Tlele-Tlele and Another v Matekane and Others (CIV/APN 386 of 91) [1994] LSCA 136 (1 August 1994)

IN THE HIGH COURT OF LESOTHO In the matter between: CIV/APN/386/91 SEBOKA TLELE-TLELE 1ST APPLICANT REALEBOHA NKOKO 2ND APPLICANT VS NTSOKOANE SAMUEL MATEKANE MINISTER OF INTERIOR COMMISSIONER OF LANDS DEEDS REGISTRAR HIS WORSHIP MAGISTRATE (THABA TSEKA) ATTORNEY GENERAL 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT JUDGMENT Delivered by the Honourable Mr, Justice W. C. M. Maqutu, on the 1st day of August, 1994. This application was brought ex parte for an order in the following terms: " 1. That a RULE NISI be issued and return- -2- able at the time to be fixed by this Honourable Court, calling upon the respondents to show cause (if any) why:- (a) Strict compliance with the Rules of Court shall not be dispensed with; (b) The proceedings in CC. 36/91 pen- ding at Thaba-Tseka Magistrate's court shall not be stayed pending the outcome of this application. (c) 1st respondent shall not be restrained from interfering in any manner whatsoever with plot No, 39361-040 pending the outcome of this application. (d) The declaration by the 2nd respondent of a selected develop- ment area consisting of Plot NO. 39361-040 Thaba-Tseka published by legal notice NO. 123 of 1987 shall not be set aside as invalid and of no force and effect; (e) Lease NO. 39361-040 shall not be cancelled; -3- 2. Cost of this application against such respondents who shall oppose same; 3. Further and / or alternative relief; 4. That prayers l(a), 1(b) and 1(c) operate with immediate effect as an interim order pending the outcome of this application." A Rule Nisi was issued which must have been extended several times, but at one time lapsed. It was revived on the 1st November, 1993. The matter was eventually argued on the 15th June, 1994. The application is an opposed one and opposing papers were filed. At the time this application was brought ejectment proceedings were pending against First Applicant at the Thaba-Tseka Magistrate Court in CC. 31/91. First Respondent is a holder of a Lease No. 39361-040 for a plot in Thaba-Tseka which First and Second Appli- cants are occupying. Consequently (basing himself on this lease) First Respondent issued ejectment proceedings against Second Applicant before the Magistrate's Court Thaba Tseka. First Applicant is asking this Court to cancel this lease. -4- The Second Applicant has really no title to the land in question. First Applicant has purportedly sub-divided the land which is the subject of this dispute. First Applicant claims he agreed to transfer a portion of this land to Second Applicant. There is no dispute about the fact that such an agreement is a nullity as it was made with the consent and involvement of the land allocating authority.. Second Applicant cannot have the right to use and occupy that land unless the land allocating authority allocates that portion to him. In Lesotho there is no individual ownership of land. The land belongs to the people as a,whole. The King or of late the Government holds the land in trust for the people. The Chiefs and their land committees continue to allocate land except land that has been selected as a development area that falls directly under the administra- tion of the Commissioner of Lands and the Minister of Interior. Considerable confusion has been caused by the graft- ing of Ministerial administration of land selected for development over the land administration that existed before 1979. The first attempt at systematising land / ... -5- allocation was made through the Land Procedure Act of 1967, The customary land allocation practices in the Land Procedure Act of 1967 had been preserved as much as possible save that records were to be kept and the chief was to be helped by a committee and revocations of rights to land could only take place after a hearing. This was followed by the Land Act of 1973. In June 1981 the current Land Act of 1997 came into force. It