IN THE LAND COURT OF LESOTHO
Held at Maseru
In the matter between:
LEFULEBE MAJORO APPLICANT
MOTLALEPULA MAJORO 1ST RESPONDENT
TEBATSO TOTI 2ND RESPONDENT
LAND ADMINISTRATION AUTHORITY 3RD RESPONDENT
CORAM: S.P. SAKOANE AJ
DATES OF HEARING: 15 and 17 SEPTEMBER, 13 and 14
OCTOBER, 4, 5 and 10 DECEMBER 2014,
27, 28, 29 APRIL 2015, 3 JUNE 2015
DATES OF JUDGMENT: 4 AUGUST, 2015
Title to land – challenge on basis that lease acquired fraudulently – whether an applicant who has not been nominated as heir by the family and who has no competing right to the heirship of her senior brother is entitled to prevent her deceased brother’s son from applying for a lease and registering the plot in his own names – presumption of regularity and failure to rebut it – satisfaction of the formalities and requirements for inheritance in terms of the Land Act, 1979, sections 8 and 35
Mbangamthi v. Phalatsi LAC (1980-84) 179
Mokatsanyane And Another v. Thekiso And Others LAC (2005-2006) 117
Administration of Estates Proclamation No.19 of 1935
Land Ac No.17 of 1979
Land (Amendment) Order No.27 of 1986
Land (Amendment) Order No.6 of 1992
Land Act No.8 of 2010
Land Court Rules, 2012
 The applicant is the aunt of the 1st respondent. She was born in 1961 and has her own children. She is suing the 1st respondent in relation to a plot which is her home together with 1st respondent’s deceased father. Her parents, who are also the grandparents of the 1st respondent have since departed from this world. Her father died when she was still a toddler while her mother died thereafter in 1993.
 After the death of her parents, she and her three siblings namely Thabang (1st respondent’s father), Qenehelo and Lekhotla stayed at the plot. All her siblings have now passed on leaving her as the only surviving child.
 The 1st respondent’s father died in 1997 and is survived by his wife. Their other children have since died leaving the 1st respondent as the only surviving child.
 After the death of applicant’s brother, who is 1st respondent’s father, the 1st respondent took occupation of the plot and got a lease registered in his name and that of his wife on 12 June 2013. Part of the plot was then sold to the 2nd respondent.
 These acts of the 1st respondent were discovered in December 2012 and have caused unhappiness on the part of the applicant. Hence these proceedings in which she prays for the following orders:
“(2) That 2nd Respondent be and is hereby interdicted from developing part of the plot that has been unlawfully sold to him pending finalization hereof.
(3) That 1st and 2nd Respondents be and are hereby ejected from the developed plot no.13302-910 wrongly held in the names of 1st Respondent situated at HA MATALA in the district of Maseru.
(4) Lease number 13302-910 be and is hereby cancelled as it was secured fraudulently and unlawfully.
(5) Sale agreement entered into between 1st and 2nd Respondents in relation to sale of part of plot 13302-910 be and is hereby declared null and void.
(6) 3rd Respondent be and is hereby ordered to register the said plot in the names of LEFULEBE MAJORO.”
II. PRE-TRIAL CONFERENCE AND PRELIMINARY OBJECTIONS
 After the pleadings were closed, the applicant’s Counsel and 1st respondent’s Counsel appeared before me in Chambers to conduct a Pre-trial Conference in terms of Rule 63 of the Land Court Rules, 2012. There is no appearance by other respondents in the matter except that the 2nd respondent has filed an answer in support of the 1st respondent. A Minute was subsequently filed of record and reads as follows:
“ISSUES THAT ARE COMMON CAUSE
ISSUES IN DISPUTE
 Then followed the second step of considering preliminary objections raised by the 1st respondent as it is his entitlement under Rule 66 (2). The objections appear in paragraphs 1.2, 1.3 and 1.4 of the Answer. They are lack of locus standi, failure to submit matter for arbitration by the family
and that the application is an academic exercise in view of the applicant’s status as a non-citizen.
 After hearing argument, I dismissed the preliminary objections and gave an oral ruling and reflect it in this judgment per Rule 67(5) in which I upheld the contentions by Mr. Qhomane, on behalf of the applicant, that the grounds of objection in paragraphs 1.3 and 1.4 are not catered for under the Rule. Further, the issue of lack of standing, in so far as it hinges on marital status and citizenship, is best left to be resolved with the merits.
The Applicant’s Case
 The evidence led on behalf of the applicant is that she is the only surviving child of her parents. She is not married and was never married but has children. She works in South Africa and remains a citizen of Lesotho.
 On 20th May 2013 she came to Lesotho to bury her grandfather. That is when she discovered that the 1st respondent had acquired a lease to the plot and registered it in his names. After the burial, a family meeting was convened and the 1st respondent confronted about this. He did not respond and left. The family then wrote a letter to the Chief that the 1st respondent had taken the plot. They requested assistance. The Chief told her to approach the Land Court as the matter was beyond his control.
