Moletsane and Others v Attorney General and Another (CIV/APN/163/2001)

Case No: 
CIV/APN/163/2001
Media Neutral Citation: 
[2004] LSHC 123
Judgment Date: 
18 October, 2004

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CIV/APN/163/2001

IN THE HIGH COURT OF LESOTHO


In the matter between:

LOANIKA MOLETSANE & 42 OTHERS APPLICANT

AND

ATTORNEY GENERAL 1st RESPONDENT


MINISTER OF LOCAL GOVERNMENT 2nd RESPONDENT


JUDGMENT


Delivered by the Honourable Mr. Justice WCM Maqutu on the 18th October, 2004


INTRODUCTION


  1. In this application, applicants are seeking from the court the following Order:


  1. Declaring applicants entitled to be compensated before removing them from the sites they occupy for their improvements on those sites.

  2. Interdicting the respondents from removing or demolishing the houses of the applicants without compensating them.

  3. Awarding applicants costs.

  4. Further and/or alternative relief


Applicant's Case:


  1. Applicants say their main premises in this application is their right to be compensated before they are ejected from those sites or their right of occupation is interfered with in any way. The sites in question are situated at Phomolong Ha Tikoe. As proof of allocation the following letters of allocation of land are annexed:


First Applicant Form "C" dated May 1993

Second Applicant Form "C" dated 1991

Third Applicant Form "C2" dated 12/11/1980

Sixth Applicant Form "C2" dated 23/11/96

Seventh Applicant Form "C2" dated 4/7/998

Ninth Applicant Form "C2" dated 17/12/90

Tenth Applicant Form "C2" dated 3/9/99

Eleventh Applicant Form "C2" dated 17/3/90

Twelfth Applicant Form "C2" dated 26/11/81

Thirteenth Applicant Form "C2" dated 95

Fourteenth Applicant Form "C2" dated 17/2/1994


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Fifteenth Applicant Form "C2" dated 1994

Sixteenth Applicant Form "C2" dated 10/11/1998

Seventeeth Applicant Form "C2" date illegible

Eighteenth Applicant Form "C2" dated 12/11/1998

Nineteenth Applicant Form "C2" dated May 1997

Twentieth Applicant Form "C2" dated 15/05/1991

Twenty Second Applicant Form "C2" dated 08/07/1998

Twenty Third Applicant Form "C2" dated 17/02/1993

Twenty Seventh Applicant Form "C2" dated 1997

Twenty Eighth Applicant Form "C2" dated 15/01/1980

Twenty Ninth Applicant Form "C2" dated 1994

Thirtieth Applicant . Form "C2" dated 04/07/1998

Thirty Second Applicant Form "C2" dated 14/08/1990

Thirty Third Applicant Form "C2" dated 04/08/1991

Thirty Fourth Applicant Form "C2" dated 25/02/2000

Thirty Fifth Applicant Form "C2" dated 03/06/1993

Thirty Sixth Applicant Form "C2" dated 12/02/1998

Thirty Seventh Applicant Form "C2" dated 24/08/1997

Thirty Eighth Applicant Form "C2" dated 15/12/1997

Thirty Ninth Applicant Form "C2" date illegible

Forty First Applicant Form "C2" dated 08/11/1997

Forty Second Applicant Form "C2" dated 29/12/1990

Forty Third Applicant Form "C2" date illegible


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  1. It will be noted that some of the letters of allocation have not been annexed. Even some of those annexed have illegible dates of allocation in the Photostat copies supplied. Respondents have not objected strongly to these letters of allocation.


  1. Annexed to these proceedings is a Charge Sheet of a Criminal case against first applicant, which never proceeded. In that case first applicant was charged with having:


"Wrongfully, unlawfully and intentionally allocated himself a mile or the selected development area at Ha Shelile without a proper authority - being the land of the Lesotho Government."


The charge was alleged to be under Section 87 of the Land Act 1987 as amended by Order 23 of 1989.


  1. Annexed to the papers is an undated statement of the Commissioner of Lands. In it he says field owners and chiefs (if not chiefs alone in some instances) are accused of being engaged in illegal allocation of land. In rural areas according to the Commissioner of Lands, Village Development Councils allocate land with the exception of Selected Development Areas. In urban area, Urban Land Committees allocate, Land Village Development Councils issue Form "C2" while the Urban Land Committees issue Form "C3".


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  1. An Inspector of Police made a report that showed that his investigations had revealed that first applicant had already developed the site that was allocated to him by Molupe Hlalele and the late Chief Peete Letlatsa who had ignored instructions given as to allocation of land. First applicant had built a three-roomed house in which he resided in 1994.


  1. There is also an attached of an undated statement of the Chief of Qoaling and Phomolong who says in 1994 there was a seminar by the Maseru City Council in which chiefs in the area were made aware that the powers of allocation of land were no more supposed to be exercised by them. These powers of allocation were to be exercised by the Urban Allocation Committee. The Chief of Tikoe had been cautioned several times against making land allocations. First applicant's statement recorded by the Inspector of police shows he was issued a Form "C" on 24th May 1993 by the Chief of Phomolong and Qoaling.


  1. The other forty-two applicants have not given details of how their lands came to be allocated. They have limited themselves to associating themselves with the general challenge of the power of the Minister to take away their lands and demolish their houses and other improvements without compensating them.



  1. It is not surprising that the case against first applicant could not proceed. He was accused of intentionally allocating himself land when it was clear and not disputed that the said land was allocated by


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the Chief of Ha Tikoe who was deceased. The issue was by no means a simple one. Respondents' response.


  1. The respondents' response is found in the affidavit of the Principal Secretary in the Ministry of Local Government. He began by saying the land in question was agricultural land on which no one was supposed to build. In 1980 that land was declared an urban area. In 1999 that land was declared a Selected Development Area by the government of Lesotho. Pursuant to that declaration the owners of the fields were supposed to "report themselves so that they could be compensated for their fields."


  1. The respondents say by Annexure "A" which is Legal Notice 14 of 1980 published in gazette No. 29 of 22nd August 1980 land on which respondents claim the area has been declared an urban area. Consequently only the Urban Land Committee not a chief can allocate land in that area. In respondents' view applicants are "in unlawful occupation of this area." Respondents add that whatever titles to land existed should have been converted into leases within six months. Buildings in that urban area could only be erected after permits had been obtained from an appropriate authority.


  1. The respondents say that a Select Development Area was declared in 1999 but have not annexed a copy of the Government Notice that declared that Selected Development Area. They claim they consulted with the owners of those fields in June 1999. The Principal Secretary



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Ministry of Local Government (who is the deponent of respondents') says he actually addressed the public in a meeting, which had a crowd.


  1. According to the respondents1 deponent, at paragraph 9:


    1. "The reason for the Pitso was to inform the inhabitants of the area that they were in unlawful occupation of the area which had been declared an SDA which hitherto had been an agricultural area before being converted into an urban area."

    2. What was stated in the Pitso was that lawful field owners would be compensated for the loss of their fields. "There were no sites in this area. It was only after they had been promised compensation that the field owners embarked on a scheme to unlawfully sell their fields to the applicants. The remedy that the applicants have in this matter is to sue the field owners for the return of the money which they unlawfully paid them for the illegal transaction."

    3. Respondents have gone so far as to say they offered to buy alternative land for applicants at Khubelu. The specific applicants are not identified. What puzzles the court is that in Lesotho land cannot be lawfully sold - but respondents claim that they associated themselves with sale of land.


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  1. The averments of applicants are contradictory. Respondents say in 1999 applicants were already in illegal occupation of the area. Later they say there were no sites in the area - the conflicting allegations of respondents' self-destruct. They were obliged to substantiate their claim that applicants are in illegal possession of land by making a proper investigation at putting clear averments.


  1. Respondents have annexed "B" which is a record of proceedings of a Criminal case CR 145/2000, case against MOKETE LENKOANE, MOKONE MPHULENYANE and MAMPHU QATHO who occupied land illegally in the year 2000. It was alleged the accused have letters of allocation that were backdated. In those cases this was proved before a court of law on evidence and the accused were consequently convicted. The respondents have not shown on evidence that this is true of any of the applicants. Consequently these averments are irrelevant towards the applicants.


  1. Respondents deny that what has happened at Ha Tikoe is compulsory acquisition of land, what has happened is declaration of a Selected Development Area. Consequently applicants are not entitled to compensation.



Applicant's Reply:


  1. Applicants say respondents are wrong to say all the land applicants occupy was all agricultural land. They say there is an old village of Ha Mootlisa whose existence predates 1979. For an example 2nd, 9th 21St, 23rd, 24th, 25th, 26th and 28th applicants live in an area that has always


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been residential. Consequently people were never prevented from building houses.


  1. If government wants them to go and buy land at Khubelu as it did with others, government has to provide the money because they have no money. Applicants take the view that government acquiesced by letting them built houses in the area without objecting. Applicants are puzzled by respondents deponent who says between 1999 and 2000 -but later says in June 2000 the land was occupied without stating who the occupants were. Applicants say they were promised compensation.


  1. Applicants say the Selected Development Area does not make occupation illegal. Applicants say their co-villagers were compensated when they were removed to make way for the road.


History of the way matter was argued.


  1. As per Notice of set-down, argument was expected to begin on the 8thMarch 2004, but the Parties agreed that the matter should be postponed to the 12th March 2004. On the 12th March 2004 argument began. During argument both counsel (Mr. Mosito for applicant and Mr. Letsie for the respondent) requested time to be given for them to focus on Section 44 of the Land Act 1979 in terms of which the Selected Development Area was declared and ancillary matters.


  1. On the 22nd April 2004 the matter was again postponed to the 18th May 2004 as counsel for the applicant was sick, it was only on the 17th May 2004, the matter was again argued. But during argument a


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need arose to reconcile the Land Act of 1979 with the Constitution. It emerged that the value of properties involved, the buildings and their approximate values were unknown. Both parties agreed that it would facilitate argument if the photographs and values or their approximation should be before court. The court consequently ordered that the photographs and the sworn valuation should be submitted by both sides.