ushered in the current land administration by consolidating and improving existing land law and introducing the Selected Development Areas for residential, business planning and agricultural purposes. By custom every householder is entitled to have a piece of land on which to erect his dwelling and to have a piece or pieces of land to farm in order to subsist. The population is increasing rapidly and already the land available cannot meet this expectation. The legislature has not yet addressed this issue. The Land Act of 1979 tries to improve the existing land administration and introduces Land Tribunals to settle disputes. In general, the existing law is left largely as it used to be save that it is consolidated. Expropriation of land for public purposes under fart VI of the Land Act 1979 is nothing new. What the act does is merely to improve and clarify procedures that have been in existence for the expropri- ation of land. There is unfortunately the tendency to confuse fart VI on land required for public purposes and Selected Development and Selected Agricultural Areas under -6- Part V of the Land Act of 1979. The real i n n o v a t i on in our land a d m i n i s t r a t i on is the S e l e c t ed D e v e l o p m e nt Areas and the S e l e c t ed A g r i c u l t u r al Areas. Reading Part V of the Land Act of 1979 as a whole (section 44 i n c l u d e d ), the i n e s c a p a b le c o n c l u s i on is that it w as intended to improve the quality of life of l o c a l- ities as a w h o l e. It is not primarily intended to d i s p o s- sess people of their rights and i n t e r e s ts over land. The S e l e c t ed D e v e l o p m e nt Area need not be declared if the co- o p e r a t i on of i n d i v i d u a ls can be secured by p e r s u a s i o n, The S e l e c t ed D e v e l o p m e nt Area should be declared to o v e r c o me selfish and u n r e a s o n a b le o b s t r u c t i on of a project devised and designed for the good of all in the p a r t i c u l ar a r e a. The Court of Appeal in the case of Pages (LESOTHO) (PTY) Ltd v Lesotho A g r i c u l t u r al Development Bank and O t h e rs C of A (CIV) No.14 of 1989 ( u n r e p o r t e d) is against the tendency to seize the lands of people through the S e l e c t ed Development Area p r o c e d u re merely because the M i n i s t er may grant s u b s t i t u te titles to the people w h o se titles have just been e x t i n g u i s h e d. The Court of Appeal has upheld and r e - a f f i r m ed the rights of existing land a l l o t t e e s. It has put the Minister under an o b l i g a t i on to consult with them and thus make them willing p a r t n e rs in the intended d e v e l o p m e nt scheme u n l e ss their c i r c u m s t a n c es or behaviour m a k es such a step i m p o s s i b l e. To show that Part v was not intended to be a vehicle for wholesale dispossession by the Minister we have to examine the Land Act itself. -7- The long title of Land Act of 1979 states that the Act is intended "To consolidate and amend the law relating to land thus providing for: (a) the grant of titles to land; (b) the conversion of titles to land; (c) the declaration of selected development areas and. selected agricultural areas and titles therein; (d) the setting aside of land for use for public purposes; (e) the establishment of a Land Tribunal; (f) the grant of public servitudes, and for connected purposes." My understanding of the Act based on the ratio decidendi of the Court of Appeal case of Pages Stores Lesotho Pty Ltd v The Lesotho Agricultural Development Bank and Others C of A (CIV) No.14 of 1989 (unreported) is that the existing land policy is geared towards the service of the existing occupants of land. This is obvious from the definition of "selected development area" in Section 2 of the land Act of 1979. In a selected development area, the intended development or reconstruc- tion is in general intended for existing allottees there- fore they should (as much