IN THE HIGH COURT OF LESOTHO
Held at Maseru
CIVIL APPEAL/NO.9 of 2014
In the matter between:
MAKHETSELA TLAPANA
1ST APPELLANT
‘MAMOKETE TLAPANA
2ND APPELLANT
And
1ST RESPONDENT
KHOTSO J. KHOETE
CORAM:
S.P. SAKOANE AJ
HEARD:
11 AND 19 DECEMBER 2014
DATE OF JUDGMENT:
16 FEBRUARY, 2015
SUMMARY
Appeal against grant of final interdict – dispute over land –
proof of title by reliance on certificate of allocation – whether
certificate issued by the right Allocating Authority.
ANNOTATIONS
CITED CASES:
Putsoane v. Lekatsu LAC (19990-94) 204
STATUTES:
Land Act No.17 of 1979
Land (Amendment) Act No.6 of 1992
BOOKS:
Prest C.B. (1996) The Law & Practice of Interdict (Juta)
JUDGMENT
A. INTRODUCTION
[1]
This appeal is against a judgment of the learned Chief Magistrate Central
in which he granted an interdict preventing the appellants from interfering
with the respondent’s use and enjoyment of a residential site situated at
Thoteng ea Reisisi at Roma in the Maseru District. There are six grounds
of appeal:
“
1.
The learned Chief Magistrate erred and misdirected himself
in deciding in favour of the Respondent that the
Respondent actually owned rights to a site at Hata-Butle
Thoteng ea Reisisi, Roma against the weight of evidence
pointing to the contrary.
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2.
The court a quo erred and misdirected itself in holding that
the Respondent held a valid title to land to a site at HataButle, Thoteng ea Reisisi, Roma on the basis of a
Certificate of allocation (Form CC2) which stated
categorically that applicant occupied land situated at
Thoteng, Liphakoeng, Roma.
3.
The court a quo erred and misdirected itself in holding that
Respondent held a valid title to land in the Roma area on
the basis of a (Form CC2) issued in terms of Section S(1),
10A and 17(1) of the Land Act 1979 when it was clear that
such allocation would only be valid if issued in terms of
section 24 of the Land Act 1979 as Roma was declared an
urban area by Legal Notice No.14of 1980.
4.
The court a quo erred and misdirected itself in rejecting the
evidence of LEHATA TLAPANA that the land upon
which the Respondent purports to have a site did not belong
to the late Malepa but was bequeathed to the 2nd Appellant
by 2nd Appellant’s late father.
5.
The court a quo erred and misdirected itself in holding that
on agreement purportedly entered into between the late
Malepa and the Respondent constituted a valid grant of title
to Respondent by the late Malepa.
6.
The court a quo erred and misdirected itself in granting the
Respondent an interdict under circumstances where the
Respondent had not satisfied the requirements of an
interdict.”
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[2]
The case sought to be made by the respondent in the court a quo was that
the land in issue (i.e. a residential site) had been “reallocated” to him by
the Land Allocating Authority pursuant to an agreement with the late
Malepa Tlapana in return for a house built for him by the respondent. The
respondent produced a certificate of allocation (Form CC2) exhibited and
marked “A” date stamped 29 February 2000 by the Chief of Ha Mafefoane
and Qhobosheaneng.
[3]
The appellants resisted the respondent’s case on the bases that:
(a)
The locality of the site referred to in the certificate of allocation (i.e.
Thoteng Liphakoeng) is wrong as the correct one is Hata-Butle
Thoteng ea Reisisi and not Thoteng, Liphakoeng.
(b)
The 2nd appellant was allocated the field at Thoteng ea Reisisi at
Hata-Butle while the field at Liphakoeng was allocated to one
Tšele Aloysius Tlapana.
(c)
The 2nd appellant is the lawful title holder with rights and interests
which she has transferred (per “M.T.3” which is a Form CC2) to the
1st appellant as her son.
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(d)
These allocations were per a 1998 family resolution (exhibited and
marked “M.T.1”) which was approved by the late Chief Maama
Maama.
[4]
Given the evident dispute of facts, the court a quo heard oral evidence to
resolve the disputes geared to answer what it called “a simple question as
to who actually owns the rights to the site in question.”
[5]
In its judgment, the court a quo makes the following crucial findings:
1.
Some of the signatories to the 1998 family resolutions had
long died when such a meeting was held.
2.
The certificate of allocation (M.T.3) in favour of 1st appellant
was not printed on an unofficial form and was defective in that
the date thereon was inserted even before the form could be
printed by the Government Printer.
3.
The evidence of the respondent was that his rights over the
site flow from an agreement with the late Malepa is
corroborated. An amendment was duly granted to amend his
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papers to reflect that the site in dispute was situated at
Thoteng ea Reisisi and not at Liphakoeng.
4.
On balance of the evidence, the respondent has proved his
case and the application was granted as prayed.
B. SUBMISSIONS
[6]
Mr. Tlapana, for the appellants, contends that:
1.
