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
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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
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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 :
Interdicting the 2nd and 3rd respondents from re-allocating the fields that used to belong to the late Thabiso Mokoena to 1st Respondent.
Declaring the 1st Respondent ineligible to hold title to land in Lesotho.
Declaring the decision of the 3rd Respondent of the 8th October 2004 ultra vires and null and void.
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"
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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
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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
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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 -
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in the case of a body corporate or unincorporate may be a limited or indefinite period;
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,
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);
where there is no widow - a person designated by the deceased allottee;
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
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.
Any woman who after the 3rd day of October 1966 married or marries a citizen of Lesotho shall be entitled upon
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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.
A citizen of Lesotho shall cease to be such a citizen if
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
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.
A woman who -
becomes a citizen of Lesotho by registration under the provisions of section 4 or section 7 of this Order; and
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
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intentions concerning residence as may be prescribed.
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.
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 -
is a citizen of Lesotho; and
is or will become a citizen of some country other than Lesotho; and
has attained the age of twenty-one years or is, or has been, married; and
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.
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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.
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[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.
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[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
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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:
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.
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
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have to dismiss the appeal, possibly leaving unresolved issues in the air.
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
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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
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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:
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"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
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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.
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[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
M E TEELE Acting