An application to review the final judgment of the Court of Appeal- there is inherent power in the Apex Court to review its decisions, when circumstances so dictate.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) 55/ 2019
In the matter between:
TAELO MICHAEL KOLISANG APPELLANT
AND
THABISO VICTOR MAHASE 1ST RESPONDENT
FILL THE GAP HEALING MINISTRIES 2ND RESPONDENT
LAND ADMINISTRATION AUTHORITY 3RD RESPONDENT
CHIEF HLATHE MARAJA (NO) 4TH RESPONDENT
LESOTHO BANK IN LIQUIDATION 5TH RESPONDENT
HEARD: 22nd October 2020
DELIVERED: 30th October 2020
CORAM: Dr. K E MOSITO P,
Dr. P MUSONDA AJA,
Dr. J W VAN DER WESTHUIZEN
Summary
JUDGMENT
Dr. Musonda AJA
Introduction
[1] This was an application for review by the Appellant of the judgement of this Court delivered on the 29th May 2020, in which we affirmed the judgement of the Land Court. We shall refer to the parties as they are in the review proceedings.
The Factual Matrix
[2] The Learned Judge in the Court a quo found that Lillian Mahase the mother to the 1st Respondent had no title to the site. The title-holder was her late son Kelly Mahase. Kelly Mahase hypothecated the site to Lesotho Bank in March 1980, it was on the strength of his registered certificate to occupy issued pursuant to Form C in his names dated 19th July 1969.
[3] Lillian executed a surety bond on the hypothecated property as “surety and co-principal debtor” for the payment of the debt. She thus, entered into a contract with the Bank that she would be liable as co-principal debtor for payment of the loan in respect of which the site was hypothecated. Kelly was principal debtor as he was the title-holder to the site.
[4] After the passing of Kelly Mahase in 1998, the 1st respondent was appointed heir to the immovable property, and his mother never acquired title to the site. When Lillian decided to sell the site to the Appellant she had no title to pass to the Appellant. The Appellant’s only recourse is to claim damages from Lillian’s estate. The case of Shuping v Abubaker was cited for that proposition.
[5] Any documents of title such as the Form C issued in the names of the applicant could not be legally valid in that the Form C was issued after that issued to Kelly in 1969. What comes out from the evidence is that it was even issued as if the Appellant was an original allottee when the evidence was that Lillian Mahase purported to sell as original allottee during the life of Kelly. The process followed in issuing the Appellant with Form C is suspect.
[6] There is no proof of an application for allocation of the site, which was necessary in terms of section 12 of the Lands Act 1973.
[7] There was a Form C issued in 1977 in the names of the Appellant, which the applicant said he unearthed from the records of the LAA. However, the LAA does not mention it as part of the documents it has in its records.
[8] The Learned judge concluded that the Appellant did not exercise due diligence as he sought no documents from Lillian, but relied on her verbal assures. The Judge discounted that Lillian had sought concurrence for the transaction from her sons. In his view if Kelly was alive in 1977, the date of the Appellant’s Form C, he would have been a party to such an agreement.
[9] The Learned Judge annulled Lillian Mahase’s sale of the site to the Appellant and the Appellant’s Form C and ordered the Appellant to be evicted from the site.
[10] In this Court we declined to interfere with the findings of fact of the Learned Judge in the Court a quo. We were also of the view that Lillian Mahase cannot give to the Appellant that which she did not have for two reasons;
We therefore affirmed the Learned Judge as we were of the view that Kelly Mahase having registered his interest earlier was the stronger in law.
[11] The applicants dissatisfied with this Court’s decision approached a single Judge of the Court seeking the following reliefs
[12] The application for stay was moved and granted by this Court on the 9th September 2020. This Court made the following order:
[13] The President of this Court held that this Court had jurisdiction to entertain an application for stay of execution pending the outcome of the decision on a review application.
The Applicant’s case
[14] The applicants/appellants criticized the Learned Judge in the Court a quo for making a finding that when Kelly Mahase hypothecated the site to Lesotho Bank in March 1980, it was on the strength of his registered certificate to occupy issued pursuant to a form C in his names dated 19th July 1969. Secondly the finding that the 1st respondent was the undisputed heir of his Mother’s estate Lillian Manthakoana Mahase and his brother Kelly Mahase was the holder of form C and a registered certificate.
