IN THE LAND COURT OF LESOTHO
Held at Maseru
In the matter between:
THABISO TSOAKO 1ST APPLICANT
MPHO TSOAKO 2ND APPLICANT
TUMELO TSOAKO 3RD APPLICANT
‘MAPHEKU PHEKU 1ST RESPONDENT
LAND ADMINISTATION AUTHORITY 2ND RESPONDENT
CORAM: S.P. SAKOANE AJ
DATES OF HEARING: 19 MAY, 6-8 JUNE, 3, 8 and
10 SEPTEMBER 2015
DATE OF JUDGMENT: 05 NOVEMBER, 2015
Cancellation of a lease – whether the land is a donation – requirements for disposition of interest in land by way of donation or will – Land Act, 1979, section 35 and Land Act, 2010, section 30.
Mbangamthi v. Phalatsi LAC (1980-84) 179
Mokatsanyane And Another v. Thekiso And Others LAC (2005-2006) 117
Land Act No.17 of 1979
Land Act No.8 of 2010
Land Regulations, 2011
 The 1st applicant is the father of the 2nd and 3rd applicants. His wife passed on in 1994. Thereafter, the 1st applicant had a love affair with the 1st respondent. Out of this relationship a child was begotten in 1999. Her names are Ay Reabetsoe. From 2004 this couple lived together as husband and wife. It is during the subsistence of this relationship that the couple stayed on the plot in dispute. The plot was allocated to the 1st applicant and subsequently a lease issued in the names of the1st respondent.
 It is this issuance of the lease in the names of the 1st respondent that is the subject-matter of the dispute in this case. The applicants complain that the plot belongs to them and was never transferred to the 1st respondent. The latter contends that she applied for a lease with the knowledge, agreement and assistance of the 1st applicant as a strategy to ultimately secure it for their young child Ay Reabetsoe.
 A pre-trial minute filed by the parties reads as follows:
COMMON CAUSE ISSUE
ISSUES FOR DETERMINATION
 The evidence as to the existence of the donation of sites numbers 11294-1168 and 11294-1169 in 1990 was given by 2nd and 3rd the applicants. When their mother passed on in 1994, 2nd and 3rd applicants were aged 19 years and 11 years respectively – the 2nd applicant having been born in 1975 and 3rd applicant in 1983.
 The 2nd applicant testified that a site were bought in the 1990s by his parents with the view to “passing them” to their children. The said site was subdivided into four parts – the two parts in dispute were donated to him and the 3rd applicant.
 In 2011-2012 the two of them wanted to develop the sites and thereby approached the Land Administration Authority (cited herein as the 2nd respondent). They discovered that the sites have been merged into one and registered in the names of the 1st respondent. Upon enquiry, they got “information” and were advised to lodge a dispute. His father’s understanding was that “it was not how things should be”. After mediation, it was agreed that the site would revert back to the rightful owners and the lease returned to the Land Administration Authority. But this never eventuated, hence these proceedings.
 Under cross-examination, the 2nd applicant stated that the sites were allocated to him and his siblings by their parents in 1990. No leases have been issued in relation to the said sites but the application process had already begun in 2012. He disagreed with the suggestion that his father and 1st respondent agreed to register the sites in the names of the latter.
 The 1st applicant testified that he has a site which was divided into four parts when the Municipality constructed a road through them. He handed in evidence Exhibit A which is a map depicting plot No.11294-1656 as a composite site of plots 11294-1168 and 11294-1169. The two parts were merged and a house built and a lease subsequently issued. When the 2nd and 3rd applicants were old enough, they wanted leases for themselves. But they discovered that their sites had been merged. A lease had been issued to the 1st respondent. This he only knew when his children returned from the Land Administration Authority and when all were called for mediation in January 2014.
 They attended a mediation session at which the 1st respondent agreed to surrender the lease. He had not given her permission “to do the things” and apply for a lease. The site had already been given away by his deceased wife.
