THE COURT OF APPEAL OF LESOTHO
of A (CIV) 3 of 2008
the matter between:
Act 1979 – meaning of “dispose of” in section
35(1)(b)(ii) read with 36(5). On appeal,
A contract for the sale of a lease without the consent of the
Minister is of no force or effect nor can the purported seller be
compelled to obtain such consent.
respondent in this appeal was the plaintiff in the High Court. He
sued the appellant (the first defendant in the Court
for the following relief inter
order directing the first defendant to sign all necessary documents
of title to enable second and third defendants [the Commissioner
Lands and the Registrar of Deeds respectively] to process the
transfer of lease number 13294-030 into the name of plaintiff
payment by plaintiff of the balance of the purchase price.
second and third defendants to process the transfer of lease number
13294-030 into the name of plaintiff upon the receipt
of all signed
documents by first defendant”.
action, which was opposed by the appellant, was heard by Hlajoane J.
After evidence was led she granted the respondent
relief together with costs. It is against this order that the
appellant now appeals.
appellant is the eldest son of the late Mampontseng Mothobi (the
deceased) who died on 24 December 1985. This appeal concerns
legal validity of an agreement which, according to the respondent, he
entered into with the deceased as long ago as 24 June
respondent contends that the deceased held a registered certificate
of title (i.e. a lease) to occupy an urban business
site in Maseru;
that in terms of the agreement he purchased her rights and interests
in the site and the improvements erected thereon
for the sum of M14
000; that he paid a deposit of M7 000 and subsequent amounts to the
deceased which, together with the deposit,
totals M10 900. For the
purposes of this appeal it will be assumed that the respondent has
given a true account of the facts.
the deceased’s death the appellant, as her heir, acquired a
lease over the same property. It is this lease (number
which the respondent alleges should now be transferred to him against
payment of the balance of the purchase price.
The appellant disputed
the validity of the agreement between his late mother and the
respondent on various grounds in the Court
but only one of these needs to be dealt with in this appeal.
considering the issue raised by the appellant there is another matter
that needs to be mentioned. That is whether, assuming
between the respondent and the deceased to be valid, it was competent
for the respondent to claim transfer of the
lease held by the
appellant to himself. It seems to me to be at least arguable that he
ought to have applied to set aside the
appellant’s lease and to
have claimed registration of a new lease pursuant to his argument
with the deceased. This aspect
was not canvassed in the Court a
nor was it argued on appeal and, save to the extent mentioned in
paragraph  below, I leave it out of consideration.
has to be decided is whether, having regard to the provisions of the
Land Act 1979, the 1982 agreement is valid and enforceable
instance of the respondent. In terms of sub-section 35(1)(b)(i) of
the Act a lessee is entitled
to obtaining consent of the Minister –
dispose of his interests”.
learned Judge a
held in effect that this provision prohibited the transfer of the
lease without the consent of the Minister but that it did not
the validity of the agreement. This, too, was the submission of the
respondents’ counsel in this Court.
on the circumstances the expression “dispose of” might
refer to the contract for the alienation of property
or to the actual
transfer of the property pursuant to a contract or to both. In
construing the phrase, regard must obviously be
had to the instrument
in which the words appear. On occasions the words are defined but,
if not, they fall to be interpreted according
to the context of the
statute, including other provisions in the same (or, possibly
another) enactment. Purely by way of illustration,
it was held in
Areas Health Board v
Tomaselli and Another
1962(3) SA 346 (A) at 351 H that in the ordinance under
consideration, the making of the contract and not the actual transfer
constituted the disposal of the right, whereas in Estate
Registrar of Deeds and Others
1958(3) SA 580 (N) it was decided that “dispose of” in a
statute meant “part with” and that nothing short
actual transfer would constitute a disposition (at 583 D).
those cases are not helpful in the interpretation of the Land Act.
Section 36(5) of the Act, however, indicates clearly
intended. The sub-section reads:
transaction conducted by a lessee without the consent of the Minister
or contrary to the terms and conditions of a general consent
of no effect”.
the word “conducted” in the sub-section seems somewhat
inappropriate and should probably be understood to mean
it is clear that what is of no effect is “the transaction”
and not the transfer. It is correct
to hold, therefore, that a
contract for the disposal of a lease without the consent of the
Minister is of no force or effect.
Moreover this is the
interpretation that has been given to these provisions in two
decisions of this Court.
v Lesotho Bank
(2000-2004) LAC 83 was decided on 13 April 2000. At 86 B-C
Ramodibedi JA (as he then was) said the following:
is indeed common cause that there was no Minister’s consent to
the purported transaction conducted between the lessee ……
and the appellant in respect of the plot in question. Accordingly it
stands to reason that the former could not dispose of his
to encumber the land leased by mortgage or to sub-let the land
without the consent of the Minister”.
at 86 I the learned Judge added:
previously pointed out section 36(5) of the Land Act 1979 clearly
makes any transactions between the lessee and the appellant
void and of no force and effect in law for as long as the Minister’s
consent was not obtained”.
may be that the learned Judge was of the opinion that the Minister’s
consent could be obtained subsequent to the transaction
but, if so,
he clearly envisaged that this could only be done if both parties to
the transaction consented thereto. For without
such consent he
emphasized that the transaction was null and void and of no force and
effect. This being the case the lessee obviously
cannot be compelled
to obtain Ministerial consent after the conclusion of the invalid
the later appeal, Sea
Lake (Pty) Ltd
Hwa Trading Enterprises Co (Pty) Ltd and Another
(2000-2004) LAC 190, decided on 13 October 2000, van den Heever JA
observed at 193 G-H that “prior ministerial consent is
in terms of section 35 of the Land Act of 1979”. And she added
that without the prior consent of the Minister a
lessee is not
entitled to dispose of his interest and the transaction whereunder he
purports to do so is invalid.
for the respondent eventually appeared to concede that the expression
“dispose of” in section 35(1) related
to the contract and
not the transfer. He nevertheless submitted that the respondent was
entitled to require the appellant to obtain
such consent and that
this relief was sought in prayer 1 of the declaration. There are two
short answers to this submission.
The first is that the transaction
between the respondent and the deceased was and remains null and void
and without force or effect.
The respondent cannot enforce the
agreement and this Court cannot order the appellant to attempt to
obtain the consent of the
Minister. Secondly, the respondent’s
declaration does not contain a prayer for this relief. What is
claimed is an order
directing the appellant to sign all documents to
process the transfer of lease number 13294-030 to him. This prayer
is of doubtful validity as I have mentioned earlier and, in
any event, does not support counsel’s submission.
the reason given the following order is made:
appeal succeeds with costs;
order of the Court a
is set aside and is
with the following:
plaintiff’s claims are dismissed with costs”.
THE APPELLANT: MR. T. HLAOLI
THE RESPONDENT: ADV. L.A. MOFILIKOANE
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