[15] The deceased Kelly Mahase having deposed in an affidavit filed by the 1st Respondent that he was born on 30th April 1954, on the 7th July 1969 when the purported allocation was made he was 15 years old and such a minor. By 1969 only married men were entitled to be allocated land. Had the Learned Judge interrogated the Land Regulatory regime governing the allocation of land in 1969, he would have not come to such a conclusion.
[16] The form that was used that of 1973 Land Act, section 15 (1) and not the 1969 form. The form had two date stamps 19th July 1969 though the number 6 seems to have been placed over the number 7, there is a possible date of the 17th April 1979. Where the date was supposed to be inserted we see 1979 and 1969. All these discrepancies were not explained.
[17] I was valiantly argued that the Form C in the name of Kelly Mahase was not registered within 3 months as decreed by sections 16(2) and (5) of the 1967 Land Ac, when Kelly Mahase purported to register the form C in 1979, the form C had become null and void. The Court a quo ought not to have given effect to it and ought to have followed this Court’s decision in Moroka Ramathike v Lineo Malume.
[18] The Form C in issue seems to have been issued in terms of section 15(1) (a) of 1973 Act. That being the case, 1st Respondent was boundto produce and tender evidence under section 6 and 12 of the Act. In the absence of such evidence the application ought to have been dismissed. The Form C having been discredited there is a need to assess the oral evidence given.
[19] Section 15 of the 1973 act does not allow for allocation by borrowing and does not allow registration of a borrowed land. In terms of this section only allocation granted in terms of the Act shall be registered under Deeds Registry Act.
[20] It was submitted that on the totality of evidence, both oral and documentary does not support the allegation that Kelly Mahase properly acquired the land in dispute. There was no evidence proving adherence to the legal procedures.
[21] In contrast the applicant was granted land rights by way of Form C granted on 20th July 1977. The applicant through written submission of Michael Kolisang and the oral evidence of Mrs. Kolisang stated they sought to purchase the land from the late Lillian Mahase in 1977. After the demise of her husband she retained the rights over the site. She consulted her sons and obtained their consent. They then approached the Chief who issued a Form C.
[22] The couple developed the area undisturbed by Mrs. Mahase and the whole family. The family homestead and the disputed area are adjacent.
[23] The applicants had complied with the section 46 Lands Act 1973 and the Form C mirrors the 1973 schedule of forms. The allegation by the Respondents that Form C was fraudulently issued is improper.
[24] This Court’s conclusion that the applicants were malafide possessors as they knew of the hypothecation of the land is flawed. Such a conclusion it was argued was unsupported by the evidence.
[25] The Applicant was a bona fide purchaser Kheola J in defining a bona fide purchaser in Steyn v Lebona, had this to say:
“a bona fide possessor is a person who genuinely believes that he is the owner of the land (Bernard v Colonial Government 1887). The rights of a bona fide possessor to compensation for improvements to the property have been clearly defined by our law.”
A distinction between bona fide purchaser and a mala fide possessor was made in the case of Noi Kuliele v Lydia Mohloboli, Sakoane J stated that, a person who is doubtful as to his right to possess because he fears an adverse claim is not a bona fide possessor, so it was argued. This decision was by the Namibian case of Bella vista Investments v Sackens Kanyuguli Pombili where it was held that:
“…(w)here a person has built with his own material, or planted his own trees, or sown his own seed, or made other improvements, at his own expense, or means of his own labour on the land of another and the latter claims back his property the former is entitled to claim compensation for all necessary and useful expenses he has incurred. The amount of the compensation is limited to the sum which he has expended in effecting the improvements.
[26] Hall, has eloquently articulated the rights of a bona fide possessor when he says:
To facilitate recovery of the compensation, when the owner of the land claims back his property, a bona fide possessor enjoys a lien or right of retention of the land until his claim has been satisfied. It is important to distinguish the right to claim compensation from the right to retention until compensation is paid. The latter would always include the former does not always include the latter. A male fide possessor has no right to retention although he may have the right of compensation.
It has been strenuously argued that Lillian Mahase the first Respondent’sMother helped the appellants with water to build the structures. The appellants were not aware that the property was hypothecated. In a nutshell that was the appellant’s case on review.
The first respondent’s case
[27] It was argued that legal certainty could be compromised if a Court order can be revisited in a substantive way. However, Theron AJ’s decision in Thembekile Molandzi v The State, where he stated that there has to be finality in a Court’s decision and legal certainty. He went further to show that in the interests of justice, a judgement could be reveiwed in cases where not doing so would result in substantial hardship or injustice a there would be no legitimacy and confidence in the legal system.
