CIV/APN/358/86
IN THE HIGH COURT OF LESOTHO
In the Application of :
LEPOQO MOHALE 1st Applicant
PHAKISO LEBONA 2nd Applicant
VS
THE COMMISSIONER OF LANDS AND
SURVEY 1st Respondent
THE PERMANENT SECRETARY FOR
INFORMATION AND BROADCASTING 2nd Respondent
THE ATTORNEY – GENERAL 3rd Respondent
JUDGMENT
Delivered by the Hon. Acting Mr. Justice M. Lehphla on the 1st day of June, 1987.
On 16th February 1987 the two applicants above moved an application on notice for Mandamus against the respondents.
Applicants seek an order, to wit:-
Directing 1st Respondent to effect the transfer of site 739 Europa held by 1st Applicant under lease document number 12292 - 005 to 2nd Applicant;
Directing 1st Respondent to allow the 2nd Applicant to develop site No. 739 in accordance with the drawn plans end specifications;
Costs and further or alternative relief.
In the alternative applicants seek an order for
Payment of M79,000.00 being purchase price of site No. 739 Europa.
Payment of M40,000.00 being the costs of a dwelling house built by 2nd Applicant for 1st Applicant in further consideration of site 739 Europa.
Payment of M10,000.00 being architectural fee for plans for site No. 739 Europa.
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Interest at the rate of 18% from date of signing of agreement between applicants plus costs and further and or alternative relief.
It would appear that 1st Applicant is a lease holder of the residential site number 739 Europe in Maseru Township by virtue of a lease document numbered 12292 -005 in 1st Respondent's custody. 1st Applicant avers in paragraph 6 of his founding affidavit that he owns the right and interest in the above site against the whole world. It also appears that on account of some financial predicament 1st Applicant has had to conclude an agreement of sale of this site with 2nd Applicant on 28th July 1984. A copy of the agreement marked "A" has been attached to the papers before Court.
In paragraph 8 the first applicant avers that he was paid M79,000.00 by second applicant who further built him a dwelling house at Lifateng in Mohale's Hoek at the cost of M40,000.00 in consideration of site No. 739 Europe. Following the agreement between applicants the first applicant has tried to transfer this property i.e. site No. 739 Europe to 2nd Applicant but the 1st Respondent refuses and or ignores to execute the transfer. 1st Applicant avers that it is his desire to transfer this site to 2nd Applicant more especially because he is not in a position to refund to the latter monies which he utilised in the belief that there would be no hitch in effecting the terms of the agreement to a desired end. However, it seems the 1st Respondent has obstructed 2nd Applicant from developing the subject matter of the agreement between applicants on the grounds that such development would interfere with or obstruct the transmission from Radio Lesotho masts erected near the
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Police Training Centre.
1st Applicant fears that unless 1st Respondent is ordered to effect the transfer of the said site and or permit development thereon 2nd Applicant would suffer irreperable loss; hence the prayers made in the notice of motion by applicants.
Apart from confirming 1st Applicant's averments 2nd Applicant states in para 10 of his founding affidavit that in addition to monies expended by him as shown in para 7 he engaged services of an Architect who prepared plans for the said site and charged him a fee amouting to M10,000. Annexure "B" has been attached to the papers as proof of this. He further avers that 1st Respondent's refusal to effect transfer of the site is unreasonable regard being had to the fact that it is not even specified what height of the intended development would obstruct Radio Lesotho's transmission. The 2nd Applicant maintains that the instant case is not covered by the provisions of the Land Act 1979. Should 1st Respondent not be ordered to effect the transfer of; and to permit the intended development on the said site 2nd Applicant fears that he would suffer untold loss regard being had to the fact that he has so far invested much money in the site.