 Under cross-examination, the 1st applicant stated that the other undisputed two sites have a lease which he applied for in 2011. Their lease is with 2nd applicant. This was after he had registered them in his own names during the regularization process by the Land Administration Authority. Furthermore, the disputed sites were not registered together with the others.
During the time when the other sites were registered, he stayed together with the 1st respondent at Ha Thetsane. He could not deny that the date on the lease to the sites in his names is the same with the date on the impugned lease in the names of the 1st respondent. He denied that he produced Exhibit A (a map which shows the four sites which resulted from his original site being divided into four parts by the Municipality road).
 This applicant denied that he gave the 1st respondent any permission or assistance to apply for a lease in her own names as a strategy to benefit their child Ay Reabetsoe. He also denied that the 1st respondent contributed to the building of a house on the disputed site.
 The 3rd applicant is the daughter of the 1st applicant and sister of the 2nd applicant. She testified that her late mother informed her that the original site which was a field would be divided among them. Upon returning from school, she told the 1st applicant that she wanted to develop the site. The 1st applicant replied that the site would first have to be registered in his names since he is the one responsible for them. But this did not happen.
 After the 2nd applicant came back from the Land Administration Authority with information that the site had been registered in 1st respondent’s names, she took the 1st applicant to task. The 1st applicant claimed that he never gave the site to the 1st respondent. She then reiterated the mediation process.
 Under cross-examination, the 3rd applicant said she was born in 1983. She was old enough and within her rights to register the site in her own names. When she approached her father about the matter, he said he would first have to register the site in his own names. She does not know whether her father ever registered the site in his names.
 When asked by the Court which is her site between 11294-1168 and 11294-1169, she said she had forgotten. Neither could she identify it when shown Exhibit A.
 That was the end of the applicants’ case.
1st Respondent’s Case
 The 1st respondent testified that she is currently married to the 1st applicant by customary rites. They have a child named Ay. They got married in 2004 and have since lived together. In 2006 the 1st applicant gave her the sites in dispute. At that time they were not registered. In 2007 they built their home at Ha Thetsane. She is a teacher by profession. They were registered in 2011 during the regularization process carried out by the Land Administration Authority. The sites were registered in her maiden names. The reason being that the 1st applicant feared that if he died, his children would claim them. So this was a way of securing her protection so that she could take care of Ay.
 To register the sites, she produced a copy of her passport, a map and a surveyor’s receipt indicating her names. The copy of the passport was handed in as Exhibit “D”, the map is Exhibit “E” and the surveyor’s receipt is Exhibit “F”. The changes to her names was done in 2009.
 During the regularization process, the officers of the Land Administration Authority came to her home in search of documents. Thereafter there was a community gathering (pitso) where those gathered there, were briefed about the process and issued with forms to fill in. She was with the 1st applicant during the filling of the forms. This was in 2010 but the lease was issued in 2011. The documents she gave to the LAA officers are Exhibit “D”, “E” and “F”. The 1st applicant also gave documents for his other sites. The sites registered in her names are two and have been merged.
 In 2014 she and the 1st applicant were called before the Land Administration Authority. Thereat they found the 1st applicant’s children. Mediation procedure was explained and were informed that it was without prejudice. 1st applicant’s children claimed the disputed sites. 1st applicant told them that he had given the sites to her. After this an agreement was reached and signed. The terms thereof were that the sites would be given to the 2nd and 3rd applicants. She did not understand the implications thereof. It occurred to her that she had rushed into signing it. The atmosphere was tense.
 After signing the agreement, she and 1st applicant reviewed the situation. She realized that by signing, she gave away her rights to the property she had contributed to its development – which is a house. They then came to a decision to seek legal advice. After getting legal advice, she chose not to abide by the agreement. The agreement was never executed.
 Cross-examined, the 1st respondent stated that she would neither agree nor disagree that the sites were donated to the 2nd and 3rd applicants as she was not present. She knew the site as belonging to the 1st applicant only. She first knew that the 2nd and 3rd applicants were claiming the sites on 3rd January 2014. She first knew about the sites in 2006 when she and 1st applicant discussed building a house. 1st applicant never told her about the sites being a donation. When the sites were changed into her names, she and 1st applicant produced their passports and a map (Exhibit E).