 The family letter referred to is Exhibit A. The authors thereof are the following people:
1. Lefulebe (the applicant)
2. Motolo (a paternal uncle)
3. ‘Malebohang (wife of Motolo)
4. Morena (son of paternal uncle)
5. ‘Maneo (wife of grandfather)
6. Khoboso (the aunt)
 There are no family elders other than those mentioned in Exhibit A. Prior to the funeral, they were not aware about the issuance of the lease to the 1st respondent.
 After her mother’s death, the plot was never transferred to anyone. Her mother never transferred the plot to any person during her life time.
 The applicant said she presently stays at her sister’s homestead. She has a home at Lithabaneng which is where the 1st respondent stays. She is unable to stay there. She has never been married.
 Under cross-examination, the applicant agreed that her parents died intestate. This fact was disclosed to the mediator of the 3rd respondent in a mediation session held on 16th January, 2014. In answer to the question of the mediator on heirship, the applicant had answered that no one had been nominated. When asked whether she would have been able to oust 1st respondent’s father (her brother) from the plot, the applicant’s answer was that she would not have had that right if he stayed there. But her problem was that the 1st respondent had sold the plot. She wanted the plot to be registered in her names. She was challenged to produce her passport or driver’s licence to prove her citizenship, but she declined.
 When it was suggested to the applicant the 1st respondent inherited the plot from his father and that the chief had facilitated this pursuant to proof of family council, she professed ignorance.
 Two witnesses were called in support of applicant’s case. PW3 was pointedly asked and she answered:
“Q: So Motlalepula (1st respondent) is the heir of his father
A: Yes, at his home
Q: So Thabang (1st respondent’s father) is the heir of Sello (applicant’s father)
A: That is so”
1st Respondent’s Case
 The 1st respondent’s evidence is that he stays at the site and it is registered in his names and those of his wife. A lease document to this effect was put in evidence as Exhibit B.
 He first occupied the site in 2009 and her mother never indicated any dissatisfaction. He applied for the lease. The documents he presented when so applying are a letter left by his deceased father, his passport and the chief’s letter. A lease was then issued.
 He first heard about the applicant’s objection in April, 2013 when she had come to a funeral. The family members were called to a meeting after returning from the graveyard. He informed the meeting that he would not take any part in the discussions because his mother was not invited. In the meeting there were more than six people including the applicant. They wrote a letter and signed it. But that letter is not Exhibit A which he knows nothing about and was not present when it was written.
 On 17th January, 2014 he and the applicant attended a mediation session at the offices of the 3rd respondent whereat the applicant had brought a complaint that he had applied for the lease surreptitiously. This he denied and produced letters of his father and the chief. He also disclosed that his mother was alive but was in Gauteng. Although the applicant’s view was that he had no right of occupation of the site, she produced no documentation.
 The mediator informed them she deals with customary law issues and not common law issues and asked that they come back when his mother is around.
 Before Easter the applicant came in the company of her son Remaketse to him. She told him that the 3rd respondent had directed that he should give her the lease. She was in a fighting mood. He refused to oblige. That is when she threatened to expel him from the site and to kill him. Remaketse pointed a gun at him and even took an envelope in which he kept the letters of the chief and his father.
 The 1st respondent says he then left from the site and proceeded to Lithoteng Police post whereat he laid a charge and a case was opened. On the Sunday the police called him and was there until 3 p.m. when he was informed that they (applicant and Remaketse) had been summoned and then released.
 He says he has sold part of the plot to the 2nd respondent. He did so as the plot is his. There are no legal impediments as to how he deals with it. The applicant has no right to interfere with how he deals with the property.
 He and the applicant once stayed together at the latter’s homes in Ekangala and Dark City in South Africa. He stayed with her from 2001-2002. During that period they stayed with the applicant, her husband Sima Moleko and their children Samuel, Teboho and Kamohelo. The applicant is married and her marital name is ‘Masamuel Moleko.
 When cross-examined, the 1st respondent insisted that the applicant was married and he once stayed with her in South Africa and worked at her Bar. The letter by his father was authored in 1994 before he passed on in 1997. This was after the death of his grandmother in 1993. He was fourteen years when his father passed on rights to him. He was insistent that the chief endorsed his heirship and denied the suggestion that the family meeting told him to vacate the site and surrender the lease to the applicant.
 The disputed plot of land is situated at Lithabaneng, Maseru Urban Area. The lease document was issued by the Commissioner of Lands (now called the Director General), the chief executive officer of the 3rd respondent, in terms of the Land Act No.8 of 2010.
 The evidence reveals that the disputed plot was occupied by the 1st respondent’s father after the death of his and applicant’s mother. The applicant conceded under cross-examination that as long as her brother (i.e. 1st respondent’s father) remained in occupation, she would not have had any right to oust him from occupation. She is suing his deceased’s brother’s son (the 1st respondent) because she is against the selling of the plot by the 1st respondent and wants it to be registered in her names. She is however, ignorant about the inheritance of the plot by 1st respondent from his father and facilitation of application of lease by the chief. One of her witnesses (PW3) also conceded that 1st respondent’s father was the heir. The significance of this concession is that it is by an elder who is part of those who authored Exhibit A.
