IN THE HIGH COURT OF LESOTHO In the
Application of :
LEPOQO MOHALE 1st Applicant
PHAKISO LEBONA 2nd Applicant
THE COMMISSIONER OF LANDS AND SURVEY 1st Respondent
THE PERMANENT SECRETARY FOR
INFORMATION AND BROADCASTING 2nd RespondentTHE
ATTORNEY - GENERAL 3rd Respondent
Delivered by the Hon. Acting Mr. Justice M. Lehphla on
the 1st day of June, 1987.
On 16th February 1987 the two applicants above moved an
application on notice for Mandamus against the respondents.
Applicants seek an order, to wit:-
1. Directing 1st Respondent to effect the transferof
site 739 Europa held by 1st Applicantunder lease document number
12292 - 005 to
2. Directing 1st Respondent to allow the 2ndApplicant
to develop site No. 739 in
with the drawn plans end specifications;
3. Costs and further or alternative relief.
In the alternative applicants seek an order for
Payment of M79,000.00 being purchase price ofsite
No. 739 Europa.
Payment of M40,000.00 being the costs of adwelling
house built by 2nd Applicant for1st Applicant in further
consideration ofsite 739 Europa.
Payment of M10,000.00 being architectural feefor
plans for site No. 739 Europa.
4. Interest at the rate of 18% from date of signing of
agreement between applicants plus costs and further and or
It would appear that 1st Applicant is a lease holder of
the residential site number 739 Europe in Maseru Township by virtue
of a lease
document numbered 12292 -005 in 1st Respondent's custody.
1st Applicant avers in paragraph 6 of his founding affidavit that he
the right and interest in the above site against the whole
world. It also appears that on account of some financial predicament
1st Applicant has had to conclude an agreement of sale of this site
with 2nd Applicant on 28th July 1984. A copy of the agreement
"A" has been attached to the papers before Court.
In paragraph 8 the first applicant avers that he was
paid M79,000.00 by second applicant who further built him a dwelling
Lifateng in Mohale's Hoek at the cost of M40,000.00 in
consideration of site No. 739 Europe. Following the agreement between
the first applicant has tried to transfer this property
i.e. site No. 739 Europe to 2nd Applicant but the 1st Respondent
and or ignores to execute the transfer. 1st Applicant avers
that it is his desire to transfer this site to 2nd Applicant more
because he is not in a position to refund to the latter
monies which he utilised in the belief that there would be no hitch
the terms of the agreement to a desired end. However, it
seems the 1st Respondent has obstructed 2nd Applicant from developing
subject matter of the agreement between applicants on the grounds
that such development would interfere with or obstruct the
from Radio Lesotho masts erected near the
-3-Police Training Centre.
1st Applicant fears that unless 1st Respondent is
ordered to effect the transfer of the said site and or permit
2nd Applicant would suffer irreperable loss;
hence the prayers made in the notice of motion by applicants.
Apart from confirming 1st Applicant's averments 2nd
Applicant states in para 10 of his founding affidavit that in
addition to monies
expended by him as shown in para 7 he engaged
services of an Architect who prepared plans for the said site and
charged him a fee
amouting to M10,000. Annexure "B" has
been attached to the papers as proof of this. He further avers that
refusal to effect transfer of the site is
unreasonable regard being had to the fact that it is not even
specified what height of
the intended development would obstruct
Radio Lesotho's transmission. The 2nd Applicant maintains that the
instant case is not covered
by the provisions of the Land Act 1979.
Should 1st Respondent not be ordered to effect the transfer of; and
to permit the intended
development on the said site 2nd Applicant
fears that he would suffer untold loss regard being had to the fact
that he has so far
invested much money in the site.
The Attorney-General gave notice of his intention to
oppose this application and relied on the answering affidavits of
Thomas Seeiso who avers that he is the Minister of
the Interior and Chieftainship Affairs and responsible for the
of the Land. Act 1979; and of one A. Mosaase who avers
that he is the Commissioner of Lands and Survey in the Ministry of
Interior, Morena Mathealira Seeiso avers that he is not
challenging conclusion of the agreement of sale between the
concedes that 1st Applicant did submit an application
for transfer of the lease No, 12292 - 005 to 2nd Applicant and states
I have not yet given him consent to the transfer, so
legally the site still belongs to First Applicant" see para 4 of
In para 5 he avers that the 1st Respondent i.e.
Commissioner of Lands is not the one who gives consent to transfer of
land. He avers that the giving of consent to the transfer
of lease No 12292 -005 is his sole prerogative as the Minister
Thus maintains that in directing their charges against 1st
Respondent for his alleged refusal to effect the transfer the
are barking up the wrong tree. In para 7 he avers that
transfer of the said site cannot be effected because that land is
for public purposes and makes reference to section 54 of the
Land Act. Finally he reiterates that 1st Respondent is ordered not to
effect the transfer of the said site and or permit development
thereon, and avers that "whan a site is required under section
54 of the Land Act 1979 it is usually the policy of my Ministry to
compensate under section 56 of the said Act."
