IN THE APPEAL COURT OF LESOTHO

C of A (CIV) 25/04

 

In the matter between:

 

ATTORNEY-GENERAL FIRST APPELLANT

MINISTER OF LOCAL GOVERNMENT SECOND APPELLANT

and

LOANIKA MOLETSANE & 42 OTHERS RESPONDENTS

 

6, 20 April 2005

 

CORAM: Grosskopf, JA

Smalberger, JA

Gauntlett, JA

 

JUDGMENT

 

Land Act, 1979 - declaration of Selected Development Area in terms of section 44 - threatened eviction without compensation of bona fide occupiers having effected useful improvements - application of s.17 (1) of Constitution of Lesotho.

 

GAUNTLETT.

 

JA Introduction

 

[1] The respondents in this matter have homes at Phomolong Ha Tikoe, an area a short distance outside Maseru. As applicants in the High Court (before Maqutu J), they sought a declaratory order (citing the Attorney-General and the Minister of Local Government as respondents) that they must be compensated

 

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before the latter can secure their eviction from sites they say they occupy. In addition they sought an interdict against their removal or the demolition of their houses without compensation first being paid.

 

[2] The hearing in the High Court proceeded intermittently. A few days before the final hearing, the respondents sought leave to amend their notice of motion, supported by further affidavits. They wished to secure a declaration of invalidity of the area as a selected development area ("SDA"), within the meaning of s.44 of the Land Act, 1979 ("the Act"). The court refused the application, giving reasons in its judgment in the main matter, to which I revert later.

 

[3] At the end of its lengthy judgment, the court nevertheless proceeded to make this order:

 

"It is ordered:

 

1. That respondents be and are interdicted......from removing or demolishing the houses of applicants.

 

2. The Selected Development Area is declared null and void for failure to comply with the following requirements.

 

(i) Failing to first consult with the applicants and other occupiers of land and seeking their co-operation and consent.

 

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(ii) Failing to specify the purpose or nature of the envisaged Selected Development Area in Legal Notice No. 17 of 1999.

 

(iii) Failing to specify in the Schedule of Legal Notice No. 17 the specific properties that are to be the subject of the Selected Development.

 

3. Depending on the outcome of the consultation that must precede the Selected Development Area, those of the applicants who did not fraudulently occupy and develop land after June 1999, should be compensated in so far if their lands, sites and properties are adversely [affected] by the future Selected Development Area whose purpose is clearly stated.

 

3. Respondents are directed to pay costs."

 

The essential issues

 

[4] On appeal two essential issues emerged. The first is whether the respondents had established that they indeed had rights arising from their alleged occupation in good faith of the land in contention and erection of homes on it. If they had such rights, the question arose whether (as the appellants contended) those rights were not extinguished upon the proclamation as a SDA of the area of Phomolong Ha Tikoe as Phomolong Maseru South Urban Area, with the fact that compensation had not yet been received affording no bar to eviction.

 

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The statutory context

 

[5] The statutory context in which these inquiries arise may be shortly stated. The Act (which came into effect on 16 June 1980) introduced an altered form of land tenure in Lesotho. Land was vested in the Basotho nation, power to grant title being vested in the King and in the case of urban land, the particular Urban Land Committee with jurisdiction. Legal Notice 14 of 1980 proclaimed (in terms of s.19 (2) of the Act) that Ha Tikoe fell within the Maseru Urban Area. On 10 March 1999 a further notice (Legal Notice 17 of 1999, issued under s.44 of the Act) declared Ha Tikoe a SDA.

 

[6] Section 44 of the Act provides:

"44. 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 45 (3) (inserted in the Act by s.19 (b) of the Land (Amendment) Order, 1986) in turn states:

 

"(3) Where the Minister has declared any area of agricultural land to be a selected development area under this section, the lessee or allottee of such land shall be entitled to compensation for any loss incurred through being deprived of his land."