as possible) be parties to the intended reconstruction or development. Similarly the /.. . c r e a t i on of s e r v i t u d es and the r e a d j u s t m e nt of b o u n d a r i es for p u r p o s es of town p l a n n i ng or even a g r i c u l t u re shows clearly that the d e v e l o p m e nt that is intended is for the existing a l l o t t e es and others in the locality. -8- What A a r on JA seems to have clearly held in the Pages S t o re Lesotho (Pty) Ltd. case is that Section 44 of the Land Act is an e m p o w e r i ng p r o v i s i o n. T h e r e f o re there are c o n d i t i o ns p r e c e d e nt that must be fulfilled because the M i n i s t er can e x e r c i se the d r a c o n i an powers under the A c t. They are in fact to put in A a r on JA's w o r d s, "a j u r i s d i c- tional r e q u i r e m e n t ". In other words implicit in the statute is that the M i n i s t e rs should use those a r b i t r a ry powers r e a s o n a b ly when the s i t u a t i on calls for such an a c t i o n. If this a w a r e n e ss is not d i s p l a y e d, then, "the jurisdictional requirement is not ful- filled, then the Minister may not proceed to exercise the powers." A a r on JA o b s e r v e d. The way I see it acting o p p r e s s i v e ly and w i t h o ut due c o n s i d e r a t i on of the rights of existing a l l o t t e es and other p e o p le who have an i n t e r e st w i t h in the selected d e v e l o p m e nt a r e a, is not to act in the public i n t e r e s t. Not only should the M i n i s t er in this case o b j e c t i v e ly d e t e r m i ne w h e t h er it is in the public interest to d e v e l op the p a r t i c u l ar a r e a, he has also to d e t e r m i ne whether or not the d e c l a r a t i on of a selected d e v e l o p m e nt area is his o n ly o p t i o n. -9- W h i le the C o u rt s h o u ld not s u b s t i t u te its o wn d i s c r e- tion for that of the M i n i s t er in m a t t e rs of a d m i n i s t r a- t i o n, the C o u r t 's d u ty is n e v e r t h e l e ss to see that the M i n i s t er u s es the p o w e rs c o n f e r r ed by s t a t u te for the p u r p o s es they w e re i n t e n d ed for by the l e g i s l a t u r e. T he e n t i re Part V of the L a nd Act of 1979 is not m e a nt to be a m e a ns of d e s p o i l i ng the p e o p le w ho h a ve r i g h ts over l a n d. T he aim i s, as m u ch as p o s s i b l e, to i n v o l ve p e o p le w ho a l r e a dy had r i g h ts over the land s e l e c t ed for d e v e l o p- m e nt in the i n t e n d ed d e v e l o p m e nt s c h e m e. In o t h er w o r d s, the aim of f a rt V of the L a nd Act of is not to take a w ay land from one p e r s on who is an a l l o t t ee (in o r d er to g i ve it to s o me o ne e l s e) so that this new o c c u p i er c an be the one to e n j oy the f r u i ts of that d e v e l o p m e n t. T he u n d e r s t a n d i ng I h a ve is that the M i n i s t er is o b l i g ed to m a ke the e x i s t i ng land o c c u p i e rs the b e n e f i c i a r i es of any f u t u re d e v e l o p m e nt s c h e me that he m i g ht e m b a rk u p on in the p u b l ic i n t e r e st ( u n l e ss that is u n a v o i d a b l e ). T h is h a p p e ns w h e re s u ch a p e r s on or p e o p le h a ve r i g h ts that c a n n ot be r e c o n c i l ed w i th the d e v e l o p m e nt s c h e m e. In that e v e nt the M i n i s t er is o b l i g ed to a d o pt d r a c o n i an m e a s u r es by d e c l a r i ng a S e l e c t ed D e v e l o p m e nt Area and see that the e x i s t i ng a l l o t t e es are c o m p e n s a t ed to the e x t e nt that t h e ir r i g ht over land h a ve b e en a f f e c t e d, A m o ng the o p t i o ns o p en to the M i n i s t er is to grant the person affected substitute rights or both substitute rights and compensation. -10- Courts have repeatedly said they are not supposed to interfere with the exercise of Ministerial discretion so long as it is exercised in the manner that the legislature