CIV/A/18/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

THUSO
MOKOLOKOLO Appellant

and

MOTSOALIPAKENG
TLOROISI Respondent

JUDGMENT

DELIVERED
BY THE HONOURABLE MR. JUSTICE J.L. KHEOLA ON THE 16TH DAY OF JULY,
1990

This is
an appeal against the judgment of the learned Judicial Commissioner
delivered on the 25th October, 1985. He set aside the
judgment of the
Matsieng Central Court and rein­stated the judgment of the
Matsieng Local Court which had awarded the land
in question to the
present respondent.

The
arable land in question falls within the jurisdiction of headman
Leutsoa S. Leutsoa who is subordinate to the Principal Chief
of
Matsieng. It is common cause that the land in question

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was
originally allocated to one Tintane Philemon Lethibelane who used it
until her death in 1972 or 1973. According to the law that
was in
force at that time the land of a deceased person became vacant on his
or her death and it reverted to the chief or headman
for
reallocation.

The facts
of this case are set out by the learned Judicial Commissioner on
pages 33-34 of the record of the proceedings as follows:-

"The legal position was therefore governed by section 6, 7 and 8
of the Land Act 1973 (vol. XVIII Laws of Lesotho p. 181).
In terms of
sec. 6 of the Act the respondent Motsoalipakeng Tlokotsi applied to
headman Leutsoa and his Development Committee for
allocation of
Tintane's land to him. His application was refused and in terms of
sec. 7 the respondent appealed to (there being
no other superior
chief) the Principal Chief of Matsieng who after consultation with a
Ward Development Committee (established
for the Ward) acting in terms
of section 8 (2) of the Act upheld the appeal and without issuing a
Form "C" the Principal
Chief of Matsieng ordered headman
Leutsoa to confirm respondent on the land in question. The decision
of Principal Chief of Matsieng
and his Development Committee is
contained in Exh. "A" and it is dated the 25th February,
1976. Acting in terms of Exh.
"A" headman Leutsoa is
alleged to have confirmed the respondent on the late Tintane's land
and issued a Form "C"
marked Exh "B". This form
"C" was issued on the 21st August, 1976. After that the
respondent ploughed the land
and in 1977 one 'Makoali Mokolokolo the
appellant's mother sued the respondent and his father Tlokotsi
Motloli now representing
the respondent in this case, and claimed the
same land. In

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fact 'Makoali alleged that the respondent and his father were using
the land in question without her consent. In other words she
claimed
the land as her property. 'Makoali's case was CC 23/77 Matsieng Local
Court and its judgment is contained in Exh. "C".

According to appellant's version the land was alloca­ted to him
by headman Leutsoa who issued a Form "C" dated the
4th
July, 1976 and marked Exh. "E" in these proceedings."

Section
18 (1) of the Land Act 1973 provided that:-

"Every decision given under sections 4,6,7,8,9, or 10 shall
include a statement of the ground or grounds upon which that decision

was given and that statement shall, subject to the provisions of
subsection (2) (f) and (3) (g), be conclusive for all purposes
and
shall not be questioned in any court."

In his
decision, which appears on page 18 of the record of the proceedings,
the Acting Principal Chief of Matsieng states that before
he reached
his decision he studied or considered written statements and the
advice of his Ward Development Comitted. This decision
is conclusive
for all purposes and cannot be questioned in any court of law unless
it can be shown under section 18 (2) (f) and
(3) (g) that the
decision was given in bad faith, that is to say, with the intent to
defeat or evade or otherwise to avoid giving
effect to any provision
of any law. The decision of the Acting Principal Chief of Matsieng
has not been challenged on any of the
grounds shown above.

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The only
ground argued before this Court was that in terms of section 82 of
The Land Act 1979, the appellant has a better title
to the land than
the respondent because he has been using the land and has developed
it by building a house on part of it. Section
82 reads as follows:

"Where at the commencement of this Act any land or part thereof
has, whether by error or otherwise, been the subject of two
or more
allocations, the allottee who has used the land and made improvements
thereon shall hold title to the land in preference
to any allottee
who left the land unused and undeveloped."

It is
common cause that the decision of the Acting Principal Chief of
Matsieng was delivered on the 25th February, 1976 and that
is
presumed to be the date on which the land was allocated to the
respondent (See Mohlouoa Pule v. Sechaba Makhaola, CIV/A/5/80

(unreported) ). Headman Leutsoa was apparently unwilling to comply
with the decision of the Acting Principal Chief of Matsieng
because
he only issued a Form C to the respondent about five months later on
the 21st August, 1976. In the mean time Headman Leutsoa
had on the
4th July, 1976 allo­cated the same land to the appellant. At that
time he knew very well that the same land had
been allocated to the
respondent by the Acting Principal Chief of Matsieng. He did this
because he was convinced that land was
inheritable and that members
of the family of the late Tintane were entitled to inherit the land.
This was a clear misconception
of the law which was in force at that
time.

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Regarding
section 82 of The Land Act 1979 I am interested in the words: "any
allottee who left the land unused and undeve­loped."
(my
underlining). Do these words mean that where a piece of land is
subject to two allocations the allottee who has been unlawfully

stopped from using or developing the land should be regarded as
having left the land unused and undeveloped? The word "leave"

means to abstain from dealing with or to let remain in a specified
state. I do not think that in the instant case it can be said
that
the respondent left the land unused and undeveloped because after the
land was allocated to him in August, 1976 he immediately
ploughed it.
In 1977 the appellant started ploughing this land despite the fact
that his mother who was claiming the land on his
behalf in CC 23/77
(See exhibit "C" at page 19 of the record) had lost the
case. It seems that ever since 1977 the appellant
has been making it
impossible for the respondent to plough the land. At page 10 of the
record the respondent has this to say:-

1. "If
   I remember well, Tintane died in 1972.

   
   

2. I
   first ploughed this field in 1976 after I defeated 'Makoali and
   respondent no.1 ploughed it.

   
   

3. He
   ploughed it from 1977 and I appealed to the Principal Chief's
   Committee.

   
   

4. He
   ploughed it from then till now and he always ploughs and then go to
   the mines so that I have no one to dispute with."

   
   

In a case
of agricultural land improvement must mean stopping dongas that may
be present on such land or building cent.

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furrows
or growing some grass that will stop soil errosion etc. However,
building a house on agricultural land is not an improvement
of such
land and it is even against the law. The appellant cannot claim that
he has improved the land by building a house on it.

The
appellant has been very clever because every year he ploughed the
land just before the respondent could do so and left for the
mines in
the Republic of South Africa. I am of the opinion that the respondent
cannot be accused of having left the land unused
and undeveloped
because the appellant cannot claim to have developed the land and his
use of the land was intended to stop the
respondent from using it.

I do not
think that the intention of the Legislature in enacting section 82 of
The Land Act 1979 and using the words "left
the land unused and
undeveloped" was to include an allotted. who is stopped or
prevented from using the land by the actions
of the other allottee.
In any case agricultural land (arable land) remains unused as soon as
harvest has been made and in spring
the ploughing takes place at
different times depending on what crop one intends planting.

For the
reasons I have stated above the appeal is dismisses with costs.

J.L.
KHEOLA

JUDGE

16th
July, 1990.

For
Appellant - Mr. Pheko

For
Respondent - Mr. Maqutu.