 Two witnesses were called in support of the 1st respondent’s case. They are Elia Rabos Hlaoli and Mapati Thakali.
 Hlaoli is the right-hand man of Chief Mpiti Thetsane, Ha Lesia. He knows both the 1st applicant and the 1st respondent. They stay as husband and wife. Both were present at the community gathering called at the instance of the Land Administration Authority. They sat next to a table of his. He asked why they came late and the answer was that they went via hospital to fetch mediation. After getting assistance, he and them separated. On the second occasion he, 1st applicant and 1st respondent were present when leases were being issued. But he could not confirm that the 1st applicant and 1st respondent took their lease.
 He once had a man-to-man discussion with the 1st applicant. In that discussion the 1st applicant informed him that he has a site, part of which a house had been constructed. That site belonged to his wife who would have to sign any papers for it. He would not do so.
 Cross-examined, Hlaoli stated that their man-to-man discussion happened in 2014. The 1st applicant’s reason for giving the site to his wife was that they have a child. He once took documents to the 1st applicant to sign regarding registration of the site, but the 1st applicant said he should wait for his wife to sign.
 Mapati Thakali testified that she is the neighbor of 1st applicant and 1st respondent. She is also a family friend. She started living at Ha Thetsane in 2009. In 2010 LAA officers invited residents to register their sites with the purpose of being issued with leases. Since she could not locate her lease, she approached 1st applicant for advice as he had registered his site. 1st applicant advised her to go to the Chief with a map and a plot number.
He told her the site where he and 1st respondent stayed would be given to 1st respondent. The reason being that he was sickly and would not be able to provide for their child. The other reasons for giving the site to the 1st respondent was that the latter was developing it. She also paid for his medical bills. It was thus a gesture of gratitude to her.
 When shown Exhibit “E”, this witness said it looked similar to the one that the 1st applicant had shown to her and said he had used to apply for a lease. The only difference was that the Exhibit is black-and-white whereas the one shown to her was coloured.
 Under cross-examination, she stated that she is a friend of both 1st applicant and 1st respondent. She reiterated what she said in-chief about what 1st applicant had told her. She saw names of 1st applicant on Exhibit “E” and it appeared four times. At the time 1st applicant showed it to her it appeared three times.
 That was the end of 1st respondent’s case.
Was the disputed land donated/bequeathed to 2nd and 3rd applicants?
 The question of the land in dispute being donated to 2nd and 3rd applicants any time before the death of their mother in 1994 has to be answered in the context of the law governing donations then. This approach is sanctioned by section 87 of the Land Act, 2010 which provides:
“(1) Unless the contrary is specifically provided in this Act, any right, interest, title, power or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be valid in so far as it is consistent with the law applicable to it immediately prior to the commencement of this Act.
(2) Unless the contrary is specifically provided for in this Act or the circumstances are such that the contrary is to be presumed to be the case, where a step has been taken to create, acquire, assign, transfer or otherwise execute a disposition, any such transaction shall be continued in accordance with the law applicable immediately to it immediately prior to the commencement of this Act.
(3) All transactions to which subsection (2) applies and which are not completed within 2 years of the coming into effect of this Act shall be deemed null and void and shall be subject to recommencement under this Act.
(4) All actions leading to the grant of a lease stipulated to be done under any law prior to the coming into effect of this Act shall be commenced under the provisions of this Act.
 Section 35 of the Land Act, 1979 entitled a lessee to dispose of his/her interest subject to obtaining the consent of the Minister. Ministerial consent was not required if the disposal of interest was by a will. And if the lessee died intestate, but qualified to make a will, absence of the will left the disposal of the interest to be done in accordance with the written law of succession. The validity of a will is dependent on proof that during a lessee’s life, she abandoned a customary way of life in favour of a customary way of life and, if married, was married under European law: See Mokatsanyane And Another v. Thekiso And Others LAC (2005-2006) 117
 The disputed plots are in an urban area. As such, the parents of the 2nd and 3rd applicants could, in terms of section 29, apply for leases if they were desirous of granting or creating any interest in the plots. And it is then that they would thereafter be entitled to dispose of their interest in the plots in accordance with section 35.