directed. This area is not free from complications. Where the Minister exercises his powers whether objectively or subjectively, the courts should not substitute their discretion for that of the Minister, so long as he is doing what the legislature authorised and in a manner that the legislature had in mind. The problem that always has to be overcome is that there are other rights which are protected by law which cannot just be disregarded by the Minister unless the legislature specifically said they should. While it is not the function of the courts to explore alternatives for the Minister and to choose the best way to achieve developmental objectives, Aaron JA in inter- preting Section 44 said the Minister must always see to it that other ways of achieving objectives are sought. If the Minister can reach the desired end with the coopera- tion of the allottees in the area ear-marked for develop- ment: "In such a case the Minister should consider whether it is necessary to use his discre- tionary powers under Section 44 to make a -11- declaration." (Vide Pages S t o r es (Lesotho) (Pty) Ltd. (supra) This c o n c l u s i on of A a r on JA followed logically from the fact that a " s e l e c t ed d e v e l o p m e nt area" e x t i n g u i s h es titles which the M i n i s t er might almost i m m e d i a t e ly there-, after have to s u b s t i t u t e. For that reason it would be an abuse of the p r o c e ss to d e c l a re a " s e l e c t ed d e v e l o p m e nt area" as a m a t t er of c o u r s e, even if it is not n e c e s s a r y. It also follows that the l e g i s l a t u re never intended the " s e l e c t ed d e v e l o p m e nt area" as a m e a ns p r e s e n t i ng a l l o t t e es with a fiat accompli of r e v o c a t i on of titles which can then be substituted by the M i n i s t er at will and on his t e r m s. These powers are to be used if this is the best way forward. A a r on JA in the Pages S t o re (Lesotho) (Pty) Ltd. case e m p h a s i s ed the public b e n e f i c i al use of M i n i s t e r i al powers under S e c t i on 44 as f o l l o w s: "There is one situation where Section 44 may be found particularly useful, and that is, where furtherance of a development scheme is obstructed by a person holding a plot in the area, who refuses to allow his plot to be consolidated or his boundaries to be adjusted. Declaration of the area as a special development area will extinguish his title, and this may be the only method avail- able, to facilitate development.. . Therefore the Minister, in the proper exercise of his discretion, should always consider whether it /. . . is really necessary to put an end to a person's title by making a declaration under Section 44." -12- It is clear from what Aaron JA said that the Minister is obliged (in exercising his powers under Section 44) to consider whether prejudice to allottees and occupiers "cannot perhaps be. avoided by the employment of other reasonable means," The fact that the Minister never even knew or even considered that there were existing allottees in the area intended for d e v e l o p m e n t, is an indication that he never assumed the exercise of developmental powers legally and properly. To put it in the words used in Pages S t o r es (Lesotho) (Pty) Ltd v Lesotho Agricultural Bank & Others ( s u p r a ), the Minister did not fulfil the jurisdictional requirements that would enable him to have the power to declare a Selected Development A r e a. The main thrust of Mr. Nathane's a r g u m e n t, Counsel for R e s p o n d e n t s, is that this Section clearly excludes the right to hear the person who is the current legal occupier and user of the and in the Selected Development A r e a. In the light of what has been said a b o v e, the right to be I would further add this right of an heard is implied, existing allottee is also the right to be a partner in the intended development scheme unless this is avoidable for good reasons. -13- T i t l es to