This was an appeal against the order of the High Court that required the appellant to pay M52 900.00 to the respondent. This money was received by the appellant from the Lesotho Highlands Development Authority as compensation for the expropriation of land allotted to the respondent by his widowed mother. The appellant and respondent, a nephew and uncle, occupied two adjacent properties. These properties were inherited by the appellant’s father and the respondent from their widowed mother in 1964. The court considered firstly, whether the respondent’s mother had a right at law to allocate the land to the appellant’s father and the respondent. Secondly, the court considered whether payment of the compensation ought to have been allocated to the parties in accordance with the portions of land that they occupied. The court found that there was nothing in law, whether customary law or common law, prohibiting the widow (the respondent’s mother) from making the allotment that she did as it was designed to ensure that, during her lifetime, her sons exercised her rights in and over the fields. The court also found that although there was evidence to show that both properties were registered under the appellant’s father’s name, it was clear that the respondent was occupier and user of the disputed field since 1964, and was therefore entitled to receive compensation. Accordingly, the appeal was dismissed with costs.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) 42/2014
In the matter between
KHOAHLE MONEUOA APPELLANT
And
KOPANO MONEUOA RESPONDENT
CORAM: K. E. MOSITO P
T. MONAPATHI JA
M.C. CHINHENGO AJA
HEARD: 24 JULY 2015
DELIVERED: 7 AUGUST 2015
SUMMARY
Claim for compensation for land expropriated by Lesotho Highland Development Authority; Compensation payable to occupier of land and not necessarily to heir widow allotting land to son allotment not amounting to allocation; land allocation exclusively within power of governmental authorities and not family members.
JUDGMENT
CHINHENGO AJA
[1] This is an appeal from the decision of Majara J (as she then was) by which she granted an order that the appellant pay to the respondent M52 900.00 received by him from the Lesotho Highlands Development Authority (LHDA) as compensation for the expropriation of land allotted to the respondent by his widowed mother, plus “18% interest thereon a mora tempore” and costs of suit.
[2] It is alleged in the grounds of appeal that the learned Judge erred or misdirected herself (a) in finding that the respondent was allocated a piece of land by his mother when the mother had no right to do so during the lifetime of the appellant’s father who, as the eldest son, was the rightful heir to his father’s estate; (b) in finding that there is a rebuttable presumption of ownership in favour of the respondent arising from his long time occupation and use of the land concerned against clear evidence that he was not the owner thereof; (c) in failing to determine that it was necessary to join the LHDA as a party to the proceedings when, by law it was obliged to pay the compensation to the appellant as the rightful heir and owner of the land; (d) in holding that the appellant’s failure to oppose the granting of an interdict by the magistrate’s court preventing him from receiving any compensation payable in respect of the land had a bearing on the matter before her, and (e) in holding generally that the respondent had proved his case on a balance of probabilities. At the hearing of the appeal, counsel for the appellant submitted that the Court should consider or focus on ground of appeal (a) above because the other grounds were not really significant to the appellant’s success.
[3] The background to the learned Judge’s decision is the following. The appellant and the respondent are related in that the appellant is the respondent’s nephew. The appellant’s father, Molikuoa Moneuoa, was the respondent’s elder brother. He died in 2001. The two brothers’ sister, ‘Mamoratoe ‘Nei, is still alive. She gave evidence at the trial of this matter in the High Court as the second witness (“PW2”) for the respondent’s case. The father of the three siblings, (“Moneuoa Senior”), and their mother, ‘Mamoneuoa Khoahle are both deceased, the father having pre-deceased the mother in 1964. The mother lived on until 1986. At the time of their father’s death the respondent was 29 years old and unmarried.
[4] During his lifetime Moneuoa Senior was allocated two pieces of land, which are referred to in the pleadings as “fields”, a big one at Makhunoane Roopa and a smaller one at Sekoting, both in the Butha-Bothe district. I will also refer to the pieces of land as “fields”. In terms of applicable customary law and practice, Moneuoa Senior’s rights in and over the fields passed to his wife on his death as a usurfractuary. It is not in dispute that in 1964 the widow allotted the big field to her elder son, the appellant’s father, and the smaller one to the respondent. In this connection the learned judge in the court below stated that the “… mother gave away her rights to her two fields situated at Sekoting to his sons, namely the defendant’s father and the plaintiff. Further that the field, whose ownership is in issue here being the smaller of the two, was allocated to the plaintiff as he is the younger of the two brothers.”
