CIV\APN\153\91
IN THE HIGH COURT OF LESOTHO
In the Application of:
MPHO JOYCE VALENTINE Applicant
v
MABOTE PROJECT 1st Respondent
COMMISSIONER OF LANDS
AND SURVEY 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 10th day of February, 1992
Before arguments were heard counsel for the respective parties informed Court as follows :-
the matter before Court is partly agreed on in that the respondents wish the applicant to surrender her Form C to the respondents for purposes of processing and of eventual issuing of a lease. The applicant is willing to so surrender her Form C.
The dispute however remains unresolved in so far as the respondents wish the boundary be reduced from where it presently is.
The parties sought an order encompassing their desire that compliance by the respondents with terms agreed on in (1) above should be effected within three months of the applicant's surrender of her Form C or alternatively on or before 29th March, 1992 whichever is the later.
The applicant filed an application ex-parte and later obtained an interim order calling upon the respondents to show cause why :
2
the 1st respondent should not be ordered and compelled to immediately survey the applicant's site situate at Ha Mabote, Khubetsoana,
the 2nd respondent should not be ordered and compelled to process a lease in favour of the applicant immediately upon compliance by the 1st respondent with the prayer loc cit.
Alternatively it was prayed and ordered that the 1st and 2nd respondents should accept and\or approve the survey made by Mr. Lesenyeho.
The application is opposed by the respondents who even raised a point of law in limine set out as follows and argued on the grounds :
that applicant's alleged title to the site at Khubetsoana became extinguished in terms of the law when the area, which includes her alleged site, was declared a selected development area by the Minister" (See Annexures "A" and "B"
attached to the respondents' papers).
that, consequently, applicant has no cause of action against respondents in the absence of an allegation and proof thereof that she applied for and was granted substitute rights within the area by the Minister after the aforesaid declaration".
that, consequently, applicant illegally built the house at Khubetsoana within the Mabote Project Area particularly because she had been informed that the site falls within the Mabote Project and she disregarded the warning".
The respondents accordingly sought a Court order declaring the applicant to be in illegal occupation of the site at Khubetsoana within the Mabote Project Area and dismissing the application as well as discharging the rule with costs on attorney and client
3
scale.
The applicant relies mainly on her affidavit supported by that of her attorney Miss Mofolo.
The Court has noted at paragraphs 6 to 11 of Miss Mofolo's affidavit that she has laid serious charges of indifference by the officers of 1st and second respondents to her repeated requests to give her and or her client the necessary service required of a public office. Instead she kept on being fobbed off with this or that other excuse culminating in no service being rendered to her. Had she prayed for costs exigible personally from the named culprits, I would not have hesitated to grant them for her pains and frustration.
The Court takes this attitude because in reply to Miss Mofolo's charge at paragraph 9 that "following our failure to have the site surveyed, I made numerous attempts to see Mr. Langa but in vain" the deponent Langa Tomane's nonchalant and cavalier response in paragraph 7 is "contents herein are not within my knowledge".
This curt attitude becomes even the more intolerable because it does not address itself to the amount of time Miss Mofolo makes reference to in paragraph 8 showing that she saw Langa at 8.00 a.m. and the latter undertook to follow her immediately to the site where she waited till 11.00 a.m. without any Langa in sight.
However coming to the merits of the case it would seem the applicant's contention that the size of her plot should remain as it was before the Declaration of Selected Development Area law came
4
into effect is untenable. The effect of her contention is that she does not recognise the reduction of the size of her plot which came about as a result of the law passed by a competent authority in the land.
Mr. Mapetla for the respondents conceded that the Crown is prepared to grant a lease to the applicant in terms of a survey done in terms of the Mabote Project. He contended that this in fact was the condition upon which the Crown agreed to grant that lease. Hence the point of law raised by him is that it would not be correct that the point of law raised earlier but which was not "Proceeded with first in this proceeding as it should rightly have been, fell away as soon as the agreement was made because ' the applicant's site fell within the Selected Development Area.
