IN THE LAND COURT OF LESOTHO
Held at Maseru
In the matter between:
MAFUBE INVESTMENT HOLDINGS (PTY) LTD APPLICANT
MASHAMOLE LETOAO 1ST RESPONDENT
THE LAND ADMINISTRATION AUTHORITY 2ND RESPONDENT
THE LAND REGISTRAR 3RD RESPONDENT
CORAM: S.P. SAKOANE AJ
HEARD: 20 and 27 MARCH, 2015
DELIVERED: 27 APRIL, 2015
Contract for sale of immovable property – enforcement by reliefs for specific performance and revival of consent of Commissioner of Lands – whether the dispute involves claim of title, derogation from title or claim of right overriding title – jurisdiction of Land Court in terms of Land Act 2010, section 73.
C & S Properties (Pty) Ltd v. Khaketla And Others C of A (CIV) No.63/2011
Mahomed v. KPMG Harley & Morris Joint Venture N.O. (Liquidators of Lesotho Bank) And Others C of A (CIV) No.34/2013
Lephema v. Total Lesotho (Pty) Ltd And Others C of A (CIV) No.36/2014
Africast (Pty) Ltd v. Pangbourne Properties Ltd  3 All SA 653 (SCA)
Deeds Registry Act No.12 of 1967
Interpretation Act No.19 of 1977
Land Act No.8 of 2010
Land Court Rules, 2012
Land Regulations, 2011
Subordinate Courts Act No.9 of 1988
Erasmus HJ and Loggerenberg DE (1988). Jones And Buckle, The Civil Practice of the Magistrates’ Courts in South Africa Volume I, 8th Edition (Cape Town: Juta)
Joubert et al (eds) The Law of South Africa Volume 14 Part 1, 2nd Edition (Durban: LexisNexis)
Joubert et al (eds) The Law of South Africa Volume 27, 2nd Edition (Durban: LexisNexis)
Sharrock R (2011) Business Transactions Law 8th Edition (Cape Town: Juta)
RULING ON PRELIMINARY OBJECTION
 This is an application in which the applicant seeks enforcement of specific performance of a contract of sale of immovable property between it and the respondent. The contract was entered into on the 16th of December 2010. As it is mandatory under the land laws of this Kingdom, the 1st respondent was obliged to seek and obtain the necessary consent of the Commissioner of Lands in terms of section 35 (1) (b) of the Land Act, No.8 of 2010. It is common cause that the consent was granted but expired on 31st March, 2014 after one year in terms of Regulation 46 (3) (c) of the Land Regulations, 2011.
 Because of the expiry of the consent, the applicant’s other prayer is that of directing the Land Administration Authority and the Registrar of Lands “to revive and extend the frame prescribed for the validity of the consent” pursuant to section 16 (5) of the Deeds Registry Act, 1967.
 In the alternative to the prayers of specific performance and revival of consent, the applicant seeks damages for breach of contract in the amount of one million Maloti (M1 000 000.00).
 When Counsel appeared before Court on 21st October 2014, I gave directions that a date be arranged to hear argument on the preliminary objection raised by the 1st respondent, namely, that the matter is res judicata in that the Commercial Court has adjudicated the matter to finality. On the 20th March 2015 Counsel appeared but instead of arguing the preliminary objection, they presented a deed of settlement and asked that it be made an order of court. It is then that the Court mero motu raised the issue of its competence (jurisdiction) to endorse such a settlement. This then occasioned another postponement of the matter to the 27th March 2015 for a hearing on both preliminary points of res judicata and jurisdiction.
 The Court requested Counsel to deal, among others, with the following issues:
(a) Whether this application concerns a rival claim to title over land or derogation from title to land and if the answer is in the affirmative;
(b) Whether the Court has prior or delayed jurisdiction regard being had to Rule 9 of the Land Court Rules, 2012.