[5] It is not seriously disputed that the respondent and his brother each occupied and used the field allotted to him until his death, in the case of the defendant’s father, and to this day, in the case of the respondent. The respondent is occupying and using what is left of the field after a portion of it was expropriated in favour of the Lesotho Highlands Development Authority, as I shall show below. It is also not in dispute that the appellant’s father was, in terms of customary law, the heir to Moneuoa Senior’s estate and that the appellant is the heir to Molikuoa’s estate.
[6] The dispute that brings the appellant and the respondent to this Court arose from the expropriation by the Lesotho Highlands Development Authority (LHDA) of the field allotted to the appellant’s father and a portion of that allotted to the respondent and the payment by the LHDA of M52 900.00 to the appellant as compensation for the portion of the land allotted to the respondent.
[7] In terms of Section 20 of the Lesotho Highlands Development Authority Act, 1986 (the LHDA Act), the LHDA is entrusted with responsibility for the implementation, operation and maintenance of the Lesotho Highlands Water Project as defined in the Treaty on the Lesotho Highlands Water Project between the Kingdom of Lesotho and the Republic of South Africa. In order for the LHDA to effectively carry out its functions, sections 37 and 38 of the LHDA Act empowers it to do several things section 38, for instance, provides that –
“(1) For the avoidance of doubt, it is declared that:
(2) ….”
[8] Section 39(1) of the LHDA Act gives the LHDA power to enter and take possession of any land or exercise any right or power conferred upon it by the LHDA Act before any conveyance or ascertainment of the price or compensation for the land or right or interest in the land is done. And subsections (2) and (3) provide that-
(2) In the exercise of its power under subsection (1), the Authority shall be liable to pay to the occupier of the land or the owner of the servitude, right or other property entered upon, exercised or interfered with by the exercise of such power, interest on the amount of the price or compensation payable to such occupier or owner at the commercial rate of the Lesotho Bank, from the date of such entry, exercise or interference, until payment of such price or compensation.
(3) The Authority shall not –
(a) enter or take possession of any land under this section without giving the occupier of such land at least one month’s notice or, in the case of an occupied dwelling-house, six months’ notice in writing of its intention so to do;
(b) exercise any servitude or other right or interference with any right or property under this section without giving to the owner of the servitude, right or property at least one month’s notice in writing of its intention so to do.
(4) A notice under subsection (3) may be served on the occupier of the land or the owner of the servitude, right or other property as is referred to in subsection (2) by sending the notice by prepaid post in an envelope addressed to the occupier or owner to his last known address and shall be deemed to have been served on the occupier or owner aforesaid at the time the envelope would be delivered in the ordinary course of post.” (Emphasis is mine)
[9] Section 44 of the LHDA Act provides for the payment of compensation to occupiers of land and to owners of other rights in land as therein mentioned. Subsection (1) sets out that –
“Compensation in respect of rights or interests in land, servitudes, wayleaves, fisheries, fishing rights and other rights whatsoever shall be paid by the Authority in accordance with the laws of Lesotho.”
[10] I have referred, above, to the provisions of the LHDA Act and underlined the words “occupier” and “owner” in order to highlight the fact that in terms of this legislation compensation is payable to the occupiers of the land and the owners of other rights in or over the land. The legislation does not talk about ownership of land, because land in Lesotho, cannot be owned by any person individually: the Nation as a whole owns it. The legislation uses the word “owner” only in relation to servitude holders or holders of other rights in land. This is an important distinction to bear in mind in considering the issues arising in this appeal.
[11] It was in the exercise of its powers under the LHDA Act that the LHDA acquired the rights to the whole of the land allotted to the appellant’s father and to a portion of the land allotted to the respondent. On representations made to it, to wit, that the appellant was the rightful person to receive the compensation in respect of both fields, the LHDA paid the compensation to the appellant. The pleadings filed in the court a quo show more clearly the basis of the appellant’s claim to the compensation.