  1. These were expected to be done with the co-operation of both sides on the 31st May. There were to be several postponements for one reason or the other. On the 26 July 2004 Mr. Letsie tendered costs as his papers were not ready. The matter was postponed to the 6th August 2004. On the 6th August 2004 Mr. Letsie tendered costs and handed into court the valuation report that had not been ready and the matter was postponed to the 31st August 2004 because respondent required the services of Senior Counsel from Cape Town.


  1. On the 25th August 2004 the applicants filed of record an application to amend their prayers by adding the following alternative prayer:


"Declaring as null and void, the purported declaration area covered by Legal Notice No. 17 of 1999 as a Selected Development Area, regard being had to the purpose for which it is going to be used."


This application was accompanied by a founding affidavit.


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  1. It was clear that the effect of this affidavit would result in another set of affidavits, which might easily lead to a delay of the finalisation of this application. Applicants had taken advantage of the last postponement and gone to the Lands and survey office where they claimed to have found a document of the Selected Development Area that styled it "Ha Tikoe Industrial Estate Lay Out Plan." That same document at the bottom it was styled "Industrial Estate Locality Plan." Applicants added that other people (from their investigations) were going to be allocated sites in the land that was being taken away from them.


  1. The court refused to accede to applicants' application for leave to amend the prayers in the Notice of Application, which was supported by new facts within five days of the date of hearing. Parties had been given leave to focus on the Selected Development Area in terms of Section 44 of the Land Act of 1979 on the 12th March 2004. This supplementation of applicant case five days from the date of hearing was (in the light of the facts mentioned above) unfair and could delay the finalisation of this matter indefinitely. There was also the prejudice to respondents who had brought counsel from Cape Town. The court in refusing leave to amend granted respondents costs of perusal and consideration of the belated Notice of Application to amend prayers and the accompanying affidavit.


  1. The parties had filed heads of argument, which the court had read. The argument that followed was to highlight and develop points raised


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in the heads or argument. Consequently argument was considerably shortened.


  1. Mr. Mosito's argument highlighted the following points:


(i) The right of applicants to be compensated for their properties and improvements - now that the rights of occupation of the land that applicants used to have, had been terminated by the Declaration of the Selected Development Area.

(ii) He referred to the Constitution in respect of compulsorily acquired properties.

(iii) He said Section 17 (I) (b) emphasized "the necessity therefore is such as to afford reasonable justification for causing any hardship, that may result to any person having an interest in or right over property."

(iv) He argued that as the Court of Appeal has held in Pages Lesotho (Pty) Ltd v LADB & Ors. 1993 - 1994 LLR -LB 492 whenever property in Lesotho has to be affected by a Selected Development Area Scheme the holders or users of the property have first to be considered and heard.


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(v) Occupiers and users might inter alia be entitled to compensation even if "the said persons were not allocated the said sites at all." Mr. Mosito argued that this would happen if he was a bona fide possessor.

(vi) At page paragraph 2.13 of his heads of argument concedes there is some dispute of fact about the meeting of 6 June 1999 - but these are not serious.

(vii) Mr. Mosito argued further that the Selected Development Area did not specify what the Selected Development Area was for. He considered this a fatal flaw.

(viii) Mr. Mosito also argued that the Selected Development was not meant to take land from one group of people in order to give it to other people.


  1. Mr Viljoen for respondents highlighted the following points:


(i) The Minister has been given a free hand by Section 44 of the Land Act 1979. All he has to do is to

compensate the rightful owners.

(ii) The land law in Lesotho has always been properly administered contrary to the query that the court was raising. He does not concede that there were any land


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administration problems in the country or that there is chaotic situation.


(iii) The applicants have invaded the fields that were previously used for agriculture after the public meeting of June 1999. This meeting took place after the Selected Development Area had been the selected for development in terms of Legal Notice No. 17 of 1999.

(iv) Before the meeting of 6th June none of the applicants occupied the area in question. It was after this public meeting that the lawful allotee of the agricultural fields suddenly divided and sold these fields to the applicants and the chiefs provided these people with Form 'C'2 as documents of title.

(v) There was a major dispute of fact on the issue of applicants occupation of land and their buildings on it. Applicants claim they occupied their sites before the public meeting of June 1999 - while respondents say none of the applicants were in the area - they according to Mr Viljoen (for respondents) only came after June 1999. This view of Mr. Viljoen was incorrect because at paragraph 8 of the Answering Affidavit the Principal Secretary for the Ministry of Local Government had said there were illegal


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occupiers in that area that he had told to vacate that land.


(vi) Mr Viljoen argued that the rights of applicants could be terminated without prior consultation as long as Section 44 authorised such a step and compensation was given. It was his case that since section 44 does not specifically require prior consultation with the occupiers a Selected development Area was properly and legitimately declared without prior consultation of the occupiers of land. Mr. Viljoen did not find such a procedure arbitrary seizure of property.


(vii) There was no need (in Mr. Viljoen's view) for the Minister to specify the purpose of the Selected Development Area. Section 44 of the Land Act 1979 does not require the Minister to do so. If there is legal Notice in which a Selected Development Area (in respect of a road) in which the purpose is stated - the Minister was not bound to state the purpose of a Selected Development Scheme.


(viii) Applicants (according to Mr. Viljoen) are mala fide occupiers of land who occupied the land after June 1999 therefore they are not entitled to compensation.


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(ix.) Mr. Viljoen made short shrift of any argument or suggestion that the Minister has any duty to consult with occupiers of land before declaring a Selected Development Area in terms of which they forfeited the rights to land. The only human right he recognized was the land occupiers' entitlement to compensation if the Minister recognised the validity of their prior titles.

(x) Mr. Viljoen consequently did not find it relevant to address the court on the recognition of prior common law right to be involved in the process in terms of which their rights would be affected before the Selected Development Area was declared. Therefore Mr. Viljoen did not find it necessary to address me on the Court of Appeal's interpretation of Section 44 in Pages Stores (Lesotho) v Lesotho Agricultural Development Bank & Others 1993 - 94 LLR - LB 492 referred to extensively in applicants heads of argument.


THE CONSTITUTIONAL PERSPECTIVE TO LAND AND PROPERTY.


  1. (a) Chapter IX of the Constitution is devoted to land.

(b) Section 17 of the Constitution has a short title "Freedom from arbitrary seizure of property. "


  1. The way Mr. Viljoen argued the matter was to the effect that in


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terms of section 44 Land Act 1979 the Minister can take the land immediately, he is not obliged to respect the right of occupiers of land so long as the Minister makes prompt payment of full compensation when the land is seized. In other words prompt payment of full compensation renders what the Minister has done under Section 44 of the Land Act 1979 constitutional. Mr. Viljoen seemed to be unaware of the common law right to be heard which is implied in all statutes where an individual property rights are involved unless expressly excluded. See Administrator Transvaal and Others v Traub and Others 7989 (4) SA 731 per Corbett CJ approved for Lesotho by Aaron JA in Pages Stores Ltd v Lesotho Agricultural Development Bank and Others 1990 -94 LAC 51 at page 63 DE. It is clear from the above that such arbitrariness on the part of the Minister was already frowned upon by law even before the current constitution came into force in 1993.


  1. . Kentridge AJ in the South African Constitutional Court in S v Zuma 1995 (4) BCLR 401 at paragraph 18 said:


"I would say that a Constitution embodying fundamental rights should as far as its language permits be given a broad construction."


Thus the correct interpretation of a Constitution promotes the liberal values and coherently articulates the dignity of the individual, which is the foundation of many other rights -Makoanyane 1995 (6) BCLR 665 paragraph 5. See also SA constitutional Law (2002) by Cheadle, Davis and Hayson at pages 6 and 7.


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  1. If the Minister (promising full compensation) can seize lands and sites on which peoples homes have been built by merely publishing a Selected Development Area in terms section 44 of the Land Act 179 where is the respect of human dignity? Where is freedom from arbitrary seizure of property? How does the constitution protect the individual? The President of the Constitutional Court Arthur Chaskalson in at the third Bram Fischer Memorial Lecture 2000 put the issue crisply as follows:


"As an abstract value, common to the core values of our constitution, dignity informs the content of all concrete rights and plays a role in the balancing process necessary to bring different rights and values in harmony" AS Constitutional Law (supra) at page

7.


  1. The approach of respondents as articulated by Mr Viljoen negates other rights tied to peoples home such as rights to privacy and family life, in Section 11 of the Constitution. This approach fuels a culture of Governments to ride rough-shod over people - not only the dignity of an individual but also rights to property - merely because the thinking is that because Governments have the means to compensate people fully and promptly.


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  1. Section 17 (4) (a) which protects the individual freedom from arbitrary seizure permits seizure of property " to the extent that the law in question makes provision that is necessary in a practical sense in a democratic society for the taking into possession or acquisition of any property interest or right." In a democracy people's rights are interfered with sensitivity because of a definite felt need of which they should first be told.


  1. Mr. Viljoen in articulating the legal view of the respondents has misconstrued the entire purpose of Part V of the Land Act 1979 of which Section 44 is part. It is not intended to expropriate peoples' properties. If it did (which it does not) people affected, whose lands are seized for public purposes had first to be served with notices before a declaration is published. In relation to land or properties in terms of section 55 part VI of Land Act 1979 which have to be expropriated "prior to publication in the Gazette of the declaration the Minster shall cause a copy of the notice to be served upon any person". There is no such provision for seizure in respect of section 44 and Part V of the Land Act 1979 to which section 44 belongs.


  1. In case of a Declaration of a selected Development Area under Part V however, Mr Viljoen argues that publication in a gazette is all that is required for the property owners to lose their land and properties in terms of section 44. It was to interpret section 44 of the Land Act 1979 and remove the very


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misconception that these very respondents have that the Court of Appeal made a ruling in Pages Stores Ltd V Lesotho agricultural Development Bank (supra). The underlying reason for the Court of Appeal ruling was that for a Selected Development Area to be declared and an individual could not be ignored and be treated worse than a person whose land and property were being expropriated, who must first be notified before a declaration is made in a gazette.