In Childerly Estates Stores v Standard Bank of SA Ltd, De Villers JP said:
“… judgements may only be set aside on ground of fraud and on the ground of instrumentum noviter repertum. Instrumentum noviter repertum has been explained as the discovery of new documents after judgement or rather the coming into light of as yet unknown documents.”
[28] It was the gravamen on the respondent’s case that the site in question has been unlawfully occupied by the appellant yet there has been a registered mortgage bond which the appellant was informed about by the 1st respondent after he had approached the late Mrs. Lillian Mahase for purchasing such land. The 1st respondent wishes to pay such mortgage bond, but for the unlawful occupation of the applicant. The applicant has no evidence of a deed of sale or lease to prove that he has a legal title to the land. The Applicant occupied the land unlawfully, erected buildings without a building permit and thus prejudiced the 1st respondent who seeks to have the buildings of the applicant demolished in order to make use of the site with the aim to make businesses in order to pay the bong. It would be grave injustice if the applicant were allowed to continue with such occupation. The applicant has been enriched illegally. The site belongs to Kelly, as stated by the Registrar of the Deeds Registry who is the authority in terms of Land registration. What was challenged in the Court a quo was the locus of 1st respondent as the site had been hypothecated not Kelly Mahase’s title and this issue cannot be raised on appeal. Contrary to the allegations that Kelly acquired title in 1969 it was in 1979. He made an application to the Registrar who assessed the papers and declared Kelly as fully granted the right to use and occupy the site in terms of sections 2 and 7 of Deed Registry act, 1967. He acquired title in 1979 and not 1969.
There was substantial compliance by Kelly with the law. Kelly had the relevant documents and the applicant had none. Applicant has failed to challenge Kelly’s title for thirty-one (31) years.
It was strongly argued that the issue of Kelly Mahase being allocated land on the 7th July 1969, cannot be an issue in this Court because in paragraph 10 in answer to the applicant admitted Kelly had the title.
Consideration of the review
[29] The issues that arise in this appeal are:
The Law
[30] This Court is not averse to reversing itself, when there are compelling reasons to do so. Clarence Thomas a Justice of the Supreme Court of the United States once said:
“The Court should consider and overturn, if necessary Supreme Court rulings that went awry. Justices are obligated to think things through constantly, to re-examine ourselves, to go back over turf we have already ploughed. When a decision is demonstrably erroneous, the doctrine of Stare Decisis, letting precedents stand, must give way.”
[31] Kelly Mahase was not an allottee of the site. He asked his mother to lend him the site to which he acquired title. Kelly Mahase then hypothecated the site as security for a loan of twenty thousand Maloti (M 20, 000=00) with the concurrence of the mother, who became the co-principal debtor. Therefore to argue that he could not acquire a site as Kelly Mahase was 15 years and unmarried at the time is a misconception and seeking to void his acquisition of interest in the site has no basis.
[32] The applicant’s Counsel Advocate Hlaele sharply focused her criticism of the judgement of the Court a quo on the findings of fact in paragraph 23 of the Learned Judge’s judgement that;
Paragraph 23 any documents of title such as Form C issued in the names of the 1st Respondent are not legally valid in that Form C was issued to Kelly in 1969. What comes out from the evidence is that it was even issued as if the 1st respondent is an original allottee whereas the evidence is that Lillian purported to sell the site as the original allottee during the life of Kelly. Thus even the process followed in issuing the 1st respondent Form C is legally suspect. There is no proof of an application for allocation of the site that was necessary in terms of section 12 of the Lands Act 1973.
[33] Admittedly this finding is flawed in that it was Kelly Mahase’s parents who were the allottees of the site in 1969. Kelly was lent the site by his mother on 5th June 1979, as the Learned Judge pointed in paragraph 4, where he supported the assertion by (Exhibit A).
There are competing claims as to when the applicant was offered the site. The wife who was a secondary player in this transaction says it was in 1977 as one Form C reads. Another Form C reads 1978, while the ‘7’ is written on top of the 8. This was exhibit G. Thabiso Victor Mahase, in his evidence said after the death of Kelly the mother said, she wanted to sell the site. He informed her about the encumbrance and informed the applicant as well who ignored him. He did not know what happened later as he went into exile.
