CIV/T/581/88

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

MPHO
MOHAPI Plaintiff

LESOTHO
INTERNATIONAL CONSTRUCTION

COMPANY
(PTY) LTD. 1st Defendant

MINISTER
OF THE INTERIOR 2nd Defendant

MINISTER
OP WATER MINES &

ENERGY
3rd Defendant

ATTORNEY
GENERAL 4th Defendant

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 6th day of May.
1988.

Plaintiff
issued summons against the four defendants above claiming

1. Payment
   of the sum of three hundred and ten thousand Maluti M310,000 in
   respect of

   
   

1. Damage
   and encroachment by water from Maqalika Dam on Plaintiff's land.

   
   

2. Damage
   to plaintiff's tree plantation.

   
   

3. Further
   and or alternative relief; plus

   
   

4. Costs
   of suit.

   
   

On 28th
January 1988 defendants indicated that they intended approaching this
Court in terms of Rule 32(7).

In their
application served on the plaintiff the defendants indicated that the
Court would be requested to determine questions of
law and fact set
out in that application before any leading of evidence at the hearing
of this matter.

2

The
points set out in that application are as to fact

(i) (a) that the land which is the subject matter of these
proceedings is an agricultural land; and as to law

(ii) (a) that the land was by operation of law held under a licence,

(b) that as a consequence thereof, the owner thereof was not entitled
to compensation in the event of extinction of his rights
thereon.

In
paragraph 4 of his declaration plaintiff sets out that "Plaintiff
is owner of a tree plantation on the South of the dan
and (sic) which
greater portion was in a donga which donga is within the homestead of
the plaintifff and which donga lies on the
Southern­most part of
the dam where the plaintiff's homestead is situated."

In
argument for defendants Mr. Mohapi pointed out that the M310,000 is
claimed as damages in relation to tree plantation submerged
by rising
water from the dam. He referred me to paragraph 4 of the plaintiff's
declaration and submitted that it is common cause
that the land in
question is within selected development area.

In this
connection section 45(1) of the Land Act 1979 reads as follows :

"Where the selected development area consists wholly or partly
of agricultural land other than lend within a selected agricultural

area, licensees or allotees of such agricultural land shall be deemed
to have received three months' notice of termination of their

licences or of revocation of their allocations, as the case may be,
beginning from the date of publication in the gazette of the
notice
referred to in section 44.

2. where
   the selected development area consists wholly or partly of
   agricultural land within a

   
   

3

selected agricultural area, lessees of such lend shall be deemed to
have received three months' notice of termination of their
leases as
in subsection (1) and shall be entitled to compensation for any loss
incurred through being deprived of their land."

It was
submitted for defendants that the land , in question falls within the
category of agricultural land other than land within
a selected
agricultural area. Sight should not be lost of the fact that this is
selected development area. Because this land though
being
agricultural land but of the type described as land other than that
within a selected agricultural area it falls to be treated
in terms
of section 45(1).

Section
44 shows' that once a place has been declared a selected development
area by the Minister then all titles within that area
shall be
extinguished but substitute rights may be granted as provided in Part
V of the Act.

But if
the selected development area falls within section 45(1) then the
allottee or licences affected is not entitled to compensation.

In terms
of Legal Notice 4 of 1981 the area in question known as Mapeleng was
declared a selected development Area. The date of
the Notice given in
terms of section 44 of the Act is shown as 16th January 1981. The
notice envisaged in 3. 45(1) and (2) took
effect from that day.
According to the Act three months' notice began running on that day
and completed its course at the end of
the same day. Mr. Mohapi
properly pointed out that in practical terms no notice consisting of
the usual passage of days in a calender
month is given according to
this Act.

He
further submitted that no denial was raised by the plaintiff to the
defendant's plea that the land in question is agricultural
land
within selected development area.

4

As shown
in plaintiff's request for particulars to defendant's plea in
paragraph 2(2) ad para 3.3 the only question raised is "who
used
the donga us an agricultural area?" instead of "in what way
is the donga used as an agricultural area"?

It seems
therefore that reading from the pleadings Mr. Mohapi's submission is
valid. He further submitted that the point in dispute
was in relation
to the donga in which the trees got submerged.

I have
observed that throughout these pleadings this portion of land is used
for tree plantation. It is in occasional circumstances
where
plaintiff refers to part of it as a homestead and consequently argues
that it was acquired for residential purposes. But
to the extent that
he has shown that part of it is used as a tree plantation it seems to
me that the donga is an agricultural land
other than land within a
selected agricultural area; therefore falls within the ambit of
section 45(1) instead of either S. 45(2)
or S. 46(1). Consequently
even if onus lay on defendants to establish, the purpose for which
this land was used either wholly or
in part the fact remains that in
his pleadings plaintiff has abundantly shown that this land was used
for agricultural purposes.
It is a matter of common sense that trees
in a donga cannot be used for any other purpose.

Pleadings
make no issue of the fact that the portion consisting of the donga
falls outside any reference stipulated by Legal Notice
No.4 of 1981.
It is not even necessary to distinguish between parts of the land in
question with regard to their respective use
because the section
brings within the terms of Legal Notice No. 4 of 1981 the entire land
if the land falling within the selected
development area consists
wholly or partly of agricultural land other than that within a
selected agricultural area.

Section
53(1) provides that

"No compensation for loss of title to land shall be payable
under this part except where so

5

expressly provided."

section
28(2) shows that titles to land in urban areas predominantly used for
agricultural purposes shall be deemed to be converted
into licences.
Consequently such licences are capable of termination in the public
interest in terms of section 44.

I
therefore find that because the direct allegation in defendants' plea
in paragraph 3(i) remains unchal-lenged even at this stage
it is not
necessary to refer this matter to trial, I am satisfied that section
46(1) places onus on the plaintiff to show that
the donga. was used
wholly for purposes other than agriculture. I have also observed that
in the summons he has restricted his
claim to damages and thus cannot
be said to rely on S. 46(1) where it is indicated that an allottee or
lessee is entitled to be
offered in exchange a lease within the
selected development area as an alternative to damages.

The
application to dismiss the plaintiff's claims is upheld with costs.

ACTING
JUDGE.

6th May,
1988.

For
Plaintiff : Mr. Monaphathi

For
Defendants : Mr. Mohapi