IN THE HIGH COURT OF LESOTHO
In the matter between:
RETSILISITSOE MOLAPO Applicant
THE CHIEF SURVEYOR 1st Respondent
THE COMMISSIONER OF LANDS 2nd Respondent
THE REGISTRAR OF DEEDS 3rd Respondent
NKHEREPE MOLEFE 4th Respondent
Delivered by the Honourable Mr Acting Justice T. Nomngcongo On the 13th day of May, 2003
In his Notice of Motion the applicant herein seeks relief in the following terms :-
Directing and authorizing the first respondent to cancel and correct the survey plan of site NO. 25122-025 to the extent that the said plan shows site NO.25122-025 as protruding into and overlapping with applicant's plot, whereon house number 109, formerly of the government of Lesotho, is (sic) situated in the Hlotse reserve.
Directing and authorizing first respondent to cause the correction aforesaid to be made at the costs (sic) of the surveyor responsible for the error.
Directing respondents to pay costs only if they oppose this application.
A Notice of Intention to oppose was duly entered by the 4th respondent only, the others apparently content with abiding the judgment of this court. He did not however file any answering affidavit but raised points of law in terms of Rule 8 (10) of the High Court Rules which reads:
"Any person opposing the grant of any order sought in the applicant's notice of motion shall:
if he intends to raise any question of law without any answering affidavit, he shall deliver notice of his. intention to do so, within the time aforesaid setting forth such question."
It will thus be assumed that the facts as set out in the applicant's founding affidavit are common cause. In summary they are to the effect that in 1972 applicant bought certain rights and interests in government house no. 109 situated at Hlotse as appears on government records held by the Ministry of Works. The fenced plot over which this house was built shared a border
with the property of a certain Mr Phamotse who later transferred such property to another Mr Tully who in turn also transferred it to Mr Molefe, the present fourth respondent. It appears that during the occupation of Phamotse and Tully the neighbours co-existed peacefully. Apparently no proper survey of the plots had been carried out either prior or during their occupation but it was later carried out. When it was so carried out it encroached upon a large portion of the applicant's plot, indeed from the diagrams annexed it encompassed nearly half of the plot. It was on the basis of that survey that Molefe obtained a lease which he presently holds. The applicant's title to his own plot and improvements thereon was never registered. In fact the applicant makes the point that as soon as the had taken occupation of the said house and plot he applied for a lease in my names (my underlining). Then for the first time he learnt that the house was located on a plot that was not part of the "Cadestral map." (See par. 15 of the applicant's founding affidavit). I have underlined the word lease because it seems incongruent with the time he took occupation which he claims was 1972. A "title deed" was the terminology of the times, the lease in the context, only having come into existence after 1979 with the enactment of the Land Act of that year.
The legal point taken by the 4th respondent is that the applicant has no locus standi to sue as whatever title he may have had to the disputed property has been extinguished by section 15 of the Deeds Registry Act 1967 which provides as follows in relevant parts:-
"15 (1) -----------------
Every person or body holding a certificate issued by the proper authority authorizing the occupation or use of land shall within three months of the date of issue of the certificate apply to the registrar for a registered certificate of title to occupy or use.
Every person or body who prior to the commencement of this Act was issued with a certificate by the proper authority authorizing the occupation or use of land shall likewise apply to the registrar within a period of [nine months] months from the date of commencement of this Act for a registered certificate to occupy or use.
Failure to lodge with the registrar the said certificate of occupation or use for registration in terms of sub-sections (2) and (3) within the prescribed period or within such extended period [as the Registrar may allow (and the Registrar is hereby empowered so to allow extensions of that period) or within such period as the court may allow,] shall render the certificate null and void and of no force and effect and the rights of occupation and use shall revert back to the owner of the land, being the Basotho Nation".
Mr Matooane argues that from 1972 the applicant has neither registered his right to occupy and use the plot in question or applied for any, extension of
time to so register. This falls foul of Section 15(4) and renders whatever title applicant had in the plot null and void and of no force or effect.
Mr Teele counters this argument by saying that this section applies only to original allocations of land and not what he calls derivative titles. By this I understand Mr Teele to mean that since he had acquired his title from someone who had a prior title then this section does not apply to the applicant. Although this apparently illogical argument was laid naked before me, in the circumstances of this case there appears to be some support for it from a closer reading of the Deeds Registry Act. Section 15 is concerned with the registration of land as such. Land is defined in Section 2(1) of the Act meaning " the land only and does not include any buildings or other improvements erected thereon." The property under dispute is said to have had what has been described as a two roomed house. A house being a building then removes the property in question from the definition of "land" and therefore from the application of section 15 of the Deeds Registry Act which concerns itself only with the registration of land.