 Unlike the Land Act, 2010 which, in terms of section 6 (1), prohibits children below 18 years to hold title to land except where the land is a gift or inheritance, there was no such express restriction under the Land Act, 1979. I infer from this that parents could donate land to their minor children, by disposition of their interest but subject to compliance with the provisions of sections 29 and 35.
 The evidence is that the donation/bequeathment was done verbally and in the absence of any acquisition of the Minister’s consent or execution of a will. This was contrary to the provisions of section 35. In the result, the claimed donation/bequeathment is a nullity according to section 85 (2) of the Land Act, 1979.
Did the 1st applicant transfer the land to the 1st respondent?
 The plots were in the names of the 1st applicant at the time of application of the lease by the 1st respondent. This fact is proof that the 1st applicant was the allottee. In 2011 when he applied for leases of other sites, he did not apply for leases of the disputed plots. There is no plausible explanation for this omission. If indeed the sites were donated/bequeathed to the children, the question is why did he not apply for their leases together with the others. The only answer is that he had already decided to transfer them to the 1st respondent. Hence when approached by the 3rd applicant about her site, the 1st applicant said he would first have to register the site in his names. Why this would have to be so, it is not clear.
 That reaction of the 1st applicant shows that he never had any intention of registering the sites in the names of his children. This should be viewed together with the fact that the lease of the other undisputed sites was given to the 2nd applicant, yet it is not in the names of the 2nd applicant. If indeed the 1st applicant wanted all the leases to the sites to be in his names before he could pass them on to his children, he could have applied for their leases at the same time. But he did not do so. No plausible explanation is given for this.
 The 1st respondent’s evidence, which is corroborated by other defence witnesses, is that the 1st applicant gave her the site for the benefit of their young child Ay Reabetsoe. During the regularization process and application for leases conducted by the Land Administration Authority, 1st applicant and 2nd applicant were together. It is at this time that the application for the lease was made. Among the required documents under section 30 (2) of the Land Act, 2010 read with regulation 9 (1) of the Land Regulations, 2011, are a description of the land in a map, the identity of the parties and any other evidence that the applicant is in lawful occupation. The map (Exhibit “E”) is in the names of the 1st applicant while the identity of the 1st respondent was proved by her passport. Hlaoli, as the chief’s representative, vouchsafed their lawful occupation of the site and their living together as husband and wife.
 It is then hard to believe the 1st applicant’s assertion that the 1st respondent applied for the lease without his knowledge and/or assistance or that he only knew about issuance of the lease in January 2014 when he was called for mediation at the Land Administration Authority. There is no reason not to accept the version of the 1st respondent. I find that the 1st applicant was present at all times during the regularization process whereat the necessary documents were submitted, with his assistance, to apply for the lease in the names of the 1st respondent. The impugned lease was issued in 2011. It is improbable that the 1st applicant never knew about it until in January 2014. I cannot fathom why the 1st respondent would conceal the acquisition of the lease from the 1st applicant for a period of three years. They lived together under the same roof as husband and wife. There would be no reason for the alleged non-disclosure of acquisition of the lease.
 Possession of the lease by the 1st respondent burdens the applicants with the onus to disprove her non-compliance with the formalities of the law. There is a presumption that issuance of the lease was done in a regular manner: omnia praesumuntur esse acta. The applicants have failed to discharge the onus: see Mbangamthi v. Phalatsi LAC (1980-84) 179 I
 The result is that the application fails and is hereby dismissed with costs.
For the Applicant: N. Khatala instructed by K.M.T. Thabane Attorneys
For the Respondents: M.V. Khesuoe instructed by Naledi Chambers Incorporated
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