 

The respondents' case

 

[7] The respondents' case in their founding affidavit was that they were "occupants of certain sites situated within the boundaries of Phomolong Ha

 

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Tikoe"; that these had been duly allocated to them in terms of the Act (certain certificates of allocation being attached in proof); that they resided and continued to reside there, having constructed houses on the sites. These houses constituted "improvements on the sites we occupy and have enhanced the value thereof. The main deponent proceeded to replicate, in comprehensive terms, the protection afforded by s.17 of the Constitution, and to assert the lack of any entitlement of the authorities to remove the respondents - as soldiers and police had arrived to do - "without compensation as contemplated by law". The respondents also complained that they had been deprived of their rights without having been accorded a hearing.

 

[8] The appellants have sought to meet this case (in the answering affidavit of the Principal Secretary of the Ministry of Local Government) in several ways. The first is to point to apparent deficiencies in a significant number of the certificates of allocation put up by the respondents. The second is to rely on a cryptic statement by the appellants' main deponent that at the time of a Pitso held (in June 1999) to inform both "illegal occupants of the area" and "lawful field-owners of their situation", "[t]here were no sites in this area". The third is to refer the respondents to "the remedy ... [of suing] the field-owners for the return of the money which they unlawfully paid to them for the illegal transactions" (that is, procuring certificates of allocation which, for varying reasons, are said to be invalid). The appellants' case in short was a denial of any rights of the respondents - whether as allottees in terms of s.44 of the Act, or as bona fide

 

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occupiers who had effected useful improvements - and to rely on s.44. together with the proclamation of the area as a SDA, as authorizing eviction without prior payment of compensation, since none was due.

 

The first main issue

 

[9] The first main issue, I have said, is whether the respondents have established any rights such as to found the declarator and interdict sought. This was a matter of considerable debate in argument. It is not necessary in my view to go beyond the following.

 

[10] As already noted, stripped to its core the respondents' claim of right is as bona fide occupiers who have effected improvements, prior to the Pitso held in June 1999. If that is correct, and applies to each, their varying further claims as holders of certificates of allocation do not require determination. In oral argument senior counsel for the appellants accepted that they would not be entitled (in view of s. 17 of the Constitution) to evict the respondents if indeed the latter were bona fide occupiers with a common law lien arising from that status and the effecting of useful improvements enhancing the value of the land.

 

[11] I consider that the claim as bona fide occupiers who have a lien on the land occupied in respect of useful improvements is made out, and is not the subject of a genuine dispute of fact. To start with, the pertinent allegation by the respondents that they were residents of the area is not traversed. Nor is their

 

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reference to making "further developments" by admission developments had been effected by them prior to the Pitso And as against this there is only the bald statement by the Principal Secretary, to which reference has already been made, that "[t]here were no sites in this area" What this intends to convey is not apparent. It does not squarely address the contention that the respondents were residents, in homes they had already erected. It may from its context intend to challenge the legality of the certificates of allocation, but that is no answer to the lesser claim that the respondents were bona fide occupiers who had effected improvements. And in the latter respect, evidence was presented by both sides (in the form of independent expert valuations with supporting material including photographs) establishing that the respondents' homes had significant value (totalling some M3 million). Clearly on the evidence the homes built, in what was an urban area since 1980, close to Maseru, were useful improvements The appellants' attempt to rely on Joy to the World v Malefane [1995 - 1999] LAC 313 at 316 I is misplaced.

 

[12] In short, the appellants' denial that there were any "sites" (whatever that may quite mean) at the time of the Pitso is not only cryptic. It is inconsistent with the implicit admissions to which I have referred. It is also inconsistent with a later and equally vague and unsubstantiated assertion that the improvements were effected during "1999/2000" (The inquiry, as has been noted, is whether they were effected before the Pitso in June 1999). It is in itself, moreover, given the fact that the status of the land as an urban area had been declared fully 19 years before, thus opening the way for its residential use, inherently implausible. There is what Corbett JA has described as "the general reluctance of the court in motion proceedings to decide finally genuine and fundamental disputes of facts purely on the basis of probabilities disclosed in contradictory affidavits "(Kalil v Decotex (Pty) Ltd. 1988 (1) SA 943 (A) at 979 G-H). But this is not such a case : the dispute, on closer scrutiny, is not a genuine one, and the reference to the probabilities is not exclusive. The present is not the kind of case this court had in mind in Ramahata v Ramahata [1985-1989] LAC 184 at 185, when it disowned an ability "to decide which typewriter to believe".

