Appeal- Jurisdiction of the District Land Court to rescind an order granted by the Magistrate Court - these being two distinct Courts, no such power exists - order rescindable in terms of Section 21 read with Rule 46(10) of Subordinate Courts Act and rules respectively.
IN THE LAND COURT OF LESOTHO
HELD AT MASERU LC/A/02/13
In the matter between
MANTSOHLI MOABI APPELLANT
MAMAKARA MOABI 1ST RESPONDENT
LAND SURVEY 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
CORAM: BANYANE AJ
 This is an appeal against dismissal of an application for rescission by the District Land Court of Berea. The dispute between the parties pertains to a certain piece of Land identified as plot Number 113/LG/LS/81/097 situated at Motjoka, in the Berea District. It has a long and confused history and has been handled by different Courts. For a period of a decade now, the dispute of title over this plot has not been resolved to finality. The relevant background pertaining to this dispute is set out below.
 The genesis of this litigation is that the 1st respondent in this appeal, hereafter referred to as ‘Mamakara, filed an application in the High Court under CIV/APN/562/09 against the appellant, hereafter referred to as ‘Mantsohli, and Others, seeking an order that a lease for the disputed plot should be registered in her names. Judgement in this matter was delivered in February 2011, in terms of which the Court essentially ruled that the parties prematurely approached the High Court before exhausting local remedies, specifically, the land Tribunal. At this time, the Land Act 2010 had been promulgated repealing the Land Act 1979, under which the Land tribunal was established.
 It is further common cause that; following the decision of the High Court, ‘Mamakara filed an application in the Berea Magistrate Court under CC 34/2011, in April 2011. She sought an order directing ‘Mantsohli to file an adverse claim in respect of the plot within 14 days of the granting of the order, failing which, the Commissioner of Lands and Survey (4th Respondent) be directed to process a lease in her favour. The application was not opposed despite service on ‘Mantsohli on the 14/04/2011. On the 27th April 2011, the Court issued an order directing that lodgement of the adverse claim should be made within 14 days of the granting of the Order. On the 16th May 2011, the Magistrate issued an order directing the “the Lands and Survey” to process a lease in favour of ‘Mamakara. After the granting of this Order, a period of one year elapsed. It is not immediately clear from the pleadings as to what occurred since the granting of this order until ‘Mantsohi filed a rescission application on the 15th May 2012. It is noteworthy that the rescission application was filed in the Magistrate Court but was later converted into a District Land Court matter and heard by the District Land Court. This application was dismissed by the District Land Court in December 2012.
 The essence of ‘Mantsohli’s complaint, both in the District Land Court and before this Court, is that the order issued by the Magistrate in CC 34/2011 in May 2011 is irregular because; a) the Magistrate Court lacked jurisdiction to hear and determine the application in question, so did the Magistrate who granted the default judgement because she had not been designated to hear Land Disputes and; (b) because the adverse claim, in compliance with the first order of the 27th April 2020, had been instituted in the Land Court under CC 1/2011. It should be noted right away that Rule 5 of the District Land Court Rules 2012 (which were not in place at the time of the filing of CC 34/2011) provides that the Chief Justice shall designate a District Land Court Magistrate).
 The respondent opposes the appeal principally on the basis that the Magistrate Court had Jurisdiction to hear the application because; firstly, the Land Tribunal, to which the High Court referred the matter, was faced out by the Land Act 2010, and the office of the Commissioner of Land informed ‘Mamakara that the Magistrate Court is the proper forum under the new dispensation. Secondly; the Rules regulating procedure in the Land Court(s) were not yet promulgated at this time. Her interpretation of section 75 of the Land Act 2010 is that Subordinate Courts are District Land Courts.
 In dismissing the application for rescission, the learned Magistrate stated that the order sought by ‘Mantsohli was in effect a review of a decision by another Magistrate and such powers are only exercisable by the High Court on appeal or review. This, he seemingly did after inviting further argument on whether the District Land Court has power to review proceedings of the Magistrate Court. This is evident from the second set of heads of argument filed by ‘Mantsohli’s counsel on the 26th Oct 2012 when the first set of argument on the rescission application was on 23/10/12. Judgement was apparently delivered in December 2012 per the minute of the Magistrate. I quote the crucial passages from the judgement;
“section 21 which Mr Hlaoli refers to speaks to where a Court finds that an order that it made was erroneously granted or fraudulently sought. It does not apply to a Court undoing which has been done by another Court of the same standing.
