C of A
(CIV) No. 2 of 2007

IN THE
APPEAL COURT OF LESOTHO

In the
matter between:

MELATO
CALEB MOKOENA APPELLANT

and

'MAKARABO
MOKOENA 1st RESPONDENT

QIBING
COMMUNITY COUNCIL 2nd RESPONDENT

PRINCIPAL
CHIEF OF LIKHOELE 3rd RESPONDENT

MINISTER
OF LOCAL 4th RESPONDENT

GOVERNMENT

ATTORNEY
GENERAL 5th RESPONDENT

CORAM

Ramodibedi,
JA

Melunsky,
JA

Teele,
AJA

SUMMARY

Land Act 1979 - right of widow, a South African citizen, to be
entitled to the interest of her late husband in rural land in terms

of Section 8 (2) (a) of the Land Act as inserted by Section 5 of the
Land (Amendment) Order, 1992.

The first respondent married her husband ("the deceased"),
a Lesotho citizen by birth, in 1975 in Bloemfontein. The deceased

held land in Lesotho at the time and continued to hold it until his
death in 2001. At all material times the deceased was domiciled
in
Lesotho. He did not renounce his Lesotho Citizenship in terms of
Section 22 of the Citizenship Order 1971, nor did he intend
to do so.
The proprietary consequences of the said marriage were governed by
the law of Lesotho. In terms of customary law the
first respondent,
had the expectation of using her husband's arable land

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on his death. This spes was not removed when the Land Act 1979 came
into operation. Moreover, Section 8 (2) (a) of the Act (as
amended)
operated in favour of the first respondent and entitled her to the
same rights in relation to the land as the deceased.
In the
circumstances, the appellant, a nephew of the deceased, was not
entitled to the land. His application for allocation of
the land to
himself was correctly dismissed in the High Court.

JUDGMENT

MELUNSKY,
JA

[1] The
late Bartholomi Mokoena had two sons, Thabiso David Mokoena ("the
deceased") and Thabo Mokoena. Bartholomi Mokoena
and Thabo died
in 1975 and 1993 respectively. The appellant, who is the eldest son
of the late Thabo Mokoena, was the applicant
in the Court a quo. The
first respondent (to whom I will refer as the respondent) is the
widow of the deceased. The other respondents,
although cited in the
Court a quo and on appeal, did not appear before either tribunal.

[2] The
deceased, a Lesotho citizen by birth, had lived and worked in
Bloemfontein for many years. On 15 May 1975 he

3

married
the respondent by civil rites in that city. Their marriage was
dissolved by the deceased's death which occurred in May 2001.
A son
was born of the marriage. The respondent is a South African citizen.
She was, however, granted a permit for indefinite sojourn
in Lesotho
during 2004 in terms of Section 6 of the Aliens Control Act 16 of
1966. She has also applied to be registered as a citizen
of Lesotho
in terms of Section 7 of the Lesotho Citizenship Order 1971 ("the
Citizenship Order") and Section 40 (1) (b)
of the Constitution
and her application is in the course of being processed. She says
that she resides at Ha Lekhari, in the district
of Mafeteng but there
is some dispute on this point, which, however, it is unnecessary to
resolve.

[3] The
essential dispute in this appeal concerns the appellant's rights, if
any, to certain arable lands and residential houses
(referred to as
"the property" in this judgment) in the rural area of Ha
Lekhari which had been

4

held by
the deceased. The Principal Chief of Likhoele (the third respondent)
decided that the respondent, and not the appellant,
had the right to
the property of the deceased. That decision precipitated the
litigation which the appellant initiated by notice
of motion. His
application was dismissed by Maqutu J. It is against that decision
that he now appeals.

[4] In
the notice of motion the appellant sought an order in the following
terms, inter alia :

1. Interdicting
   the 2nd and 3rd respondents from re-allocating the fields that used
   to belong to the late Thabiso Mokoena to 1st
   Respondent.