 

[13] I accordingly find that at the time the SDA was declared and at the time of the Pitso, the respondents were bona fide occupiers who had effected improvements. This is in relation to the respondents generally. The exact nature and extent of the improvements is however not a matter on which it is currently necessary or indeed appropriate to make a finding now. This is particularly in view of considerations to which reference will be made later.

The second issue

 

[14] The second issue, as indicated in paragraph [4] above, is whether the rights of the respondents (arising from their bona fide occupation of the land in contention, together with the fact that they had effected useful improvements) had not been extinguished upon proclamation of the area as a SDA. The respondents' case was that the court a quo had been right to declare the SDA

 

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invalid, but that in any event even if that is not so, they cannot be evicted except against payment of compensation.

 

[15] It will be noted that the provisions of ss. 44 and 45 of the Act do not address the position of persons who are no more than bona fide occupiers who have effected improvements. But s.17 of the Constitution does. It prohibits the compulsory acquisition of any right or interest in property, save where three conditions are met: the acquisition must be necessary (in specified respects); it must be such as to justify consequential hardship; and provision must be made by the law applicable to the acquisition "for the prompt payment of full compensation". In oral argument, counsel for the respondents contended that the declaration of a SDA under the Land Act of land occupied by bona fide occupiers and threatened demolition of their homes pursuant to such declaration amounted to a compulsory taking possession under s.17, Counsel for the applicants did not contend otherwise. The protective wording of s.17 is significantly wider than that to be found in certain comparable provisions (see for instance article 16 (2) of the Constitution of Namibia and s.16 (1) of the Constitution of Zimbabwe, analysed in Hewlett v Minister of Finance 1982 (1) SA 490 (ZS), per Fieldsend, CJ), and is itself to be given a generous interpretation (ibid, 495 B - 496 E; and Government of the Republic of Namibia v Cultura 2000 1994 (1) SA 407 (NM Sc) at 418 F-J).

 

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[16] Reliance on the terms of s.17 of the Constitution was clearly pleaded in the founding affidavit, such as to meet the established test (Naude v Fraser 1998 (4) SA 539 ((SCA) at 558 A-D; National Director of Public Prosecutions v Philips 2002 (4) SA 60 (W) at 106 C - 107 G).

 

[17] What of the fact that the respondents had tried and failed to secure an amendment directed at a declaration of the invalidity of the SDA - yet the court a quo in its ultimate order struck the latter down? Counsel on neither side was able to explain how this came to happen. Counsel for the respondents however sought to defend that part of the order on the basis that s.22 of the Constitution gives a court wide and flexible powers when a Chapter II right (thus including s.17) is involved. There are two difficulties with this. The first (leaving aside a complaint that procedures for constitutional litigation laid down in GG 104 of 14 December 2000, as authorized by s.22 (6) of the Constitution, not been followed here) is that the court nowhere purported to exercise its particular powers under s.22 -but rather acted in a manner wholly inconsistent with its earlier order refusing the amendment. (That refusal had been on the basis inter alia of a finding of prejudice to the appellants). The second is that it had no power in the circumstances to grant relief not only not sought at that juncture by either party (cf. Director of Hospital Services v Mistry 1979 (1) SA 626 (A) at 635 G) after it itself had refused to allow its introduction, but without eliciting any argument in relation to it (as counsel on both sides confirmed). It is no answer to contend (as counsel for the respondents sought to do) that the appellants were not prejudiced

 

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by the annulment of the SDA in this way because the basis for its validity had been attacked in the founding affidavit. The court a quo had itself held that the appellants would be prejudiced by such an order being sought. Besides, the objection lies at the level of principle: it is generally no answer to the complaint that a party is not heard when it should be that if it had been heard the outcome would not have been different (Administrator, Transvaal v Zenzile 1991 (1) SA 21 (A) at 37 C-E, per Hoexter, JA).