land c o n t i n ue to be r e g i s t r a b le in terms of the D e e ds R e g i s t ry Act of 1967 for s o me s i t es i n s o f ar as it has not been r e p e a l ed by the Land Act of 1979. The g r e a t e st p r o b l em that c o n f r o n ts and c o m p l i c a t es land a d m i n i s t r a t i on is that most of the land in L e s o t ho is not s u r v e y e d. Land is being s u r v e y ed on an ad hoc b a s is all over L e s o t h o. P r i v a te s u r v e y o rs are e m p l o y ed to s u r v ey lands u n d er the o v e r - a ll s u p e r v i s i on of O f f i ce of the Chief S u r v e y o r. It is not u n u s u al to find c o n f l i c ts in the survey d i a g r a m s. T h e re is a p r a c t i ce of s u r v e y i ng lands w i t h o ut the k n o w l e d ge and i n v o l v e m e nt of the local c h i e fs and other land a l l o c a t i ng a u t h o r i t i e s. T he Chief S u r v e y or then g i v es these site n u m b e r s. The O f f i ce of the C o m m i s s i o n er of lands then p u b l i s h es them under the n u m b e rs that the Chief S u r v e y o r 's o f f i ce has g i v en them. It is not u n u s u al for several a d v e r t i s e m e n ts of a s i m i l ar type to appear in n e w s p a p e r s. T h e se a d v e r t i s e m e nt of s u r v e y ed sites u n d er new n u m b e rs w h i ch only the Chief S u r v e y or k n o ws are c o m p l e t e ly u s e l e s s. A p u b l i c a t i on that is e n v i s a g ed is of land that is c l e a r ly i d e n t i f i a b le and d e s c r i b ed in terms w h i ch the g e n e r al p u b l ic can i d e n t i fy w i th r e a s o n a b le c e r t a i n t y. A p u b l i c a t i on that is n o ne of these t h i n gs is not for p u b l ic information... The r e a s on b e i ng that it does not i n f o rm at a l l. -14- T he Land Act of 1979 g i v es the M i n i s t er w h o se right hand p e r s on is the C o m m i s s i o n er of lands e x t e n s i ve and a r b i t r a ry p o w e r s. T he very n a t u re of these p o w e rs i n v i t es s t r i ct i n t e r p r e t a t i on to p r o t e ct e x i s t i ng v e s t ed r i g h ts . See C o t r an CJ in Sebueng M a l e b a n ye v S e c h a b a s e o le Goliath 1974 - 75 LLR 276 at p a ge 2 80 C w h e re he s a i d :- "It is a well known rule of construction that express and unambiguous language is absolutely necessary in statutes passed conferring new rights or takeing away vested rights." T h e re is no d i s p u te that the land in q u e s t i on was an a r a b le land that w as in an u r b an a r ea or w h at was o n ce a r u r al a r e a. T h is land was c o n t r o l l ed by Land C o m m i t t ee u n d er the C h a i r m a n s h ip of a c h i e f. In terms of S e c t i on 13 of the Land Act of 1979 and the r e p e a l ed L a nd Act 1973 and L a nd P r o c e d u re Act of 1 9 67 (now r e p e a l e d) the e x i s t i ng h o l d er had a right to be n o t i f i ed and h e a rd b e f o re the land he had the right to use or o c c u py was t a k en a w a y. D e a l i ng w i th S e c t i on P of the Land P r o c e d u re Act of 1 9 67 w h i ch is very s i m i l ar to S e c t i on 13 of the Land Act 1979 in the c a se of S e e i so S e h l o ho v Tumo M a j a ra 1 9 71 - 73 LLR 194 De V i l l i e rs A. CJ said the p u r p o se of g i v i ng n o t i ce i s; -15- "That his right will be taken away unless within the specified period he indicates to the person giving notice that he wishes to make submission and representations as to why the intended revocation, should not be made... As the giving to the respondent a notice which I have indicated is required by Section 9(1) was a condition precedent to any lawful revocation of his rights, and no such notice was given, his rights have never been lawful- ly revoked and the chieftainess accordingly has no right to allocate the field to appel- lant." The right of an a l l o t t ee not only to be heard but to have a d i a l o g ue w i th the M i n i s t er b e f o re he can d e t e