CIV/APN/489/2006
IN THE HIGH COURT OF LESOTHO
In the matter between:
GILBERT HLALELE MOKHOFU APPLICANT
AND
MAKHOKOLOTSO MALEFANE 1st RESPONDENT
MOOKHO MALEFANE 2nd RESPONDENT
OCCUPANTS OF PLOT NO. 12281-275 3rd RESPONDENT
OFFICER COMMANDING MASERU 4th RESPONDENT
ATTORNEY-GENERAL 5th RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo On the 3rd September, 2007
This is an application in which the applicant has applied to this court for an order in the following terms:-
That the rule of this Honourable Court pertaining to periods and modes of service be dispensed with regard being had to the urgency of the matter.
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That a rule nisi be issued calling upon the respondents to show cause on a date to be determined by this Honourable Court why:-
That the 1st respondent and 2nd and 3rd respondents be ejected from premises known as Plot NO. 12281-275 situated at Ha Hoohlo, Maseru Urban Area;
That the 1st, 2nd and 3rd respondents be interdicted and restrained from interfering in any manner with the rights of applicant on Plot NO. 12281-225;
(That the Officer Commanding Maseru Police Station assist the 1st respondent and Deputy Sheriff on the above mentioned Honourable
Court in the execution of any of the orders granted in terms hereof;
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Interdicting and restraining the 1st respondent from interfering with any way whatsoever with the process of lawful execution of a Warrant of Execution against Immovable Property issued by the Registrar of the above-mentioned court;
Declaring the applicant to the lawful holder of rights to the property fully prescribed as Plot NO. 12281-275 situated at Ha Hoohlo, Maseru Urban Area;
Applicant be granted costs;
Granting such further and/or alternative relief as this Honourable Court may be necessary in the circumstances.
Those prayers 1 and 2(a), (b), (c) and (d) operate with immediate effect as an interim interdict.
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Effectively applicant's prayers are for:-
(a) Ejectment, (b) Interdict and (c) Declaratory.
In receipt of the application 1st respondent opposed also lodging a counter application and application to lead viva voce evidence.
According to the applicant, he holds title to the property referred to as Plot NO. 12281-275 situated at Hoohlo's in Maseru Urban Area and he has attached his Lease (paragraph 4). When on 18th July, 2006 applicant went to the site, he found 1st and 2nd respondents were in occupation of the site and he reported to the police eventually attending a meeting at the Department of Lands and Survey and Physical Planning where respondents were requested to furnish proof of their title failing which to vacate the property later applicant found 1st and 2nd respondents had vacated the property removing their caravan from the property (paragraph 5). Applicant had also approached a developer to
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develop the site (paragraph 6). When, however, the applicant and developer went to site inspection, they discovered 1st and 2nd respondents had re-occupied the site removing pegs delimiting dimensions of the site and fencing. There was a delay to develop site resulting in financial loss (paragraph 7). At paragraph 8 the applicant has claimed the matter is urgent as the site is a commercial site and it is alleged 1st and 2nd respondents have rented the site out and are in a process of selling it.
The court has scrutinized the Lease referred to above and finds that is appears in the name of Anna 'Matlelima Hlalele dated 2nd August, 1988 (p.9) and that the Lease was transferred by Anna 'Matlelima Hlalele to Gilbert Hlalele Mokhofu on 22nd March, 2001 registered under Title 26365 so that, according to the Deeds Registry records, Plot NO. 12281-275 was transferred by the holder Anna 'Matlelima Hlalele to Gilbert Hlalele Mokhofu. In answer to applicant's paragraph 4 that he is the lawful holder of all right in property referred to as Plot NO. 12281-275, at paragraph 3 of
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her Founding Affidavit, 1st respondent while admitting the site is registered under Plot NO. 12281-275, the 1st respondent alleges the lease number including its subsequent transfers have been erroneously issued in the name of Mothabathe Mapholo, the site having been allocated to his uncle Malefane in 1962 not formerly registered but the property of Malefane who is deceased. She also says Molefi Malefane went to work in the Republic of South Africa and left her in occupation and she has had sporadic unlawful occupants among them 'Matlelima Hlalele and the applicant.