(c) If the Court has no jurisdiction, by virtue of the matter being a business contract and not a claim of title to land, whether the Court has competence to endorse the deed of settlement as an order of Court.
 Counsel have prepared heads of argument and the Court is indebted to them for assistance. Rule 66 (2) entitles a party to raise a preliminary objection on, among others, the following grounds:
“(a) that the court has no jurisdiction;
(b) that there is a final and binding decision by a competent court over the same claim”.
Jurisdiction Vel Non
 It is convenient to deal first with the objection to jurisdiction as I consider it fundamental and more dispositive. If the objection is well founded, it enjoins the dismissal of this application unlike the objection of res judicata which would necessitate its striking out. (See Rule 67 (2))
 Mr. Rampai, for the applicant, endorses the submission in the written heads of argument prepared by his colleague Mr. S. Rasekoai that:
“2.5 …The starting point in the determination of whether or not this Honourable Court has jurisdiction lies in the nature of relief sought. The applicant has sought two distinct reliefs of which the subordinate court (District Land Court) does not have jurisdiction. The said reliefs are prayer (a) and (b) respectively.”
It will be recalled that the prayers (a) and (b) referred to are the orders for (a) specific performance and (b) revival and extension of the requisite consent for disposal of interest in land.
 This submission, the validity of which I will consider hereinafter, is premised on section 29 (d) of the Subordinate Courts Act No.9 of 1988 and section 2 of the Deeds Registry Act No.12 of 1967. Section 29 (d) of the Subordinate Courts Act, 1988 provides:
“The court shall have no jurisdiction in matters in which is sought the specific performance of an act without an alternative of payment of damages, except the rendering of an account in respect of which the claim does not exceed an amount within the jurisdiction of the court, or the delivery or transfer of property not exceeding in value the jurisdiction of the court.”
Section 2 of the Deeds Registry Act, 1967 decrees:
“(1) In this Act and in the regulations unless the context otherwise requires –
“court” means the High Court of Lesotho”.
 Thus, the validity of this submission turns on whether the statutory provisions reproduced above apply to Land Courts. If they don’t then cadit quaestio. If they apply, the enquiry would necessitate the examination of the extent of the intersections between these provisions and those of the Land Act, No.8 of 2010.
 The Land Act, 2010 creates the District Land Courts and this Court as distinct and separate courts from the Subordinate Courts and the High Court. The jurisdiction of the Land Courts is provided for in section 73 as being “to hear and determine disputes, actions and proceedings concerning land”. The assumption of jurisdiction of these specialist Courts after the coming into operation of this Act is buttressed by section 89 which provides as follows:
“Where a case relating to land was pending before the High Court or Subordinate Court prior to the coming into effect of this Act, the case may continue to be heard by the High Court or Subordinate Court until completion and the ruling emanating therefrom shall have the same effect as if made after the coming into effect of this Act.”
 In section 2 of the Act the following relevant words are interpreted:
“ ‘adjudication’ means the process which establishes, recognizes and confirms with certainty and with respect to any particular parcel or plot of land, what rights and interests exist, by whom they are exercised and to what limitations, if any, they are subject;
‘land’ includes land covered with water, all things natural or man-made growing on land, and buildings or other structures permanently affixed or attached to land.”
 When considering the boundaries of the jurisdiction of the District Land Courts and this Court provided for under section 73 of the Land Act, 2010, the Court of Appeal has cautioned:
“ In regard to the jurisdiction issue the enquiry as to what the expressions ‘relating to land’ or ‘concerning land’ mean, must therefore focus on the provisions of the Act. It is clear, in my view, that the Act is concerned (apart from the presently irrelevant matter of allocations unaccompanied by the grant of title) with title to land, derogations from title and rights which override title…. Those expressions are of wide and general import but they must be interpreted in their context so that the disputes to which they refer are disputes involving claims to title, claims relying on derogations from title or claims to rights overriding title.” (See Lephema v. Total Lesotho (Pty) Ltd And Others C of A (CIV) No.36/2014 dated 24 October 2014(as yet unreported))
 The question that arises is, therefore, whether the reliefs sought involve claims of title to land, constitute claims relying on derogations from title or are claims to rights overriding title. It is my considered opinion that these reliefs of specific performance and revival and extension of the period prescribed for the validity of consent do not fall under any of the categories of claims delineated in the dictum of the Court of Appeal.
