CIV/APN/67/89

IN THE HIGH COURT OF LESOTHO
In the
matter between:-

MOTSEKI
MATHEOLANE Applicant

and

THE MANAGER OF SOFIA SCHOOL 1st Respondent

THE TOWN CLERK BUTHA-BUTHE 2nd Respondent

ATTORNEY-GENERAL 3rd Respondent

JUDGMENT

Delivered by the Honourable Mr. Justice J.L. Kheola on
the 30th day of June, 1989

On the 22nd March, 1989 the applicant obtained a court
order couched in the following terms:

"1. That the above Application be, and it is heard

as an urgent application and the forms and service
provided for in the Rules of Court are dispensed with

2. That a Rule Nisi be, and it is hereby issued calling
upon the Respondents to appear and show cause on the 31st day of
March, 1989
why an order in the following terms should not be
granted;

(a) Interdicting the first Respondent from

locking up the gate to the fence enclosing the premises
occupied by the applicant in the Butha Buthe urban area and from
interfering
(directlyor indirectly) with applicant's occupation of
the said premises in any other way.

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2. 
   declaring that the site occupied by the
   applicant
   which has been fenced in by the
   first Respondent was lawfully
   allocated to
   the applicant and that the Respondents have
   no
   right or authority to eject him summarily
   there from

   
   

3. 
   declaring that the site in question does not
   fall
   within a lawfully declared selected
   development area;

   
   

4. 
   alternatively to (c) above declaring that
   applicant
   is entitled to substitute rights
   in accordance with the
   provisions of Section
   46 (1) of the Land Act 1979;

   
   

5. 
   ordering the first and second Respondent
   jointly and
   severally to pay the applicant's
   costs on the scale between
   attorney and client
   (alternatively making such other order as
   to
   costs as the above Honourable Court may deem
   appropriate);

   
   

6. 
   granting such further or alternative relief
   as may
   be necessary or appropriate to protect
   the applicant's rights;

   
   

3. That prayer (a) above shall operate immediately as
an interim order pending the finalisation of this application."

According to a Form C (Annexure "A" to
applicant's founding affidavit) the applicant was allocated the land
in question
on the 14th March, 1980 by the Chief of Ha Mopeli. The
document has the date-stamp of the chief of Ha Mopeli. It is signed
by one
Mamahe Chenene. It is the respondents contention that the Form
"C" in question is a forged document on the ground that
the
signature in it is not that of Mamahe Chenene. It is also alleged
that Mamahe Chenene was not the Chief of Ha Mopeli.

These two issues cannot be resolved on the affidavits
before me. The said Mamahe Chenene is now late and under such

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circumstances proof of his signature would require
expert evidence or evidence of people who worked with him during his
lifetime.
It is not enough just to allege that it is not the
signature of the late 'Mamahe Chenene. As far as his position of
Chief of Ha Mopeli
is concerned, again we need evidence to rebut the
fact that on the face of that document Me appears to have been the
chief of Ha
Mopeli. The mere fact that we have not found a Notice in
the Government Gazettes that he was the chief of Ha Mopeli is not
conclusive
evidence that he was not such a chief. See Mofoka v.
Lehanela C. of A (CIV) 6 of 1988.

The Form "C" in question is said to be a copy
and not the original because the word "Kopi" is written on
the face
of it. I was shown the original and I have no doubt that it
is an original and not a copy of the original copy. It is not clear
to
me why the author marked it "Kopi". In any case even if
it is a copy that is the only copy of the Form "C"
allegedly
to have given to the applicant when he was allocated the
site.

It is common cause that by Legal Notice No.14 of 1980
which appears in Government Gazette No.29 dated the 22nd August,
1980, the area
where the site in question is located was declared an
urban area.

On the 7th November, 1986 the area where this site is
situated was declared a selected development area in Legal Notice No.
123 of
1986 in Government Gazette No.55.

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On the 11th May, 1988 the first respondent obtained a
lease under The Land Act 1979 for the area which included the site
allegedly
allocated to the applicant.

On the 18th March, 1989 the applicant went to his school
and upon his return home after sunset he found that the gate of the
fence
erected by the first respondent around the alleged school site
including his residential site was locked. Previously the gate had
always been left open and he and his family could go in and out
without any obstruction.