 

[18] In these circumstances, the declaratory order added by the court a quo to the relief actually sought and canvassed cannot stand.

 

[19] Since the SDA was not validly set aside, the question now arises as to its effect. It was not argued for the respondents that, absent such a declaration of invalidity, the declaration of the area as a SDA could be collaterally challenged (cf. Oudekraal (Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 622 (SCA), and further authorities there considered). What was argued was that s.44 of the Act, construed in a manner which is congruent with s.17 of the Constitution (as s.2 of the Constitution of Lesotho requires it to be), prohibits a compulsory taking of possession or acquisition of any right or interest in land, except against compensation. The appellants have neither effected compensation nor tendered "prompt payment" (s.17) : their stance is that the respondents are entitled to none, and must (as noted above) pursue what remedies they may have against those from whom they may have acquired their alleged entitlement to the land

 

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they occupy (in the form of the certificates of occupation largely disputed by the appellants).

 

[20] For the reasons given above, the appellants' contention that the respondents' rights - at least as bona fide occupiers who had effected useful improvements - cannot be sustained. The appellants accepted that if this were so, then rights of this kind (cf. Pages Stores (Lesotho) Pty Ltd v Lesotho Agricultural and Development Bank [1990 - 1994] LAC 51 at 63 F-G) are compensable under the Act, read with s.17 of the Constitution. But they submitted "that there is no provision that persons deprived of their land must be compensated before they leave the land", referring to sections 44, 45 and 46 of the Act.

 

[21] The Act is indeed silent in that regard. But that is not the end of the matter. Section 17 (1) (c) of the Constitution requires any law providing for a compulsory taking of possession or acquisition of a right in law to make provision "for the prompt payment of full compensation". The suggestion that because the Act is silent in this respect, there is no such obligation, attracts an attack that the Act is pro tanto inconsistent with the Constitution, and to the extent of that inconsistency invalid (s.2). It is however not necessary or appropriate for us to consider further that logical implication, more particularly when the matter was not argued in those terms. It is enough for present purposes to say that the Constitution does not countenance a taking of possession of property or its

 

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acquisition without prompt payment of compensation. Whether that contemplates payment pari passu the taking, so as to enable affected parties to acquire substitute property (in this case, homes) without any delay, is equally not now a matter to be determined.

 

[22] To sum up. The respondents established adequately in the motion proceedings that they had rights to the affected land, albeit not as holders of certificates of allocation (a matter we have not determined). They were bona fide occupiers who had effected useful improvements to the land (already proclaimed an urban area) by erecting homes accorded by expert and independent valuers on both sides a significant worth. The appellants nonetheless assert a right to evict them without compensation. They may not do so.

 

[23] The respondents have succeeded on appeal in securing the key protection accorded to them in the court below. They have been substantially successful. Their failure to sustain the declaration of invalidity of the SDA does not detract from this. Nor did argument in that regard before us materially affect costs.

 

[24] The appeal is accordingly dismissed with costs, including the costs of two counsel. The order of the court a quo however requires to be set aside and substituted with an order.

 

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1. Declaring that the applicants are entitled to be compensated in respect of such value relating to useful improvements, as each may be able to establish, to the land occupied by them at Phomolong Ha Tikoe as at 6 June 1999.

 

2. Interdicting the respondents from removing or demolishing any such improvement, or evicting any of the applicants from the land and home occupied by him or her at Phomolong Ha Tikoe, without compensation first being paid in terms of 1.

 

3. Directing the respondents to pay the applicants' costs of suit.

 

J.J. GAUNTLETT

JUDGE OF APPEAL

 

I agree.

 

F.H. GROSSKOPF

JUDGE OF APPEAL

 

I agree.

 

JW. SMALBERGER

JUDGE OF APPEAL

 

Counsel for the appellants: H.P. Viljoen, SC (with him, D. Molyneaux)

Counsel for the respondents: P. Kennedy, SC (with him, K. Mosito)

 

Maseru

20 April 2005