Prior to the new Act, we had established under the old regime the Land Tribunal which has appointed judicial officers sitting as officers of that Court….with the advent of the new Act since June 2010, no lacuna existed since section 75 of the Land Act 2010 clearly states that the Subordinates Court are Magistrate Courts are Land Courts for its purposes. The absence of the regulations could not be interpreted as non-existence of the Land Courts. Section 73 to 75 clearly show that at all times, the Land Courts have been present in the districts in the form of Subordinate Courts. The tribunal was ousted by the establishment of the same.
Whether the Magistrate Court as it sad(sic) had jurisdiction or whether it did not act properly in issuing what seems to be a final order despite the applicant having complied with the First order are reviewable and/ or appealable issues respectively. The Land Court sitting as it is now cannot review another Court or handle by way of an appeal a decision of a Court which I strongly feel is of similar stature. To me the proper Courts to make such a determination would be the upper Courts as this one is thus far functus officio”
Grounds of appeal
 The notice of appeal sets out five grounds of appeal. These are that the learned Magistrate erred and misdirected himself;
 The main question that fall for determination in this appeal that is dispositive is whether the rescission application ought to have been placed before the District Land Court. Intrinsically connected to this, is the question whether the District Land Court has Jurisdiction to hear and determine a rescission application filed in the Magistrate Court.
 Before the question whether the District Land court can rescind an order issued by the Magistrate Court is considered, it is necessary, for a better appreciation of the submissions made by both parties, to first highlight important aspects of the High Court Judgement, the interpretation of which caused confusion in the conduct of the litigation pertaining to the disputed plot.
The High Court Judgement
 The application in the High Court was filed in December 2009. Judgement was delivered in February 2011. It reads in part;
“the applicant is asking the Court to order 4th Respondent (Lands and Survey) to process a lease in respect of plot No. 113/LG/LS/81/097 in the Berea District. 1st respondent may lodge an objection or complaint in respect to the said site, but could that be taken as matter outside the competence of the Tribunal?
Applicant and 1st respondent are pointing fingers at each other on the issue of who ought to have referred the matter to the Land Tribunal. This goes to show both appreciate the fact that that must have been the proper approach.
I thus come to the conclusion that this matter was pre-maturely brought before this Court before resorting to the Land Tribunal in terms of the provisions of the Land Act 1979. I therefore dismiss the application to allow resort to domestic remedies before coming to Court”.
 This Judgement birthed the initial application under CC34/11 in terms of which ‘Mamakara sought to essentially compel ‘Mantsohli to act in accordance with the judgement by lodging her adverse claim. ‘Mantsohli in turn, responded to both the High Court judgement and the Magistrate’s Judgement by filing the adverse claim in terms of section 23 of the Land Act 1979, before the Tribunal. At the time the judgement was handed down, the Land Act 2010 that repealed the Land Act 1979 had been promulgated as stated earlier.
 Each party sought to justify why their claim was filed in the chosen forum. In explaining why the application was filed in the Magistrate Court, Mamakara’s Counsel contend that absence of Rules of procedure for the Land Courts from June 2010 until February 2012, means there was a lacuna in the Law, by reason of which Litigants were entitled to approach the Magistrate Court for redress. Mantsohi’s view on the other hand is that the objection was filed before the Land tribunal in compliance with an order of the High Court and that of the Magistrate. She relies on section 28(1) of the Interpretation Act in this regard. It reads;
“Where an Act –
Subsidiary legislation (in this case Rules of Court) made under the former Act and in force at the commencement of the repealing Act shall, so far as is not inconsistent with the repealing Act, continue in force and have the like for all purposes as if made under the repealing Act until repealed or replaced by subsidiary Legislation made under the repealing Act.”
Establishment of the Land Courts
 In view of their respective contentions, it is important to set out the relevant provisions of the Land Act 2010, establishing the Land Courts and their Jurisdiction.
 Section 73(as amended) reads follows;
“The following Courts are established with jurisdiction, subject to the provisions of this part to hear and determine (all) disputes, actions and proceedings concerning Land;
Section 74; The Land Court shall be the division of the High Court.
Section 75; Subordinate Courts are the District Land Courts for purposes of this Act.
Section 76; The Chief Justice may, in consultation with the Minister responsible for Land, make Rules for the Practice and procedure In the Land Courts”.
 The Act undoubtedly introduced a new system of Land disputes resolution. Its effect was to replace the old regime for dispute resolution. Quite clearly, by repealing the Land Act 1979, thereby specifying Courts with jurisdiction to hear and determine Land disputes, the Land tribunal, which enjoyed Jurisdiction prior to the coming into effect of the Act, became extinct.
 I should add that the Land tribunal was extinguished because it was centralized in Maseru and for their reason, land disputes were not speedily disposed of. The Land Courts are created to ensure speedy and inexpensive disposal of Land disputes at Districts level. This is evident from the statement of objects and reasons of the Act.