  1. In Legal Notice No 108 of 1999 the minister of Local Government correctly stated the purpose of the Selected Development Area by stating it was for "Kingsway Road Relief.' In the Selected Development Area Legal Notice in the Maseru Urban Area that was being declared the Minister properly specified, in an identifiable manner in a schedule the specific properties that will be affected. This is how the legislature expects Legal Notice, which affects the rights of property of people to be made.


  1. Legal Notice No,17 of 1999 in terms of which applicants properties and possession of Land Phomolong Maseru South Urban Area being effected, merely states that a Selected Development Area is being declared. The purpose is not specified and the properties affected have not been identified at all. The Principal Secretary for the Ministry of Local Government in his affidavit vaguely says the Selected Development Area affects owners of field that he does not to


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know or has not specified. For Legal Notice to affect an individual or his property it has to specifically and individually mention the property affected in the legal instrument. That should have become all the more necessary where (if Mr. Viljoen is correct) these people have not been consulted or notified in advance of what the Minister intends to do. Mr Viljoen concedes they were never informed before the Selected Development Area was declared.


  1. There is of course this confusion that exists in the Ministry of Local Government about the distinction between Declaring Selected Development Area under Part V of the Land Act 1979 and Expropriation under Part IV of the Land Act 1979. This confusion is also shared by Mr Mosito for applicants. I will deal with it later. It is sufficient to say Land is normally expropriated for public purposes such as roads consequently the abovementioned Kingsway Relief Road, dealt with in Legal Notice No. 108 of 1999 belongs to Part VI of the Land Act 1979 and not to Part V of the Land Act 1979. Consequently section 44 on selected Development areas does not apply to roads and land required for public purposes. It is for this reason that both Mr Viljoen for respondents and Mr Mosito for applicant emphasized seizure and compensation rather than the procedure to be followed before the Selected Development Area. Selected Development Areas under Part V are governed by different principles and have different objectives.


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  1. Land is Lesotho is not subject to individual ownership. Where it is taken away from an individual by custom it has to be replaced. In the rural areas where a field has to be taken to provide sites, due to shortage of land, it is no more replaced. The chief negotiates with the current user of the field and offers the one or two children of the current user of land sites in the land that has been taken to provide sites for the increasing population. This has been done amicably over the years, consequently there are seldom any disputes because land is voluntarily surrendered.


  1. As will be shown later Part V of the Land Act 1979 is intended for the development and benefit of the people. Everything has as much as possible be done by agreement and negotiation. See the Pages Stores Ltd V Agriculture Development Bank & Others (already referred to) which is also form in 1990 -94 LAC 51) This approach of the Court of Appeal to Section 44 in Part V of the Land Act 1979 is in full accord with Basotho custom and current practice. It is these principles of consultation and co-operation that are now part and parcel of the Selected Development Area schemes according to law. since the case of Pages Store Ltd.


  1. It will be seen that Part V Originally did not encourage compensation for land taken because that is the custom. It was only with the Land Act (Amendment) Order of 1986 that section 44 (2) was amended by giving the person who was losing his


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land to accept compensation in place of another land. While compensation for improvements and even land may have to be negotiated in respect of Selected Development Area it is not encouraged. The reason for this is that Selected Development areas are expected to be made for the benefit of the current occupiers and users of Land. Consequently Section 53 of the Land Act 1979 provided.


"(1) No compensation for loss of title to land shall be payable for loss of land under this part except where expressly provided"


  1. Land even under the Land Act of 1979 may not be sold. The individual only has a right to occupy and use land that is governed by custom, which expects a substitution of land that has to be replaced with another piece of land if possible. The approach of respondents and the power they arrogate to the Minister in respect to peoples rights of occupation and use of land violates the spirit and the letter of Part V of the Land Act 1979 as clarified by the abovementioned case of Pages Stores Ltd V LABD & Others. A Selected Development Area has to be embarked upon with prior consultation of the occupiers and users of land.


  1. Urban Areas under the Land Act 1979 The meaning of urban area was not free from controversy. Section 19 (2) of the Land Act 1979 defines "Urban Area" as "an area specified


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in the second schedule as defined by the Minister under Section 19". This definition is not helpful. Section 19 (1) does not take the matter further. What is significant is Section 19 (2) of the Land Act 1979 which provides:


"The Minister shall by notice in the gazette define the boundaries of urban areas listed in the second schedule."


Sixteen urban areas are listed in the second schedule. The Minister is empowered to amend any of the schedules of the Land Act 1979.


  1. These urban areas included ten district headquarters (formerly called Government Reserves) of Maseru, Butha-Buthe, Leribe, Teya-Teyaneng, Mafeteng, Mohale's Hoek, Quthing, Mokhotlong, Qacha's nek and Thaba-Tseka which in colonial days were (except for Thaba-Tseka) called Government Reserves. Included among these new urban areas were new areas such as Mapoteng, Morija, Roma, Peka, Maputsoe and Maseru International Arport. Maseru International Airport had been classified urban although it was neither hamlet, village, town or city. This urban area classification was sometimes arbitrary.


  1. The Minister of Interior deleted Maseru International Airport, Peka, Roma, Morija and Mapoteng from urban areas on the second schedule of the Land Act 1979 by the Land Act (Amendment of Schedule Order 1986. This was done although Peka was a bigger village or town than urban areas such as Mokhotlong, Thaba-Tseka and Quthing.


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There seems to have been a tendency to make declarations of urban areas without considering the hereditary rights of chiefs and headmen. Only Principal Chiefs are considered in Section 24 of the Land Act 1979. The procedures to be followed were not streamlined to consider the rights of the headmen, chiefs and ordinary people that are affected. Legal Notice No. 14 of 1980 the Land Act (Declaration of Urban Areas) Notice was published defining the boundaries of urban areas and including new areas whose lands had been administered by gazetted headmen and chiefs. Whether chiefs and headmen were consulted and the people informed that the land allocation system had changed, is not clear. What is clear is that in some areas the headmen and chiefs continued allocating and administering land as before. After six years the abovementioned declared urban areas of Peka, Roma, Morija, Mapoteng and Maseru International Airport were removed from the list of urban areas, it is not clear if laws governing urban areas had ever been enforced in those areas.


  1. . There is no confusion among the people who have been allocated land and residential sites by chiefs and headmen - they had built houses as people had done in the past. Consequently there are no disputes before the land tribunal or the courts. The people who are having problems are administrators who are belatedly trying to enforce the arbitrary Military regime Orders and laws made by a nominated Parliament that were made during that era and not uniformly enforced. The Ministers did not make regulations and systems of enforcement that took into account the rights and functions existing rights of headmen, chiefs and


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their subjects. Today in this democratic culture where rights of people are protected by the Constitution, public servants in the name of the Minister are trying to enforce these urban areas declarations in some places. They are finding that the letter of these Orders made by the Military regime and laws made by the nominated Parliament have not been consistently followed. People have been allocated sites and plots of land by chief and headman in the old way which they have developed. The value of their buildings and other improvements that applicants have made is about M3,000,000.00 (Three Million Maloti).


  1. The right a person has to property is his title to the property. The term title is does not mean a registered title. In respect of the Land Act Section 2 title means allocation of land under this Act... "In relation to rights in land existing at the commencement of this Act, means allocation made by the proper authority or the transfer of allocation made by the proper authority." The perception of urban areas held by the Principal Secretary Ministry of Local Government causes problems. This is because when a person has been allocated land, he holds a title to that land. Consequently the effect of inclusion of a person's arable land in an urban area is found in Section 28 (2) of the Land Act 1979 which provides:


"Titles to land in urban areas predominantly used for agricultural purposes lawfully held by any person at the date of commencement of the Act shall be deemed to be converted into licenses."


  1. The effect of this is that the arable lands in question should have treated as licenses (unregistered though they were) at the time the


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Selected Development Area was declared in 1999. These licenses of those fields could not be registered because government did not have the capacity and the resources to survey the fields in question so that they could be registered. By the same token titles to land used for residential purposes in the new areas included in urban areas in 1980 in terms of Section 28 of the Land Act 1979 were "deemed to have been converted into leases." The problem of the capacity and resources for surveying these residential plots and registering them similarly prevented the full implementation of the Land Act of 1979 in these new urban areas.


  1. The onus was on the Ministry of Interior of the day (that preceded the Ministry of Local Government) to undertake the survey of all lands in the urban areas so that they can be registered in terms of Part III of the Deeds Registry Act 1967. Between 1967 and 1968 all sites had been numbered and aerial photographs used in place of surveys to ensure that all sites were compulsorily registered in terms of Section 15 of the Deeds Registry Act of 1967. Because of the aforesaid lack of capacity and resources by the state, nothing has been done under the Land Act 28 to register them under Section 15 of the Deeds Registry Act of 1967. Consequently Section 30 of the Land Act 1979 in recognition of these problems provides:


"Whenever facilities exist in any area for the issue of leases or liciences created under Section 28, the Commissioner shall cause a notice to that effect to be published in the gazette and thereupon every person in that area to whom section 28 applies shall, within six months from the date of


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publication of the notice, apply for the issue of a lease or a licience."


  1. . It seems some arable lands in urban areas were surveyed in some areas and divided into residential plots. These surveyed plots were allocated to people who subsequently developed them - since these areas are not the subject of this application - what happened in them is not relevant. It is safe to assume that the holders of the right to use those fields have been compensated. We do not know how their ex lege licensed deemed to exist by Section 28 (2) of the Land Act 1979 were dealt with. It seems Section 11 of the Land Act 1979 does not apply to these lands as the existing holder of arable lands were deemed to be holders of licenses in terms of Section 28 (2) of the Land Act 1979. This is of relevance because in terms of Section 30 of the Land Act 1979 the people holding leases and licenses created under Section 28 were supposed to be issued with leases and licenses when facilities exist in those areas.


  1. . The Ministry of Interior or Local Government in terms of Section 30 does not appear - over a period of twenty-five years - to have met this obligation in respect of some of the new urban areas. It has let things drift as before. Residential plots and arable lands in the new urban areas were deemed by law to be leases and licenses. It does not appear that for built up areas in question these ex lege leases and licenses were surveyed, numbered, identified and registered. In the meantime plot of lands in some places had been allocated for residential purposes in the old way. Hundreds of people - of which applicants are only a sample - have built homes worth million of


28


Maloti. In Maseru City - there is supposed to be the Maseru City Council which is the local authority of the area -but nothing is being said about it. This Maseru City Council - like the Central Government is accountable to those hundred of people who have been allocated residential plots and have built their homes in this way.