Because the site in question fell within the Selected Development Area all rights affected by the Declaration in question became extinguished.
It is regrettable that the applicant did not avail herself of the proper procedure to challenge the Declaration if she so wished. In terms of the relevant procedure set out in the law affected persons are at large to apply for substitute right or compensation
as the case may be.
It would seem therefore that there is merit in Mr. Mapetla's contention that Mabote Project is charged with the responsibility of implementing the infrastructure of the area in question. In the
5
process it stands to reason that sizes of sites within the area would be affected especially when roads are being constructed in the area.
I am satisfied that if the applicant's view were to be entertained then an absolute nonsense would thereby be made of the law whose essence and purpose in being enacted is the realisation of results opposed to the applicant's contention.
Indeed if it were still to remain within the rights of people affected to have their sites surveyed repeatedly and their leases re-examined the enacted law would be as good as non-existent or inoperative.
I accept Mr. Mapetla's contention that the applicant has no right in law to demand that her site be surveyed again and her lease re-examined and treated as it was before the enactment of the law.
Reference was made to the question of a septic tank and. toilet on the applicant's site. It was brought to the Court's attention that these two things were erected by the applicant only after she had been made aware of the new boundary resulting from the survey made by the Mabote Project. Instead of there and then challenging this state of affairs in Court she disregarded the new boundary. In this regard one would think she had only herself to blame.
Miss Mofolo contended that the applicant had a right to bring this case as the reading of Section 46(2) of the 1979 Land Act seems to provide. She buttressed her contention by arguing that
6
the land under the Mabote Project was for residential purpose. As at the time of its inception people were already residing there. Had there been no section similar to Section 46 above people residing there could be thrown out to make way for others coming in. That, she contended, would be the height of absurdity. Thus it would seem this section militates against arbitrary action by the respondents.
Miss Mofolo further invited the Court to consider that the width of the road at the particular area is quite sufficient and need not be extended to encroach on the applicant's property. But the Court's attitude is that the issue of determination of sizes of roads in terras of the Roads Act 1969 is not a matter for this Court.
The relevant law under which the Mabote Project is undertaken makes provision for compensation of affected parties but the applicant
denied herself benefits flowing from such law in the event that her rights were adversely affected.
Miss Mofolo pointed out that the applicant complied with Section 54 of the 1979 Land Act saying persons should submit their claims to the Minister. She further stated that it was never indicated to the applicant that her claim was extinguished and other rights created.
I think there is merit in Miss Mofolo's submission that respondents failed to make certain communications to applicant and instead made others which there is no denial of in papers. Thus no
7
how can respondents be heard to say the applicant has failed to comply with those terms. To my mind this failure signifies the intolerable laxity on the part of the 1st and 2nd respondents which I alluded to earlier in reference to Langa's indifference that it beggars description. However this failure does not go to the essence of the matter before me.
I have referred to the Court's displeasure at the unwholesome treatment to which an officer of this Court was subjected by servants of the Crown when she was dutifully trying to pursue the rights of this Kingdom's subject. It is about time that such displeasure was seen not to be limited to mere oral admonition. It cannot be proper to suffer any public officer to manifest callous disregard of the interests, anxiety and suffering of others and let him get away with it.
The application that the 1st respondent be compelled to survey the applicant's site and further that upon compliance therewith the 2nd respondent be compelled to issue a lease in favour of the applicant is dismissed.
But because of the trouble that the applicant and her attorney were put to by the attitude of Jack-in-office manifested by the Crown Servants there will be no order as to costs.
The agreement in terms of Clause (1) between the parties and
8
the incidental clause flowing therefrom are made order of Court.
The Registrar of this Court is ordered to deliver copies of this judgment to the relevant department heads of the 1st and 2nd respondents who in turn should bring home to their subordinates the grim light in which this Court views their actions.
JUDGE
10th February, 1992
For Applicant : Miss Mofolo
For Respondents: Mr. Mapetla
