IN THE LAND COURT OF LESOTHO Held at Maseru

LC/APN/NO.57/ 2014

In the matter between: KHAHLISO SEFAKO

APPLICANT

And MOTLATSI MOKONYANA

1ST RESPONDENT

SUSAN MOKONYANA

2ND RESPONDENT

TŠOENE SEHLOOHO

3RD RESPONDENT

COMMISSIONER OF POLICE (O/C THETSANE POLICE POST)

4TH RESPONDENT

MORENA MPITI THETSANE

5TH RESPONDENT

LAND ADMINISTRATION AUTHORITY

6TH RESPONDENT

ATTORNEY GENERAL

7TH RESPONDENT

CORAM:

S.P. SAKOANE AJ

DATES OF HEARING:

24 NOVEMBER, 3 AND 5 DECEMBER, 2014, 12 AND 13 FEBRUARY, 2015

DATE OF JUDGMENT:

16 MARCH, 2015 1

SUMMARY Claim over land whose registration of ownership is held by respondents – applicant not having documentary proof of allocation – held that since applicant had not lodged any adverse claim after seeing published notice of allocation in favour the respondents, the latter’s grant of title to land was unimpeachable.

ANNOTATIONS CITED CASES: Mbangamthi v. Phalatsi LAC (1980 – 1984) 179

STATUTES: Land Act No.17 of 1979 Land Court Rules, 2012

JUDGMENT I. [1]

INTRODUCTION

The Applicant approaches the court for the following prayers: (a) “That 6th Respondent be ordered to expunge leases No.12291-340 and 12291-341 registered in the names of 1st Respondent and his spouse wherein 1st Respondent and his spouse have made attempts to transfer one of the two subdivided plots to the names of 2nd Respondent.

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[2]

(b)

That 6th Respondent be and is hereby ordered to register plots 12291-340 and 12291-341 in the names of Applicant.

(c)

The cost of suit to be borne by 1st, 2nd and 3rd Respondents.

(d)

Further and or alternative relief.”

The 1st, 2nd and 3rd respondents filed a joint answer in which they raise the following defences:

(a)

The plot was allocated to the 1st respondent in 1980 by the Land Allocating Committee (per annexure MM1).

(b)

Plot No.12291-340 is the property of the 1st respondent and has a lease thereto (per annexure MM2).

(c)

The lease was issued after due publication of 1st respondent’s application on 28th March 2010 in Moeletsi oa Basotho.

(d)

The said plot now belongs to the 2nd respondent per a deed of transfer between 1st and 2nd respondents (annexed as MM3).

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II.

MERITS

Issues Arising [3]

Counsel prepared and submitted minutes of a pre-trial conference in accordance with Rule 63 of the Land Court Rules, 2012. The following facts are common cause:

“1.1 The site in dispute is situated at Ha Thetsane adjacent to Matekane house.

[4]

1.2

1st and 2nd Respondents had already started work over the site in dispute.

1.3

Applicant had approached contractors engaged by 1st and 2nd Respondents to stop works over the site in dispute and complained that the site belongs to him while 1 st and 2nd Respondents do also content (sic) that the site is theirs.

1.6

The lease over the said site is in the names of the 1 st and 2nd Respondents.

1.7

Applicant does not have any document proving ownership on (sic) the said site.

1.8

The applicant’s grandmother documentation on (sic) the site.”

also

never

had

any

Counsel have formulated the issues for determination are as follows: “3.1 The first issue before this court is whether the side (sic) in dispute was ever allocated to the applicant’s grandmother.

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3.2

The second issue is whether the applicant’s grandmother had right to bequeath the site in question if she had indeed bequeathed the site to applicant.

3.3

The other issue is whether the grandmother had right over the site in absence of any document or any prove that the site was allocated to her.

3.4

The other issue is whether the 1st Respondent obtained the lease lawfully.

3.5

The other issue is whether the site was allocated to the 1st respondent or not.”