Agricultural, business, residential and pastoral land


  1. In traditional Basotho culture, the main economic activity was the rearing of livestock and subsistence farming. Whatever commercial activity that took place used to take place at people's home. There were cottage industries like making articles with beads for sale, there were also very few smiths that made iron articles like spears and hoes. These skilled workers never obtained business sites. Pastures for livestock were shared in common in the same way as agricultural land was shared.


  1. The chief allocated land for small plots of land for agriculture because that was what individuals with their meager resources could till. All this was done with as much fairness as possible. No villager was allowed to have fertile land while others did not. Consequently an individual had several lands, with soil of different quality. In a valley near a river an individual would have a small plot of land that was usually fertile. On the plateau where land was not of such a good quality, an individual would also have other lands depending on the availability of land. The chief naturally had more land and he also controlled and used public land that was supposed to be used for


29


public purposes. A chief who was not fair would not have many subjects.


  1. As people increased the number of fields was reduced and pastoral land was converted into arable land because it was the right of every married man to have a field to grow food to feed his family. Excess livestock used to be sent to cattle posts in the mountains. As the population increased in the mountains also - land for pastoral purposes was converted into agricultural land. Later arable land was also divided into residential plots in response to the increase in population. There never was a firm and inflexible division between land for residential, agricultural and pastoral purposes. The chief and his people changed the nature of use of land according to the peoples needs. That is why Section 28 of the Land Act 1979 is flexible in its description - fields are referred to as land in urban areas used mainly for arable purposes. Consequently I have no hesitation in finding that the Principal Secretary for Ministry of Local Government was wrong to say there was ever a clear and inflexible division between land for agriculture purposes and land for residential purposes.


  1. The areas that are today called urban areas used to be called Government Reserves before Lesotho got its self-government. Basotho in Government Reserves reared animals and had arable lands or fields. The case of James Khaebana v Rex 1926 - 53 HCTLR 109 is evidence that pastures were reserved in the Maseru Reserve like in rural areas. The case of M. Mokoena v J. Mosena 1960 HCTLR 53 shows that principles of land allocation in both rural and urban areas


30


for agricultural purposes and for residential use depended on beneficial use. However the court in M. Mokoena v J. Mosena held that the fact that a portion of a residential site was not used did not entitle the land allocating authority to take it away and allocate it to some one else. In custom use was the test rather than allocation of land. People in Government Reserve (now urban areas) had arable lands and grew cereals in the same way as those in rural areas. In Mokoena v J. Mosena the court found no justification for protecting residential sites in the European section of Maseru and not in the African township of Maseru.


  1. Despite the Deeds Registry Act of 1967 and its stipulation in Section 15 that unregistered lands revert to the land allocating authority in those urban areas people still have fields - the rights that people have to arable lands remain undisturbed. The arable lands have remained in the possession and use of those who have been using them despite the fact that they are unregistered. Roper J in M. Mokoena v J. Mosena (at pages 65 - 66) noted that there were Basotho Townships in the Government Reserve. The people there lived like people in the rural areas although they were under the District Commissioner and the Government Reserve Headman. There never was uniformity and certainty about how Government Reserves were administered despite the existence of Government Reserve Regulations.


  1. The terms urban and rural have also caused confusion in respect of land allocation and administration. This lack of clarity has crept into the laws because these terms are found in some laws. The difference


31


between a hamlet, village, town and city is a relative one. They are all a collection of houses. The hamlet being the smallest (and usually without a church) and the city being usually the largest and usually having a cathedral. See the Little Oxford Dictionary. A town is simply a considerable collection of dwellings densely populated. London is cited as an example. A village is described a group of houses in the country district larger than a hamlet and smaller than a town.


  1. Urban simply means belonging to the town or city while rural means belonging to the country. These terms in Lesotho while being relative in nature - for Lesotho can only be understood in the context of the history of Lesotho. What are now called urban areas for lack of a better terms are what used to be called Government Reserves. These were areas in which colonial District Commissioners had established administrative camps. Land in these administrative camps was reserved for Central Government Administration so that the police and public servants of the Central Government could have living space. Included in these Government Reserve camps were some Basotho villages. The people there fell under the Central Government, but Government Reserve headmen were appointed to help District Commissioners to administer these Government Reserve camps. These villagers in the Government Reserves still had their arable lands or fields on which they practiced subsistence farming like other people who lived outside the Government Reserves under traditional chiefs.


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  1. Within the last fifty years people who live in Government Reserves have suddenly and sometimes gradually lost their grazing and agricultural land to make way for residences. Some of their arable land was used for Central Government purposes such as the Agricultural Research station in Maseru. In some districts they have not lost their agricultural land although they may not keep it for long because of increasing urbanization. What has happened in the Government Reserves is not different from what has happened in the adjacent rural areas.


  1. When Lesotho became independent the Government Reserves were called urban areas although some of them were smaller than many big villages such as Peka. The Principal Chiefs were able to reassert their power to allocate land in Government Reserves, which was now after independence administered by District Administrators. The tension between the Central Government and the Basotho traditional government under chiefs has not yet been resolved. In 1966 District Councils and Local Government elected by the people was abolished. This for Maseru has created the present urban sprawl and the prevailing anarchy in land administration.


Confusion and absence of land allocation policy


  1. The ignorance of the law and confusion, has affected the land allocation authority, allotees and government alike. This is illustrated by the case of N. Mphofe v J. Ranthimo and the Attorney General C of A (CIV) No. 22 of 1988 (unreported). In that case appellant had been allocated a residential site in 1969 but did not register it in terms


33


of the law - consequently that allocation could be deemed to have lapsed after three months in terms of Section 15 (4) of the Deeds Registry Act 1967. In 1973 that site was allocated to first respondent. Similarly first respondent did not register the site timeously, but obtained a lease in terms of the Land Act of 1979. The Court of Appeal found the state of the law uncertain in many respect, but it found that both allocations had long lapsed before the Land Act of 1979 came into force.


  1. The appellant had developed the site before legal proceedings were instituted. About the Selected Development Area that was declared, Mr. Justice Schutz the President of the Court of Appeal said in that case of N. Mphofe v J. Ranthimo:


"In my view, as far as the appellant and the first respondent are concerned there was no existent right to be extinguished... What the appellant will make of this victory, won more by chance than, skill I do not know, because, whatever happens to the first respondent, I have already held that he, the appellant has no prior rights."


  1. Since appellant had developed the site, it could be said that he should prevail in terms of Section 82 of the Land Act 1979, although he no more had the right to occupy that land. What was clear to the Court was that first respondent had no title to convert and by the same token the Minister had no title to substitute in terms of a Selected Development Area in favour of respondent - because first


34


respondent's title had lapsed. Therefore the first respondent's lease based on the substituted title (so called) was void. There is uncertainty on compulsory registration in terms of the Deeds Registry Act 1967 in respect of residential plots in urban areas until provisions of Section 30 of the Land Act 1979 are complied with. It is against this background that this case of today should be viewed. Those uncertainties in land laws affect people's homes - a lot of which have been developed at great expense as was the case in N, Mphofe v J. Ranthimo.


  1. The problem that this court is faced with is the none-existence of order in land allocation in Lesotho. The truth is that there are no more any clear customs, laws and policy guidelines on the allocation of land. The traditional custom and the present law is that land cannot be owned privately sold or bought. The reason being that the land belongs to all the people. In the past it was clear that it was held by the King in trust for the people and administered and allocated by chiefs under the King. A myth was maintained that even where land was clearly bought and sold, it was not. It was and is still maintained that what was said to be bought and sold were the interest in the land, the buildings and other improvements that the individuals made on the land.


  1. In the case before me the government of Lesotho through the Principal Secretary for Ministry of Local Government admits that it abetted or participated in the sale of land or offered to help applicants / or other people to buy land in a different area. This admission shows


35


that government has been made aware land was bought and sold despite what custom and the law has maintained all along - that land as a property of the people cannot be bought and sold. The Land Act of 1979 has introduced long leases; the right, which a person acquires under these leases, seems to be saleable (albeit with consent of the land allocating authority) together with buildings and improvements an individual might make over land. An outright and naked purchase of landing Lesotho is still illegal.


  1. It will be observed that the majority of allocation of applicants has been made by development committees headed by chiefs in terms of Land Act 1979. They are on their face lawful. Those allocations made by chiefs alone have not been identified. Issue has been joined only on whether these allocations are lawful, in the light of a declaration that the Tikoe Phomolong Area had been part of the Maseru Urban Area since 1982. Respondents argue that the chiefs and their committees had lost the power to allocate land in that area. The Principal Secretary for Local Government denies the land in the area has been expropriated. He says all that has happened is that a Selected Development Area has been declared; consequently owners of the fields or arable land must come forward to be compensated. It is clear that the Principal Secretary does not understand the purpose of Selected Development Area - nor does he comprehend its significance.


  1. In urban areas the Commissioner of Land issues long leases after the Minister has approved. In rural areas except for agricultural land that


36


is being used as a commercial agricultural project and commercial sites land continues to be allocated by the Development Committees of chiefs whose chairmen are chiefs. People with better rights have successfully claimed their sites or lands even after the Minister and Commissioner of Lands have issued long leases which are supposed to have extinguished prior titles. See the cases of Mphofe v Ranthimo C of A (CIV) No. 22 of 1988 (unreported) and Tleletlele v Matekane 1991 - 96 LLR 1655. This is because of the prevailing ignorance about what Selected Development Areas are for. They are not meant to arbitrarily take away people's lands - even if compensation is given.


