CIV\APN\121\90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

ARCHIE
SALLEY Applicant

and

UDO
STADTSBUCHLER Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 14th day of March.
1994

On or
about the 9th day of March, 1983, the applicant entered into a
written Deed of Sale with the respondent, in terms of which,
what was
known as Plot 38, Cathedral Area, now known as Plot 13283-391
situated at Cathedral, Maseru Urban Area, was sold to the
respondent
(See Annexure "A" to the opposing affidavit).

There was
an addendum signed by parties on the 25th day of April, 1983 (See
Annexure "B"). The purpose of entering into
the addendum
was simply to formalise the interim arrangement and occupancy by the
respondent of the premises in dispute, during
the interim period
between occupation and registration of transfer.

2

During
1983 the respondent enjoyed the status as a permanent resident of
Lesotho and therefore satisfied the provisions of Section
6 (1) (b)
of the Land Act 1979.

Shortly
thereafter, it was agreed by and between the respondent and one Mrs.
Elsa Haederli, his business partner, that Haederli
would in fact take
transfer instead of the respondent. She also successfully
applied,shortly thereafter, for permanent resident
status, in order
to satisfy the provisions of Section 6 (l)(b) of the Land Act 1979.

Shortly
thereafter, pursuant to this arrangement between the respondent and
Haeberli, a cancellation agreement was entered into
between the
applicant and the respondent, in terms of which the agreement
previously entered into between the applicant and the
respondent,
would now be substituted and Haederli would become the transferee.
She duly entered into a Deed of Sale with the applicant
after the
cancellation agreement had been signed by the applicant and the
respondent (See Annexure "C" and Annexure "D').

In terms
of Clause 2 of Annexure "A" the purchase price was to be
effected against registration of transfer of the sellers
lease into
the name of the purchaser.

3

After the
27th day of April, 1983, and before the second transaction was signed
between the applicant and Haederli, the purchase
price had in fact
been paid in full to the applicant by the respondent (See Clause 3 of
Annexure "D").

It is
common cause that Haederli had already taken occupation by the 6th
March, 1986 together with the risk of profit and loss.
Their Deed of
Sale with the applicant provided that should transfer not be effected
for whatever reason, the original agreement
between the applicant and
the respondent would be reinstated. The transfer of the property into
the name of Haederli was not effected
before certain amendments to
the Land Act 1979 were promulgated in 1987. Under the amendment
Haederli was disqualified from holding
title to land. It follows that
the agreement between Haederli and the applicant became null and
void, and that the original agreement
between the applicant and the
respondent was reinstated. That agreement would also have to suffer
the same fate as that between
Haederli and the applicant inasmuch as
the respondent was disqualified from holding title to land because he
is not a citizen of
Lesotho who is a Mosotho.

It seems
to me that at the present moment there is no valid Deed of Sale
between the applicant and the respondent. The property
in question
has never been transferred into the name of

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the
respondent. What ought to have happened is that as soon as it became
clear that the respondent did not qualify to hold title
to land, the
applicant should have claimed restoration of his property. In that
case he ought to have refunded the purchase price.
But that was not
the procedure followed by the parties. Some new negotiations took
place concerning the new price and the rentals
to be paid by the
respondent. Such negotiations failed. At the present moment the
respondent or Haederli are still in occupation
of the property. They
are not paying any rent because according to the agreement between
the parties rent was to be paid while
the purchase price was still
outstanding.

It is
common cause that the purchase price in the sum of M75,000-00 was
paid even before the Deed of Sale between the applicant
and Haederli
was entered into. During arguments of this matter before Court on the
4th November, 1993, Mr. Sello, attorney for
the applicant, abandoned
prayer 2 of the Notice of Motion which directed the respondent to pay
to the applicant M900-00 rent per
month from the 1st January, 1989 to
date of restoration of possession of the property to the applicant.

It is
common cause between the parties that the respondent and\or Haederli
had effected certain improvements to the property which
is still
registered in the name of the applicant to the sum of M40,000-00.
There is nothing in the papers to suggest that

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there was
express prohibition against effecting improvements without consent
(Volker v. Maree), 1981 (4) S.A.651). The applicant
has not made any
tender as far as the improvements are concerned in bringing this
application. (Silberberg and Schoeman - The Law
of Property p. 479).

I am of
the view that if the applicant succeeds in this application he will
be required to pay for the improvements. On the other
hand the
respondent and\or Haederli have been using the property in question
without paying any rent since 1987 when it became
very clear in terms
of the Land Act 1979 (as amended) that they could not hold title to
land in this country. They remained in
occupation and possession of
the property on the understanding that they would form and register a
company which would comply with
the provisions of section 6 (c) of
the Land Act 1979 (as amended) . That has apparently not been done
because such a company would
have to enter into a new Deed of Sale
with the applicant. The respondent and\or Haederli have never had a
title to hold the property
in dispute. They may have paid the
purchase price and obtained a Ministerial Consent but there has been
no transfer of title from
the applicant into their names.

Section
84 of the Land Act 1979 reads as follows: "(1) Any person who:-

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1. at
   the commencement of this Act held a title to land but is by reason
   of section 6 disqualified from so doing;

   
   

2. by
   reason of loss of citizenship or otherwise ceases to be qualified to
   hold title to land,
   

   
   

shall
continue to hold the same for a period of 12 months, and may during
that period and with the consent of Minister cede his
rights to a
person qualified under section 6.

(2) A
person who fails to become qualified or to cede his rights within the
period of 12 months mentioned in subsection (1) shall,
unless his
title has been earlier terminated, be entitled to receive the value
of all improvements lawfully made on the land upon
the expiry of the
12 months' period and the then consequent reversion of his interest
in the land to the State."

The
respondent and\or Haederli have never held title to the property in
question. They were merely in the process of acquiring title
to the
property when the amendment to the Land Act came into force. They
cannot be protected by the provisions of Section 84 because
that
section deals with people who held title to land at the commencement
of this Act. The company which

7

they
intend to register or which they have already registered will not
automatically take over from where they were stopped by the
amendment
to the Land Act. It will have to enter into new Deed of Sale with the
applicant.

The
parties have already reached a deadlock as far as the new Deed of
Sale is concerned. In the meantime the respondent and\or Haederli

continue to use the premises without paying any rent. For how long
should this state of affairs be allowed to continue? The respondent

and\or Haederli are being greatly enriched at the expense of the
applicant.

In the
present application I shall not determine the damages suffered by
each of the parties. They shall be free to bring an action
and claim
whatever damages they think they have suffered.

In the
result I make an order in terms of prayer 1 with costs of suit on
condition that the applicant pays M40,000-00 to respondent
for the
improvements.

J.L.
KHEOLA

JUDGE

14th
March, 1994.

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For
Applicant - Mr. Sello

For
Respondent - Mr. Fischer.