   
   

2. Declaring
   the 1st Respondent ineligible to hold title to land in Lesotho.

   
   

3. Declaring
   the decision of the 3rd Respondent of the 8th October 2004 ultra
   vires and null and void.

   
   

4. Directing
   the 2nd Respondent to consider Applicant first for re-allocation of
   the fields that used to belong to the late Thabiso
   Mokoena.

   
   

In order
to appreciate the significance of the relief claimed it is necessary
to have regard to some of the background facts. According
to the
appellant the "Mokoena family"

5

appointed
him as the heir to the deceased's property. He requested the relevant
Land Allocation Committee, being the second respondent's
predecessor,
to appoint him as heir in terms of the family's decision. In fact,
the "Mokoena family" who purported to
appoint the appellant
as heir consisted of the appellant himself and two of his younger
brothers. As a result of the respondent's
objection to the proposed
allocation, the Chief of Ha Lekhari required the extended Mokoena
family to reconsider the matter. This
they did on 3 February 2003.
About seven members of the family supported the respondent's claims
but there was opposition from
the appellant, his mother and a younger
brother. Eventually on 8 October 2004, the third respondent ruled in
the respondent's favour.

[5] In
terms of a certificate issued by the relevant authorities of the
Republic of South Africa on 17 June 1992, the deceased was
declared
to be a South African citizen by

6

naturalization
from the said date. One of the issues that was initially argued on
appeal concerned the rights of the deceased, and
particularly the
respondent, as a citizen of South Africa, to hold land in Lesotho.
According to the respondent, the deceased had
never intended to
abandon his Lesotho citizenship: he had, she said, obtained the
Certificate of Naturalization as a matter of
convenience and to
enable him to receive employment benefits from the Government of
South Africa. For this reason Maqutu J in the
Court a quo held that
there was a factual dispute as to whether the deceased had
voluntarily acquired South African citizenship
and that the issue
could not be determined without oral evidence. I will revert to this
aspect later.

[6]
Before referring to the statutory provisions that have relevance for
the purposes of this appeal, it is apposite to mention
that ownership
of land - the Roman-Dutch concept of dominium - does not exist in
Lesotho. In this country all

7

land is
held by the King in trust for the Nation, as Ramodibedi JA pointed
out in Malopo v Molefe LAC (2000 -2004) 771 par [17].
Title to land
includes the right to occupy and use it and, in the case of arable
land, these rights may be revoked by the Allocating
Authority. I turn
now to consider who is capable of holding a title to land in this
Kingdom.

[7]
Section 6 (1) (a) of the Land Act 1979 ("the Land Act") as
amended by Section 4 (a) of the Land (Amendment) Order
1986 provides
that no person shall be capable of holding a title to land except a
citizen of Lesotho who is a Mosotho. Section
8 (1) and (2) of the
Land Act, as amended by the Land (Amendment) Order 1992 reads:

"8. (1) Subject to subsection (2) and section 11, a grant of
title under this Part, if made in respect of land which is not
the
subject of a registrable title, shall not be transferable and shall,
subject to the conditions laid down in the allocation
and to the
power of revocation, entitle the allottee to use or to use and occupy
or to allow another person to use the land for
the purpose stated in
the allocation for a period which -

8

1. in
   the case of a body corporate or unincorporate may be a limited or
   indefinite period;

   
   

2. in
   the case of an individual, may be a limited period or his lifetime
   but shall not endure beyond his lifetime.

   
   

(2)
Notwithstanding subsection (1), where an allottee of land dies, the
interest of that allottee passes to,

1. where
   there is a widow - the widow is given the same rights in relation to
   the land as her deceased husband but in the case of
   re-marriage the
   land shall not form part of any community property and, where a
   widow re-marries, on the widow's death, title
   shall pass to the
   person referred to in paragraph (c);

   
   

2. where
   there is no widow - a person designated by the deceased allottee;

   
   

3. where
   paragraphs (a) and (b) do not apply - a person nominated as the heir
   of the deceased allottee by the surviving members of
   the deceased
   allottee's family; or

   
   

4. in
   any other case - the State, and the Chairman of the relevant
   Allocating Authority, shall record in his register the passing
   of
   that title."