 This evidence proves one thing, and one thing only: that the 1st respondent’s father inherited the plot and was entitled to its occupation after the passing on of the applicant’s parents. From this perspective, the applicant did not have any rights in competition with those of the father of the 1st respondent. It is then not understandable where the applicant suddenly gets a right which competes with that of the 1st respondent as the heir of her deceased brother.
 One of the documents required when lodging an application for a lease is an official document proving lawful use or occupation of land. This is per section 30 (2) (c) (vi) of the Land Act, 2010. The 1st respondent’s evidence is that he produced a letter of the chief. This, I consider, sufficed for purposes of the law and action by the Director General.
 There is, therefore, the operative presumption that everything was done in a regular manner: omnia praesumuntur esse acta. The onus is on the applicant to prove non-compliance with the formalities and technical defects in 1st respondent’s registered title to the plot. The applicant has failed to discharge the onus: See Mbangamthi v. Phalatsi LAC (1980-84) 179 I.
 This finding makes it strictly unnecessary to resolve the issues of whether the applicant does have any qualification to hold land under section 6 of the Land Act, 2010 by virtue of any marital status or non-citizenship.
 But since the applicant’s case was presented on the basis that as the only surviving child of her parents, she has the right to remain in occupation of her home - which proposition is disputed by the 1st respondent on the basis that she is a female married adult, has children and is a South African through marriage – these propositions are worthy of some consideration.
 It is not in dispute that the applicant’s mother died in 1993. As a holder of title to land in an urban area, her title was deemed to have been converted into a lease in terms of section 28(1) of the Land Act No.17 of 1979 as the operative statute at the material time.
 Applicant’s mother then enjoyed the right to dispose of her interest in the plot by a will under section 35(2) and (3) of the Land Act, 1979. Subsection (2) was amended per the Land (Amendment) Order No.27 of 1986. So the subsections read as follows:
“(2) Notwithstanding subsection 1(b)
(3) In the event of a lessee dying intestate –
 Section 8(2) provides for the passing of a deceased allotee’s interest to a widow, and where there is no widow or upon the death of a widow, to a person designated by the deceased allottee. Where there is no designation, the interest passes to a person nominated as the heir of the deceased allottee by the surviving members of the deceased allottee’s family. Section 8(2) was amended per section 5 of the Land (Amendment) Order No.6 of 1992. The effect thereof was to jettison the premogeniture rule of customary law which provides that inheritance is along patriarchal lines: only males were entitled to inherit land.
 After the removal of this customary law rule, thereby opening inheritance to land on gender-blind basis, section 8(2) and (3) read thus:
“(2) Notwithstanding subsection (1), where an allottee of land dies, the interest of that allottee passes to,
(3) Notwithstanding subsection (2) a surviving spouse or a minor child of the deceased allottee shall be entitled to remain in occupation of the land allocated to the deceased allottee until his own decease.”
 The interplay between sections 35(2) (a) and (3) and section 8(2) was considered by the Court of Appeal in Mokatsanyane And Another v. Thekiso And Others LAC (2005-2006) 117. That Court opined that a deceased lessee’ interest can only pass by way of a will whose validity is dependent on proof that during lessee’s life, he/she had, according to section 3 of the Administration of Estates Proclamation No.19 of 1935, abandoned a customary way of life in favour of a European mode of life and, if married, was married under European law.
 The evidence led and documents exhibited in these proceedings have not proven the existence of any will nor any designation by the applicant’s deceased mother – let alone the mode of life of applicant’s deceased parents. The evidence suggests that 1st respondent’s father was recognized and accepted as the heir. If so, then he must have assumed that status after being nominated by the family pursuant to section 8(2) (c) after the death of applicant’s mother in 1993.
 After his demise in 1997, he left the 1st respondent’s mother as the widow. As the widow, she got the rights and status of her deceased husband in terms of section 8 (2) (a). And, according to undisputed evidence, she in turn gave 1st respondent the go-ahead to apply for and register a lease to the plot in his names. The applicant ought then to have applied for joinder of the widow of Thabang (1st respondent’s mother). This she has not done.
 The evidence also establishes that the applicant is an adult – having been born in 1961. At the time of the death of her mother in 1993, she was 32 years old. She cannot, therefore, be said to be a minor child who is entitled, under section 8 (3), to remain in occupation of the plot. That she has her own children is not in dispute. What is in dispute is whether she is married or was ever married to their father(s) and also whether she has taken South African citizenship. These disputes need not be resolved in view of the finding that she is an adult and not a minor child and has neither been designated nor nominated as the heir. She does not, therefore, have locus standi to sue.
 The conclusion is that the application falls to be dismissed and is hereby dismissed with costs.
For the Applicant: M.E. Qhomane instructed by K.D. Mabulu & CO.
For the Respondents: C.J. Lephuthing (with K.Monate) Instruced by
T. Maieane & Co.
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