IN THE HIGH COURT OF LESOTHO In the
MPHO JOYCE VALENTINE Applicant
MABOTE PROJECT 1st Respondent
COMMISSIONER OF LANDS
AND SURVEY 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
10th day of February, 1992
Before arguments were heard counsel for the respective
parties informed Court as follows :-
the matter before Court is partly agreed onin that
the respondents wish the applicant tosurrender her Form C to the
respondents forpurposes of processing and of eventualissuing
of a lease. The applicant is willingto so surrender her Form C.
The dispute however remains unresolved in sofar as
the respondents wish the boundary bereduced from where it
The parties sought an order encompassing their desire
that compliance by the respondents with terms agreed on in (1) above
be effected within three months of the applicant's surrender
of her Form C or alternatively on or before 29th March, 1992
is the later.
The applicant filed an application ex-parte and later
obtained an interim order calling upon the respondents to show cause
the 1st respondent should not be ordered andcompelled
to immediately survey the applicant'ssite situate at Ha Mabote,
the 2nd respondent should not be ordered andcompelled
to process a lease in favour of theapplicant immediately upon
compliance by the1st respondent with the prayer loc cit.
Alternatively it was prayed and ordered that the 1st and
2nd respondents should accept and\or approve the survey made by Mr.
The application is opposed by the respondents who even
raised a point of law in limine set out as follows and argued on the
"(1) that applicant's alleged title to the site at
Khubetsoana became extinguished in terms of the law when
the area, which includes her alleged site, was declared a selected
area by the Minister" (See Annexures "A"
and "B" attached to the respondents' papers).
"(2) that, consequently, applicant has no cause of
action against respondents in the absence of an allegation and proof
that she applied for and was granted substitute rights within
the area by the Minister after the aforesaid declaration".
"(3) that, consequently, applicant illegally built
the house at Khubetsoana within the Mabote Project Area particularly
she had been informed that the site falls within the Mabote
Project and she disregarded the warning".
The respondents accordingly sought a Court order
declaring the applicant to be in illegal occupation of the site at
the Mabote Project Area and dismissing the
application as well as discharging the rule with costs on attorney
The applicant relies mainly on her affidavit supported
by that of her attorney Miss Mofolo.
The Court has noted at paragraphs 6 to 11 of Miss
Mofolo's affidavit that she has laid serious charges of
indifference by the officers of 1st and second respondents to her
to give her and or her client the necessary service
required of a public office. Instead she kept on being fobbed off
with this or
that other excuse culminating in no service being
rendered to her. Had she prayed for costs exigible personally from
the named culprits,
I would not have hesitated to grant them for her
pains and frustration.
The Court takes this attitude because in reply to MissMofolo's charge at paragraph 9 that "following our
failure to have the site surveyed, I made numerous attempts to see
Mr. Langa but in
vain" the deponent Langa Tomane's nonchalant
and cavalier response in paragraph 7 is "contents herein are not
This curt attitude becomes even the more intolerable
because it does not address itself to the amount of time Miss
Mofolo makes reference to in paragraph 8 showing that she saw
Langa at 8.00 a.m. and the latter undertook to follow her immediately
site where she waited till 11.00 a.m. without any Langa in
However coming to the merits of the case it would seem
the applicant's contention that the size of her plot should remain as
before the Declaration of Selected Development Area law came
into effect is untenable. The effect of her contention
is that she does not recognise the reduction of the size of her plot
came about as a result of the law passed by a competent
authority in the land.
Mr. Mapetla for the respondents conceded that the
Crown is prepared to grant a lease to the applicant in terms of a
survey done in terms of the
Mabote Project. He contended that this in
fact was the condition upon which the Crown agreed to grant that
lease. Hence the point
of law raised by him is that it would not be
correct that the point of law raised earlier but which was not
first in this proceeding as it should rightly
have been, fell away as soon as the agreement was made because ' the
fell within the Selected Development Area.
Because the site in question fell within the Selected
Development Area all rights affected by the Declaration in question
It is regrettable that the applicant did not avail
the proper procedure to challenge the Declaration if she
In terms of the relevant procedure set out in the law
persons are at large to apply for substitute right or
as the case may be.
It would seem therefore that there is merit in Mr.
Mapetla's contention that Mabote Project is charged with the
responsibility of implementing the infrastructure of the area in
question. In the
process it stands to reason that sizes of sites within
the area would be affected especially when roads are being
constructed in the
I am satisfied that if the applicant's view were to be
entertained then an absolute nonsense would thereby be made of the
essence and purpose in being enacted is the realisation of
results opposed to the applicant's contention.
Indeed if it were still to remain within the rights of
people affected to have their sites surveyed repeatedly and their
the enacted law would be as good as non-existent
I accept Mr. Mapetla's contention that the
applicant has no right in law to demand that her site be surveyed
again and her lease re-examined and treated
as it was before the
enactment of the law.
Reference was made to the question of a septic tank and.
toilet on the applicant's site. It was brought to the Court's
these two things were erected by the applicant only
after she had been made aware of the new boundary resulting from the
by the Mabote Project. Instead of there and then
challenging this state of affairs in Court she disregarded the new
this regard one would think she had only herself to
Miss Mofolo contended that the applicant had a
right to bring this case as the reading of Section 46(2) of the 1979
Land Act seems to provide.
She buttressed her contention by arguing
the land under the Mabote Project was for residential
purpose. As at the time of its inception people were already residing
Had there been no section similar to Section 46 above people
residing there could be thrown out to make way for others coming in.
That, she contended, would be the height of absurdity. Thus it would
seem this section militates against arbitrary action by the
Miss Mofolo further invited the Court to consider
that the width of the road at the particular area is quite sufficient
and need not be extended
to encroach on the applicant's property. But
the Court's attitude is that the issue of determination of sizes of
roads in terras
of the Roads Act 1969 is not a matter for this Court.
The relevant law under which the Mabote Project is
undertaken makes provision for compensation of affected parties but
denied herself benefits flowing from such law in the
event that her rights were adversely affected.
Miss Mofolo pointed out that the applicant
complied with Section 54 of the 1979 Land Act saying persons should
submit their claims to the Minister.
She further stated that it was
never indicated to the applicant that her claim was extinguished and
other rights created.
I think there is merit in Miss Mofolo's
submission that respondents failed to make certain communications to
applicant and instead made others which there is no denial of
papers. Thus no
how can respondents be heard to say the applicant has
failed to comply with those terms. To my mind this failure signifies
laxity on the part of the 1st and 2nd respondents
which I alluded to earlier in reference to Langa's indifference that
description. However this failure does not go to the
essence of the matter before me.
I have referred to the Court's displeasure at the
unwholesome treatment to which an officer of this Court was subjected
of the Crown when she was dutifully trying to pursue the
rights of this Kingdom's subject. It is about time that such
was seen not to be limited to mere oral admonition. It
cannot be proper to suffer any public officer to manifest callous
of the interests, anxiety and suffering of others and let
him get away with it.
The application that the 1st respondent be compelled to
survey the applicant's site and further that upon compliance
2nd respondent be compelled to issue a lease in favour
of the applicant is dismissed.
But because of the trouble that the applicant and her
attorney were put to by the attitude of Jack-in-office manifested by
Servants there will be no order as to costs.
The agreement in terms of Clause (1) between the parties
the incidental clause flowing therefrom are made order
The Registrar of this Court is ordered to deliver copies
of this judgment to the relevant department heads of the 1st and 2nd
who in turn should bring home to their subordinates the
grim light in which this Court views their actions.
JUDGE 10th February, 1992
For Applicant : Miss Mofolo For Respondents: Mr. Mapetla
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