 The claim for specific performance herein is an enforcement of the plaintiff’s common law right to demand specific performance of contractual obligations in respect of which it has been said:
“In our law, a plaintiff has a right to specific performance, with the court retaining a discretion to refuse it if in the circumstances of the case it is not a proper and appropriate remedy. Although the court will as far as possible give effect to the plaintiff’s choice in claiming specific performance, it has discretion in fitting case to refuse it, leaving plaintiff to claim his id quod interest.” (See Erasmus and Van Loggerenberg Jones And Buckle The Civil Practice of the Magistrates’ Courts in South Africa Vol.1 8th Edition p. 180)
 In casu, the prayer is to order the 1st respondent to comply with the terms of the contract as outlined in the sale agreement marked “Mafube 1”. Plaintiff pleads that:
“3.2 The 2nd respondent issued consent which is annexed herewith and marked as Annexure Mafube 2. It will readily be seen that the said consent expired on the 31st March 2013. The initial payment of an amount to the tune of M350 000.00 (Three Hundred and Fifty Thousand Maloti) was paid to 1st respondent pursuant to clause 2.1 of Annexure Mafube 1.
 I have reproduced these pleadings to show that the cause of action is breach of contract and not enforcement of a claim of grant of title to land, derogation from such a title or overriding of same. Shortly stated the complaint is that the 1st defendant has deliberately defeated the sale agreement by refusing to execute a deed of transfer of the plot which is the subject matter of the sale. Consequently, the requisite consent which was granted by the Commissioner has lapsed, thereby frustrating the passing of title (lease rights) through lodgment for registration in the Deed Registry.
 It is settled law that a sale agreement confers a personal contractual right on the buyer to claim transfer of rights from the seller and this can be achieved by an order of specific performance. (See Mahomed v. KPMG Harley & Morris Joint Venture N.O. (Liquidators of Lesotho Bank) And Others C of A (CIV) No.34/2013 dated 18 October 2013 (as yet unreported). But if the claim concerns transfer of rights in land, such transfer can only be effected if the parties have obtained official permission (consent) and their agreement lodged for registration in the Deeds Registry.
The permission to dispose of interest in the land need not be sought before concluding the sale agreement but must certainly be granted before registration in the Deeds Registry (See C & S Properties (Pty) Ltd v. Khaketla And Others C of A (CIV) No.63/2011 dated 27 April 2012 (as yet unreported))
 Rights in land are transferred by execution of a deed of transfer which is a symbol of ownership. Upon signature of the deed by the Registrar of Deeds, transfer of rights by the transferor and receipt of ownership by the transferee takes place. (See LAWSA Volume 14 Part 1 (Second Edition) paras 25 and 26). If the registered rights holder (seller) changes his/her mind before execution of the deed of transfer by the Registrar of Deeds, this signals an intention not to transfer his/her rights to the buyer and no transfer of rights takes place. (See LAWSA Volume 27 (Second Edition) para 209)
 Section 16 of the Deeds Registry Act, 1967 regulates the registration of deeds or agreements transferring rights in immovable property. It provides (in relevant parts) that:
“(1) Every deed or agreement transferring rights in or to immovable property shall be registered in the deeds registry.
(2) Such registration shall only be effected after the proper authority has consented in writing to the allocation to the transferee of the right to occupy and use land on which that immovable property is situated, which consent shall not be unreasonably withheld.
(3) Every deed or agreement transferring rights in or to immovable property shall be lodged for registration in the deeds registry within three months of the granting of the consent referred to in the preceding sub-section.