 Where a repeal of a legal provision creates a new method of redress, it (the repeal) does not impair the substantive Rights of the parties acquired prior to the repeal. After the repeal, such rights are to be enforced through invocation of the newly prescribed procedure before the Court or Tribunal under the repealing Act. In other words, the Court or tribunal which exercised jurisdiction on the basis of the repealed provision, ceases to have jurisdiction by virtue of the repeal. Section 18 of the Interpretation Act 1977, Leuta & Another v Lesotho Brewing Company LAC (CIV) No.3 of 2002.
 It is worthy to note that the High Court in its judgement, in reaching the Conclusion that it did, was addressing some of the arguments raised before Court to the effect that the claim ought to have first been filed in the Land Tribunal, which under the Land Act 1979, was the forum that adjudicated a certain type of Land Disputes. The Judgement must therefore be understood in that context. What the learned Judge intended to convey, in my view, was that, the jurisdiction of the High Court was deferred until remedies afforded in the structures subordinate to the High Court would have been explored by the parties.
 The learned Magistrate was therefore correct in holding that the Land tribunal was extinguished by the Land Act 2010. However, the questions whether ‘Mantsohli could validly file an objection or adverse claim in an extinguished forum or whether the application for issuance of Lease could not validly be filed in the Magistrate Court, were correctly not considered by the District Land Court, as I demonstrate below.
 The District Land Courts are distinct and separate Courts from the Subordinate Courts. Mafube Investments Holdings (Pty) Ltd v Letoao and Others LC/APN/137/2014(para 11).
 What section 75 does is to define the status of these Courts in the hierarchal structure, not to say, the Magistrate Court is the District Land Court. Section 76 empowers the Chief Justice to promulgate Rules regulating procedure in these Courts. This is a clear indication of the distinctive nature of these Courts(specialist) from the Subordinates Court as established under the Subordinate Courts Act No.9 of 1988.
 Section 89 of the Land Act further illuminates the distinctiveness of the Subordinate Courts and High Court from the Courts created by section 73. It reads;
Section 89; transitional provisions with respect to judicial proceedings
“where a case relating to land was pending before the High Court or subordinate Court prior to the coming into effect of the 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.”
 I am fortified in this view by the following remarks of the Court of Appeal in Shale v Shale C of A CIV 35/19, (at para 10).
“The Land Act created the Land Court with exclusive Jurisdiction, and the exclusivisity of its jurisdiction is buttressed by the transistional provisions in section 89, which provides that that it is only in cases which are pending before the High Court (and Subordinate Courts) when the Act came into effect that would continue to be heard by the High Court (or subordinate Court) to completion. Thus all new cases were and are to be heard in the land Court (and District land Court respectively)”.
 In view of the Conclusion reached above, it is now appropriate to consider the issue whether the Rescission application was properly before the District Land Court.
 The rescission application was filed under CC 34/12. The parties are in agreement that this was later converted by the “Magistrate Court” into Land case No. LCC/01/12. It was then placed before the District Land court for hearing. When addressing this conversion, both Counsel say, the two were merged by the Magistrate Court. At whose request or instruction this was done, it remains unclear.
 The main ground for rescission of the judgment, as I understand it, was that the judgment of the Magistrate Court is void ab origine because it was issued by a Court that lacked competence to hear and determine Land Disputes. It was filed in terms of section 21 of the Subordinate Courts Act 1988. This conclusion is deciphered from the pleadings in the rescission application, the arguments made and the Judgement of the Magistrate.
 In his judgement, the District Land Court Magistrate made the following remarks;
“Whether the Magistrate Court as it sad (sic) had jurisdiction or whether it did not act properly in issuing what seems to be a final order despite the applicant having complied with the First order are reviewable and/ or appealable issues respectively”.
 In order to test the validity of this reasoning (whether, under the circumstances of this case, the question of jurisdiction of the Magistrate Court to issue the impugned order is determinable on review or appeal), it is important to consider the provisions of section 21(2) of the Subordinate Courts Act 1988 read with Rule 49(10) of the subordinate Court Rules 1996.
 Section 21(2) provides that the Court may rescind or vary any judgement granted by it which was void ab origine or was obtained by fraud or by mistake common to the parties.
 Rule 46(10) reads;
“Where rescission or variation of a judgement is sought on the ground that it is void ab origine or was obtained by fraud or mistake, application may be made no later than one year after the applicant first had the knowledge of such voidness, fraud or mistake”.
 The learned Magistrate correctly stated the general principle that; once a Court has duly pronounced a final Judgement or order, the matter is res judicata, and it has itself no authority to correct, alter or supplement it. (Herbstein and van Winsen the Civil practice of the Supreme Court of South Africa 5th ed. Vol 1 at p 926. The reason is that it is functus officio, that is, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased. Maphathe v I Kuper Lesotho C of A CIV 55/13 (and authorities therein cited).