1st Respondent is in full agreement with the averments
of the last deponent to the effect that he as Commissioner of Lands
the power nor authority to execute transfers of land. He
avers that the Minister of the Interior is the one who gives consent
transfer of a lease
and goes further to say "where such (consent) is
given I shall by notice in the gazette publish the terms and
which the general consent is given "
In para 10 he avers:-
"It may be the desire of 1st Applicant to transfer
the said site but the Minister has required his
site under section 54 of the Land Act 1979 - thus
transfer will not be effected. First applicant may also be not in the
refund 2nd Applicant as he alleges, but section 36(5)
stipulates that any transaction conducted by a lessee without the
the Minister or contrary to the terms and conditions of a
general consent shall be of no effect,"
In para 7 he says that he was instructed by the Minister
to order 1st Applicant not to develop the said site on the grounds
would be used for Radio Lesotho transmission masts. He
finally makes clear his stand that he cannot effect transfer of the
and concludes that in the circumstances 1st Applicant will
be compensated according to section 56 of the Land Act. The attitude
in the foregoing sentence seems to conflict with the wisdom
entailed in the phrase "Nemo cogitur rem suam vendere, etiam
pretio - no person is obliged to sell his own property even for
the full value."
In his replying affidavit the 1st Applicant is emphatic
that averments made by 1st Respondent ad para's 1, 2, 3, 4 are not
correct. He further points out that 1st Respondent did not
know of the sale agreement for the first time only when informed of
by the Minister but long before then as the 1st Respondent was
approached by the 2nd Applicant who in aligning himself with 1st
averments has drawn the Court's attention to letters from
1st Respondent marked "AA", "BB" and "CC"
annexed to his replying affidavit. "AA" dated
26th May 1986 informs J.P. Lebona that, an oral intimation to him is
that he may not proceed with the development of site 739
Europe because a building in that area would obstruct the
Radio Lesotho masts erected nearby. "BB""
dated 11th July, 1986 informs Messrs Jobodwana, Pheko & Company
in response to their letter dated 27th May 1986, the lessee had
earlier applied for consent to transfer this site to one Moeketsi
Masithela but later changed his mind in favour of transferring it to
2nd Applicant, Apparently some considerable length of time
before 1st Applicant decided on the latter move. Meantime the
Minister was not inclined to give his consent in either case.
contrary and to add to his discomfiture 2nd Applicant was informed
that the Ministry of information and Broadcasting had
acquisition of six sites including site 739 so as to minimise any
interference likely to emanate from any development
intended by site
holders within the area close to the Radio Reception Building
situated there. The letter further contained an offer
amount of compensation or substitute or alternative sites to lessees
affected by this action of 2nd Respondent. It
discounted any hope of
2nd Applicant being compensated in' the sum claimed i.e. M139,000.00
as too high for an undeveloped site.
Copies of this letter were
addressed to 2nd Respondent and to the Principal Secretary for the
Ministry of the Interior. "CC"
dated 15th July 1986 is
also addressed to the previous addressee and is in response to Mr.
Pheko's letter dated 11th July 1986.
It furnishes information that
some six plots including site 739 held
1st Applicant are held under lease rights which are terminable under
provisions of section 54 of the Land Act, It also draws attention
the fact that all those sites have not been lawfully developed and
that no building permits have issued in respect of them; further
lessees have been advised of the intended acquisition including an
embargo placed on any processing of building permits in respect
these sites. In respect of the intimation that 2nd Applicant had
taken occupation of site No. 739 on the basis of a deed of sale
attention was drawn to section 35 of the Act.
In his heads of argument Mr. Nthethe submitted
that 1st Applicant desires to have site No. 739 Europa transferred to
2nd Applicant regard being had to the fact that the
former has sold
his rights in the said site to the latter. He strongly challenged the
respondent's failure to comply with section
54(1) which states
"Whenever it is necessary in the public interest to
set aside for public purposes land held under a lease, the Minister
consultation with the Principal Chief having jurisdiction and
upon obtaining the King's consent shall declare the land to be
Sub-section (2) thereof directs that the notice of
declaration by the Minister "shall" be given by the
Minister in the gazette and "shall" contain the following
(a) The name of the lessee in whose name
lease of the required land is registered.
A description of the land and its locationspecifying
its boundaries and extent.
The general nature and the purpose for whichthe
land is required.
The date on which the land shall be surrenderedby
the person in occupation.
(e) An assessment of the amount of compensation offered
and the method used for assessing such amount; and shall invite any
having any claim in the land to submit his claim to the
He further submitted that the omission or failure by the
Minister to comply with provisions of section 54 provides no evidence
this land is required in the public interest. There is also no
evidence that the Minister sought the King's consent. The use of
word "shall" as it appears in subsection (2) of
section 54 may not be taken lightly because it was enacted by the
legislature and therefore
because every enactment is remedial any
attempt by the Minister to act against it must be frowned upon and
the section must be
strictly and onerously interpreted against the
said Minister who has encroached on personal rights of a subject by
have acquired applicants' rights.
