IN THE HIGH COURT OF LESOTHO
In the matter between:
CIV/APN/616/10
’MAMOTLATSI MAPHOKOANE ….......................................................................APPLICANT
AND
FRANCE RAMALITSE ….....................................................................................RESPONDENT
JUDGMENT
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNI
ON THE 29TH DAY OF MARCH 2011
1 - BACKGROUND
The applicant in this matter approached this court in terms of Rule 8 (22) (b) and (c) HIGH COURT RULES, Legal Notice No. 9 of 1980. The application was admirably set out in full and total compliance with the above cited rule. An interim restraining order was accordingly issued out of this court ex-parte against the respondent as requested in the following terms:-
“1. That the rules pertaining to modes and periods of service of
process herein be dispensed with on account of urgency hereof.
2. A rule nisi be issued returnable on Monday the 8th of November
2010 calling upon the Respondent to show cause why if any:-
The Respondent shall not be ordered to desist and or refrain from building, digging, constructing and or erecting any structure, premises, house, shack, foundation and or slab of whatever kind at the site of the Applicant in Lifelekoaneng in the Maseru district.
The Respondent shall not be ordered to stop and or halt to build, dig, construct and or erect any structure, premises, house, shack, foundation and or slab of whatever kind at the site of the Applicant at Lifelekoaneng in Maseru pending finalization hereof.
The Respondent shall not be ordered to remove all the building material and or things he had caused to be mobilized to the site for building purposes.
The Respondent shall not be ordered to remove the tin shack and all the structures already constructed at the Applicant’s site at Lifelekoaneng in Maseru.
The Respondent and his agents shall not be ordered to keep away from the Applicant’s site in Lifelekoaneng and not to set their foot at the same site pending finalization hereof.
The Respondent cannot be ordered to refrain from disposing the Applicant’s site at Lifelekoaneng by sale or purchase.
Cancelling whatever sale and or purchase together with disposal of the Applicants’ site by the Respondent in the event that it has already been sold.
Applicant shall not be granted leave to lead viva voce evidence in this matter in the event there be an unforeseen dispute of fact which cannot be resolved on the papers.
Granting Applicant herein further and or alternative relief.
That Prayer 1, 2, (b) and (e) operate with immediate effect as an Interim Order of this Honourable Court.”
2 – HISTORY OF THE CASE
The parties are neighbours in the township of LIFELEKOANENG, in the district of MASERU. For many many years they were embroiled in land dispute. One is accused of encroaching on the piece of land which belongs to the other. This dispute of the alleged encroachment was first resolved by the MASERU LOCAL COURT in Cc 72/2004. The case was decided in favour of this applicant. The respondent then who is still the respondent in the present matter, appealed to the MATSIENG CENTRAL COURT. The judgment of MASERU LOCAL COURT was confirmed and the appeal by this respondent was dismissed. This respondent was still not satisfied with that judgment. He once again appealed. His appeal was heard by THE JUDICIAL COMMISSIONER’S COURT. In its judgment of 1/08/2006, the JUDICIAL COMMISSIONER’S COURT dismissed the appeal and confirmed the judgments of the lower courts. In CR 210/06 the respondent was once more before the MASERU LOCAL COURT. This time it was in a matter of CONTEMPT of COURT ORDER issued in CC 72/2004 by the same court. The respondent was found guilty on that charge of CONTEMPT OF COURT ORDER. He was sentenced to a fine of M50.00 [Fifty Maloti] or three (3) months imprisonment.
3 - APPLICANT’S CASE
In her Founding Affidavit, the applicant makes the case that the respondent is interfering with her land rights by building/ constructing some structures on her site. This is the site which the applicant acquired long time ago, to be precise, in 1964. This was long before the enactment of LAND ACT 1979.
It was according to the applicant long before this respondent was born. Since the parties are neighbours in what was the rural village before the expansion of the city of Maseru, this fact may very well be the true fact. This respondent does not deny nor challenge it in any way. Therefore this respondent must have inherited the site which he is occupying; now that he is the applicant’s neighbour. This applicant’s documentary evidence that support her claim of right of this piece of land is a chain of judgments from LOCAL COURT, CENTRAL COURT and JUDICIAL COMMISSIONER’S COURT. The MASERU LOCAL COURT confirmed the claim of right to use that piece of land in question by this applicant against the documentary proof of allocation to this respondent in the form of FORM C.
4 – RESPONDENT’S CASE
Respondent denies that he is interfering with the applicant’s rights. He admits that he is digging foundations etc with the specific purpose of erecting some permanent structure but all these is happening on his own site – not on applicant’s site. Respondent admits that there were previously legal battles concerning the right to use a certain piece of land on which he had placed a container. He also admits that the applicant was a successful party in that battle. The respondent removed his container in terms of the MASERU LOCAL COURT order in CC 72/2004.
THE LAW:
The respondent apparently was, or perhaps even at present, is in possession of FORM C. In this FORM C, the dimensions of the site in question are not clearly spelled out. As these people are very close neighbours which are separated by a PUBLIC ROAD between them the encroachment is most likely where each one has no measurements or specific size of his or her site. Where and how this applicant came to acquire the right to use the piece of land at the corner of the respondent’s site, is not quiet spelled out. The JUDICIAL COMMISSIONER’S COURT, although it considered the production of FORM C as a prima facie evidence of the allocation of the piece of land to the claimant, the absence of dimensions on that FORM C plus lack of any other form of evidence, which supports the allocation, was unable to accept the FORM C as a conclusive evidence of the said allocation. MAJORO v SEBAPO 1981 (I) LLR 150.
The MASERU LOCAL COURT did go for an inspection in loco at the disputed site. In the presence of both parties the applicant showed the court the dimensions of her site – which was 18’ x 8’. This is the site which MASERU LOCAL COURT ORDERED this respondent to vacate. He did so. That is to say, he vacated the site. This court also went for an inspection in loco. This was to help the court to find out the exact position as the parties were locked in an argument that the respondent was in occupation or has encroached on the applicant’s site and the respondent was adamant that he has vacated the said site as long ago as 2006. The respondent went on to claim that the site where he is presently digging foundations is his.
In Kazer Majoro v Komane LLR 1981 (1) page 150 P M Mofokeng acting CJ [as he then was – May his soul rest in peace.] said,
“The possession of a document called FORM C is prima facie evidence that the land has been allocated to the person named thereon, it is not per se conclusive proof that the allocation was effected in accordance with the law …. However when that document or its source is challenged the person who bears the onus has to discharge that onus.”
The site in question in our present case is an extreme North West corner of the respondent’s side. There is a public road between that site and the site of the applicant. It seemed quite strange that the neighbour on the one side of the public road, will come to claim the portion of the site on the other side of the public road. But when the MASERU LOCAL COURT was on inspection in loco when the applicant indicated the dimensions and the location of her site in the presence of the respondent without any objection or contest, the court – MASERU LOCAL COURT, concluded that that piece of land 18’ x 8’ is the applicant’s piece where he enkraalled or parked his animals. This is the site which was accepted and confirmed by all the courts along the appeal process – up to and including COMMISSIONER’S COURT. The respondent is not on that site. He has vacated as he claims. This court, on inspection in loco, observed that the respondent is digging foundations etc on his own site. Therefore this application must fail. It is dismissed with costs.
K. J. GUNI
JUDGE
For Applicant: Mr Malefane
For Respondent: Mr Mokoko
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