  1. The allocation of land has been fraught with irregularities that the legislature has not yet addressed. As already stated the illegal sale of land is a reality that has been overlooked from the inception of the Land Act 1979 up to the present. During the Military Government laws were made to provide compensation for owners of land and to validate further irregular allocations. See Land (Amendment) Order No. 23 of 1989. It seems the land allocation fiasco and its irregularities continue. The allocation of alternate sites as compensation that chiefs and Development Committees used to make with owners of the fields has not stopped. Indeed, since the old form of Local Government and land administration has not been adequately adapted to modern conditions, this is inevitable.


  1. Agricultural land has been converted in into residential plots in this way in the urban sprawl taking place in Maseru today - because chiefs


37


and their development committees entered into private agreements in terms of which parts of the fields are cut into sites for residential use in which the owner of the field get his children and nominees to be allocated land. This was because there was no machinery of compensation for owners of the land until the Land (Amendment) Order No. 23 of 1989. The other part was cut into sites by the chief, to be allocated to those (of the chiefs choosing) who were in need of residential sites. The chiefs and their Development Committee members and the owners of the fields did sometimes illegally sell some of these sites. This is a notorious fact, as the Principal Secretary for Ministry of Local Government has had to concede his part in the proposed illegal dealing in land, which he has averred to in his affidavit.


  1. . Rightly or wrongfully in this case the court is faced with people who between 1990 and June 1999 have acquired sites (under the confused existing system) and developed them sinking or investing at least three million Maloti (M3, 000,000.00) of their scarce resources. Whether this money must wash down the drain is a political decision in the political and development arena. But the property rights of the applicants are a legal issue. By the same token the expropriation of the properties in the area and the Selected Development Area are legal issues, which must follow the procedure outlined in empowering legislation. Those powers under Part V and Part VI must by law be used for the purpose and according to procedures laid down in the Land Act 1979 (is amended).


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  1. Whenever a Minister uses his powers it is a discretionary policy decision, but where there is a law governing the exercise of his powers - the Minister must act according to that law. There is the Land Act of 1979 as amended governing the discretion that the Minister has. The Ministerial discretionary powers of this kind should not be abused. The Constitution and other laws are clear where people's property rights are affected. Decisions that are adverse to the interests of people should only be made after they have been individually heard. That is the administrative justice and fairness that the courts insist upon in modem times.


Ignorance of the law or the legal position.


  1. There seems to be confusion in the land law. The respondents based their attitude and legal position on what happened after June 1999 when the Principal Secretary for Local Government told people of their illegal occupation after the Declaration of a Selected Development Area. He seems to allege that action will or should be taken against the owners of the fields and people like applicants who might innocently have been made to fraudulently buy land by the owners of the fields (with the concurrence of chiefs and their Development Committees) after they knew compensation was coming. Before June 1999 it seems government was content to let things drift - although an urban area had been declared in August 1980. It is the rights to land that were acquired before June 1999 that are in issue - this is common cause. This applicant is not about those who acquired rights to land after June 1999.


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  1. It seems from the above that (those of applicants who built houses on sites they obtained within 1980 and June 1999) might not have known that chiefs and Village Development Committees had lost their power to allocate land in those rural areas. If that is so those among applicants who did so did so in ignorance of the legal position. The Minister should not do anything unless the chief and the Village Development Committees responsible have been heard. Breaches of the law by these authorities are a relevant issue which cannot be ignored. After that (depending on circumstances) the applicants have to be charged and convicted - if they have clearly broken the law. All this is not very clear in the current land administration confusion.


  1. This issue ignorance of the law does not excuse or that people are expected to know the law was tidily put by Rumpff CJ in S v de Blom 1977 (3) SA 510. This case is in Afrikaans and has been summarized in the English (rubric) head note of the case. I quote from the Juta English Translation at 529H of de Blom (supra) where Rumpff CJ said:


"At this stage of our legal development it must be accepted that the cliche that "every person is presumed to know the law" has no ground for existence and that the view that "ignorance of the law does not excuse" is not legally applicable in the light of the present day concept of mens rea in our law."


  1. It can be expected as Rumpff CJ observed that people in certain line of business should keep themselves informed of the legal provisions that are applicable in that sphere. This applies more specifically to the


40


chiefs and to some extent to their subjects. The situation becomes even more complex where it is suggested that a chiefs power to allocate land can simply be terminated by a declaration of an urban area. It becomes very difficult to determine people's culpability where the authority of chiefs continues unimpaired and government has done nothing over the years. It is so, because the chiefs are the main arm of the law and the State in rural areas. It follows therefore that each individual blameworthiness must be direct and such an individual must first be heard before any conclusions are drawn. Consequently the broad generalizations about applicants are uncalled for at this stage.


The land mix-up (fact and law)


  1. This case involves property and rights over land. In Lesotho land cannot be owned by individuals. However those people who have been allocated the right to use and occupy land - and own the improvements such as buildings and other structures that they might put on the land. They also possess the right to occupy that land. It is the buildings and other improvements that the applicants have in mind. They are also claiming that their right to use and occupy the land that was allocated to them should remain undisturbed unless they are compensated for their improvements and given alternative lands to use and occupy.


  1. The giving of people alternative land to occupy where existing land is taken by the chief for a public purpose - is an age old right and expectation that every man in Lesotho has. Where an inspection of


41


the number of fields is done - it is done to all people. All people are depriving of some of their lands - in order to give land to the landless. The new element, which is constitutional, is that of compensation. All land in Lesotho was allocated for beneficial use - no compensation in the past was expected in respect of this right. Everybody expected to share the little land that existed with his neighbours. Land has become too scarce to share fairly, nothing is easily shared voluntarily in the monetary economy. Consequently the idea of compensation in land matters has evolved and even been recognized by law.


  1. In the 1966 Constitution the role of chiefs in the allocation of land was spelt out. Chiefs in terms of Section 93 of the 1966 Constitution were said to be allocating and revoking allocations of land in the King's name. The role of the Chiefs has been omitted in the current constitution. Section 108 (2) of the current Constitution only provides that although the King holds the land in trust for the people with power to allocate or revoke rights or interests over land it does not say how. All it says is:


"The power that is vested in the King by subsection (1) of this section shall be exercised in accordance with the Constitution and any other law."


  1. The power to allocate land remains with the village Development Committees whose chairmen are ex officio chiefs. This implies nothing has changed because chiefs in the past acted with Land Advisory Committees. Parliament is left with future powers to make appropriate laws in terms of Section 109 of the current Constitution.


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  1. Before the 1966 and the current Constitution, attempts had been made to involve villagers in rural areas in the allocation of land so that the Chief does not act alone. The Resident Commissioner by powers vested in him by Section 13 of Basutoland Order (1965) promulgated Regulation 15 of 1965 the Land (Advisory Boards Procedure) Regulation, 1965. A system of election of advisors of chiefs and headmen on land allocations and revocations was introduced. It provided for keeping of land registers by chiefs and the issuing of certificate of allocations. The certificate of allocation was in a prescribed form known as Form "C". The Register of Allocations and grants of Land was in the form known as Form D.


  1. This Regulation 15 of 1965 was replaced by the Land Procedure Act of 1967. The Land Registers were never properly kept or at all. But certificates of allocation Form "C"s were extensively issued. No comprehensive system of land administration was ever undertaken or funded by government. The result was that there was often an allocation of the same piece of land to more than one person. There were therefore numerous land disputes before the courts. In any event since land was not surveyed, irregularities and errors were inevitable.


  1. In recognition of this chaotic situation of land allocations and to protect people who had developed the land and invested heavily in it by inter alia building houses, Section 82 of the Land Act 1979 had to provide that:


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"Where at the commencement of this Act any land or part thereof has, whether by error or otherwise, been the subject of two or more allocations, the allotee who has used the land and made improvements thereon shall hold title to the land in preference to any allotee who left the land unused and undeveloped."


  1. The Land Act No.20 1973 had reaffirmed that the Land vested in the Basotho nation. But land administration (i.e. allocation and revocation of rights over land) vested in the King whose powers shall be exercised by chiefs and headmen. In the exercise of those powers chiefs were in terms of Section 4 (2) of the Land Act 1973 "be subject to such duties and have such further powers as may be imposed or conferred on them by this Act or any other law." Confusion in the land administration is confounded by the fact that the Land Administration Act No.16 of 1973 had previously said in Section 2 contrary to what is in the subsequent Land Act No. 20 of 1973 that:


"It has hereby confirmed that the ownership of land is irrevocably vested in the Nation, represented by the State of Lesotho."


  1. The Land Administration Act No. 16 of 1973 was repealed by the Land Act No. 17 of 1979 before it could come into operation. I am drawing attention to Section 2 of the Land Administration Act of 1973 because the King is at the head of the State which is represented by the Central government - while he is also head of the chiefs who up to now have been customary law rulers of rural areas - albeit with reduced powers. Land has been administered by chiefs as both the Constitution of 1966 and the Land Act No.20 of 1973 show. What is


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significant is that the Land Administration Act No. 16 of 1978 tried to remove land and its administration from the King and Chiefs by replacing them with government. After the Parliament of the day had passed a law, it changed its mind and superceded the Land Administration Act No. 16 of 1973 it with another law - without repealing it or bringing it into operation.


  1. The Land Act No. 17 of 1979 seems to have phrased the issue of land in a language slightly different from that of Section 2 of the Land Administration Act No. 16 of 1973. This is because Section 3 (!) and (2) of the Land Act No. 17 of 1979 state:


"3. (1) Land in Lesotho is vested absolutely and irrevocably in the Basotho Nation and is held by the State as representative of the Nation of the Nation.


(2) As a corollary to the principle stated in Subsection (1) no person, other than the State, shall hold any title to land except as provided for under customary law or under this Act."


  1. The Constitution had been suspended between 1970 and 1993. Consequently there was no obligation on government and the parliaments it created to follow the Constitution. Despite this wording land allocation is still left in the hands of the Chiefs - who are in terms of Section 12 of the Land Act No. 17 of 1979, the ex officio chairmen of the land allocation committee. Although nothing seems to have changed - Section 3 of the Land Act 1979 conflicts with the


45


Constitution. It follows that the wording of Section 3 of the of the Land Act 1979, in so far as it conflicts with the Current Constitution cannot stand. In terms of Section 156 (1) of the Constitution these words:


"Shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this Constitution."