[12] There are several documents placed before the court a quo on the issue as to whom the compensation was to be paid. The first is Exhibit B. It is dated 10 December 2005, signed by six members of the Moneuoa family, including the appellant and the respondent and received and officially stamped by the chief on 12 December 2005. It reads –
“We as the family
The family of Moneuoa (Khoahle) in the matter of the farm produce that has been affected by the LHDA on two fields which bear the names of the late Molikuoa Moneuoa we agree as follows: the bigger Field, its crops according to agreement was given to Khoahle Moneuoa, the field which is at (Sekoting), its crops was given to Kopano Moneuoa which is the smaller field.”
[13] The second document is Exhibit C. It is dated 26 November 2006, signed by five members of the Moneuoa family excluding the appellant and the respondent but including two only of the persons who signed Exhibit B. It was received and stamped by the chief on 27 November 2006. It reads-
“Dear Chief,
We greet you chief. We as the family of Moneuoa, we confirm the contents of the letter issued by the family on the 26/01/06 appointing Khoahle Edwin Moneuoa as the heir of the two fields situated at Makhunoane Roopa, which belonged to the late Mudikuoa Moneuoa and the late ‘Makhoahle Moneuoa. They were affected by the Highlands water project so he is entitled to a compensation for the fields.”
[14] Three other documents appear at pages 50, 52 and 54 of the record of proceedings. They are letters by Acting Chief Matela addressed to the principal Chief. The letter at p. 50 (Exhibit D) is dated 27 November 2006 and refers to the decision of the family on 26 January 2006 that the compensation for the two fields be paid to the appellant. In that letter the writer requested that “the decision [as to whom compensation is to be paid] be passed since Mr. Kopano Moneuoa who was there did not have anything to do with these two fields….”.
[15] The letters at pp. 52 and 54 are similar in content and pre-date the letter at p. 50. Acting Chief Matela wrote them on the same day on 8 August 2006. In the first letter he advises the principal chief as follows –
“We greet you Chief, Khoahle Moneuoa has been appointed by the family of Moneuoa to have all the rights for the biggest field with its crops which is situated near the road which is affected by the LHDA.”
In the second letter he also advises –
“I greet you chief, the family of Moneuoa put before Kopano Moneuoa as the person who will receive the farm products for the field which is situated at (Sekoting) which has been affected by LHDA.”
[16] Chief Matela gave evidence as the only witness for the defence case in the court a quo. He did not fare very well as the assessment of his evidence by the learned Judge in the court a quo at paragraphs 9 to 15 of the cyclostyled judgment shows. It will be readily noted that the letter by the family of 10 December 2005 and Chief Matela’s letters of 8 August 2006, clearly stated that the respondent was the rightful person to receive the compensation for the smaller field. It was the letter of 27 November 2006 that purported to change the position. Chief Matela said that the family wrote this letter after he had been invited by LHDA to advise as to whom the compensation should be paid. It was then that he called a meeting of the family where the decision was reached that the appellant as heir to his father’s estate was the right person to receive the compensation. The respondent apparently did not attend the meeting or if he did he did not sign the letter advising the Chief about the decision reached at the meeting.
[17] The respondent was aggrieved by the payment of the compensation to the appellant and instituted action in the High Court. Upon a consideration of the facts as presented to her Majara J (as she then was), made an order in favour of the respondent. The appellant was dissatisfied with that order and appealed to this Court.
[18] It is crucially important to have regard to the pleadings in this matter. Pleadings, as is trite, assist the court in defining the limits of the action (Robinson v. Randfontein Estates GM Co Ltd 1925 AD173 at 178); they enable each party to know what case it has to meet (Dubach v Fairway Hotel 1949 SA 1081 (SR) at 1082) and they place the issues raised in the case on record. That is why pleadings must contain a clear and concise statement of material facts relied upon by the pleader.
[19] In his declaration the respondent alleged that he was “the lawful owner and occupier” of the smaller field and that he had at all material times received compensation from LHDA in the form of food parcels. I pause here to state that the compensation paid by LHDA was in the form of either food parcels or handouts given periodically or a lump sum of cash payment at the option of the occupier. For some time before the amount claimed herein was paid out by the LHDA to the appellant, the respondent had been receiving food parcels periodically from LHDA for both pieces of land and would hand over the requisite share of those parcels to his brother’s house. This was the situation for some time when the appellant’s father was working in South Africa, and perhaps even upon his return but before his death.