   
   

[8]
Sections 6, 7 and 8 of the Lesotho Citizenship Order 1971 ("the
Citizenship Order") read as follows:

"6. A person born outside Lesotho after the 3rd day of October,
1966 shall be a citizen of Lesotho with effect from the date
of his
birth if his father is a citizen of Lesotho at that date otherwise
than by virtue of this section or became a citizen after
the 3rd day
of October, 1966 otherwise than by virtue of section 23 (2) of the
Lesotho Independence Order 1966.

7. Any
   woman who after the 3rd day of October 1966 married or marries a
   citizen of Lesotho shall be entitled upon

   
   

9

making application in such manner as may be prescribed and upon
taking the oath of allegiance, to be registered as a citizen of

Lesotho.

8. (1) Any person who, upon the attainment of the age of 21 years, is
a citizen of Lesotho and also a citizen of some country other
than
Lesotho shall cease to be a citizen of Lesotho upon the specified
date unless he has renounced his citizenship of that other
country,
taken the oath of allegiance and, in the case of a persons who
acquired citizenship of Lesotho by virtue of section 23
(2) of the
Lesotho Independence order 1966 or who is a citizen by virtue of
section 6 of this Order, made and registered such declaration
of his
intentions concerning residence as may be prescribed by an Order of
the Council of Ministers.

2. A
   citizen of Lesotho shall cease to be such a citizen if

   
   

1. having
   attained the age of twenty-one years, he acquires the citizenship of
   some country other than Lesotho by voluntary act (other
   than
   marriage); or

   
   

2. having
   attained the age of twenty-one years, he otherwise acquires the
   citizenship of some country other than Lesotho and has
   not, by the
   specified date, renounced his citizenship of that other country,
   taken the oath of allegiance and made and registered
   such
   declaration of his intentions concerning residence as may be
   prescribed.

   
   

3. A
   woman who -

   
   

1. becomes
   a citizen of Lesotho by registration under the provisions of section
   4 or section 7 of this Order; and

   
   

2. is
   immediately after the day upon which she becomes a citizen of
   Lesotho also a citizen of some other country, shall cease to
   be a
   citizen of Lesotho upon the specified date unless she has renounced
   the citizenship of that other country, taken the oath
   of allegiance,
   and made and registered such declaration of her

   
   

10

intentions concerning residence as may be prescribed.

4. For
   the purposes of this section, where, under the law of a country
   other than Lesotho a person cannot renounce his citizenship
   of that
   other country, he need not make such renunciation but he may instead
   be required to make such declaration concerning
   that citizenship as
   may be prescribed.

   
   

4. In
   this section "the specified date" means, in respect of a
   person to whom subsection (1) or (2) (b), as the case may
   be, of
   this section refers, [to] such date as may be specified by or under
   an Order of the Council of Ministers."

   
   

The
relevant provisions of section 22 of the Citizenship Order read:

"22. (1) If a person satisfies the Minister that he -

1. is a
   citizen of Lesotho; and

   
   

2. is
   or will become a citizen of some country other than Lesotho; and

   
   

3. has
   attained the age of twenty-one years or is, or has been, married;
   and

   
   

4. is
   not suffering from mental incapacity;

   
   

and if he
has made a declaration, as in the appropriate form prescribed in the
Second Schedule, renouncing his citizenship of Lesotho
and has lodged
that declaration with the Minister, the Minister may, subject to the
other provisions of this section, cause that
declaration to be
registered by the Registrar-General, and unless otherwise provided by
or under subsection (3) or subsection (4),
that person ceases to be a
citizen of Lesotho upon registration of that declaration by the
Registrar-General.

11

2. If a
   person has made a declaration renouncing citizenship of Lesotho and
   has consequently ceased to be a citizen of Lesotho under
   this
   section, neither the renunciation nor the consequent loss of
   citizenship of Lesotho shall affect the liability of that person
   for
   any offence committed by him before that renunciation or loss of
   citizenship of Lesotho."

   
   

Section
22 (4), it may be noted, entitles the Minister to refuse to cause the
registration of a declaration of renunciation of citizenship
of
Lesotho to be registered.

