CRI/A/64/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of:-

'MALEHLOHONOLO
LETOALA Appellant

vs

R E X

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 14th day of April,
1988.

The
appellant was convicted of contravening section 87 (1) of the Land
Act No.17 of 197? by the Resident Magistrate of Leribe. The
charge is
that upon or about the 25th day of August, 1986 and at or near
Maputsoe Urban Area in the district of Leribe, the accused
(now
appellant) did unlawfully and intentionally occupy land without
proper authority. She pleaded not guilty but was found guilty
as
charged and sentenced to pay a fine of M200-00 or 3 months'
imprison­ment of which M150-00 or 2 months imprisonment was

suspended for 3 years on some conditions.

The
appeal is against conviction only and is based on the following
grounds:

1. The
   judgment is against the weight of evidence and is not supported
   thereby.

   
   

2. The
   order on the accused made by PW1 in or about 1980/81 that she should
   stop ploughing the land was wrongful and unlawful. The
   accused was
   therefore entitled to resume occupation of her ploughing field.

   
   

2

3. As
   the Commissioner of Lands failed to give the accused three months
   written notice of termination of her licence to occupy the
   land in
   question in terms of Section 38(1) and 43 of the Land Act 1979, such
   purported termina­tion was null and void ab
   initio and of no
   legal force and effect.

   
   

4. The
   accused's occupation of the land in dispute was in the exercise of a
   bona fide claim of right and did not constitute a criminal
   offence."

   
   

The facts
of this case are not in dispute and may be summarised as follows:-

1. Maputsoe
   area in which the land in question is situated was declared an
   urban area on the 16th June, 1980;

   
   

2. Prior
   to such declaration the appellant had used the land for over ten
   years for agricultural purposes;

   
   

3. In
   terms of section 28 (2) of the Land Act 1979 when Maputsoe was
   declared an urban area, the land which was used predominantly
   for
   agricultural purposes lawfully held by any. person at the date of
   commence­ment of the Land Act was deemed to be held
   under a
   licence;

   
   

4. It
   is common cause that the area where the land in question is
   situated was never declared a selected development area in terms
   of
   section 44 or section 45 of the Land Act 1979;.

   
   

5. In
   1980 or 1981 the Chief of Maputsoe (P.W.1) and the Principal Chief
   of Tsikoane held a series of public meetings at which
   they informed
   the people who had lands used for agricultural purposes within
   Maputsoe urban area that they should stop using
   such lands because
   the area had been declared a selected develop­ment area;

   
   

6. The
   appellant stopped using her land believing that her rights to the
   land had been lawfully terminated;

   
   

7. In
   1986 she re-occupied her land after she found out that her rights
   to the land had not been lawfully terminated;

   
   

3

8. She
   put poles around the land apparently intending to erect a fence
   right round the land and to give portions of the land to her

   children.

   
   

The
Prosecution case is based on the false premise that the reason for
termination of the appellant's right to occupy the land in
question
was that the area where the land is situated was declared a selected
development area. In terms of sections 44 and 45
of the Land Act once
an area has been declared a selected development area all titles to
land in that area are automatically extinguished.
In an attempt to
prove that the area was declared a selected development area the
Prosecution handed in Legal Notice No. 103 of
1985 which is
supplement No.5 to Gazette No.57 of 18th October, 1985 (Exhibit "B").
The Legal Notice refers to specific
plots and the Prosecution has
conceded that the appellant's land is not included amongst those
plots.

If the
appellant's land does not fall within the area declared as a selected
development area her licence could be termi­nated
by the
Commissioner in terms of section 43 of the Land Act which reads as
follows:

"A licence may be terminated by the Commissioner serving upon
the licence at least three months' notice of termination."

It is
common cause that the Commissioner never served upon the appellant a
notice of termination. It follows that her licence has
never been
lawfully terminated and that her re-occupation of her land after
several years.cannot amount to occupying land without
proper
authority. The order of the Chief of Maputsoe and the Principal Chief
of Tsikoane that the people who had lands in that
area should stop
using them when Maputsoe was declared an urban area was unlawfully
and was due to misinterpretation of the law
as to the effect of such
declaration.