Now a building is included in the definition of immovable property, still under Section 2. (1) of the Act, which reads "immovable property" includes-
Any building including fixtures or improvements in or over land and the right of occupation and use thereof;
We are therefore, in this instance dealing not with land per se but immovable property. It is clear therefore that the applicable section in the circumstances of this case is not Section 15 of the Act but Section 16 thereof which deals with immovable property in these terms:-
16. (1) Every deed or agreement transferring right in or to immovable property shall be registered in the deeds registry.
Such registration shall only be effected after the proper authority has consented in writing to the allocation to the transfer of the right to occupy and use the land on which that immovable property is situated, which consent shall not be unreasonably withheld.
Every deed or agreement transferring rights in or to immovable property shall be lodged for registration in the deeds registry within three months of the granting of the consent referred to in the preceding sub-section.
Failure to lodge the said deed or agreement for registration within the prescribed period or within such extended period as the registrars may allow (and the registrar is hereby empowered so to allow extensions of that period) shall render the deed or agreement null and void and of not force or effect unless otherwise ordered by the court.
It becomes clear that having acquired his rights from Government he must have had these transferred to him. The difference between his section and section 15 is that where in terms of the latter the time within which registration must be effected runs from the date of allocation of land, in terms of the former, it runs from the date of consent, which consent can not be unreasonably withheld. Registration however cannot be dispensed with and it must be done within three months of either allocation or as in the present consent by the proper authority; failure to comply renders title null and void and of no force or effect - so drastic is the consequence. The only relief is obtained by way of getting an extension of the period of three months from the Registrar of Deeds.
In casu it is common cause that from 1972 there was no registration. There is no averment that any attempt was made to comply with section 16 or that in fact it was ever intended to so. From the papers it would appear that from the 1972 to some time in 1992 when he received ejectment summons he had done absolutely nothing to have the plot transferred from Government to himself. That is nearly twenty years of non-compliance with the law. It is interesting in this regard to note that at par. 15 of his founding affidavit that applicant says:- "as soon as I had taken occupation of the said house and
plot, I applied for a lease in my name". What he did was to apply not for a deed of transfer, but for a lease as if this were, to use the Teele's own words an original allocation. This is further evidence that the applicant had no intention of complying with the law.
In any case this gives the lie to his further averment at par. 24 (c) of his founding that: "I have always been in occupation of the house and plot since 1972 to date without interruption." If he had taken occupation in 1972 he would have applied for a "certificate of title" rather than a lease if he had been under the misapprehension that he had to get an original registration. As I have said earlier the terminology "lease" only came into use after 1979. I do not think that he took occupation earlier than 1979, as he claims.
In conclusion, in this regard, the applicant, having failed to obtain the necessary consent and not having evinced even any inclination to do so, I have no doubt that any rights that he might have had to the immovable property have long since expired. This was certainly so in 1982 when according to the applicant himself a survey was conducted in the affected area. There is no question of the extension of time because consent was not sought in the first place.
In this view that I have taken it is not necessary to consider the alternative argument that the applicant had failed to make an adverse claim within the time prescribed in terms of section 33 (1) read with section 23 (4) of the Land Act 1979. He simply had no rights to claim.
Finally it was argued that the applicant had a right to be heard before he was deprived of his rights to the land. As I have indicated - he had no such right, these having been extinguished by operation of the law. There is no question therefore that the Chief surveyor or his assistants had taken administrative action adversely affecting anyone's, including the applicant's rights. I was referred in this regard to three cases:
Qhoqha v Fokothi 1971-73 LLR 274
Sehloho v Majara 1971-73 LLR 194
Mahlaku v Zwakala 1974-75 LLR 160
These cases dealt with revocation of allocations which were otherwise lawful in terms of the then Section 9 of the Land (Procedure) Act 1967. The Act provided that where it was intended to revoke, derogate from, terminate or restrict allocation of land notice had to be given to the affected person. The cases, at any rate, the Qhoqha and Sehloho cases, were restricted to the provisions of that act and not to the wide proposition that an applicant "must
first be given a notice of revocation and a chance to be heard even if his occupation is unlawful" (My underlining) These cases are clearly distinguishable from the present where applicant has no colour of right at all.
In a last desperate attempt to bolster applicant's case I was referred to Section 24 of the Land (Amendment) Order 1992 which reads:
"24. The Principal Act is amended by inserting the following section after 85,
85 B. Where a person has failed to comply with the provisions of section 15 (2) of the Deeds Registry Act 1967, that person may apply to the Relevant Authority for the issue of a Certificate of Verification of title.
In typical fashion the applicant has not made any attempt according to the papers to take advantage of this amendment even if it were applicable. In the event, it is not even applicable, the relevant section being section 16.
For these reasons I have no hesitation in dismissing this application. Application is dismissed with costs.
Acting Judge 013th May 2003
For Applicant : Mr Teele
For 4th Respondent: Mr Matooane