[20] In making his claim, the respondent alleged, in paragraphs 6, 7 and 8 of the declaration that –
“6. During January 2007, the defendant wrongfully and unlawfully took compensation for the said field from Lesotho Highlands Authority in the sum of M191, 563.00 (one hundred and ninety one thousand five hundred and sixty three Maloti) while he knew that he was not entitled thereto.
7. As a result of the said unlawful conduct of the defendant aforesaid plaintiff has suffered damages in the sum of M191, 563.00 being the compensation he would have received but for the defendant’s unlawful conduct.
8. Consequently defendant is liable for the return of the said sum of M191, 563.00 (one hundred and ninety one thousand five hundred and sixty three Maloti)”
[21] The respondent accordingly prayed for judgment for this sum, “18% Interest thereon a more tempore” and costs of suit.
[22] In his plea, the appellant disputed the respondent’s allegations and stated that the two fields “belonged” to his father who had inherited them from his parents and that he (appellant) “as the eldest son of his parents, who have since passed away … has inherited these fields.” He accordingly denied that he had received the compensation wrongfully and unlawfully and stated that the compensation was paid in respect of the two fields, which “belonged” to him. It is not in contention that the two fields were registered with LHDA in the names of the appellant’s father. The record does not disclose how this came about. The respondent however explained that it had been his intention and that of the appellant’s father to regularize this matter by changing the names in which the smaller field was registered with LHDA. This did not happen over a long time until the appellant’s father died, either because the elder brother kept on procrastinating or, when he later became mentally ill, there was no occasion when the change could be effected. The appellant latched on this as proof that the field actually belonged to his father and therefore to him as well.
[23] According to the pleadings, the respondent’s claim is for payment to him of the portion of the compensation that related to the field that he had occupied and used from 1964. At the commencement of the trial, it was agreed that the correct amount of compensation that he should have claimed from the appellant, assuming that he was entitled to do so, was M52 900.00 and not M191 563.00 as stated in the declaration.
[24] Although the respondent made the point that the money should have been paid to him because the field “belonged” to him and the appellant denied the allegation that the field “belonged” to the respondent, the real issue that the court had to examine was, to my mind, not who owned the field but to whom was the LHDA compensation due. It is unfortunate that the court was sidetracked from the correct inquiry when it accepted the parties’ agreement that the sole issue for decision was as to who the “owner” of the field was. At the pretrial conference, the parties indeed agreed that “the only issue for determination … is that of ownership of the field in question…” The issue was, as I have demonstrated, not about ownership but about who the LHDA should have paid the money to.
[25] In terms of the LHDA Act compensation is payable to the occupier of the field and/or to the owner of any servitude or other rights in the land. This position is supported by the decision of this Court in Makhutla and Another v Makhutla and Another LAC (2000 -2004) 480. In that case the deceased’s widow, first respondent on appeal, claimed to be substituted for the deceased in title to certain land and to be paid compensation for the compulsory acquisition of such land for public purposes where members of the deceased’s family had contended that she was not entitled to the compensation because the land did not belong to her and that it had in fact been allocated by the family council to someone else. The appellants, however, admitted that the widow’s late husband had used the field during his lifetime. The use of the field by the first respondent’s late husband having been conceded the learned Judge, RAMODIBEDI JA (as he then was) was prompted to state, at 487 F- 488C of the report, that –
“[18] Quite fortuitously, in my view, the appellants have strengthened the first respondent’s claim to the field in question by conceding that the deceased actually used it in his lifetime…
[19] In my view the appellants’ admission referred to above decides the matter, when one has regard to the land tenure system of this country. In terms of s 107 of the Constitution of Lesotho all land in this country is vested in the Basotho Nation. Sub-section 108(1) in turn provides that the power to allocate land that is vested in the Basotho Nation, to make grants of interests or rights in or over such land, to revoke or derogate from any allocation or grant that has been made or otherwise to terminate or restrict any interest or right that has been granted is vested in the King in trust for the Basotho Nation.”