[34] The Learned Judge believed the version of the 1st respondent that Kelly Mahase acquired title earlier and doubted the authenticity of the Form C issued to the applicant. We agree with him for the following reasons:
“she did not go to LAA, but Ntate Taelo and his two children who came to give her a report, but she believed Ntate Taelo and his children can say something about it.”
[35] At P. 11, advocate Hlaele was told by the 1st Respondent that her client was lying. The applicant was told by the LAA that he could not be given the lease as the site is still in Kelly Mahase’s name. There was a compelling case for the applicant to testify and negate the 1st respondent’s story, instead of sending a wife, who did not actively participate in the process. The only hypothesis this Court can come to is that, he was avoiding to be discredited in cross-examination. The site was offered to the applicant after the death of Kelly Mahase. We agree with the Learned Judge that the Form C is suspect. The applicant had one Form C dated 20th September 1977, the other 3rd June 1978.
[36] The applicant could not acquire title and cannot acquire the site as it is registered in Kelly Mahase’s name, whose estate has been inherited by the 1st Respondent. When property is hypothecated (mortgaged) it is conveyed to the mortgagee until the Mortgagor redeems it. “In a mortgage by legal charge or technically a charge by deed expressed to be by way of legal mortgage, the debtor remains the legal owner of the property, but the creditor gains sufficient rights over it to enable them to enforce their security, such as a right to take possession of the property or sell it.”
[37] It follows therefore that the 1st respondent as heir to his late brother’s estate is the legal owner, but the Lesotho Bank retains a legal interest until after redemption of the Mortgage. While the applicant has not registered in terms of section 15 (2) of the Deed Registry Act nor applied for a certificate of title to occupy or use the site within three months of allocation or such longer period as the Registrar or the Court might allow.
[38] The 1st respondent is heir to both estates of his mother and his brother, who were called by the “Unerring Maker” to the ‘Celestial Universe’ and has walked in their shoe in terms of assets and liabilities.
In the recent judgement of this Court LesothoDevelopment and Construction Company (Pty) Limited v Lesotho Poultry Cooperative Society, we followed Mokotoko and another v Lesotho Development Construction (Pty) Ltd, in which this Court, citing Howie J. A’s judgement in ConstituencyCommittee BNP Marketing and others v Farooq Issa, with whom Scott and Hurt JJA concurred said:
The remaining question is whether Issa effected the improvements as a bona fide possessor or occupier. He was at least the latter, and in either event entitled to compensation for the improvements and a lien to enforce his claim; Rubin v Botha 1911 AD 568, Fletcher and Fletcher v Bulawayo Waterworks Co Ltd 1915 AD 636, Kommissari’s Van Binndandse, (OFS) Housing v Anglo American (OFS), Housing co Ltd (1960) (3) SA 642 (A) at 649 B-E.
[39] It is an undeniable fact that Lillian Mahase who sold the land to the applicant was the de facto owner of the site, while her late son was the legal owner. Lillian having lent the site to the son, who procured title and hypothecated the site to Lesotho Bank, the Bank acquired an interest in the site though the mother regarded herself as the factual owner. It is this fact that influenced the applicant to go on building structures on this land. A distinction must therefore be drawn between a squatter and the applicant. The applicant is entitled to compensation. However the applicant has used the land for commercial and religious purposes for a considerable period, in which time he derived financial benefits which should be set-off from the cost of improvement if they exceed his benefits. The Advocate Hlaele for the applicant and Khesuoe for the respondent appear not to be averse to such an option, should their initial positions fall away.
[40] The applicant cannot acquire title as the legal owner is the 1st respondent, while the 5th respondent has legal interest until there is redemption by the 1st respondent. The applicant has a lien until he is compensated. This Court cannot cancel title as that power resides in the High Court by section 7 of Deeds and Registry Act 1967. The status quo continues.
Conclusion
[41] The appeal is partially successful, the order of the Court a quo is set aside and replaced with the following:
Costs
[42] Each party to bear its own costs.
________________________________
Dr. P MUSONDA
ACTING JUSTICE OF APPEAL
I agree:
____________________________________
Dr. K E MOSITO
PRESIDENTOF THE COURT OF APPEAL
Dr. J VAN DER WESTHUIZEN
FOR THE APPELLANT/APPLICANT: Adv: M Hlaele
FOR THE RESPONDENT: Adv: m v KHesUoe
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