HIGH COURT OF LESOTHO
Application of :
OSMA 1st Respondent
COMMISSIONER OF LANDS 2nd Respondent
by the Hon. Mr. Justice M.L. Lehohla 13th day of February,1990.
hearing of this application it was resolved that a determination
should be made regarding the points raised in limine on
behalf of the
first respondent before any arguments could be heard on the merits.
question raised in limine was decided for the first respondent.
following are the reasons for the Court's finding :-
Makoko is the applicant's father. He filed a supporting affidavit in
support of the applicant's claim to the relief sought.
entered into an agreement of sale of a site as reflected in annexure
"B" with the first respondent in July 1980.
supporting affidavit Fani avers that he did this to punish his son
sought by the applicant is to set aside an
to which Fani is a party though he has not been joined.
argued for the first respondent that on account of the interest Fani
had in the agreement he ought to have been joined in
proceedings. He however had filed his affidavit showing his attitude
to these proceedings.
In C of A
(CIV) No. 12 of 1987 Lepogo Mohale & Another vs Commissioner of
Lands & Survey and 3 Others (unreported) the Minister
Interior who was not joined in the proceedings had his affidavit used
both in the court below and the Court of Appeal. See
also the same
parties in CIV/APN/358/86 (unreported).
But in C
of A (CIV) No. 12 of 1983 David Masupha vs Paseka 'Motu (unreported)
it was felt that the proceedings in the court below
were fatal on
account of the fact that the respondent's daughter whose interests
were substantial and direct was not joined. It
is of interest that
she had not filed any affidavit to signify her attitude to the
proceedings in the court below nor even in the
Court. of Appeal
notwithstanding a request to do so by the latter court.
instant matter the 2nd respondent has not filed any opposing papers.
argued for the first respondent that the Land Act enjoins the
Commissioner of Lands to register leases. The actual registration
effected by the Deeds Registrar. It was submitted therefore that
either the Registrar of Deeds or the Attorney General ought
CIV/APN/397/87 Swallows Football Club vs Lesotho
Council & 2 Others (unreported) at page 14 this court
"I come to the conclusion therefore that the proceedings brought
before me are fatally defective in that a party which has
and substantial interest in
the outcome of this matter has not been joined."
case just cited above the court had made an observation as follows:-
"(the) Applicant is not unaware of the stage reached in the
progress towards finals and of the incidental consequences brought
about by such progress. Being an interested party the applicant must
be aware of the number of Clubs required by laws and regulations
governing the conduct of the finals to participate in those
finals. By necessary implication, inclusion of the applicant in
finals requires exclusion of one of the Clubs which holds itself as
qualified in terms of the rules to participate in the finals-
then can such a club be. dislodged from its position without having
been joined in proceedings that are likely to lead to such
Masupha above at page 2.
appears that in terms of annexure "L" the area within which
the site falls was declared a selected development area
as far back
as 21st August 1981.
Land Act in section 44 provides that once the Minister has declared
any area a selected development area all the titles
within that area shall be extinguished but substitute rights may be
granted as provided in Part V of the Act. See section
in the papers or in argument shows that after the extinction of
rights held by the applicant's father to the land in question
came into operation any substitute rights for the father to that
applicant's claim to this land is that it was given to him as a
donation by his father. It would seem that the law that was
applicable in the circumstances was the 1973 Land Act. But even if
Fani felt he had a lawful title to this land before the operation
section 44 of the 1979 Land Act it appears that he failed to effect
all the requirements which would have given the applicant
title to that land.
"A1" purports to be an instrument through which title was
sought to be bestowed by Fani on the applicant. This
is a letter
written by Fani on 14.2.77 saying he binds himself before the chief
that he gives his site situated at Borokhoaneng
to his son, Tsumane
letter Fani expresses the hope that the chief would change the names
against which the land is held to those of Taumane.
reference to the then applicable 1973 Act shows that transfer of land
in the rural area where the site in question then fell
could only be
effected by the chief acting in consultation with the Land allocation
in the papers shows that the land allocating committee had anything
to do with this land.
applicant cannot rely on the purported donation in the absence of
proof that the land allocating committee had approved such
It was his duty to ensure that the application for donation was
processed to finality.
seem he maintains that he made a mistake by not pursuing this. Can he
rely on his mistake in a manner that prejudices a
bona fide buyer
i.e. the 1st respondent? I think not. He is estopped from so acting.
It does not auger well to suggest that either
the applicant or his
father failed to do things imposed by the law because either one or
both of them are laymen.
merit in the submission that as at 21.8.81 Fani and not his son was
the one qualified to be granted the lease. But even
then when the
rights to the place became extinct following the operation of section
44 of 1979 Land Act it does not follow that
the title to substitute
right comes as a matter of course in respect of the land previously
held because that law shows that
land was held for purposes which arc not consistent with the
development scheme the previous holder will have no title to
the point in limine centred on the view that following the extinction
of the previous holder's right to that land any interested
as good a qualification to apply for a lease to hold that land
as any other party.
respondent obtained his lease to the land in a manner recognised and
permitted by the law. I dont see why he should be disturbed.
awarded to the first respondent.
Applicant : Mr. Lepholisa
Respondent : Mr. Pheko.
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