(5) Failure to lodge the said deed or agreement for registration within the prescribed period or within such extended period as the registrar may allow (and the registrar is hereby empowered so to allow extensions of that period) shall render the deed or agreement null and void and of no force and effect, unless otherwise ordered by the court.
(6) Any deed or agreement executed, attested or registered contrary to the provisions of this section shall be null and void and of no force and effect.”
 Mr. Letsika, for the 1st respondent, submits that the sale agreement is not an agreement for transfer of immovable property contemplated for lodgment and registration in the Deeds Registry because it is not accompanied by a deed of transfer. This, he contends, is because rights of ownership in immovable property may be conveyed from one person to another only by lodging a deed of transfer for execution and attestation by the Registrar of Deeds. There is force in this submission. Sections 11 (1) and 17 (1) of the Deeds Registry Act, 1967 support this submission. Section 11 (1), which provides for registration by endorsement per the Registrar’s signature, makes the following proviso as to when registration is deemed to have taken place:
“Provided that no such deed, document or power which is one of batch of interdependent deeds, documents or powers of attorney intended for registration together, shall be deemed to be registered until all the deeds, documents or powers of attorney or the registration endorsements in respect thereof, as the case may be, have been signed by the Registrar.”
Section 17 (1) regulates the form and manner of execution of deeds of transfer. It provides that a deed of transfer must be prepared in a form prescribed by law or regulation and be executed before the Registrar by the owner of the immovable property or his/her legal practitioner, notary or conveyancer.
 Since the sale agreement was concluded on 16th December 2010 and the requisite consent was granted by the Commissioner a year before it expired on 31st March 2013 per Regulation 46(3) of the Land Regulation, 2011, then the provisions of section 16(3) kicked in – meaning that within three months of the grant of consent (presumably 1st June 2013), the agreement ought to have been lodged for registration in the deeds registry. Failure to do so rendered it null and void and of no force and effect in terms of section 16(5). So if the 1st applicant refuses to cooperate by not executing a deed of transfer, he has evinced an intention not to transfer any of his rights in the plot. Hence there cannot be any transfer of any title to the applicant.
 In any event, I hold the opinion that the relief for revival and extension of the validity of the consent and extension of period of registration of the agreement is one that must be sought from the Commissioner of Lands and the Registrar of Deeds as the relevant statutory authorities in terms of sections 36 of the Land Act, 2010 and section 16 (5) of the Deeds Registry Act, 1967. Those authorities’ powers include their power to renew the consent and extend the period of registration. (See Sec. 32 (2) (b) (i) of the Interpretation Act No.19 of 1977).
 The sale agreement is, I consider, a business contract containing the suspensive statutory condition of acquisition of consent from the Commissioner of Lands. And like any alike contract, it is enforceable immediately upon conclusion by specific performance or cancellation against either party for breach of contract. But if the suspensive condition was fulfilled, then the contract came into existence but for the failure to lodge and register it timeously. Neither party has any enforceable rights. (See Africast (Pty) Ltd v. Pangbourne Properties Ltd  3 All SA 653 (SCA)  and  In casu, the sale of immovable property and its transfer are separate juristic acts with different requirements for their validity – the acquisition of official permission (consent) and registration in respect of the sale and execution a deed of transfer and its registration in respect of transfer of the property. (See Sharrock Business Transactions Law 8th Edition (Juta) p.282) Once official permission is granted, both the agreement to sell and a deed of transfer must be lodged for registration within three months. If not, they become null and void and of no force and effect.
 The proper court to approach for judicial assistance for extension of the period for lodgment and registration would the High Court and not this Court. (See Sections 16 (5) and 54 of the Deeds Registry Act, 1967)
 In the result, this Court does not have jurisdiction and the application must be and is dismissed with costs.
For the Applicant: M.J. Rampai
For the Respondent: Q. Letsika instructed by Mei & Mei Attorneys Inc.
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