  1. Since the Land Act No.17 of 1979 as a whole is substantially in conformity with the Constitution this inconsistency does not disturb vested rights but it does leave Parliament (in due course) free in terms of Section 109 to tidy up the current confusions and contradictions so that the Section 3 of the Land Act 1979, conforms with the Constitution. In the meantime the courts have to construe it in line with the current Constitution.


  1. Land allocation in rural area and even in urban areas still revolves around the office of chief who must have a land allocation committee or a Development Committee over which they are chairmen. It seems the Land Regulations of 1974 and the Land Regulations of 1980 still stand. I base myself on Regulation 26 of the 1980 Land Regulations which repeals only Regulations 9, 10 and 11 of the Land Regulations of 1974. It will be observed that chiefs and development committee remain involved in land issues. The Land Regulation 3 of the Land Regulations of 1974 which are styled the Principal Regulations was


46


repealed by the Land (Amendment) Regulations of 1987 which introduced a new Regulation 3 which provides:


"(1) There shall be a land allocation committee for the area under the jurisdiction of every chief in rural areas."


  1. The rest of the regulation deals with the method and number of members of the land allocation committees including that of the Principal Chiefs. Consequently allocations that have been made in terms of the Land Act 1979 and the Land Regulations valid and cannot be challenged as they conform to Basotho custom as modified by statute.


  1. What is not easy to determine is when the Maseru Municipality began function. This is relevant because the residential area with which I am dealing now falls under the Maseru Urban Area, which should be governed by the Maseru City Council. This was a complicated administrative problem because rural areas that had been under the Principal Chiefs of Matsieng, Thaba-Bosiu and Berea were being brought under the Maseru City Council Urban Area. The situation was further complicated by the enabling Act. The Urban Government Act 1983 was enacted but was not put in operation for several years. The Municipal and Urban Councils Regulations were made in 1987. It is not clear when the Urban Government (Amendment) Order 1989 came into force - sufficeth to say that in 1990, the records show the Urban Government Act of 1983 was still being amended by the Military Council to enable the Act to be implemented. See Order No.


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II of March 1990. Nevertheless by Government Notice No. 135 of 1990, the powers of the Maseru City Council had been suspended by the Minister of Interior and Chieftainship Affairs. This suspension was revoked by the Suspension of Powers of the Maseru City Council Revocation Notice 1991 published in Government Notice 142 of 1991.


  1. In this chaos the chiefs continued to administer the rural areas that were earmarked for or already declared as incorporated in the Maseru Urban Area. Sites were allocated and buildings went up and government and the chiefs were content to let this continue. Those who had arable lands continued to plough them as before. These chiefs were gazetted chiefs in those areas; their powers to allocate land were governed by the Chieftainship Act of 1968 (as amended). Those property rights could not now be ignored and treated as illegal. The constitution had to be enacted to remove this very chaos and protect and uphold the peoples' property rights.


  1. The allocations of land are made in the King's name, in the same way as government in terms of the Constitution is run by the Ministers in the King's name. In other words the King's right hand cannot be heard to say it does not know what his left hand is doing. It follows that whatever is done in the King's name in relation to land, the former Minister of Interior and Chieftain Affairs and the current Minister of Local Government are responsible and accountable. Consequently if the Chiefs and their Development Committees have been allocating land in the Maseru urban area, they did so in the King's name and Minister of Local Government (who has taken no



48


action against those chiefs) cannot deny responsibility and claim the people who developed those lands did so illegally, unless these people have been heard, and their criminality established. Therefore the Minister is obliged to respect those property rights unless there are sound reasons for not doing so, even so due process of law should be followed.


  1. Third parties can challenge what chiefs have done in the allocation of land, if their rights are infringed thereby and if what is done is done illegally. As Lord Blackburn observed in Geddis v Proprietors of Bann Reservoir (1878) 3 App Cases 450 at page 455 - 6:


"No action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to any one ..."


In this case before me - the chiefs were doing what the land laws and the Constitution authorized in the King's name for which the Minister is responsible. The Minister has been negligent and cannot go against himself in respect of what he in the King's name allowed to happen.


  1. In the absence of clear violations of the law (at the instance of third parties) chiefs can be held accountable. However terms of Section 30 of the Interpretation Act 1977 Chief and the Land Development Committees (of which chiefs are ex officio chairmen) have to be presumed to have exercised their power of allocating land to applicants lawfully. If it can be said in terms of Section 64 of the Interpretation Act 1977 "No Act shall in any matter affect the rights


49


of or be binding on the Crown" - then the Crown cannot be held to account for failing to enforce law and order in relation to land in the confused situation it was between 1993 and 2000. By the same token government in terms of the Constitution is not entitled to use its powers without first giving a hearing directly to people such as the applicants who were allocated land and built houses freely and undisturbed if government has any grounds to object to what they were doing.


  1. It should be noted that the applicants and the general public were entitled to expect chiefs as peace officers and organs of government to maintain the law. The chiefs like government were also expected to deal firmly in terms of Section 87 (I) of the Land Act No. 17 Of 1979 (as amended) with:

"Any person who occupies land and any person who causes, aids or abets any person to occupy land without proper authority ... and the court convicting the offender may order the person to vacate the land forthwith or within a specified time."


Consequently even for the guilty, the circumstances of the case govern the action that will be taken against the offender before he vacates that land.


  1. With the existing problem between 1986 and 2000 in the administration where regimes changed often, government was sometimes unable to govern, rural and urban areas were uncertain of what to do. It could be argued that whatever laws existed in land


50


allocation were uncertain and even blurred and un-enforced. Consequently principles of estoppel though they might not directly apply to government - the principle of legitimate expectation that government is expected to act fairly applies. In Phillipson v Bahdur 1956 (1) SA 83 at page 95 B Rumpff CJ said:


"The better view is undoubtedly that there is no legal presumption that 'everyone is presumed to know the law as is often popularly supposed."


  1. People do not or are not expected to plead estoppel against the State. In this case however I would to put this in Roper J's words in Tighy v Putter 1949 (1) SA 1087 at page 1101:


"In my view however, it cannot be applied universally and without limitation and qualification. The maxims ignorantia juris haud excusat and ignorantia errorem cuique nocere from part of our law and though the rule which I have referred to is usually based upon a theory of contract I am inclined to think that in cases where ignorance or mistake of law a more logical basis would be the equitable jurisdiction to grant relief by way of restituo in intergrum. However that may be, it seems to me that which ever is the correct basis, the ignorance must be justifiable or excusable."


Although restituo in intergrum is not possible without great prejudice to applicants alone - it seems to me the allocations of land by the chief and committee and their acceptance by the applicants are both "reasonable and excusable." Consequently their property rights (if they are innocent) are protected by the constitution.


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  1. I would therefore state that the respondents' argument that the allocations to the applicants are unlawful is an oversimplification. They are wrongly overlooking their part in the problem. It is even more disturbing because the respondents do not know the meaning of a Selected Development Area and its purpose. It is not meant primarily to interfere with or for extinguishing people's title to land. Government intervention by way of Selected Development Area is allowed for by law, where the individual owners of property and their rights over land stand in the way of development for the benefit of the entire community.

  2. The problems of our land tenure system and the fact that land in Lesotho is incapable of individual ownership has caused many problems. Governmental bodies have sometimes taken advantage of this fact and even asserted that individuals have no right to be heard. Aaron JA in Pages Stores (Lesotho) (Pty) Ltd v Lesotho Agricultural Development Bank & Others 1994 -95 LAC 51 at page 63 F - G could not permit this. Consequently he said:


"In considering whether the appellant had a right to be heard the second respondent (i.e. the Minister) before he decided to make the declaration under Section 44 ... The respondents contended that there was no such right because in Lesotho, all land is vested absolutely and irrevocably in the Basotho Nation and accordingly the concept of individual ownership


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of land is absolutely unknown in Lesotho. That contention in my judgment does not mean that the appellant can have no right which is prejudicially affected; the appellant is not required to show that it had a right of ownership in part of plot No.59A. A lesser right would also entitle it to be heard, if this would be prejudiced by a ministerial declaration."


  1. Aaron JA had no difficulty in holding that the right to be heard whenever a statute empowers a public body to give a decision that affects adversely an individual's property or existing rights. This was a principle of justice, which need not be spelt out in such a statute. Aaron JA at page 63 of the Pages Case added:


'The principle of justice referred to is as much part of the law of Lesotho as of South Africa and the formulation referred to above has frequently been applied here."


It is for this reason that I was taken aback that people could (as the Principal secretary for the Ministry of Local Government has said) just be told that their lands have been declared a Selected Development Area - they had lost their rights - and they would be compensated. Our law and legal tradition does not allow such arbitrary seizure of peoples properties and rights merely because compensation will follow even if there will be not financial prejudice - rights of people to property are composite.


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The meaning and purpose of Selected Development Areas


  1. The court has not been given the Legal Notice that June 1999, in terms of which the Tikoe area declared a Selected Development Area. That notice has to specify the nature of development that is intended so that the court can determine whether the threshold requirements for declaring it have been met. The Principal Secretary for the Ministry of Local Government at paragraph 8 of answering affidavit made on behalf of the respondents said the following:


"Consultations had been held with the field owners before the area was declared a Selected Development Area (SDA) in 1999. The Pitso was held in June 1999 was a consequence of the area having been declared a selected Development Area and illegal occupants of the area were informed that they should vacate the area which the lawful field-owners were informed that they would be compensated for the loss of their fields. I was present at the said Pitso and I was the one who addressed the crowd."


  1. The court has been told in broad generalization that consultations were held before the Selected Development Area were declared in 1999. The respondents have further not stated when the Selected Development Area was declared. The court has not even been told what they were consulted about and what the development purpose was. Was the development for agricultural or town planning purposes? The Selected Development Area Notice is not even


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attached so that the court itself can see for itself when exactly it was declared and for what purpose.