Chapter
IV of the Constitution also deals with citizenship of this country.
The provisions of the Constitution are consistent with
those of the
Citizenship Order and do not need to be reproduced in this judgment.
It should, however, be observed that Section
42 of the Constitution
authorizes parliament to make provision for the acquisition of
citizenship by persons who would otherwise
be ineligible and to
provide for any person to renounce his citizenship. Thus Section 22
of the Citizenship Order is intra vires
the Constitution.

12

[9]
Lesotho was the deceased's domicile of origin. The fact that he might
have resided in Bloemfontein for lengthy periods does
not per se
affect the question of his domicile. Domicile and residence are
different concepts. There is no evidence - and the onus
on this point
is on the appellant -that the deceased acquired a domicile of choice
in Bloemfontein or anywhere else. Indeed what
evidence there is
points in the opposite direction. Maqutu J held that Section 6 (1)
(a) of the Land Act does not apply to a Lesotho
citizen who is
domiciled in Lesotho and who acquires the citizenship of another
country while he is working there. It is not necessary
to decide
whether the learned judge was correct in arriving at that conclusion.
Nor do we have to determine if there is a dispute
of fact as to
whether the appellant acquired South African citizenship voluntarily
and, on this ground, find in the respondent's
favour. The deceased's
domicile does, however, have important consequences, as I shall
presently indicate.

13

[10] In
the Court a quo the appellant's argument was based on the assumption
that after the deceased acquired South African citizenship
both he
and the respondent lost their rights to the property, a contention
that was not placed before the allocating authorities
either by the
appellant or by his attorneys. This argument, if it were to prevail,
would have the effect of defeating the appellant's
right to relief as
in terms of Section 84 of the Land Act the property in question would
have reverted to the State after a year
of the deceased losing his
Lesotho citizenship. In the words of Maqutu J in the Court a quo, the
appellant -

"cannot say [that the deceased] has lost land rights and still
claim succession rights over the same land......."

In this
Court, the same argument was initially advanced, but counsel for the
appellant, probably because he was aware of the predicament
in which
his argument in the Court a quo placed him, adopted a different
attack. He submitted that there was an apparent inconsistency
between
Sections 6

14

and 22 of
the Citizenship order; that to resolve this conflict Section 6 had to
be construed to mean that a Lesotho citizen by birth
did not
automatically lose his citizenship by acquiring the citizenship of
another country; and that he would cease to be a citizen
of Lesotho
only after renunciation and registration in terms of Section 22.
There may well be force in this argument but, for reasons
which I
detail below it is not necessary for this Court to rule on the
matter. The reasons are the following:

1. Both
   parties requested us to decide the matter on the assumption that the
   deceased retained his Lesotho citizenship until he renounced
   it and
   there was no suggestion that renunciation had ever occurred.

   
   

2. In
   our view, if the deceased had lost his right to the property, the
   appellant, as I have indicated above, would have no right
   to claim
   the property on the basis of succession, which is the case he sought
   to make out in the application. In this event we
   would

   
   

15

have to dismiss the appeal, possibly leaving unresolved issues in the
air.

3. Having
   regard to the aforegoing and particularly to the fact that the
   parties have taken the same stand on the law to be applied,
   it is my
   view that the interests of justice would best be served by deciding
   the matter according to the wishes of both parties.
   This is not to
   say that the interpretation which they adopt is wrong. I add that it
   is of some significance that the Citizenship
   Order does not entitle
   the Minister to deprive a citizen of Lesotho by birth of his
   citizenship.

   
   

[11] The
main submission made on the appellant's behalf was that the
respondent is not yet a citizen of Lesotho. This is so, although
both
in terms of Section 40 (1) (a) of the Constitution and Section 7 of
the Citizenship Order, the respondent, upon making application
and
taking the oath of allegiance, is entitled to be registered as a
citizen of Lesotho. Counsel for the appellant submitted further
that
the rights given to a widow under Section 8 (2) (a) of the Land

16

Act do
not apply to a widow who is not a citizen of Lesotho. As the Act
reserves the right to hold land to Lesotho citizens only,
the word
"widow" in Section 8 (2) (a), it was submitted, should be
restrictively interpreted to refer only to widows
who were citizens
of this country. Any construction to the contrary, it was argued,
would be in conflict with Section 6 of the
Act. I will return to
these submissions at a later stage.