The first respondent admits that the applicant was
locked out of the premises on the 18th March, 1989. But he says that
it was not
done deliberately. He has annexed an affidavit of one
Tebelo Samo who was employed by the first respondent to erect a fence
around
the school premises. After he had finished fencing, the gate
leading into the school was always left open to enable the applicant
to come in and out as he wished. The situation changed on the 18th
March, 1989 because on the 16th March, 1989 property belonging
to him
(Tebelo) and Rapitso & Son Construction was stolen.

On Saturday the 18th March, 1989 he was instructed to
lock the gate and he was given a spare key to give to the applicant.
Unfortunately
he forgot to give it to him. He deposes that on the
19th March, 1989 he went to the house of the applicant to go and hand
over the
spare key to him and to apologize for not giving him the key
on the previous day. He was told that he had just left for the bus
stop.
He found the applicant at the bus stop and

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apologized to him. He further told him that the gate had
been locked for security reasons because there had been theft of
property
at the building site. The applicant refused to accept the
key on the ground that he was going to see his attorney and that he
did
well to lock him out. The gate has never been locked again since
the 18th March, 1989.

In his replying affidavit the applicant denies that
Tebelo Samo went to his house on the following day and asks why he
could not have
left the key at his house instead of going to the bus
stop with it. He also denies that the said Tebelo Samo found him at
the bus
stop and apologized. He admits that when he returned to his
home on the 20th March, 1989 he found that the gate had been left
open
and it has never been closed since then. He says that Tebelo
Samo could not have found him at the bus stop because he never went
there. He used a special bus with his students and never went to the
bus stop.

Whether Tebelo Samo did in fact go to the applicant's
home on the following day and subsequently went to the bus stop and
offered
the key to him, are matters which cannot be decided on
affidavits. Viva voce evidence has to be heard but the
applicant never made such an application. The Court has the power to
order that oral evidence must
be led where there is a dispute of fact
capable of being speedily resolved. Rule 8 (14) of the High Court
Rules 1980 reads as follows:

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"If in the opinion of the court the application
cannot properly be decided on affidavit the court may dismiss the
application
or may make such order as to it seems appropriate with a
view to ensuring a just and expeditious decision. In particular, but
without
limiting its dis­cretion, the court may direct that oral
evidence be heard on specified issues with a view to resolving any
dispute
of fact and to that end may order any deponent to appear
personally or grant leave for him or any other person to be
subpoenaed to
appear to be examined and cross-examined as a witness,
or it may order that the matter be converted into a trial with
appropriate
direc­tions as to pleadings or definition of issues
or other­wise as the court may deem fit."

I do not propose to hear oral evidence or to order that
the matter be converted into a trial because 1 am of the opinion that
the
applicant hurriedly and unnecessarily came to Court before he had
found out why the gate had been locked. He went to the home of
the
first respondent on the evening of the 18th March, 1989 and was told
that the first respondent had gone to Maseru. On the follow­ing
morning he came to Maseru and made no attempt to call at the home of
the first respondent before he (applicant) came to Maseru-When
he
returned to Butha Buthe on the 20th March, 1989 he found that the
gate had been left open and it has never been closed since then.
Even
on the 20th March when he found that the gate had been opened he made
no attempt to find out what had happened. He decided to
go ahead with
this application.

In paragraph 12 of his founding affidavit the applicant
alleges that he verily believes that the first respondent
delibera­tely
and maliciously locked the gate presumably in order
to exert pressure on him to abandon his site. He has failed to
establish on a
balance of probabilities that the first respondent had
that inten­tion. According to Tebelo Samo the failure to give him
the
spare

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key was not intentional. There is a serious allegation
that the applicant refused to accept the spare key on the following
day and
said that he was going to see his attorney and that Tebelo
Samo had done well to lock him out. He was informed that the gate had
been left open.

On the 20th March, 1989 when the applicant found that
the gate had been left open he did not stop his attorney from lodging
this application
a day later. It seems to me that the applicant wants
to get a final interdict against the respondents. In order to get a
final order
(interdict) he must prove three things namely:

1. 
   a clear right;

   
   

2. 
   injury actually committed or reasonably
   apprehended;
   and

   
   

3. 
   the absence of similar protection by any
   other
   ordinary remedy. See Setlogelo v.
   Setlogelo, 1914
   A.D. 221 at p. 227

   
   

I shall assume that the applicant was allocated this
piece of land on the 14th March, 1980. On the 22nd August, 1980 the
area where
the site is situated was declared an urban area. In terms
of section 15 (2) of the Deeds Registry Act 1967 the applicant was
under
an obligation to apply for a registered certificate of title to
occupy or use land within three (3) months of the issue of the
certificate
(Form C). In the present case the applicant ought to have
applied for the said certificate from the Registrar of Deeds within
three
(3) months after the area was declared an urban area.