[26] The learned Justice of Appeal then referred to s 108(2) of the Constitution and to the Land Act, 1979, as amended in 1986 and 1992, and emphatically stated-
“[23] It follows from the foregoing that, as the law presently stands, there is no such thing as ownership of land in Lesotho. The western concept of absolute ownership of land is foreign here and the best that the law allows is an interest in or over land, which is akin to usufruct.
[24] There can be little doubt in my view that, by admitting that the deceased “use[d]” the field in his lifetime, the appellants in effect conceded that he enjoyed an interest or some form of usufruct in or over the land in question.”
“… there seems little doubt, in my view, that to qualify for compensation in terms of the land tenure system of Lesotho as it presently stands, one does not have to be the owner of the land in question in the strict sense. It suffices if there is an interest in or over such land, which has not been lawfully revoked. On this test, therefore, I do not think that there can be much doubt, in my view, that the first respondent qualifies for compensation. The appellants’ claim to compensation … has no legal basis.”
[28] I have addressed the issue as to what the real issue before the court a quo was because, at the hearing of this appeal, Adv. Sekonyela submitted that the critical ground of appeal is that contained in paragraph 2 where the appellant complains that –
“The learned judge erred or misdirected herself in determining that the respondent’s mother allocated the said field to the respondent, when she had no right in law, especially during the lifetime of the appellant’s father as the eldest son and heir.”
[29] He submitted that the other grounds of appeal were really of no significance to the decision of the Court. I agree with him except in relation to ground of appeal in paragraph 5, which, in my view, is inextricably linked to the ground of appeal in paragraph 2. In paragraph 5 the appellant complains that the judge misdirected herself –
“ … in holding that the said amount which was compensation from Lesotho Highlands Development Authority for the expropriation of the said field was due to the Respondent as the ‘lawful user and occupier’ as opposed to the Appellant the heir and the rightful owner of the field in question.”
[30] The pre-occupation of counsel with the question of ownership of the smaller field was not warranted having regard to the applicable law. It is not in contention that the mother indeed allotted a field to each of her sons and that each of them occupied and used the field allotted to him from 1964. This was the evidence of the respondent and his sister, PW2. Chief Matela stated that in 1964 he was still a young boy and had not assumed chieftainship, and as such he could not dispute the fact of the allotment. What the mother did can in no way be construed at law as an allocation of the fields to his sons. She did not have the power at law to do that. She of course had rights over the fields passed on to her by custom, as later codified by s 5(2)(a) of the Land (Amendment) Order 1992. W.C.M. Maqutu in Contemporary Family Law in Lesotho at p. 170 states that widows were allowed under indigenous law to occupy their marital home and to use the arable lands allocated to their husbands until their deaths. [31] In terms of the Land (Amendment) Order, the widow is given the same rights as her deceased husband subject to those rights passing to the heir or the person referred to in s 5(2)(c) of that Order. There was nothing in law, whether customary law or common law, prohibiting the widow in this case from making the allotment that she did. It was an allotment designed to ensure that, during her lifetime, her sons exercised her rights in and over the fields. That allotment did not, and could not have, divested the heir of his right of inheritance.
[32] The formal allocation of land, as we have seen from Makhutla’s case, is done by the relevant governmental authorities and not by a deceased person’s family. Whilst the appellant was properly recognized by the family as the heir to his father’s estate, which may or may not have included the field in question, the fact of the matter is that no lawful allocation of the field had been done as at the time that the respondent’s mother died or as at the time that the appellant’s father died, and even as of today.
[33] There is no concept of a sole heir in the customary law of Lesotho. This was stated in Moteane v Moteane & 3 Others C of A (Civ.) 14 of 1994 where the court referred to Section 11(1) of Part 1 of the Laws of Lerotholi as read with Section 14(3) of Part 1 of the Laws of Lerotholi. Section 11(1) reads as follows:
"The heir shall be the first male child of the first married wife, and if there is no male in the first house then the first born male child of the next wife married in succession shall be the heir."