The Evidence [5]

The evidence on the issue of the allocation of the site to the applicant’s grandmother is partly resolved by the admission made that the applicant’s grandmother never had any documentary proof of allocation. PW1 who is the current chief and son of the previous Chief Lesia Thetsane testified that he had recently gone to inspect and verify the site in the company of applicant’s grandmother, the applicant and some village elders who knew the site very well. He testified further that he once got information that someone was doing works on the site. He then wrote a letter through his right-hand man one Namolang Thetsane summoning one Tšoene Sehlooho because he had information that the site belonged to Sehlooho. Sehlooho came along with the 1st respondent and both claimed ownership of the site but could not produce any documentary proof. 1 st respondent 5

claimed that he was allocated the site in 1980. When shown a letter (annexure MM1 to the respondents’ Answer) written by Neo Thetsane as the acting Chief while he was out of office on other duties, PW1 disavowed any knowledge of it. He had never seen it and said it was unlawful for Neo to have written it as he had no mandate/authority to handle land matters.

[6]

Cross-examined, PW1 conceded that in 1978-1980 he was not the Chief then and therefore not part of the land allocating authority. He also testified that applicant’s grandmother was given document proving allocation but she lost it. PW1 conceded that Neo Thetsane acted as a Chief from 20062012 and he (PW1) only resumed duties in January 2013. He could not explain why Neo wrote a letter for him in respect of his application for a lease and other people whereas he said Neo had no authority to deal with land matters. Lastly, he said the applicant’s family did not provide any documentary proof of allocation of the site to the applicant.

[7]

Puleng Marina Malise gave evidence as PW2. She testified that she was present when Chief Lesia allocated site to applicant’s grandmother but was unsure about the dates. Cross-examined, she said that no documentation was given to attest to the allocation of the site.

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[8]

Applicant’s mother who is ‘Makhahliso Sefako testified as PW3. She is the daughter of applicant’s grandmother. Her testimony is that the site was allocated to her mother by Chief Lesia Thetsane (PW1’s father) around 1978-1980. Thereafter the site was transferred to her son (the applicant). Her knowledge of the allocation of the site was based on letters by ‘Manthabiseng Salemina Shelile and Puleng Maria Malise (annexes 3(a) and 4(a) to the application). Both letters merely state the writers’ knowledge that the site was given to her mother in the 1980s. Further (said this witness) her mother gave them a letter of transfer of the site to the applicant to be stamped by the Chief. This letter disappeared when her vehicle was stolen in 2014.

[9]

Under cross-examination, she conceded that she was not present when the site was allocated to her mother and was only told so. She also said that the letter of transfer got lost, only after the application had been brought to court but had never been annexed to the court papers.

[10] The applicant gave evidence as PW4. He testified that he was told by her mother (PW3) that her grandmother was allocated the site by Chief Lesia Thetsane. He knows the site well and he had been shown its boundaries by his deceased uncle Lebuajoang Plaatjies. One day he happened to pass 7

next to it and saw some people on it. He approached them and told them that it belonged to his grandmother. He left his telephone numbers with them to give to 1st respondent so that they could discuss. They never called back. The next time he saw some excavation works being done on the site. It is then that they sought PW1s’ intervention who thereafter gave him a report about calling in Sehlooho and 1st respondent to stop the excavation but the excavation did not stop. It is then that a lawyer’s advice was sought.

[11] Cross-examined, he conceded that there were no documents to the site and did not know whether his grandmother had such documents. Furthermore, his grandmother did not have any documentary proof of allocation because in the 1980s it was tradition not issue written documents. Further on, he had not reacted by way of objection to the advertisement of the 1st respondent’s application for a lease in the Moeletsi oa Basotho newspaper because the publication indicated the site as being at Ha Thetsane. He also did not approach the Lands and Survey Physical Planning (LSPP) to acquire a lease and other documents for the site.

[12] The last witness for the applicant is Namolang Thetsane. He testified that when a transaction to transfer land is to be done, the procedure is that the transferor must come with a family letter proving the transfer. Such a letter 8

he had not seen. The only letter that came to his hand was one in the company of the applicant to call Sehlooho and instructing him to stop excavation at the site.

He obliged and after reading it to Sehlooho, the

latter said could not do as instructed as had already taken money.

[13] Under cross-examination, this witness said he knew the site as belonging to applicant’s grandmother and it must have been allocated before 1976 as by then it had poles erected thereat. Put to him that the evidence was that the site was allocated in 1980s, he said he would not know.

[14] That was the applicant’s case.

