMASEB AJA
ACTING JUSTICE OF APPEAL
I agree:
DR P MUSONDA
M CHINHENGO
For the Appellant: Adv K K Mohau KC
For the Respondent: Adv N H Sepiriti
1999 (2) SA 79 (W) 82E; approved in S v Van Aswegen 2001 (2) SACR 97 at 101, para 8.