The Attorney-General gave notice of his intention to oppose this application and relied on the answering affidavits of Morena Mathealira Thomas Seeiso who avers that he is the Minister of the Interior and Chieftainship Affairs and responsible for the Administration of the Land. Act 1979; and of one A. Mosaase who avers that he is the Commissioner of Lands and Survey in the Ministry of the
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Interior, Morena Mathealira Seeiso avers that he is not challenging conclusion of the agreement of sale between the applicants. He concedes that 1st Applicant did submit an application for transfer of the lease No, 12292 - 005 to 2nd Applicant and states "but I have not yet given him consent to the transfer, so legally the site still belongs to First Applicant" see para 4 of his answering affidavit.
In para 5 he avers that the 1st Respondent i.e. Commissioner of Lands is not the one who gives consent to transfer of property of land. He avers that the giving of consent to the transfer of lease No 12292 -005 is his sole prerogative as the Minister concerned. Thus maintains that in directing their charges against 1st Respondent for his alleged refusal to effect the transfer the applicants are barking up the wrong tree. In para 7 he avers that transfer of the said site cannot be effected because that land is required for public purposes and makes reference to section 54 of the Land Act. Finally he reiterates that 1st Respondent is ordered not to effect the transfer of the said site and or permit development thereon, and avers that "whan a site is required under section 54 of the Land Act 1979 it is usually the policy of my Ministry to compensate under section 56 of the said Act."
1st Respondent is in full agreement with the averments of the last deponent to the effect that he as Commissioner of Lands has neither
the power nor authority to execute transfers of land. He avers that the Minister of the Interior is the one who gives consent to transfer of a lease
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and goes further to say "where such (consent) is given I shall by notice in the gazette publish the terms and conditions under which the general consent is given "
In para 10 he avers:-
"It may be the desire of 1st Applicant to transfer the said site but the Minister has required his site under section 54 of the Land Act 1979 - thus transfer will not be effected. First applicant may also be not in the position to refund 2nd Applicant as he alleges, but section 36(5) stipulates that any transaction conducted by a lessee without the consent of the Minister or contrary to the terms and conditions of a general consent shall be of no effect,"
In para 7 he says that he was instructed by the Minister to order 1st Applicant not to develop the said site on the grounds that it would be used for Radio Lesotho transmission masts. He finally makes clear his stand that he cannot effect transfer of the said site and concludes that in the circumstances 1st Applicant will be compensated according to section 56 of the Land Act. The attitude reflected in the foregoing sentence seems to conflict with the wisdom entailed in the phrase "Nemo cogitur rem suam vendere, etiam justo pretio - no person is obliged to sell his own property even for the full value."
In his replying affidavit the 1st Applicant is emphatic that averments made by 1st Respondent ad para's 1, 2, 3, 4 are not true and correct. He further points out that 1st Respondent did not know of the sale agreement for the first time only when informed of it by the Minister but long before then as the 1st Respondent was approached by the 2nd Applicant who in aligning himself with 1st Applicant's averments has drawn the Court's attention to letters from 1st Respondent marked "AA", "BB" and "CC"
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annexed to his replying affidavit. "AA" dated 26th May 1986 informs J.P. Lebona that, an oral intimation to him is confirmed that he may not proceed with the development of site 739 Europe because a building in that area would obstruct the transmission from Radio Lesotho masts erected nearby. "BB"" dated 11th July, 1986 informs Messrs Jobodwana, Pheko & Company that, in response to their letter dated 27th May 1986, the lessee had earlier applied for consent to transfer this site to one Moeketsi Masithela but later changed his mind in favour of transferring it to 2nd Applicant, Apparently some considerable length of time elapsed before 1st Applicant decided on the latter move. Meantime the Minister was not inclined to give his consent in either case. On the contrary and to add to his discomfiture 2nd Applicant was informed that the Ministry of information and Broadcasting had applied for acquisition of six sites including site 739 so as to minimise any interference likely to emanate from any development intended by site holders within the area close to the Radio Reception Building situated there. The letter further contained an offer of unspecified amount of compensation or substitute or alternative sites to lessees affected by this action of 2nd Respondent. It discounted any hope of 2nd Applicant being compensated in' the sum claimed i.e. M139,000.00 as too high for an undeveloped site. Copies of this letter were addressed to 2nd Respondent and to the Principal Secretary for the Ministry of the Interior. "CC" dated 15th July 1986 is also addressed to the previous addressee and is in response to Mr. Pheko's letter dated 11th July 1986. It furnishes information that some six plots including site 739 held
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by 1st Applicant are held under lease rights which are terminable under provisions of section 54 of the Land Act, It also draws attention to the fact that all those sites have not been lawfully developed and that no building permits have issued in respect of them; further that lessees have been advised of the intended acquisition including an embargo placed on any processing of building permits in respect of these sites. In respect of the intimation that 2nd Applicant had taken occupation of site No. 739 on the basis of a deed of sale attention was drawn to section 35 of the Act.