[15] The respondents’ witnesses are the 1st respondent, Tšoene Sehlooho and Neo Mpiti. The 1st respondent testified that one day when he and the 2nd respondent were at the site to handover it to a contractor for the building of 2nd respondent’s house, the applicant arrived and was in an angry mood. He asked what they were doing at his site. He did not reply but one of the gentlemen in his company replied that they were there to perform some duty. The applicant then claimed that the site belonged to him and asked

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that they discuss the matter. They then exchanged phone numbers on the understanding that they would later call each other.

But that never

happened.

[16] Later on, 1st respondent received a letter from PW1 (Chief Mpiti Thetsane) calling upon him to come with all documents to the site. He obliged. On arrival there he found Tšoene Sehlooho, Neo Thetsane, one Adam and another person whose names he forgets. Both him and Sehlooho had brought documents. He produced documents of two sites including one in dispute. Sehlooho also produced documents of another site he had sold to him. After seeing his two leases, PW1 said he would convey the message to the applicant. Then they parted ways. The next thing he got was a court order stopping construction at the site.

[17] He transferred the site to the 2nd respondent and there are documents to this effect. He had been allocated the site in January 1980 by Chief Lesia Thetsane who worked with one Moletsane and another gentleman. He was given a letter of allocation. He thereafter applied for a Form C by filling in a Form A and left it together with the letter of allocation at the Chief’s place to be annexed. After a few weeks he went back to collect the Form C and he kept it with him until 2008. 10

[18] In 2008 he wanted to apply for a lease and looked for the Form C but could not find it. He then went back to the Chief’s place and found Neo Thetsane whom he gave the report about the missing Form C. He then asked for a Chief’s letter to enable him to apply for a lease. Neo Thetsane told him that he would first make investigations and must come back. He came back after two weeks and got a letter as requested. He took the letter to LSPP. This letter is annexure “MM1” to the answer and was exhibited.

[19] He then made the application for a lease and was issued with it in 2010 after due processes of public advertisement of his application had been complied with (Reference is made to annexures “MM2” and “MM5”).

[20] Cross-examined, 1st respondent denied applicant’s suggestion that he bought his grandmother’s plot from Sehlooho. The site he bought from Sehlooho is a different site which he bought in 2008.

[21] Tšoene Sehlooho gave evidence in which he says he sold a certain site to 1st respondent. The said site is different from the one in dispute and it is situated next to the Chief’s court. Under cross-examination, he said he knew nothing about the disputed site.

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[22] The last witness for the respondents is Neo Thetsane. He testified that he acted as the chief from 2006-December 2012. The 1st respondent came to the Chief’s office in 2008 and reported having lost documents for a site. He explained the locality of the site and said that he had been allocated the site by Chief Lesia Thetsane. 1st respondent even gave him (i.e. Neo) the names of people who worked with Chief Lesia Thetsane. Neo then told 1 st respondent that he would have to make some investigations and ask the people who worked with Chief Lesia.

[23] Neo says he went and met one William and Moletsane. William took him to Moletsane. Both explained that they knew 1st respondent and that he does have a site at Ha Thetsane. That site had been allocated to him by Chief Lesia and knew this as they went with the chief to the site. After 3 weeks to a month the 1st respondent came back. Neo then wrote a letter to the LSPP indicating that 1st respondent’s document had been lost.

[24] He said he disagrees with the suggestions that he did not have any authority to deal with land matters. He had full powers to do anything pertaining to office of the chief. He gave examples of assisting PW1 when he applied for a lease and many other cases on land matters.

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[25] He went further to say that he knows the applicant and that he has never issued any documents to the disputed site to the applicant and his grandmother. In 2012 the applicant’s grandmother came to PW1 and claimed that she had a site. PW1 had asked her to point it out as he did not know it. She pointed out the site as well as others but did not have any documents. Neo testified that it was his first time to know her in 2012 as she lived in South Africa and not Lesotho.

[26] Under cross-examination, Neo reiterated that as acting chief, PW1 had not set any limits for him as to what he could do or not do. He had written many letters for people who had lost their Form Cs.

III.

