Ramaphike v Malumane (C of A (CIV) 28 of 2016) [2016] LSCA 26 (28 October 2016)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between: C of A (CIV) No.28/2016 MOROKA RAMAPHIKE Appellant And LINEO GEORGINA MALUMANE Respondent CORAM: LOUW, AJA CLEAVER, AJA DR. MUSONDA, AJA HEARD: DELIVERED: 11 OCTOBER, 2016 28 OCTOBER, 2016 SUMMARY Action for ejectment – allocation of land under Land Act, 1973 and Land Act, 1979 JUDGMENT LOUW AJA: [1] This is an appeal brought with leave of the court a quo (per Makara, J) against the judgment delivered and orders made by that court on 15 December 2015, dismissing an appeal against the decision of the Judicial Commissioner’s Court, made on 19 June 2001. [2] There is a longstanding dispute between the parties concerning the title to a residential site in the rural area of Sekamaneng in the Berea district (the site). [3] Both sides claim to have been allocated the site, the respondent through her husband Mokeneli Malumane (who has since died), in 1980 and the appellant in 1984. Respondent was substituted as a party to the proceedings in April 2016. [4] The proceedings in this matter commenced during 1994 shortly after the respondent’s husband found that the appellant had commenced building a house on the site. Respondent’s husband instituted an action against the appellant in the Majara Local Court seeking an order ejecting the appellant from the site. [5] A number of witnesses testified at the trial and the court conducted an inspection in loco at the site. The court observed that the appellant’s building work had reached the height of approximately ten rows of bricks. [6] The respondent’s husband testified that he had been allocated the site in 1980 by the local chief Manapo Majara. He was issued with a Form C by the chief on 4 January 1980 in terms of the provisions of s 15(1) (a) of the Land Act 20 of 1973. [7] The Land Act, 17 of 1979 came into operation on 16 June 1980 and repealed the Land Act, 1973. [8] The appellant’s evidence was that the site had been allocated to him on 2 November 1984 by the then chief Napo Majara (who is the son of Chief Manapo Majara) and that he was issued with a form C2 in terms of the provisions of s 5(4) read with s 17(1) of the Land Act, 1979. [9] On 14 December 1994 the Majara Local Court upheld the respondent’s claim and the appellant was ordered to vacate the site and to pay the respondent’s costs. [10] The appellant appealed to the Motjoka Central Court against the decision of the Majara Local Court. The appeal was upheld on 9 March 1995. The respondent then appealed to the Judicial Commissioner’s Court against the decision of the Central Court. That appeal was upheld on 19 June 2001 and the decision of the Majara Local Court ordering the appellant to vacate the premises, was reinstated. [11] The appellant applied on 10 July 2001 for a certificate to enable him to appeal to the High Court. After a lengthy delay which is not explained in the papers, the certificate was issued on 6 March 2009. There was a further lengthy unexplained delay before the appeal was heard in the High Court on 24 April 2015. The judgment on the appeal was delivered on 15 December 2015 and the written judgment became available on 11 February 2016. Makara, J dismissed the appeal but deferred making a costs order and urged the parties to settle the matter. [12] The respondent claimed the ejectment of the appellant and the onus rested on the respondent to establish a right to occupy the site. The claim was based on the allocation by Chief Manapo Majara on 4 January 1980 in terms of the provisions of the Land Act, 1973. In terms of s 3 of the Act, all land in Lesotho vests in the Basotho Nation and the power to allocate land is vested in the King in trust for the Basotho Nation (s 4(1)). S 6 reads: 6 (1) The power referred to in s 4 shall, in respect of any land in a rural area, be exercised in the first instance by the Chief within whose area of jurisdiction the land in question is situated. (2) In exercising his functions under subsection (1), a chief shall act after consultation with a Development Committee established for such area. (3) ………… (4) Every Chief shall, after consultation with such Development Committee, designate one or more persons …. whose function it shall be to determine the boundaries of those parcels of land in respect of which an allocation or grant has been or is to be made by him under this section. Section 15 provides: 15(1) A Chief who makes an allocation of land ….. to any person or persons shall issue or cause to be issued a certificate which shall (a) in the case of land in a rural area be substantially in accordance with Form C of the Schedule. [13] The validity of the allocation of the site to the respondent’s husband was challenged in the proceedings before the Majara Local Court. The appellant’s response to the assertion that he had commenced building operations on the land was that the site did not “belong” to the respondent’s husband. The principal