In his heads of argument Mr. Nthethe submitted that 1st Applicant desires to have site No. 739 Europa transferred to 2nd Applicant regard being had to the fact that the former has sold his rights in the said site to the latter. He strongly challenged the respondent's failure to comply with section 54(1) which states
"Whenever it is necessary in the public interest to set aside for public purposes land held under a lease, the Minister after
consultation with the Principal Chief having jurisdiction and upon obtaining the King's consent shall declare the land to be so
required".
Sub-section (2) thereof directs that the notice of declaration by the Minister "shall" be given by the Minister in the gazette and "shall" contain the following particulars
The name of the lessee ...... in whose name the lease of the required land is registered.
A description of the land and its location specifying its boundaries and extent.
The general nature and the purpose for which the land is required.
The date on which the land shall be surrendered by the person in occupation.
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An assessment of the amount of compensation offered and the method used for assessing such amount; and shall invite any person having any claim in the land to submit his claim to the Minister.
He further submitted that the omission or failure by the Minister to comply with provisions of section 54 provides no evidence that this land is required in the public interest. There is also no evidence that the Minister sought the King's consent. The use of the word "shall" as it appears in subsection (2) of section 54 may not be taken lightly because it was enacted by the legislature and therefore because every enactment is remedial any attempt by the Minister to act against it must be frowned upon and the section must be strictly and onerously interpreted against the said Minister who has encroached on personal rights of a subject by purporting to have acquired applicants' rights.
Mr. Nthethe invited the Court to come to the view that the Minister's action has been very high-handed and in some sense deliberately
deceptive to the extent that the Minister purports not to have given consent because sale of this land was transacted without his consent. This creates a doubt whether consent is being withheld because of the unlawful transaction over this land by applicants or because the land is required for the public good. Thus it becomes obvious that his refusal to give consent is not based on the reason that the land is required for public good but amounts to an excuse for giving vent to high-handedness on his part and for giving scant attention to the harm occasioned by his disregard of the law. He submitted further that to the extent that "AA" nowhere says of the Commissioner of Lands "I have been instructed by the Minister"
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in his address to 2nd Applicant it serves as clear proof that 1st Respondent has the authority to process the transfer. The fact that Ministerial consent has not been given can be blamed on the Commissioner's failure to present the proper papers before the Minister for that purpose. It is only if the Minister has complied with section 54 that he can rightly be heard to say that he is withholding his consent because it was never sought. Mr. Nthethe lays a great store on the use of the words appearing in "BB" reading "without prejudice" and "not yet" and submits that these words amount to keying up applicants' hopes and expectation in that they imply "hold your horses, consent is going to be given later". He submitted therefore that on the strength of annexures "AA" "BB"and "CC" written without reference to the Minister's authority in the background the Commissioner had in effect made applicants believe he is the sole authority. This is a position from which the Commissioner cannot lightly resile.
