CIV\T\299\86

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

MINNIE
MACHELI Plaintiff

vs

MOSITO E.
MAKHELE 1st Defendant

MINISTER
OF THE INTERIOR 2nd Defendant

RULING

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 10th day of May, 1993

At the
closure of the plaintiff's case Mr. Maqutu for the 1st defendant
moved an application for the discharge of the 1st defendant.

In
motivating this application which was opposed by Mr. Mohau for the
plaintiff, Mr. Maqutu submitted that there was no prima facie
case on
balance of probabilities to warrant the 1st defendant's answer.

It is a
measure of the strength of 1st defendant's case that Mr. Maqutu
submitted that he was at this stage asking for the dismissal
of the
plaintiff's while in other circumstances less favourable to the 1st
defendant he would have been content with

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asking
for absolution from the instance only.

Plaintiff
tendered in evidence Exhibit "A" - a form C issued
according to date stamp on 2nd January 1973. The contents
of Exhibit
"A" reflect that Mots'eare Macheli (the deceased husband of
the plaintiff) was allocated a business site at
Ha Moshe
Mejametalana, measuring 200 & 27 feet.

I should
reject the argument by the 1st defendant's attorney that the
ampersand sign & between 200 and 27 should be interpreted
as
showing that the plaintiff's site is just a straight line. Indeed in
evidence the plaintiff denied that her site is a straight
line. My
interpretation of this ampersand sign is that it represents a
multiplication sign x. For purposes of my judgment nothing
should
turn on this specious argument.

The main
ground on which my decision is based consists in the following :-

The site
claimed by the plaintiff is a business site according to what the
Form C she submitted reflects.

In terms
of the Deeds Registry Act 1967 such a site had to be registered
according to law. Section 2(3) gives plain meaning in its
language
that

"This Act shall not be applicable to rural areas with

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the
exception of such areas within a rural area which are used for

1. trade,
   commerce and industry, including prospecting for minerals and mining
   minerals...

   
   

2. ...................

   
   

3. ..................."

   
   

It would
seem therefore that to the extent that Mejametalana area which falls
within Thamae area where this site is situated is
a rural area and
that the site is itself a business site, it does not conform to the
provisions of this law which treats them with
exception from sites
which are exempt from registration as Section 15 more fully provides.

Indeed
Section 15(2) says :

"Every person or body holding a certificate issued by proper
authority authorising the occupation or use of land shall within

three months of date of issue of the certificate apply to the
registrar for a registered certificate of title to occupy or use."

Subsection
(3) says:

"Every person or body who prior to the commencement of this Act
was issued with a certificate by the proper authority the
occupation
or use of land shall likewise apply to the registrar within a period
of (nine) months from the date of commencement
of this Act for a
registered certificate of title to occupy or use,"

Subsection
(4) in plain language states that failure to comply with subsections
(2) and (3) as to prescribed periods within which
to apply to the
registrar for a registered

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certificate
shall deprive any holder of the land in question of his or her right
to such land as it shall have reverted to the "Basuto"

Nation, and any certificate which has not been lodged timeously with
the registrar shall be null and void and of no force and effect.

Nothing
in the plaintiff's papers or evidence shows that she paid any
attention to the provisions of the law cited above. Her failure
to
comply with the above law resulted in her loss of whatever title she
claims to have to this land which by operation of the law
should upon
her failure revert to the "Basuto" Nation.

Nothing
shows that she made any attempt to approach the registrar or the
courts of law for extension of the periods which section
15(4)
provides.

This
being the case the plaintiff asks for what has reverted to the
"Basuto" Nation. It seems to me that on that alone
the
court cannot award to her what no longer belongs to her as it has
reverted to the "Basuto" Nation.

Without
making any pronouncement as to what rights, if any, the 1st defendant
has to this land the plaintiff's failure to comply
with the
requirements of the law give her no title to this land. It is
arguable whether the 1st defendant himself has any title.
But this
Court is satisfied that the 1st defendant in

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opting
for his right to apply for the discharge of the claim against him
took a risk well-worth taking.

It has
not been necessary to consider the plaintiff's locus standi in
judicio for Mr. Maqutu abandoned any pursuit of the matter
in that
regard notwithstanding that sufficient evidence had made it apparent
that the plaintiff was somewhat acting independently
of her husband.
However it serves no purpose to overdo things. A single arrow
directed at the heart of a stag renders it unnecessary
to further
stab it lest the skin be destroyed.

The
defendant's application for the discharge of the plaintiff's case
against him is granted with costs.

10th May,
1998

For
Plaintiff: Mr. MAQOTE