issue before the local court was therefore whether the site had been lawfully allocated to the respondent who was seeking the ejectment of the appellant. [14] The respondent’s husband testified that he was one of a number of people to whom sites had been allocated by Chief Manapo Majara on land which up to then had “belonged” to one Rammoka Makoanyane. After being issued with a Form C, he marked the site with poles placed in the ground. During 1984 he noticed that the poles had been removed. The respondent’s husband did not develop the site but during 1992 he applied in terms of s 9(1) of the Land Act, 1979 for a lease in respect of the site. He did not proceed with the application and no lease was issued to him. During 1994 the respondent’s husband noticed that the appellant had commenced building work on the site. He met with the appellant but they could not resolve the dispute as to who was entitled to occupy the site. He reported the matter to Chief Manapo Majara. She found that her son, Chief Napo Majara had allocated the site to the appellant. Her attempt to resolve the dispute through mediation was to no avail. [15] Crucially, for the respondent’s case, no evidence was produced at the trial that the procedure laid down in s 6(2) of the Land Act, 1973 for the allocation of land in the rural area had been followed. There is no mention of a Development Committee for the area concerned or that Chief Manapo Majara had followed the peremptory provisions of s 6(2) by consulting with the Development Committee before allocating the site to the respondent’s husband. [16] This lack of relevant evidence is in stark contrast with the evidence produced by and on behalf of the appellant. The procedure set out in sections 5 and 17 of the Land Act, 1979, requires that an application for a grant of title to land in a rural area shall be made in the prescribed Form A, to the Chairman of the Land Committee, who shall then inform the applicant of the date, time and place to make representations and submissions in support of his application. [17] The evidence by Chief Napo Majara who succeeded his mother as the Chief of Sekamaneng in 1983, was that the appellant approached him for the allocation of land. Chief Napo assisted the appellant to complete the prescribed Form A and they then held a meeting with the members of the local Land Committee. After the meeting, the site was allocated to the appellant and he was issued with the prescribed Form C2, signed by the chairman of the committee. [18] Respondent’s counsel relied further on the evidence of Chief Napo Majara that in 1984 he had removed the poles from four fields which had been marked by his mother Manapo Majara who was at the time acting as chief on his behalf. He removed the poles because his mother had acted without his consent and had used an invalid stamp to issue the Form C’s. Counsel submitted that Chief Napo’s conduct amounted to an invalid revocation of an allocation of land to respondent’s husband, since he had failed to follow the provisions of s 13 of the Land Act, 1979 which provides that the revocation of an allocation of land shall only be made by the Land Committee under chairmanship of the Chief after 30 days written notice had been given to the person affected by the revocation. It is common cause that no such written notice had been given to the respondent. [19] In my view, these contentions do not assist the respondent’s case. First, the power to revoke an allocation under s 13 applies only to land which is not subject to a registrable title. The purported allocation to respondent’s husband was for residential purposes and would, if it were valid, give rise to registrable title. Secondly, as pointed out earlier, the evidence fell far short of establishing that the procedure laid down in s 6(2) of the Land Act, 1973, had been followed. There had therefore not been a lawful allocation of the site to respondent’s husband. When Chief Napo Majara removed the poles from the site in 1984 his conduct did not amount to the revocation of a valid allocation of land to the respondent’s husband. This is therefore not a case of the revocation of a valid allocation and where the validity of a revocation is in issue. [20] It follows that in my view the appeal must succeed and that the order made in the court a quo be set aside. [21] This following order is therefor made: 1. The appeal succeeds with costs. 2. The order made in the court a quo is set aside and the following order is made in the place thereof. (a) The appeal is upheld, with costs; (b) The order made in the Majara Local Court is set aside and the action brought by Mokeneli Malumane for the ejectment of Moroka Ramaphike is dismissed with costs. W. J. LOUW __________________ ACTING JUSTICE OF APPEAL I agree __________________ R. B. CLEAVER ACTING JUSTICE OF APPEAL I agree ___________________ DR. P. MUSONDA ACTING JUSTICE OF APPEAL Appellant’s Counsel: Adv. Setlojoane Respondent’s Counsel: Adv. N. G. Thabane-Hlaele 11