Mr. Nthethe invited the Court to come to the view
that the Minister's action has been very high-handed
and in some sense deliberately deceptive to the extent
that the Minister purports not to have given consent because sale of
this land was transacted without his consent. This
creates a doubt whether consent is being withheld because of the
over this land by applicants or because the land
is required for the public good. Thus it becomes obvious that his
refusal to give
consent is not based on the reason that the land is
required for public good but amounts to an excuse for giving vent to
on his part and for giving scant attention to the harm
occasioned by his disregard of the law. He submitted
further that to the extent that "AA" nowhere
says of the Commissioner of Lands "I have been instructed by the
in his address to 2nd Applicant it serves as clear proof
that 1st Respondent has the authority to process the transfer. The
that Ministerial consent has not been given can be blamed on the
Commissioner's failure to present the proper papers before the
for that purpose. It is only if the Minister has complied
with section 54 that he can rightly be heard to say that he is
his consent because it was never sought. Mr. Nthethe lays
a great store on the use of the words appearing in "BB"
"without prejudice" and "not yet" and
submits that these words amount to keying up applicants' hopes and
in that they imply "hold your horses, consent is
going to be given later". He submitted therefore that on the
of annexures "AA" "BB"and "CC"
written without reference to the Minister's authority in the
the Commissioner had in effect made applicants believe he
is the sole authority. This is a position from which the Commissioner
Referring to section 36(1) he submitted that "where
the consent of the Minister is required under section 35, such
not be unreasonably withheld." It is to be noted
that 36(2) has been repealed by Land (Amendment) Order 1986 and
thereof is identical with the replaced section.
However with regard to section 36 it is noteworthy that
the principal Act has been amended by Order No. 27/1986 by deleting
(1) which had been calculated at preventing the
unreasonable withholding of the Ministerial consent and in its place
section 36(6) places the matter beyond dispute by
"The decision of the Minister to withhold consent
under this section shall be final and shall not be
questioned in any Court of law."
In this posture of events it would seem that the task
for the Crown in the instant matter has been rendered much easier
have been the case but for section 36(6) of Order 27 of
In her arguments Mrs. Lekatsa for the Crown
submitted as provided in Land Procedure Act 1967, Chieftainship Act
1968, The Deeds Proclamation 1957, Land Act 1973
and the current 1979
Act it has been understood by Basotho that they have no power to
alienate, transfer or sell land to anyone in
perpetuity or as a
"private property" and to do with it as the "Owner"
pleases. See King Moshoeshoe 1' words
quoted by Theal in
Basutoland Records 1883 Vol.1 at p. 86 on inalienability of land
without chief's consent, or presently Minister's consent.
Referring to Kou vs Minister of the Interior and
Principal Chief of Matsieng CIV/APN/360/77. She relied on
a passage appearing on page 2 where Cotran C.J, as he then was said
"Another concept by no means unique in African land
systems, but also firmly entrenched in Lesotho Land Law to this day
no individual Mosotho or any other person for that matter,
has any right to own land as a simple freely negotiable commodity."
Written in the same vein section 36(5) stipulates that
"Any transaction conducted by a lessee without
consent of the Minister or contrary to the terms and conditions of a
shall be of no effect."
Evidencly in purporting to sell to 2nd Applicant the 1st
Applicant did not seek the consent of the Minister
because he did not think that any problems would arise.
Moreover he was pressed by the financial straits or predicant*
to which reference was made in his affidavit. What is
done contrary to law is considered as not done 4.Co. 31.
Furthermore Kou supra is authority for the view
that "the right of the prospective buyer is,
subordinate to the right of the Nation, and the State
which represents the Nation." Vide page 13.
Responding to the onslaught Mrs.Lekatsa submitted
that nowhere has Mr. Mohale said I am selling my rights.
This contrasts sharply with Applicants' head 2 of their
arguments. The purported sale is of undeveloped land
and has to be understood as such because there is no
property on it. All there is is the land of the Nation. Consent to
in Lesotho land law is no mere formality nor should it
be taken for granted. No sale of land can be effective without the
consent. Withholding of such consent is not debatable in
the Courts of law as shown above.
1st Applicant would thus seem to have laboured under a
delusion to entertain the view that the land belonging to him could
to another without any proper alienation or
forfeiture. Section 35(2) b as amended provides an answer to
instances of special circumstances
or speculative dealings in land.
The Minister of the interior is the one charged with the
responsibility of giving consent to transfers of leases. Mrs. Lekatsa
pointed out that in the instant matter consent was not unreasonably
withheld. The land was required for public purposes.
"Lex citius tolerare vult privatum demnum quam
publicum malum - The law will more readily tolerate a
private loss than a public evil or inconvenience" Co. Litt. 132.
In the same vein it is held in Jerik Cent. 185 that
"Privatum incommodum publico bono pensatur-Private
loss is compensated by public good."
Mrs. Lekatsa submitted that 1st Applicant has been
advised that in the circumstances of his case he will be
compensated only to the value of his undeveloped site or
alternatively a substitute site will be given. It would seem such
word in season hence the 1st Applicant would do well to hold
the Crown to its advice.
Consequently the Notice of Motion by applicants is
dismissed with costs.
ACTING JUDGE. 1st June, 1987.
For the Applicants : Mr. Nthethe
For the Respondents : Mrs Lekatsa.
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