  1. Counsel for applicant handed to me Legal Notice 17 of 1999 dated 10th March 1999 and said it is the Legal Notice in terms of which the Selected Development Area was declared. I will quote it in full:


464________________________________________________________________


LEGAL NOTICE NO. 17 OF 1999


Declaration of a Selected Development Area (Plot No. Misc Plan 1/99 Phaomolong Maseru South Urban Area) Notice 1997


In exercise of the powers conferred by section 44 of the Land Act 1979 I,


MOPSHATLA MAB1TLE


Minister of Local government, declare that the land described in the Schedule hereto in extent 1650 hectares more or less shall comprise a selected development area pursuant to Part V of the Land Act 1979 at the date of this notice.


M. Mabitle,

Minister of Local Government.


SCHEDULE


Plot No.Msc Plan 1/99 situated at PHOMOLONG MASERU SOUTH URBAN AREA AS delineated on Miscellaneous Plan No. 1/99 held in the office of the Chief Surveyor, Maseru.


LG/LS/83/864


Printed by the Government Printer, P.O. Box 268, Maseru 100.


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  1. If this is the Legal Notice in terms of which the Selected Development Area was declared, it is clear from it that the purpose for it is not stated. Consequently it is flawed. This Legal Notice gives the impression that no consultation with the land occupiers preceded the publication of the Selected Development Area because the Principal Secretary for Local Government says he only informed applicants and owners of the fields that it has been declared. In other words it was an accomplished fact.


  1. These applicants who collectively have already made improvements and buildings worth over three million Maloti (M3, 000.000.00) cannot just be ignored. The Minister in a democratic government has to be sensitive to people's problems. He has to hear them and enlist them as partners in development. Section 44 of the Land Act 1979, is intended to develop localities not to impoverish them and waste the resources of the poor people of Lesotho. The Principal Secretary for the Ministry of Local Government does not seem to be conscious of the fact that applicants have a right to be heard.


  1. As Aaron JA in Pages Stores (Lesotho) Pty Ltd v Lesotho Agricultural Development Bank 1990 - 94 LAC 51 at page 62 F - H said the purpose of the intended development is a condition precedent before a Minister can declare a Selected Development Area. It cannot necessarily be declared if the majority of people of the area are not persuaded to accept it. The purpose of the Selected Development Area has to be explained to people of that locality and then followed


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by consultations to determine whether or not the intended development cannot be achieved with the co-operation of the targeted community. If all the people in the area can be persuaded to co­operate, then the Selected Development Area need not be declared -or could be declared only for the adjustment of boundaries. But if these jurisdictional requirements are not met, then the Minister may not in terms of the law proceed to exercise the powers he has to declare the Selected Development Area.


  1. The averments of the Principal Secretary for the Ministry of Local Government do not claim these preliminary steps were taken nor does the Principal secretary disclose the purpose of this development. The Minister of Local Government cannot under the law act without stating the development purpose and entering into dialogue about it with members of the community affected. The Pitso of June 1999 does not meet the criteria of consultation - it is rather a meeting to inform the people that the Minister has declared a Selected Development Area for an unknown purpose, the owners of the fields will be compensated the rest of the occupants should clear out because they are illegal occupants. This amounts to seizure of people's rights to lands and their properties.


  1. Not enough has been said by the Principal Secretary for Ministry of Local Government to make what was done to conform to the law governing the declaration of Selected Development Areas. If what has been said is all that happened then, the Selected Development Area has been declared contrary to the law. This is particularly so


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because in paragraph 9 of his affidavit the Principal Secretary for Local Government adds:


"The reason for the Pitso was to inform the inhabitants of the area that they were in unlawful occupation of the area which had been declared an SDA which hitherto had been an agricultural before being converted into an urban area."


  1. The language used above is the language of expropriation for a public purpose within Part VI ofthe Land Act 1979. There are many reasons of a national and regional nature that government can expropriate land and properties. A Selected Development Area is meant for people who reside in the locality who are expected to be participants and beneficiaries of the intended development. It is when an individual or a group is obstructing what is for the benefit of many that he has to be compensated and found a different plot. Consequently Aaron JA in Pages Stores (Lesotho Pty Ltd v Lesotho Agricultural Bank (supra) at pages 58 HI and page 59 BC said:


"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, 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."


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  1. There was nothing to show that the owners of the fields did not want to participate in the urbanization scheme or to have their lands sub-divided. There are people in Lesotho's urban areas that still have fields - urbanization does not automatically deprive people of their fields. In other words Section 44 of the Land Act 1979 cannot be used to dispossess one group of owners of rights over land in favour of a different group of individuals. See Tleletlele & Another v Matekane & 5 Others 1991-96 LLR 1655 at page 1658 where it was said:


"The entire Part V of the Land Act 1979 is not meant to be a means of despoiling people who have rights over land. The aim is as much as possible, to involve the people who already have rights over the land selected for development in the intended development."

  1. It seems (from the papers) clear that spirit and intention of Section 44 of the Land Act 1979 was not followed. If the land law had been followed, the purpose and the spirit of the Land Act of 1979 kept, it strikes me as a strange that the owners of the fields could have created the mayhem that the Principal secretary for Local Government claims when he says at paragraph 9 AD Paragraph 8 B:


"It was only after they had been promised compensation that the field owners embarked on a scheme to unlawfully sell their fields to the applicants."


  1. Without in any way applauding what the owners of the fields allegedly did (according to the Principal Secretary for Ministry of Local Government) - what he says happened is the fruits of arbitrary


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seizure of lands - if that is true. As it turns out this statement is contradicted by the rest of the Principal Secretary for the Ministry of Local Government's other averments. It does however show that the owners of the field should have legitimately been most dissatisfied with what was being done contrary to Section 44 of the Land Act 1979 under which the Minister was purportedly acting. Development objectives of Land Act 1979


  1. The Minister of Local Government has two very different functions under the Land Act 1979 which impact on the individual's right over land. These are:


(i) The power under Part VI expropriate land and public purposes such as the building of national roads and national public facilities.

(ii) The power to be declared Selected Development Area under Part V - for agricultural purposes and town and country planning for the benefit of residents of those localities.


  1. It is very easy to confuse the use of ministerial power under and Part V and Part IV because of need for prior notification and the availability of compensation where individual rights are affected. However, the purpose and the objectives of Part VI and Part V are very different. The other similarity is that in both cases the purpose for which ministerial power is being exercised has to be clearly stated in advance before the ministerial legal instrument such as a legal


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notice is issued. "What would be the point of giving some one a right to be heard - while denying him any knowledge as to what he is to be heard about?" - Malloch v Aberdeen Corporation [1971] 1 WLR 1578 per Lord Morris at page 1588F.


  1. There is a tendency to say. land expropriation under Part VI has been done under Section 44 and to declare the land expropriated as a Selected Development Area (SDA). This is wrong because building a national road or a national public building need not develop the area in which expropriation takes place. Since the case before me is not about expropriation of land I shall not say more about this issue.


  1. Selected Development Areas under Section 44 are not declared primarily to extinguish the titles of people who reside in the area. They are not declared to seize their lands (as such) promising them compensation. Like all powers exercised under Part V of the Land Act 1979 the Minister exercises the power to help a willing community or individuals to develop their quality of life. In respect of small agricultural holdings and small communities, State power is put at the disposal of affected persons to develop and protect whatever investments, that, those people will make in that land.


  1. If it has been agreed that the village or suburb of a town is unplanned and needs infrastructure, the majority of the people will have been consulted and will have taken a decision for the development scheme to take place. Consequently the boundaries of sites will have had to be altered, some sites and buildings will also have to give way to access roads, piped water, water reservoirs, sewerage disposal mains


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in line with the agreed development plan. Government and the Local Authority must educate people; enlist their agreement and co­operation in the intended development. Where there are problems alternative sites have to be found. New boundaries of plots are made; old titles extinguished and substitute title given in their place consistent with the development scheme.


  1. As the Court of Appeal said in the Pages case, if people can agree voluntarily to all the changes necessary for town and country planning the Minister does not have to intervene. All he will do is to help with substitute titles where boundaries have been altered and change the old title to land. Consequently a Selected Development Area and ministerial intervention endorse what people have agreed upon. Even when the Minister is obliged to or invited to declare a Selected Development Area, the aim of the act should be that rights of residents should be as minimally affected as possible.


  1. In democratic spirit these individuals who might not have had the planning vision have to be persuaded by government and its agencies. Where some individuals do not wish to participate in the development scheme after the majority has been persuaded, they have to be relocated and found alternative sites - see the Pages case. Compensation has also to be made for those whose sites or properties are going to be adversely affected by the development scheme although they might not be moved from their lands. If (as already stated) development of an area can be achieved without ministerial



62


intervention under the Selected Development Area procedure of Section 44 of the Land Act 1979 - this should be done.


  1. Section 44 Ministerial powers should only be used to help communities and individuals - the majorities of which have already agreed to the envisaged developmental scheme. It is not intended for the seizure of people's land rights and properties. In exercising powers under Section 44 of the Land Act 1979 the Minister must focus on the legal purpose of helping socio economic development of people of the locality and procedural fairness to the people of the locality. However as Lord Mustill in R v Secretary of State Home Department (Ex P Doody [ 1994] AC 531 AT 560 EF:


"The principles of fairness are not to be applied by rote identical to every situation. What fairness demands is dependent on the context of the decision, and this is to be taken in all its aspects..."


  1. To sum up simple fairness ought to be the basis on which the Minister uses the statutory powers under Section 44 because:


"We live in a democracy in the narrow sense majority prevails. But, more importantly, we live in a liberal European democracy based on the values of justice, equality and humanity. Judges are therefore entitled to assume, unless a statute makes it crystal clear provision to the contrary, that Parliament would not make an unjust laws." M Forham Judicial Review Handbok 2nd Edition 29.5.4 page 33 quoting Lord Steyn lecture to the Administrative Law Bar Association 27th November 1996.