ANALYSIS

[27] The objective facts are that the applicant does not have any documentary proof of the site being allocated to his grandmother and subsequently transferred to him. On the other hand, the 1st and 2nd respondents are armed with a registered lease and deed of transfer to prove ownership of the site. Thus, the onus rests on the applicant to rebut the lawfulness of ownership rights of the respondents (See Mbangamthi v. Phalatsi LAC (1980-1984) 179 I.)

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[28] The evidence led by the applicant is largely hearsay and has internal contradictions regarding the year when it is said the site was allocated to his grandmother. Some witnesses talk about the 1980s while one talks of 1976. But the common denominator in their evidence is that they have never seen any documentary proof of the allocation the site to applicant’s grandmother. There is not even a letter written by the chief to confirm any allocation if ever there was such. Although applicant says a letter of transfer of the site to him was there and it got lost with other documents when their car was stolen, this happened after these proceedings had been launched and such letter was not annexed hereto. There is no satisfactory explanation why the letter, if ever there was one, was not annexed to the application. I, therefore, do not believe that such a letter existed.

[29] The plot is situated in an urban area where the allocating authority is the Urban Land Committee whose decision to grant title is evidenced by issuance of a Form C3 (section 27 of the Land Act, 1979). The 1st respondent’s evidence is that he was issued a Form C around January 1980 which he realized it got lost when he looked for it in 2008 in order to apply for a lease. It is then that he went back to the acting chief Neo Thetsane and explained how and when the lost Form C was gotten. This was to enable the acquisition of a letter of the Chief to attest to the fact that the 14

site was allocated to 1st respondent. After the acting chief had made independent investigations and was satisfied about the explanation by the1st respondent, he duly wrote a letter which was addressed to the Land Survey and Physical Planning – the then lease-processing administrative structure under the Commissioner of Lands.

[30] The 1st respondent was within his rights to approach the acting chief in the manner he did and the acting chief rendered due assistance.

This

procedural requirements is provided for under section 29 of the Land Act, 1979 which provides, among others, that an applicant for the issuance of a lease must produce:

“(a) evidence that he is qualified to hold land under section 6; (b)

a description of the boundaries of the land in question (by reference to a plan or otherwise); and

(c)

any of the following: ……… (iv) an affidavit by the Chief or other proper authority that the applicant lawfully uses or occupies the land; ………. (vi) any other official document evidencing that the applicant is in lawful occupation of the land.

(2)

Where upon examination of the documents produced under subsection (1), the Commissioner is satisfied of the bona fides of the applicant, he shall so inform the Minister and, shall cause a lease to be prepared for issue to the applicant.” 15

[31] The 1st respondent’s application for grant of title to the site was advertised in terms of section 33 in a newspaper on the 28th March 2010 (Defence Exhibit 2) to enable objectors to come forth. The applicant says he saw the advertisement but never lodged any objection as he would have been entitled to do in terms of section 23. Sections 23 and 33 provide as follows: “23(1)

Any person claiming title to land affected by a notice (advertising a plot available for grant of title) may, within one month from the date of publication of the notice in the Gazette, lodge a claim to such land before the Tribunal.

(2)

………..

(3)

………..

(4)

Where no claim has been lodged within the period specified in subsection (1), any grant made under this part conveys the legal right to use and occupy the land subject to any rights an adverse claimant may have to payment of compensation for lawful improvements made by him to the land.

33(1)

The Commissioner shall cause to be published in a national newspaper notice of applications for leases and licenses under section 29, 30 and 31 which notice shall give the names of the applicants and an adequate description of the land to which the applications relate.

(2)

Section 23 shall apply to an adverse claim of title to land affected by notice under subsection (1).”

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[32] Absent any adverse claim by the applicant, I do not see any good reason in fact or law for the Commissioner of Lands to have refused to cause a lease to be prepared for issue to the 1st respondent. No administrative irregularity or non-compliance with the law has been shown. Ditto the transfer of the site by the 1st respondent to the 2nd respondent.

IV.

DISPOSITION

[33] I find the evidence of the respondents far superior in quality, reliable and acceptable. I reject the applicant’s evidence as unreliable and based on hearsay. In the result, I dismiss this application with costs.

__________________ S.P. SAKOANE ACTING JUDGE

For the Appellant:

K.M. Thabane instructed by K.M. Thabane & Co.

For the Respondents:

M.J. Motsoari instructed by T. Maieane & Co.

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