Referring to section 36(1) he submitted that "where the consent of the Minister is required under section 35, such consent shall not be unreasonably withheld." It is to be noted that 36(2) has been repealed by Land (Amendment) Order 1986 and section 15(2) thereof is identical with the replaced section.
However with regard to section 36 it is noteworthy that the principal Act has been amended by Order No. 27/1986 by deleting subsection (1) which had been calculated at preventing the unreasonable withholding of the Ministerial consent and in its place an overriding section 36(6) places the matter beyond dispute by providing that
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"The decision of the Minister to withhold consent under this section shall be final and shall not be questioned in any Court of law."
In this posture of events it would seem that the task for the Crown in the instant matter has been rendered much easier than would have been the case but for section 36(6) of Order 27 of 1986.
In her arguments Mrs. Lekatsa for the Crown submitted as provided in Land Procedure Act 1967, Chieftainship Act 1968, The Deeds Proclamation 1957, Land Act 1973 and the current 1979 Act it has been understood by Basotho that they have no power to alienate, transfer or sell land to anyone in perpetuity or as a "private property" and to do with it as the "Owner" pleases. See King Moshoeshoe 1' words quoted by Theal in Basutoland Records 1883 Vol.1 at p. 86 on inalienability of land without chief's consent, or presently Minister's consent.
Referring to Kou vs Minister of the Interior and Principal Chief of Matsieng CIV/APN/360/77. She relied on a passage appearing on page 2 where Cotran C.J, as he then was said
"Another concept by no means unique in African land systems, but also firmly entrenched in Lesotho Land Law to this day is that no individual Mosotho or any other person for that matter, has any right to own land as a simple freely negotiable commodity."
Written in the same vein section 36(5) stipulates that
"Any transaction conducted by a lessee without consent of the Minister or contrary to the terms and conditions of a general consent shall be of no effect."
Evidencly in purporting to sell to 2nd Applicant the 1st Applicant did not seek the consent of the Minister because he did not think that any problems would arise. Moreover he was pressed by the financial straits or predicant
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to which reference was made in his affidavit. What is done contrary to law is considered as not done 4.Co. 31.
Furthermore Kou supra is authority for the view that "the right of the prospective buyer is, .......... subordinate to the right of the Nation, and the State which represents the Nation." Vide page 13.
Responding to the onslaught Mrs.Lekatsa submitted that nowhere has Mr. Mohale said I am selling my rights. This contrasts sharply with Applicants' head 2 of their arguments. The purported sale is of undeveloped land and has to be understood as such because there is no property on it. All there is is the land of the Nation. Consent to transfer land in Lesotho land law is no mere formality nor should it be taken for granted. No sale of land can be effective without the requisite consent. Withholding of such consent is not debatable in the Courts of law as shown above.
1st Applicant would thus seem to have laboured under a delusion to entertain the view that the land belonging to him could be transferred to another without any proper alienation or forfeiture. Section 35(2) b as amended provides an answer to instances of special circumstances or speculative dealings in land.
The Minister of the interior is the one charged with the responsibility of giving consent to transfers of leases. Mrs. Lekatsa pointed out that in the instant matter consent was not unreasonably withheld. The land was required for public purposes.
"Lex citius tolerare vult privatum demnum quam
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publicum malum - The law will more readily tolerate a private loss than a public evil or inconvenience" Co. Litt. 132.
In the same vein it is held in Jerik Cent. 185 that
"Privatum incommodum publico bono pensatur -Private loss is compensated by public good."
Mrs. Lekatsa submitted that 1st Applicant has been advised that in the circumstances of his case he will be compensated only to the value of his undeveloped site or alternatively a substitute site will be given. It would seem such was a word in season hence the 1st Applicant would do well to hold the Crown to its advice.
Consequently the Notice of Motion by applicants is dismissed with costs.
ACTING JUDGE.
1st June, 1987.
For the Applicants : Mr. Nthethe
For the Respondents : Mrs Lekatsa.