[12] What
has to be considered now is the proprietary position of the
respondent and her husband at the time of their marriage in
1975. As
pointed out by C.F. Forsyth: "Private International Law"
(3rd Ed) at 141, the well-established rules of the
common law are
that the wife stante matrimonio takes the domicile of her husband and
on the dissolution of the marriage she retains
her deceased husband's
domicile until a new domicile is acquired. The second rule, mentioned
by the learned author op.cit. at 254,
is that the proprietary
consequences of the spouses are

17

governed
by the law of the husband's domicile at the time of the marriage.

[13] When
the parties were married their rights to land were governed by the
Land Act 1973 and by customary law. At that time there
was no
prohibition against citizens of other countries being granted rights
in or over land. Moreover widows had certain rights
under the
customary law. According to WCM Maqutu: "Contemporary Family Law
(The Lesotho Position)" (2nd Ed) at 273 the
widow does not have
to be dependent even on the heir: she is entitled to use arable lands
allocated to her husband until her death.
Poulter: "Family Law
and Litigation in Basotho Society" points out at 294 that
subject to certain exceptions, which are
not applicable here, a widow
has an automatic right to family lands. Section 7 (4) of The Laws of
Lerotholi (1959 edition) is to
a similar effect. As the learned judge
a quo says:

18

"Death terminates a marriage but does not affect the position of
a widow. A widow's rights under Basotho customs remain. She
may not
be deprived of her late husband's arable lands or be turned out of
the house she and her late husband owned."

[14] When
the Land Act of 1979 came into operation, a new criterion for holding
title to land - citizenship of Lesotho -was introduced.
The
respondent's rights to the deceased's property, which had not yet
crystallized but were held in expectation or as a spes, were
not
removed by the 1979 Act for there is nothing in the Act to indicate
that it was either retrospective or retroactive in its
operation. It
is hardly necessary to emphasize that there is a presumption against
a statute interfering with existing rights and
interests.
Consequently, in my view, the fact that the respondent was not a
citizen of Lesotho when the 1979 Act became of force,
or at any time
thereafter, did not deprive her of her rights or interests which had
already accrued. Indeed, Section 8 (3) of the
Act, prior to its
amendment in 1992 provided that a surviving spouse was entitled to
remain in occupation of land

19

previously
allocated to her husband. The position of the widow was further
strengthened by the new Section 8 (2) (a) of the Act,
which was
introduced by the Land (Amendment) Order 1992 (see par [7] above).

[15] What
seems to me to be clear, for the reasons already outlined, the word
"widow" in Section 8 (2) (a) includes a
widow who had
already acquired rights or interests before the 1979 Act was
introduced, irrespective as to whether or not she was
a citizen of
Lesotho. To hold otherwise would mean that the respondent's
pre-existing interests had been removed, which would be
contrary to
the intention of the legislature. It is not necessary to decide
whether or not Section 8 (2) (a) of the Act applies
to a widow who is
not a citizen of Lesotho and who marries after the Land Act 1979 came
into operation. That question does not
arise in this appeal and we
refrain from deciding it.

20

[16] It
is only necessary to mention that the learned judge a quo was
incorrect in deciding that the respondent was capable of holding
a
title to land in terms of Section 6 (b) of the Land Act by virtue of
her permit of indefinite sojourn. Her permit was granted
in 2004 but,
as counsel for the appellant informed us, sub-paragraph (b) of
Section 6 was repealed by the Land (Amendment) Order,
1986.

[17] It
follows that the appellant - at present, at any rate -has no right to
the deceased's property and that he was not entitled
to relief. His
application was correctly dismissed. The following order is therefore
made:

The
appeal is dismissed with costs.

LS
MELUNSKY

Judge of
Appeal

I agree:

MM
RAMODIBEDI

Judge of
Appeal

I agree:

M E TEELE
Acting

Judge of
Appeal