It will be noticed that while the 1st respondent admits registration number of the site, the respondent alleges the lease number including the subsequent transfers have been issued in the name of Mothabathe Mapholo and yet 1st respondent has not supported his allegations by backing them with documentary evidence to the effect because before me I have a lease in the name of Anna 'Matlelima Hlalele transferred to Hlalele Mokhofu. She also says site allocated to his uncle Malefane in 1962 but here again there is no
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evidence to the effect mindful of the fact that with the coining into effect of Land laws, properties not registered were to be registered as proof of title. I am of the view such a title should have been annexed to 1st respondent's proceeding papers to raise a dispute of fact. This court has no problem with Molefi Malefane having left 1st respondent in occupation of the site, the only problem being whether the said Molefi Malefane has, in the eyes of the law, title to the property. I find 1st respondent's allegation that she has been having sporadic occupants like 'Matlelima Hlalele and the applicant misguided and untenable in that these two were and are not, in the eyes of the law, unlawful occupants' logic describing them as such being twisted in the extreme. It is against this background that Mr. Hlaoli's application to have the matter referred to trial was rejected, rejected because 1st respondent's founding papers raised no dispute of fact for if the family (Annexure Al) were privy to the said Malefane's occupation of the property they should have annexed his title to the annexure. Even assuming that the site was erroneously issued in the name of Mothabathe Mapholo, he
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is not Molefl Malefane and remains in occupation until he has been deprived of it. In any event this is, if true, a problem that exists between the applicant and the said Mothabathe Mapholo but certainly not between the applicant and 1st respondent for applicant has proved his title to the property and 1st respondent failed to do so.
I have found Ntai Mphole (appellant) v Joseph Ranthimo and Another (respondents) very instructive and relevant in deciding the instant application. The appellant applied in the High Court against Joseph Ranthimo the first respondent for cancellation of a lease in favour of the latter. The 1st respondent counter-applied for an order directing the appellant (applicant in the High Court) to vacate Plot NO.13291-084 said to have been lawfully allocated the first respondent by virtue of the land lease registered in the Deeds Registry office on 4 November 1986 and an order restraining the appellant from interfering with the first respondent's rights of possession and use of the plot. Sir Peter Allen dismissed the appellant's application granting first
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respondent's counter-application appellant appealing the decision on various grounds. In support of appellant's case, the appeal appears to be premised on the statement "Sometime in the year 1969 I was allocated a certain unnumbered site at Thabong which was then not part of the urban area; the allegation was denied and it was also said the allegations were so sparse and insufficient that the application could not succeed on the basis of a prior allocation to the appellant".
Sir Allen J (as he then was) quoted Sections 11(1) and (2) of the Land (Procedure) Act 24 of 1967 in terms of which a chief or headman who issues a certificate of such allocation shall do so under a prescribed form and a person to whom a certificate is issued in
respect of land situated in an urban area or rural area for commercial or industrial purposes shall cause such certificate to be
registered in accordance with provisions of the Deeds Registry Act, 1967.
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Section 15(2) of the Deeds Registry Act 12 of 1967 (the amendment by Section 61 of the Land Act 2 of 1973 does not affect the matter) was quoted requiring every person or body holding a certificate issued by the proper authority authorizing occupation or use of land to within three months of the issue of certificate to apply to the registrar for a registered certificate of title to occupy or use Section 15(4) of the Land Act aforesaid being quoted showing failure to register certificate of occupation or use in terms of Subsections (2) and (3) within prescribed period or within such extended period as the Registrar may allow render the certificate null and void and of no force and effect.
It will be seen that the applicant holds a lease to the property in dispute while on behalf of the first respondent is the statement paragraph 3 of his Answering Affidavit "in as much as the site was originally allocated to my uncle late Molefi Malefane in 1962, the site was not formerly registered but remained the property of Molefi Malefane who is now deceased". It will be seen that the allegations are not only
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sparse, they are also insufficient. This apart, there is no evidence of the late Molefi Malefane having been issued with certificate of occupation by competent authority nor indeed is there evidence that the certificate was converted into a lease in terms of the Land Act. How the first respondent could have been allocated the site without proof of such allocation is a mystery for, as I have said earlier, the first respondent or the family should not only have proved allocation, but that the certificate of allocation was also, in terms of the law, converted into a lease; if there had been such evidence this would, indeed, raise a dispute of fact requiring, if necessary, viva voce evidence to prove, perhaps, certain other aspects of the case. Without this initial proof, it cannot be said that first respondent has a case against the applicant who has a registered title to occupy and use the property. On the contrary, a party who has no title to property can neither occupies nor uses property and this applies to the first respondent. Without being repetitive, in this case there was no certificate issued to the late Molefi Malefane nor was the certificate converted into title enabling the late Molefi
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Malefane or his descendants to occupy or use the property subject-matter of dispute.
I am of the view that there was allocation to Molefi Malefane is blatant hearsay in that if there was such an allocation the allocating
authority would have verified to there having been such allocation. In any event, even were there such allocation, failure to register
certificates of allocation within stipulated periods renders the certificate null and void and of no legal effect or force. If indeed there is a registered title on behalf of Malefane aforesaid, I do not understand why the Deeds Registry was not approached to supply the title unless, as the first respondent has deposed above The site was not formally registered" in which case such a site can neither be occupied or used. Since applicant has title to the property in dispute and first respondent has no title, this court cannot but grant the application as prayed and it is so granted with costs as prayed.
JUDGE
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For the Applicant : Ms Pule
For the 1st Respondent : Mr. Hlaoli
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