CIV/APN/3/85
IN THE HIGH COURT OF
LESOTHO

In the appeal of

MPHOLO MPHOLO Appellant

v
MPHONGOA JACOBS SELIANE Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai
on
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
terms.

"(a) Ejectment and/or eviction of the

Defendant from the said portion of the site.

(b) Repair of the said fence.

ALTERNATIVELY

Payment of the sum of M400 as compensation and/or
damages for the repair of the said fence.

3. 
   Payment of the sum of M500 as compen­
   sation
   and/or damages for the occupation
   of the said portion of the
   site.

   
   

4. 
   Costs of suit.

   
   

5. 
   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
alternative
to (b) payment of M150-00 being damages suffered by
Plaintiff and M100 as compensa­tion for occupation of the said
portion of
the site by the defendant plus costs of suit. It is
against this

2/ decision that

-2-
decision that the Defendant has appealed to this
Court.

In a nut shell the facts were that in 1968 Defendant was
allocated a site at Mantsonyane. In 1977 the Plaintiff was also
allocated
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
commercial/residential
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
it.

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
enclosed
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
on the
Defendant's site the encroached portion was available to the
allocating authority for re-allocation. In this regard, it is
perhaps
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 ....

-3-

applicable at the time the allocation was made to the
Plaintiff.

The Section read

"(2) A person to whom an allocation or grant

of
an interest or right in or over land -

1. 
   situated in an urban area or

   
   

2. 
   situated in a rural area for commer­
   cial or
   industrial purposes, shall
   cause such allocation or grant to
   be
   registered in accordance with the
   provisions of the Deeds
   Registry Act
   12 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
in part

" (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 to
to the
commencement of this Act was
issued with certificate by the
proper
authority authorising the occupation
or use of land
shall likewise apply to
the 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 registrar
the said
certificate of occupation or
use for registration in terms of
sub­
sections (2) and (3) within the presc­
ribed
period or within such extended
period (as the Registrar may
allow
(and the Registrar is hereby empowered
so to allow
extensions of that period)
or within such period as the court
may
allow) shall render the certificate
null and void
and of no force and effect
and the rights of occupation and
use
shall revert back to the owner of the
land, being
the Basotho Nation ...."
(My underlinings)

4/ I have underscored ....

-4-

I have underscored the word "shall" in the
above cited subsections to indicate my view that as the site was
allocated to
Defendant for commercial use, it was mandatory for him
to have it registered and failure to do so since 1968 did not only
render
his certificate of allocation or Form C null and void but
automatically reverted his rights of occupation and use back to the
Basotho
nation.

That grant, it must be accepted that the question I have
earlier asked, viz. whether or not at the time the Plaintiff was
allocated
his site the portion by which its measurements encroached
on the Defendant's site was available for re-allocation must be
answered
in the affirmative. The Defendant could not, therefore be
heard to say he still had the rights of occupation and use over the
encroached
portion of the site. As he had forfeited his rights over
the disputed site, the Defendant was, in my opinion correctly ordered
to
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
involved
I would not quarrrel with the amount of M150 allowed by the trial
magistrate.

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
as
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.

B.K. MOLAI

JUDGE.

For
Appellant Mr. Ramolibeli 30th September, 1985
For
Respondent Mr. Pheko.