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Subsection (4) of section 15 provides that failure to
lodge the Form C with the Registrar in terms of subsection (2) shall
render
the Form C 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.

If my interpretation of section 15 is correct regarding
the occupation of land by people who were allocated such land before
the land
was declared an urban area, then the applicant's right to
occupy the land was extinguished three months after the declaration.

Section 44 of the Land Act 1979 provides:

"Where it appears to the Minister in the public
interest so to do for purposes of selected development, the Minister
may by notice
in the Gazette declare any area of land to be a
selected development area and, thereupon all titles to land within
the area shall
be extinguished but substitute rights may be granted
as provided under this Part."

Section 46 (1) and (2) read as follows:

"(1) Subject to subsection (2) and to section 47,
where the selected development area consists wholly or partly of land
used
for purposes other than agricul­ture, lessees and allottees
of such land shall be entitled to be offered in exchange by the
Minister
leases within the selected development area, for the same
purposes as those for which they previously held the land, of the
same
plot with or without amend­ment of the original boundaries
thereof, if this is consistent with the development scheme, or of
any
othe plot.

(2) Where the development scheme is such as not to
permit the grant of a lease for the purpose of which the lessee or
allottee formerly
held the land, the lessee or allottee shall have
the option of either accepting a plot for any one of the purposes of
the development
scheme or of claiming compensation for being deprived
of his lease or allocation."

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I am of the opinion that the applicant's title to
occuply that piece of land was extinguished immediately after the
area was declared
a selected development area. His entitle­ment
was that prescribed by section 46. The Honourable Minister of
Interior is under
an obligation to offer the lessees and allottees,
in exchange of their plots, leases within that develop­ment area
or they may
claim compensation.

I have no doubt in my mind that in terms of section 44
the applicant's title to the land in question was extinguished on the
7th November,
1986 when the area was declared a selected development
area. He must have vacated the land immediately or after a reasonable
time.
However, he defied the declaration to such an extent that as
late as 1988 he started building his house on that site. The
applicant
is definitely in unlawful occupation of the land in
question and has to be dealt with in terms of section 87 of the Land
Act 1979.
There is no provision in the Land Act or the Deeds Registry
Act that after a person's title to land has been extinguished he or
she
is entitled to remain in occupation till he or she has been given
another site or compensa­tion.

I should not be understood to mean that the first
respondent was entitled to lock the gate and by so doing force the
applicant to
vacate the site. I mean that by recourse to law the
first respondent may have the applicant ejected from the property
because he
is in unlawful occupation of the land.

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Dr. Tsotsi, applicant's attorney, submitted that
the applicant claims right of retention on the ground that he is a
bona fide occupier of the land because he has a Form C. A
bonafide occupier is a person who occupies land under the bona fide,
but mistaken,
belief that he has a lease of the land; See Principles
of South African Law, fifth edition by Wille at page 191. I do not
think that
the applicant can be regarded as a bona fide
occupier because he knew that his right or title to occupy the land
had been extinguished by law. He knew that that piece of paper,
Form
C, had been rendered null and void by law. I am of the opinion that
he is.a made fide occupier who is not entitled to retention of
the property nor is he entitled to compensation of the improvements
he has made.

The declaratory orders the applicant is seeking cannot
be granted on the ground that even if the site was lawfully allocated
to him
his title to the site was extinguished by law. This Court
cannot authorise or prolong his unlawful occupation of land in
defience
of a lawful declaration by a proper authority. In addi­tion
to that the applicant has failed to prove that the locking of the
gate was malicious and was with the intention of locking him out of
the premises. There is evidence by Tebelo Samo that he locked
it and
forgot to give the spare key to the applicant. As I have already said
there is a dispute of fact as to what happened on the
following day.
I am unable to decide that dispute on affidavits. Where there is such
a dispute of fact this Court has a discretion
to dismiss the
application if the applicant foresaw or ought to have foreseen that
such a dispute would arise. The applicant knew
very well that
his occupation of the site was being challenged but he decided to
institute application proceedings instead of an action.

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The interim orders granted on the 22nd March, 1989 and
on the 12th May, 1989 are discharged with costs.

J.L. KHEOLA JUDGE

30th June, 1989.

Dr. Tsotsi for the Applicant

Mr. Maqutu for the first Respondent

Mr. Mohapi for the first and second Respondents.