Section 14(3) of the same Laws reads-
"If there is any male issue in any house other than the house from which the principal heir comes, the widow shall have the use of all property allocated to her house and at her death any remaining property shall devolve upon the eldest son of her house who must share such property with his junior brothers." (Emphasis added)
[34] In Moteane the Court went on to say that: “the concept of sharing appears to permeate the laws of inheritance in Lesotho and to accentuate the need for family debate in order to arrive at a mode of succession which will avoid friction within the family itself”. It then cited Section 14(4) of Part 1 of the Laws of Lerotholi which reads –
"Any dispute amongst the deceased's family over property or property rights, shall be referred for arbitration to the brothers of the deceased and other persons whose right it is under Basotho Law and Custom to be consulted. If no agreement is arrived at by such persons or if either party wishes to contest their decision, the dispute shall be taken to the appropriate Court by the dissatisfied persons."(Emphasis added)
It continued as follows –
“I need hardly point out that the Court is here regarded as a last resort and that family "arbitration" and efforts at reaching an amicable agreement are necessary steps before the Court is approached. In this case, apart from the meeting I have mentioned and at which, according to the Respondents, nothing occurred which could fall within the meaning of "arbitration", there appears to have been no effort to reach the objective of the legislation, namely the management of the assets in the estate for the benefit of the deceased's family.”
27. In the Court a quo Kheola CJ had correctly observed:
"I do not know what the applicant means by saying he should be declared as the sole heir. If he means that he alone must inherit his late mother's property and exclude all his younger brothers that cannot be done because the law is very clear that he must share with his brothers"
[35] The crisp question in the court a quo and in the present appeal was as to the person entitled to the money paid out by the LHDA as between appellant and respondent. Majara J decided that the respondent was entitled to the compensation. In reaching her decision the learned judge commented at length on another matter raised before her: that of the registration by the LHDA of the field in question in the name of the appellant’s father. While the registration was not disputed, the learned judge found that that registration alone did not detract from the fact that the respondent had all along occupied and used the field without demur from the appellant’s father or anyone else in the family. She also correctly accepted that the evidence before her established that whilst the appellant’s father was working in South Africa and during the time of his mental illness, the respondent had received food compensation on his behalf. She rendered herself in these words at paragraphs 38 and 39 of her judgment:
“[28] In my opinion, when taken in its entirety, the evidence that the smaller field was allocated to the plaintiff in 1964, he has been the lawful user since then to date, the defendant elected not to oppose his application in the Butha-Buthe Magistrate’s Court to have him interdicted from further receiving compensation for it despite his claim that he is the rightful owner, the family designated the plaintiff in more than one forum as the person that should receive compensation for the smaller field notwithstanding that it was registered with LHDA in the names of the defendant’s father, leads me to conclude that although there is unchallenged evidence that the field was registered in the names of the defendant’s father with LHDA, the balance of probabilities is tilted in favour of the plaintiff.
[29] It is for these reasons that I find that the plaintiff has successfully discharged his burden of proof on a balance of probabilities and that he should succeed in his claim with costs and I so order.”
[36] I have already indicated that the appellant’s counsel did not think that the other grounds of appeal were of any real significance. This concession was properly made. It covered the complaint that had been made in respect of the proceedings in the Magistrate’s Court that culminated in the order interdicting the appellant from receiving food parcels. I should however say that the respondent’s position in that court, that he was the occupier and user of the disputed field, was consistent with the position at law and it was that very relationship of the respondent to the field that entitled him to receive compensation paid by LHDA.
[37] A point that requires emphasis is that the compensation, as already observed, was in the form of food parcels for as long as the beneficiary had not opted for a lump sum monetary payment as final compensation. Thus, whether a beneficiary received food parcels or a lump sum monetary payment, the character of the compensation remained the same: it was compensation for deprivation of the right of occupation and use of the field occasioned to the occupier of the field. And in this case the appellant did not have a problem with the respondent receiving compensation in the form of food parcels, there is no conceivable reason why he would have had a problem with compensation by way of a lump sum monetary payment to the respondent.
The appeal is therefore dismissed with costs.
________________________
M. CHINHENGO
Acting Justice of Appeal
I agree ______________________
DR K.E. MOSITO
President of the Court of Appeal
I agree _____________________
T. MONAPATHI
Justice of Appeal
For Appellant : Adv. B H Sekonyela
For Respondent : Adv. S. Ratau