4

I am
aware that section 43 of the Land Act was repealed by Order No.27 of
1986 dated the 6th August, 1987 with retrospective effect
to the 20th
January, 1986. The Order cannot apply to the appellant's case because
the unlawful termination of her licence: took
place in 1980 or 1981.
Even if the Order were applied to the present case the termination of
the allocation was still unlawful
because in terms of section 13 of
the Land Act before revocation could take place the allotee would
have had to be given thirty
(30) days' written notice setting out the
grounds of such revocation. The appellant was not given such notice.

The court
a quo came to the conclusion that because the pro­visions of
section 43 were not mandatory the termination of the
licence could be
done by any other person and that after such termination the
Commissioner was not barred "from continuing
with whatever
intentions he wanted to carry on the soil nor was it incumbent upon
him to start the process all afresh serving notice".
1 disagree
with this con­clusion. It is correct that the provisions of
section 43 are not mandatory buy section 43 is the only
provision in
the Land Act which describes how and by whom a licence may be
terminated. If the legislator had intended that anybody
could
terminate a licence it would have said so.

Section
14 of the Interpretation Act No.19 of 1977 provides that in an
enactment passed or made after commencement of this Act,
"shall"
shall be construed as imperative and "may" as permissive
and empowering. It seems to me that the "may"
in section 43
of the Land Act 1979 empowers the Commissioner to terminate a licence
and according to the Land Act he is the only
person who has that
power. The permission to terminate a licence is given to the
Commissioner only and no other person has been
given that power. The
conclusion by the

5

court a
quo that anybody can do the termination of a licence is a wrong
interpretation of section 43.

The court
a quo held that because the land had not been used or ploughed for
several years, the Commissioner had the right to advertise
it in
terms of section 21 inviting people who claimed that they have title
to the land to lodge their claims before the Land Tribunal
in terms
of section 23. I think here again the court a quo has missed the
point. The appellant's licence was never lawfully terminated
and was
still effective when the Commissioner purported to advertise what he
wrongly regarded as a piece of land available for
grant of title in
terms of section 21. The land in question was never available and his
advertisement was unlawful.

The
Commissioner knew that Maputsoe had been declared an urban area and
he also knew that before he started surveying the area he
had to
terminate the licences of the people who used the land for
agricultural purposes. Despite this knowledge he wrongfully and

unlawfully started surveying the land in question and even advertised
that such land was available for grant of title. His actions
are a
nullity and a cause of confusion in that area. Surely, the
Commissioner keeps records and cannot just see arable lands which

have not been used for some time and take for granted that they are
available for grant of new title. In any case sight should
not be
lost of the fact that we are dealing with a criminal charge.

The
appellant is alleged to have unlawfully occupied land without proper
authority. The Prosecution had to prove beyond a reasonable
doubt
that the appellant's licence authorising her to occupy the land in
question had been lawfully terminated. There was no such
proof.

6

The
appellant stopped using her land because her chief made her believe
that the law compelled her to vacate it. Immediately after
she
realised that she had been unlawfully robbed of her land she
re-occupied it.

Much has
been made of the fact that when re-occupying the land the appellant
intended to use it for residential purposes and not
for agricultural
purpose as required to do so under section . 38 of the Land Act 1979.
I am most surprised that at the hearing
of this appeal on the 28th
March, 1988 both the Crown Counsel and the Defence Counsel were still
unaware that section 38 was repealed
on the 6th march, 1987 by Order
No.27 of 1986 with retrospective effect to the 20th January, 1986.
The effect of that repeal is
that on the 25th August, 1986 when the
appellant re-occupied her land section 38 was no longer in force.

Mr.
Qhomane, Counsel for the Crown, submitted that section 38 defines the
rights of the licencee and that it is couched in imperative
terms. He
submitted further that if a licences contravenes provisions of
section 38 that would tantamount to unlawful occupation.
I do not
propose to make any decision on this submission because the section
had already been repealed when the alleged offence
took place. Even
if the submission can be taken as correct the appellant's licence
could not be automatically extinguished. The
Commissioner still had
to terminate the appellant's licence in terms of section 43, and then
if the appellant remained in occupation
after such termination, she
could be prosecuted under section 87 (1) of the Land Act.

The
appellant is still occupying the land in question under a valid
licence or allocation which has not been terminated under section
43
or revoked under section 13.

7

In the
result the appeal is upheld. The fine and the appeal fee must be
refunded to the appellant.

J.L.
KHEOLA

JUDGE.

14th
April, 1988.

For the
Appellant ' - Dr. Tsotsi

For the
Crown - Mr. Qhomane.