CIV/APN/3/85 IN THE HIGH COURT OF
In the appeal of
MPHOLO MPHOLO Appellant
v MPHONGOA JACOBS SELIANE Respondent
Delivered by the Hon. Mr. Justice B.K. Molaion
the 30th day of September, 1985.
On 7th February, 1984 the Respondent (hereinafter
referred to as Plaintiff) instituted before the Subordinate
Court of Thaba-Tseka
summons commencing action in which he sued the
Appellant (hereinafter referred to as Defendant) for a claim framed
in the following
"(a) Ejectment and/or eviction of the
Defendant from the said portion of the site.
(b) Repair of the said fence.
Payment of the sum of M400 as compensation and/or
damages for the repair of the said fence.
Payment of the sum of M500 as compensation
and/or damages for the occupationof the said portion of the
Costs of suit.
Further and/or alternative relief."
The hearing was before G.T. Jane, the magistrate who
entered judgment for the Plaintiff in terms of (a) and (b) above. As
to (b) payment of M150-00 being damages suffered by
Plaintiff and M100 as compensation for occupation of the said
the site by the defendant plus costs of suit. It is
2/ decision that
-2-decision that the Defendant has appealed to this
In a nut shell the facts were that in 1968 Defendant was
allocated a site at Mantsonyane. In 1977 the Plaintiff was also
a site adjacent to that of the Defendant.
It was common cause that both the Plaintiff and the
Defendant were issued with forms C In respect of their sites. There
was a dispute
as to the legality of the Form C issued to the
Plaintiff on the ground that it was not certain that the chief who
signed the Form
C had made the allocation in consultation with his
land committee. Howeyer, the Form C is in my view, a prima facie
evidence of allocation and it can safely be said that the site was on
a balance of probabilities allocated to him.
Furthermore, it was common cause that the sites
allocated to both the Plaintiff and the Defendant were for
purpose. The Defendant neither registered nor
fenced his site. At the time of allocation Plaintiff's site was,
however, already fenced
by the previous owner from whom he had bought
When Plaintiff's site was allocated to him, its
measurements encroached on the site previously allocated to Defendant
to the extent
of 7 paces x 35 paces. Subsequent to his allocation,
the Plaintiff registered his site and adjusted the fence so that it
the encroached portion. He was therefore, a holder of a
Title Deed in respect of the site. The Defendant afterwards removed
Plaintiff's fence from the encroached portion of his site and erected
his own fence.
The salient question was whether or not at the time the
Plaintiff was allocated the site whose measurements encroached
Defendant's site the encroached portion was available to the
allocating authority for re-allocation. In this regard, it is
useful to bear in mind the provisions of the now repealed S.
15(2) of the Land Act No. 20 of 1973 which was,however the law
3/ applicable ....
applicable at the time the allocation was made to the
The Section read
"(2) A person to whom an allocation or grant
an interest or right in or over land -
situated in an urban area or
situated in a rural area for commercial or
industrial purposes, shallcause such allocation or grant to
beregistered in accordance with theprovisions of the Deeds
Registry Act12 of 1967."
Now the relevant provisions of the Deeds Registry Act
No. 12 of 1967 were laid down under S. 15 thereof. The section read
" (2) Save as is otherwise provided in the
Administration of Lands Act 1973 or any
other law, every person or body holding a certificate issued by the
proper authority authorising the occupation or use
of the land
shall within three months of the date of issue of the certificate
apply to the Registrar for a registered certificate
of title to
occupy or use.
(3) Every person or body who prior toto the
commencement of this Act wasissued with certificate by the
properauthority authorising the occupationor use of landshall likewise apply tothe registrar within a period of
(nine)months from the date of commencement
of this Act for a registered certificate of title to
occupy or use.
(4) Failure to lodge with the registrarthe said
certificate of occupation oruse for registration in terms of
subsections (2) and (3) within the prescribed
period or within such extendedperiod (as the Registrar may
allow(and the Registrar is hereby empoweredso to allow
extensions of that period)or within such period as the court
mayallow) shall render the certificatenull and void
and of no force and effectand the rights of occupation and
useshall revert back to the owner of theland, being
the Basotho Nation ...."(My underlinings)
4/ I have underscored ....
I have underscored the word "shall" in the
above cited subsections to indicate my view that as the site was
Defendant for commercial use, it was mandatory for him
to have it registered and failure to do so since 1968 did not only
his certificate of allocation or Form C null and void but
automatically reverted his rights of occupation and use back to the
That grant, it must be accepted that the question I have
earlier asked, viz. whether or not at the time the Plaintiff was
his site the portion by which its measurements encroached
on the Defendant's site was available for re-allocation must be
in the affirmative. The Defendant could not, therefore be
heard to say he still had the rights of occupation and use over the
portion of the site. As he had forfeited his rights over
the disputed site, the Defendant was, in my opinion correctly ordered
quit. Plaintiff testified that by the action of the Defendant he
had suffered damage to the tune of M400.00 calculated on the current
rate of M10 per meter for erecting a new fence As only the repair of
the fence and not the erection of a new fence would be
I would not quarrrel with the amount of M150 allowed by the trial
However, the encroached portion of the site was
undeveloped and so small that I find it difficult to see
how the Plaintiff could have possibly hired it for the amount claimed
compensation for damages. I am of the opinion that Plaintiff had
failed to prove any damages at all on this aspect and his claim
should have been disallowed. It is so ordered.
In the premises, the appeal is dismissed in respect of
(a) (b) and (d) but allowed as regards (c) of the claim.
Appellant Mr. Ramolibeli 30th September, 1985For
Respondent Mr. Pheko.
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