r m i ne w h e t h er he should resort to what a m o u n ts to a f o rm of m o d e r a te e x p r o p r i a t i on is i m p l i c it (if not e x p r e s s) in S e c t i on 44 of the L a nd Act of 1979, See the Pages Stores ( L e s o t h o) (Pty) Ltd. c a s e. T he land had been a l l o c a t ed to First A p p l i c a nt for a g r i c u l t u r al p u r p o s e, I h a ve a l r e a dy shown the o b l i g a t i on to c o n s u lt over the i n t e n d ed d e v e l o p m e nt s c h e me was ever p r e s e n t. T he use of p o w e rs under Section 44 is a v a i l a b le to the M i n i s t er only in the last r e s o r t. It does not mean h o l d e rs of a g r i c u l t u r al land can be d e s p o i l ed and d i s p o s- sessed by the M i n i s t er at w i l l. -16- They are to be invited to co-operate with the Minister in order that they, like other people in the locality, can be p a r t i c i p a n ts in the development p r o j e c t, with this caveat that they cannot be allowed to frustrate a d e v e l o p- ment scheme for the area as a w h o l e. If they do, the Minister might be obliged to use the powers under S e c t i on 44 to revoke their titles to land. During and after n e g o t i a t i o n s, the Minister has a duty to see these allottees are not prejudiced if that can be avoided. In the final resort the Minister is obliged to c o m p e n s a te those a l l o t t e e s. Mr. Hloali argued that the whole s u r r e p t i t i o us d e c l a r a t i on of the "selected development area" was done for the sole benefit of First R e s p o n d e n t. There is no evidence on record signifying that it was in the public interest to do so. There is not even an evident scheme of development at all except that First A p p l i c a n t 's land was seized under the purported " s e l e c t ed development area* idea. The M i n i s t e r 's intention and o b j e c t i v es are u n k n o w n. No n e g o t i a t i o ns about the scheme and p o s s i b le c o m p e n s a t i on could have been embarked upon because e v e r y- thing was done secretly. The Chief of the area and First Applicant never knew of the M i n i s t e r 's intention to take First A p p l i c a n t 's a g r i c u l t u r al land. A vague and ineffectual p u b l i c a t i on of a "selected development area" was published in the Government G a z e t t e. -17- I h a ve a l r e a dy said it w as v i r t u a l ly no p u b l i c a t i on at all b e c a u se it c o m p l e t e ly f a i l ed to i d e n t i fy the land that was the s u b j e ct of the p u b l i c a t i o n, s a ve p e r h a ps to s u r v e y o r s. T he p u b l ic for w h om the a d v e r t i s e m e nt the w as i n t e n d ed c o u ld not b e n e f it from i t. It is i n s t r u c t i ve to n o te that F i r st A p p l i c a nt w r o te the f o l l o w i ng l e t t er A n n e x u re " E" on 1 7 / 1 0 / 91 to the C o m m i s s i o n er of L a n d s: " It has c o me to my a t t e n t i on that by e r r or M r, N t s o k o a ne S a m u el M a t e k a ne h as b e en a l l o c a t ed a s i te on my field w ho a p p e a rs now h o l d i ng L e a se N o. 3 9 3 6 1 - 0 4 0. I h a ve b e en p l o u g h i ng that f i e ld all the y e a rs e v en this year I w as h a r- v e s t i ng m a i ze in that f i e l d. 1 am s u r p r i s ed now how a p e r s on can be a l l o c a t ed my f i e ld w i t h o ut my b e i ng a d v i s ed or n o t i f i e d ." T he i n e s c a p a b le c o n c l u s i on is that the M i n i s t er of the day had c o m p l e t e ly m i s c o n c e i v ed h is p o w e rs u n d er S e c t i o ns 44 a nd 45 of the L a nd Act 1979. P u b l i c a t i on in a g a z e t te w as b e i ng used as a m e t h od of s e i z i ng of p e o p l- e's land c o n t r a ry to the A c t. It d o es not h e lp m a t t e rs to find the C h i ef T o wn P l a n n er w r i t i ng to C h i ef L a n ds O f f i c er a n n e x u re " F" d a t ed 2 1 - 0 7 - 87 in w h i ch he says it h as been d e c i d ed to c r e a te a w a r e h o u se for M r. M a t e k a ne at T h a ba T s e k a: /... " A t t a c h ed h e r e w i th is an e x t r a ct of a m ap s h o w i ng s i te N o . 