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  1. This liberal European democracy that Lesotho has inherited from Britain is referred to by the late President of the Court of Appeal - Mr. Justice Mahomed as the "defensible civilization" which all of us should protect. Vide Attorney General & Another v Swissborough Diamond Mines (Pty) Ltd. & Others 1991 - 96 LLR 27 at page 31. The Selected Development Area system of Sections 43 and 44 of the Land Act 1979 do not belong to group of welfare rights which rich countries like Britain and Western Europe have extended to their citizens - where government alone undertakes to alleviate property. In the Selected Development Area practice in Lesotho the State helps people who have agreed to help themselves to improve their quality of life. In such a situation as Lord Diplock observed in Black - Clawson International Ltd v Papierwerke AG [1975] AC 591 at 638:


"The acceptance of the rule of law as a constitutional principle requires that a citizen, before committing himself to any cause of action, should be able to know what are the legal consequences that will flow from it?"


  1. Consultation and the right to be heard at all stages from planning to execution of the scheme for which a Selected Development Area will later be declared is a prerequisite. People in the locality should not just be called to a public meeting after or a little before the Selected Development is to be declared, to be told that it will be declared and they will lose their lands and properties for which they will be compensated. That would be worse than what is expected even in an expropriation under Part VI of the Land Act 1979. In an expropriation


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Sections 54 and 55 of the Land Act 1979 require that there should be prior notification of occupiers land and "the general purpose for which the land is required" should be stated before publication in a gazette of a declaration notice.


  1. Even in cases of expropriation under Part VI of the Land Act 1979, in a democracy the duty to hear those who will be affected remains. To put this in Lord Diplock's words in R v Commissioner for Racial Equality, Ex P Hillington Borough Council [1982] AC 779 at 787F:


"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons, or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."


  1. If the Minister's powers under Part V and Section 44 of the Land Act 1979 are not used for the benefit of the occupiers of land in the locality but to expropriate land for an undisclosed purpose - then the words of Lord Denning in Earl Fitzwilliams Wentworth Estates Co v Minister of Town and Country Planning [1951) 2QB 284 at page 387 become relevant:


"If Parliament grants to a government department power to be used for an authorized purpose, then the power is only validly exercised when it is used by the department for that purpose as its dominant purpose. If that purpose is not the main purpose, but is subordinate to some purpose which is not


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authorized by law, then the department exceeds its powers and the action is invalid."


CONCLUSION


  1. There is no real dispute of fact on the issue of occupation which is at the root of the Selected Development Area of land. Respondents admitted that there were other people other than owners of the fields that were in occupation of the land. At Paragraph 8 of the Answering Affidavit of the Principal Secretary for the Ministry of Local Government, said:


"The Pitso that was held in June 1999 was consequence of the area having been declared a Selected Development Area and illegal occupants of the area were informed that they should vacate the area while the lawful field owners were informed that they would be compensated for the loss of their fields."


These people had to be consulted and their occupation of land individually gone into. Each of these people had a right to be apprised of the intention to embark on a clearly specified Selected Development Scheme before anything could be done. The Declaration of a Selected Development Area should have been the final step. Respondents have set the cart before a horse.


  1. Mr Viljoen in argument confined himself to invasions of land in question after June 1999. He did not concern himself with the


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method of allocation of land before June 1999. This approach avoided the central problem, which initially surrounded the declaration of an urban area and the changed method of land allocation. This was a vexed issue in which the state had a problem. By avoiding this problem, he made the resolution of issues of this application much simpler. Nevertheless I went into this problem at great depth because people's rights of property were involved.


  1. Land allocation in Lesotho is based on Chapter XI of the constitution. Its administration had been beset with problems caused by untrained chiefs, which were advised by committees and later assisted by Development Committees of one type or the other from 1965 until today. Records and registers of land allocation were supposed to be kept, but they were not. The state was supposed to iund and supervise land administration and proper keeping of land registers and other records of land administration. For on reason or another this was not done.


  1. Letters of allocation or Form C's and Form C2 issued by Chief cannot correspond with land registers - simply because some land registers did not always exist. Even those land registers that exist such as those of Upper Thamae Maseru have been found to have been fraudulently re-written. The case M. Matabola V S. Tsotako which ended in the Court of Appeal as S. Tsotako V M. Matabola C of A (CIV) No 10 of 1986(unreported) illustrates this point. In that case a Form C (letter of allocation) had allegedly been issued several years before it was actually printed. Had it not been for the Government Printers dating


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and numbering of years in which form C's were issued, this fraud would not have been discovered. Nevertheless that litigant was able to keep his house on a portion of the site because in terms of Section 82 of the Land act 1979 as amended.


''''Where at the commencement of this Act any land or part there of has, whether by error or otherwise been the subject of two or more allocations, the allotee who has used the land and make improvement thereon shall hold title to the land in preference to any allotee who left the land unused and undeveloped."


  1. The democratically elected government from 1993 up to 1998 was destabilized by the police and the unruly army that it had inherited. The courts have to take judicial notice of this because of the decided cases it has of this turbulent period. Because of this institutional instability land administration continued in a chaotic state. The dualism of Government between the chiefs and the Central Government in land administration made the problem worse. The Central Government had a tendency to declare adjoining rural areas as urban areas without proper preparation consultation and creation of capacity. As we have seen it was forced to reverse these declaration of urban in some areas after a few years. During the first phase of military rule there was a declaration that powers of chiefs would be restored. This led the chiefs to assume most of their traditional powers without legislative authorisation. Land allocation was no exception.


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  1. The Selected Development area that was declared by Legal Notice No. 17 of 1999 was declared contrary to law for the following reasons:


    1. There was no prior consultation in which the people of the area were involved. They were not informed and persuaded to accept and participate in the proposed Selected Development Area.

    2. The Selected Development Area does not specify its purpose. This was arbitrary and falls far short of even the expropriation requirements under Section 54 of the Land Act 1979 where the purpose for which the land is taken has to be stated. This arbitrariness in the use of ministerial power violates Part V of the Land Act 1979 and Section 17 of the Constitution.

    3. The schedule of Legal Notice 17 of 1999 does not in its schedule specify to properties or the names of the people whose properties will be affected.


  1. The Principal Secretary for the Ministry of Local Government concedes that he first announced the Selected Development Area in June 1999 about three months after the Selected Development Area had been declared. He ignored other occupiers of that land (that he said were illegal) and says in paragraph 8 of his Answering affidavit that he addressed himself exclusively to the unspecified people that he called owners of fields. I found this approach flippant and arbitrary


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from a public servant dealing with the public whose property and homes are involved.


  1. This conduct of the Principal Secretary of the Ministry of Local Government violates entire Constitution which is captured by section 17 (4) which provides:


"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of Section (1) or (2)"


    1. to the extent that the law makes provision that is necessary in a practical sense in a democratic society for the taking of possession or acquisition of any property, interest or right -


  1. The constitution has not given the Minister the right to interfere or sieze people's rights of property for general developmental purposes. The power that is given is only to interfere when health and safety of human beings, animals and plants are involved. The Minister may also interfere for soil conservation purposes. For agricultural developmental purpose, the Minister may only interfere for soil conservation if "the occupier of land has been required, and has without reasonable excuse refused or failed" - see Section 17(4) (a) (vii) of the Constitution. It is clear therefore that Section 44 of the Land Act 1979(\i\i is applied) as written read and understood by Mr. Viljoen would be contrary to the Constitution if the Court of Appeal


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had not interpreted it remedialJy and liberally in terms of Section 15 of the Interpretation Act No 19 of 1977 in the aforesaid case of Pages Stores Ltd.


  1. Mr. Viljoen for respondents was not aware of Lesotho's constitutional restraints when he said the Minister to promote development can sieze people's lands and properties, compensate or give them substitute land rights at his discretion. The Court of Appeal had already interpreted Section 44 of the Land Act 1979 in a practical manner consistent with democratic principles in the Pages Stores Ltd case.


  1. Principles of socialist legality of the former Soviet Union in which government in the name of development could freely interfere with private property rights are not part of our current constitutional civilization. By the same token the compensation and removal or resettlement of the people in the former South African Group Areas style at the discretion of the Minister of Bantu Administration and Development which used to happen in the Republic of South Africa would be contrary to the Bill of Rights of the Lesotho Constitution and the human dignity it embodies.



  1. The Selected Development Area is not a method of compulsory acquisition of land for public purpose or population removal. As the Court of Appeal has found in the Pages Stores case it is a method of helping individuals and communities to improve their quality of life. It is only those who are in the way of beneficial community improvement schemes whose titles to land have to be terminated and


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for whom relocation has to take place. In cases of access of roads and services a Select Development Area has to be declared so that sites can be cut to make the necessary access roads and services. All this has to be done by the consent of the majority of the inhabitants of the area. Bringing businesses and industries for the benefit of localities has also to be a matter of consultation.


  1. As for people who may or may not have had sites but who developed them hurriedly in order to get compensation after the 6th June 1999, this is a detail, which will be gone into during consultation and investigations that should precede the Declaration of a Selected Development Area. They are not entitled to act fraudulently. This has to be looked into in respect of each individual occupier of land. Respondents were not entitled to make broad generalization on this issue, as people's property is involved.


  1. The Court noted that from the valuation of both applicants and respondents that over M3 000 000.00 (three Million Maluti) has been spent on people's homes in the area. These people have to know the purpose of the envisaged Selected Development Area before it is declared over their rights and properties. This is a matter which shall have to be looked into during the consultation that shall precede the specific Selected Development Area that may eventually be declared if the majority consent.


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ORDER


It is ordered:


  1. That respondents be and are hereby interdicted from removing or demolishing the houses of applicants.

  2. The Selected Development Area is declared null and void for failure to comply with the following requirements.


(i) Failing to first consult with the applicants and other occupiers of land and seeking their co-operation and consent.

(ii) Failing to specify the purpose or nature of the envisaged Selected Development Area in Legal Notice No 17 of 1999.

(iii) Failing to specify in the Schedule of Legal Notice No 17 the specific properties that are to be the subject of the Selected Development.


  1. Depending on the outcomes of the consultation that must preceed the Selected Development Area, those of the


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applicants who did not fraudulently occupy and develop land after June 1999, should be compensated in so far as their rights, their lands, sites and properties may be adversely by the future Selected Development Area whose purpose is clearly stated.


  1. Respondents are directed to pay costs.


W.C.M MAQUTU

JUDGE


For Applicants - Mr. Maieane

For Respondents - Mr. Letsie


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