The court a quo made no findings of fact and yet reached
conclusions that the appellants’ evidence was shattered by counterevidence.
2.
Roma being an urban area, the allocation of land could only be valid
if made by the designated allocating authority i.e. Urban Land
Committee.
Therefore, respondent’s reliance on Form CC2
(annexure ‘A’) is untenable as the grant is invalid.
For this
proposition, reliance is reposed on Putsoane v. Lekatsu LAC
(1990-94) 204.
[7]
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Mr. Mohau, for the respondents, counters that:
1.
It is significant that neither of the appellants testified in the court
below and yet the respondent did and called witnesses in support
thereof.
2.
An appellate court will be reluctant to disturb findings which depend
on credibility unless the court a quo had clearly misdirected itself in
its reasoning.
3.
A Form C constitutes prima facie proof of allocation and not the
act of allocation itself. Any deficiency in it does not render the act
of allocation done by the appropriate authority invalid.
C. ANALYSIS
[8]
At the centre of this appeal is the question whether the findings of the court
a quo in para 5 are sustainable on the facts and the law as to warrant the
granting of an interdict. Put differently, did the respondent discharge the
onus to warrant the granting of the order?
[9]
The requirements of a final interdict are:
(a)
A clear right.
(b)
An act of interference which constitutes an invasion of
another’s right.
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(c)
Absence of any other satisfactory remedy with the same
result for the protection.
(See Prest C.B. (1996) The Law & Practice of Interdict (Juta) pp. 42-48)
[10] The onus burdened the respondent to establish these requirements. The
court a quo found as a fact that the respondent’s right to the site accrue
from an agreement he had with the late Malepa in September 1998.
Further, that the Development Council issued him with a certificate of
allocation (Annexure “A”) – albeit with the location wrongly described as
being at Thoteng, Liphakoeng instead of Thoteng ea Reisisi.
[11] The said certificate of allocation is a Form CC2 which evidences allocation
of a “Residential Land in a Rural Area”. The Form appears in the Third
Schedule to the Land (Amendment) Act No.6 of 1992 pursuant to the
amendment of sections 5 and 17 (1) of the Land Act, 1979 which now
reads:
“5(5) Where a decision is taken in respect of a residential
allocation of land under Part II of this Act, the Allocating
Authority shall issue a certificate of allocation (Form CC2
in the Third Schedule.”
“17(1) The chairman of the Allocating Authority which
grants a title to land shall issue or cause to be issued to the
allottee a certificate which shall be either in Form “C1” or
“C2” or “CC2” in the Third Schedule as appropriate.”
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[12] Another important amendment to section 5 was the substitution of “Village
Development Council” for “Land Committee” as the allocating authority
for residential land in rural areas.
[13] These amendments bring to the fore the validity or invalidity of Mr.
Tlapana’s proposition that Roma having been declared an urban area in
terms of the Second Schedule to the Land Act, 1979 and the Chairman of
the Manonyane Community Council having so conceded, allocations to
land to be valid ought to have been by the authority designated by law. In
other words, the relevant Allocating Authority was the Urban Land
Committee in terms of section 24 of the Land Act, 1979.
[14] What does not appear from the record is whether the part of Roma where
the disputed site is located is the urban part or the rural part. This enquiry
is important because a reading of Legal Notice No.14 of 1980 which gives
a description of the part of Roma declared as an urban area mentions two
villages, namely, Maphotong and Ha Matobo.
Hata-Butle and
Liphakoeng are not mentioned. By inference therefore, it may be said that
the latter two areas are in the rural area of Roma. Such an inference is
strengthened by the evidence of the Chairman of the Manonyane
Community Council (PW2) who testified, among others, that the Council’s
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Register (Exhibit CX) for allocation of sites reflects that the respondent
was allocated the site on 5/02/2000 and issued a Certificate of Allocation
Form CC2. Further, that this Register is used in the registration of sites
within rural areas.
[15] The other certificate of allocation relied on by the appellants (M.T.3) was
discredited under cross-examination as a fraudulent document. The court
a quo heard and saw the witnesses who testified in relation to it and
believed them. I do not find any basis to overturn this finding and none
has been shown to me.
As such, the appellants’ have no business
interfering with respondent’s use and occupation of the land. There being
no appeal against the amendment to rectify the locality of the site in Form
CC2, the certificate of allocation remains intact.
[16] On the balance of evidence, it does appear that the certificate of allocation
Form CC2 was lawfully issued to the respondent in respect of land in a
rural area of Roma. Accordingly, the respondent’s title to the land is intact
as a valid grant of land.
The Putsoane judgment is, therefore, not
applicable on the facts of this case.
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D. DISPOSITION
[16] I then come to the conclusion that the court a quo rightly granted the relief
sought and its judgment must be sustained.
[17] The appeal is accordingly dismissed with costs.
__________________
S.P. SAKOANE
ACTING JUDGE
For the Appellants:
M.P. Tlapana
For the Respondent:
K.K. Mohau KC
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