3 9 3 6 1 - 0 4 0 . . .. r e c o m m e n d ed as S DA in f a v o ur of M r. S, M a t e k a n e . "- -16- Hloali I find M r. a r g u m e nt u n a s s a i l a b le i n a s m u ch as t h is " s e l e c t ed d e v e l o p m e nt a r e a" h a r d ly m e e ts w h at c o u ld be said to be the p u b l ic i n t e r e st a n n e x u re " F" s t a t e s, " it w as f i n a l ly a g r e ed that a w a r e - h o u se be c r e a t ed for h i m ." I do not t h i nk the M i n i s t e r i al p o w e rs u n d er S e c t i on 44 a re i n t e n d ed to c r e a te w a r e h o u s es for s p e c i f ic i n d i v i d u a l s. T he L a nd Act h as in i t, a b u i l t - in m a c h i n e ry to a v o id d i s c r i m i n a t i on and u n f a ir p r e f e r e n ce of s o me i n d i v i d u a ls o v er o t h e r s. If i n d e ed F i r st A p p l i c a nt has no r i g h ts as M r. N a t h a ne t he F i r st R e s p o n d e n t 's C o u n s el a r g u e s, t h en S e c t i on 21 a nd 22 h a ve to a p p l y, In that e v e nt the M i n i s t er has to call for t e n d e rs b e f o re t he s i te c an be a l l o c a t ed for c o m m e r- cial and i n d u s t r i al p u r p o s e s. In that e v e n t, F i r st R e s p o n d e nt w o u ld h a ve had to c o m p e te w i th o t h er b u s i n e s s- m en b e f o re he c o u ld w in the r i g ht to be a l l o c a t ed the 22(1) s i t e. T he r e a s on b e i ng that in t e r ms of S e c t i on "Where land available for grant of title is to be used for commercial or industrial purposes...the Commissioner may issue invita- tions for tender in the Gazette or a national newspaper..." -19- T h is S e c t i on is to be read w i th S e c t i on 21 w h i ch m a k es a d v e r t i s e m e nt of s i t es p e r e m p t o r y. S ee the c a se of Ntai M p h o fe v J o s e ph R a n t h i mo & Another of A ( C I V) N o . 22 of 1 9 8 8. It f o l l o ws t h e r e f o r e, if t he F i r st R e s p o n d e n t 's s u b m i s s i on is c o r r e ct and F i r st A p p l i c a nt i n d e ed had no e x i s t i ng r i g h t s, t h en f a i l u re to f o l l ow the p r o v i s i o ns of S e c t i on 21 read a l o ng w i th S e c t i on 22 m a k es his l e a se null and v o i d, T h e r e f o re F i r st R e s p o n d e n t 's t i t le c a n n ot s t a nd w h i ch e v er w ay y ou look at i t. As F i r st A p p l i c a nt h as s u c c e e d ed and t he u n s u c c e s s f ul i n t e r v e n t i on of S e c o nd a p p l i c a nt did not i n c r e a se c o s ts of suit s u b s t a n t i a l l y, I am of the v i ew that it s h o u ld not a f f e ct the q u e s t i on of c o s ts in t h e se p r o c e e d i n g s. In the c i r c u m s t a n c es I m a ke the f o l l o w i ng o r d e r: (a) T he Rule Nisi is c o n f i r m ed in the f o l l o w i ng t e r m s: (i) F i r st T he p r o c e e d i n gs in CC 3 6 / 91 b a s ed R e s p o n d e n t 's 6th J u l y, 1 9 89 r e f e r r a b le to s i te n u m b er 3 9 3 6 1- l e a se d a t ed r e g i s t e r ed /.. . 040 are s t a y e d. -20- (ii) First R e s p o n d e nt is r e s t r a i n ed from i n t e r- fering w i th F i r st A p p l i c a n t 's r i g h ts over the land now s t y l ed p l ot 3 9 2 6 1 - 0 4 0. ( i i i) The d e c l a r a t i on by S e c o nd R e s p o n d e nt of a s e l e c t ed d e v e l o p m e nt area c o n s i s t i ng of plot N o. 3 9 3 6 1 - 0 40 T h a b a - T s e ka p u b l i s h ed in Legal N o t i ce N o. 128 of 1 9 87 is set a s i de as being i n v a l id and of no force and e f f e c t. ( i v) L e a se N o. 3 9 3 6 1 - 0 40 d a t ed 6th J u l y, 1 9 89 is h e r e by c a n c e l l e d. (a) First and Second R e s p o n d e n ts are d i r e c t ed to pay the c o s ts of this a p p l i c a t i o n, W . C . M. M A Q U TU J U D GE For A p p l i c a n ts : M r. T. H l a o li For R e s p o n d e n t s: M r. H. N a t h a ne