 There are however exceptions to this Rule. For purposes of this case, focus will be placed on exceptions stated under Section 21(2) read with rule 49(10). The Court is permitted to rescind a judgement granted by it, if void aborigine(invalid), induced by fraud or mistakes common to both parties. See Han v Kim CIV APN/494/99.
 This means the Magistrate Court is empowered by these provisions to revisit a judgement or order granted by it if the requirements stipulated therein are satisfied. Where a person assails the judgement/order on the ground of voidness under these provisions, the application to have it(order) set aside must be made within one year after the applicant first gained knowledge of such voidness, fraud or mistake. This means Rule 49(10) provides a different time period for filing of an application for rescission on grounds of voidness, from Rule 46(2) which deals with rescission on grounds of default of appearance.
 It is pertinent to state that if a judgement or order has been granted by a Court that lacks jurisdiction, such an order is null and void and a plea of res judicata relying on such a judgement would fail. Lebesa v Motjoka and Others CIV/T/325/2011(Para 27).
 In The Master of the High Court (North Gauteng High Court, Pretoria) v Motala NO and Others 2012(3) SA 325 (SCA), it was held that;
“a judicial decision issued without jurisdiction is a nullity that a later Court may refuse to enforce (without the need for a formal setting aside by a Court of equal standing). This seems paradoxical but it is not. The Court, as the fount of legality, has the means itself to assert the dividing line between what is Lawful and what is not lawful. For the Court itself to disclaim a preceding court Order that is a nullity therefore does not risk disorder or self-help”.
 Where however, the parties do not agree as to the status of the impugned order, it should be rescinded. Tradelex Limited v Maloney and Another (823/2015)  ZASCA 128.
 While the learned Magistrate cannot be faulted for deciding that the District Land Court has no jurisdiction to set aside orders issued by the Magistrate Court, this does not mean the Magistrate Court lacks power to rescind its own Judgement if the requirements of the quoted provisions are shown to exist. Had the application been heard in the Magistrate Court, regardless whether the Magistrate presiding had also been designated as a District Land Court Magistrate, then proper consideration of section 21 and Rule 46 would have been made.
 In my view, the application was erroneously converted into a District Land Court matter when it was not filed as such. The conflation of case numbering compounded the conundrum resulting from the interpretation of the Judgement of the High Court.
 In view of all the above considerations, it is clear that the confusion around the proper forum to adjudicate the parties’ dispute resulted in lengthy delays that hindered progress towards finalisation of the dispute over this plot. The question that begs to be answered, however, is whether this Court possesses the competence to issue an order that brings finality closer. Regrettably, the answer is in the negative. The Land Court, being a creature of statute, does not have an inherent Jurisdiction like the High Court. Its jurisdiction and powers are conferred by the Land Act 2010. Its jurisdiction is therefore limited to the extent defined in the Act. Mafa Moshoeshoe v District Football Association-Leribe & Others C of A (CIV) No. 27/2018. Mwangi and Another v Masupha and Another LC/APN/ 170/14. I am, thus, confined to deal with proceedings before the District Land Court. I cannot therefore set aside the order of the Magistrate Court. The District Land Court, as correctly held by the learned Magistrate, also lacks Jurisdiction to hear a rescission application pertaining to an order issued by the Magistrate Court. It would only deal with rescission of a Judgement granted by the District Land Court in terms of the Rules of that Court. This then means that the rescission application in its original form (including numbering) ought to be heard in the Magistrate Court.
 One of the complaints before this Court is an award of costs at an attorney and client scale. This scale was sought because, according to ‘Mamakara, the rescission application constituted an abuse of Court process because the matter had been finalised by the proper Court, to which the matter was referred by the High Court.
 The scale of attorney and client is an extra ordinary one which should be reserved for cases where it can be found that a litigant conducted himself in a clear and indubitably vexatious and reprehensive manner. Such an award is exceptional and is intended to be punitive and indicative of extreme censure. Plastic Converters Association of South Africa on behalf of members v National Union of Metal Workers of SA  ZALAC 39.
 It is not even suggested that the merger of the cases was attributable to the appellant. The learned Magistrate did not therefore, judicially exercise his discretion in this regard and this warrants interference with the punitive costs order.
 In my view, each party ought to bear its costs because neither of them is said to be responsible for the conversion of the application into a District Land Court matter. The appeal, in so far as an order of costs is concerned, should therefore succeed. Since there is partial success, no costs in the appeal will be awarded.
 In the result, the following order is made;
For Appellant: Advocate Kao
For Respondent: Advocate Makau
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