IN THE LAND COURT OF LESOTHO

Transcription

1 IN THE LAND COURT OF LESOTHO Held at Maseru In the matter between: TSELISO MOKEMANE LC/APN/30B/ ST APPLICANT And TLHAKO MOKHORO HER WORSHIP MRS. MOTEBELE MINISTRY OF JUSTICE ATTORNEY GENERAL LAND ADMINISTATION AUTHORITY 1 ST RESPONDENT 2 ND RESPONDENT 3 RD RESPONDENT 4 TH RESPONDENT 5 TH RESPONDENT CORAM: S.P. SAKOANE AJ DATE OF HEARING: 20 OCTOBER, 2015 DATE OF JUDGMENT: 10 NOVEMBER, 2015

2 SUMMARY Stay of ejectment proceedings in the District Land Court pending application to the Land Court to cancel lease whether the District Land Court does not have jurisdiction to cancel a lease ouster of jurisdiction of the ordinary courts sections 3, 73, 74, 75, 85 and 89 of Land Act ANNOTATIONS: CITED CASES: LESOTHO CGM Industrial (Pty) Ltd v. Lesotho Clothing and Allied Workers Union And Others LAC ( ) 791 Mokhoro v. Mokemane And Others CIV/APN/262/2010 (6 May 2011) Roma Valley Co-operative Society v. Malefane and Others [2013] LSHC 54 (5 July 2013) SOUTH AFRICA Mathope And Others v. Soweto City Council 1983 (4) SA 287 (W) S v. Makwanyane 1995 (6) BCLR 665 (CC) STATUTES: Deeds Registry Act No.12 of 1967 Land Court Act No.8 of 2010 Land Court Rules,

3 JUDGMENT I. BACKGROUND NARRATIVE [1] The applicant and the 1 st respondent are involved in ejectment proceedings pending before the Maseru District Land Court in CC 896/2011. The matter is yet to be finalized. This is per the judgment of the High Court in Mokhoro v. Mokemane CIV/APN/262/2010 delivered by Mahase J. on 6 th May In that application, the 1 st respondent sought an order that CC 1964/2003 proceedings should start de novo because of the disappearance of the record of proceedings. [2] In granting the order, Mahase J reasoned, inter alia, that: If any of the parties to the said CC 1964/2003 wishes to have the particular ejectment proceedings now pending before the Magistrate s Court, to be removed or instituted into the High Court, such a party should invoke the provisions of section 6(b) of the High Court Act No.5 of The issues pertaining to the counter application which the first respondent [who is applicant herein] has allegedly filed cannot equally not (sic) be removed or instituted into the High Court whilst the ejectment proceedings in the Subordinate Court are still pending and partly-heard The fact that first respondent [applicant herein] has filed a counter application should not prevent the court a quo from disposing of the ejectment proceedings. Provisions of section 30 of the Subordinate Court Act (supra) should be invoked by a party which has filed a counter claim. 3

4 [3] Subsequent to that judgment of the High Court, the applicant launched this application in this Court on 16 October 2013 wherein he seeks the following reliefs: (a) Dispensation with the ordinary modes and periods of service due to the urgency of this application. (b) (c) (d) The proceedings in CC 896/2011 be stayed pending the final determination of LC/APN/30/2013. Costs of suit. Further and/or alternative relief. [4] The applicant pleads, among others that: st Respondent made an application for review before this Honourable Court in CIV/APN/262/2010. The latter review was finalized and judgment was issued before Her Ladyship Madam Justice Mahase respectively. The net effect thereof was that the matter had to start de novo before a different magistrate. It was duly instituted afresh in CC 896/2011 before her Worship Mrs. Motebele. 4.2 While the matter was pending before the said court, 1 st Respondent applied (sic) and obtained the lease unlawfully. Since the said matter has been pending for a long time in the Magistrate Court and since the Respondent and (sic) acquired the lease of the place in issue (t) herein unlawfully, I found it apposite to approach this Honourable Court for the cancellation of the said lease in the Respondent s name as it was unlawfully and improperly acquired. As such I instituted an application to that effect before the Honourable Court in LC/APN/30/2013 to which I refer this Honourable Court

5 4.3 The aforesaid application rests on all fours as (sic) the matter which is set to proceed in the Magistrate s Court CC 896/2011. Over and above that the said matter relates to the same parties and same subject matter. As such I found (sic) appropriate to approach this Honourable Court for stay of the said proceedings in CC 896/2011 as the determination of LC/APN/30/2011 will automatically resolve the proceedings in CC 896/2011, however, not vice versa. 4.4 I aver that should the said proceedings proceed, I will suffer irreparable harm should the 1 st Respondent be granted judgement in his favour and he will eject me from my site while LC/APN/30/2013 is still pending before this Honourable Court on the basis of an unlawfully issued document, thus perpetrating illegality. Thus I have no alternative but to approach this Honourable Court in the manner I have. 4.5 I further aver that this application is extremely urgent as CC.896/11 is set to proceed on the 23 rd October 2013 which (sic) a few days from today and should it proceed I will suffer irreparable harm. [5] The 1 st respondent has filed an answer arguing that the applicant s case constitutes an abuse of process and there is no urgency that has been shown to exist. [6] In a pre-trial minute filed of record, the parties raise the following legal issues for determination: 5

6 6.1 Whether the 1 st Respondent s Lease can be cancelled before this Court as requested without invoking the provisions of section 6(b) of the High Court Act No.5 of Whether the High Court has jurisdiction to determine issues falling directly within the jurisdiction of the Subordinate Court, in terms of section 17(1)(c) of the Subordinate Court Act No.9 of Whether it is proper that proceedings in CC/896/2011 be stayed, currently pending before the 2 nd Respondent. [7] It is common cause between the parties that there are proceedings pending in the Maseru District Land Court. The pendency of those proceedings is a sequel to the order granted by Mahase J. in CIV/APN/262/2010 referred to in para [1]. It transpires that because 1 st respondent applied for and was issued with a lease in respect of the plot which is the subject-matter of dispute therein, the applicant herein decided to challenge the issuance of that lease by bringing this application not in the court a quo but in this Court. The reason given for this step is that a stay of the said proceedings in CC/896/2011 as the determination of LC/APN/30/2013 will automatically resolve the proceedings in CC/896/

7 II. SUBMISSIONS [8] During argument, Mr. Mariti for the applicant, advanced the proposition 7 that a counter-application to cancel the lease could not be properly brought in the Subordinate Court sitting as a District Land Court because it does not have jurisdiction to order cancellation of a lease. Hence the application LC/APN/30/2013 in this Court. He relies on Roma Valley Co-operative Society v. Malefane and Others [2013] LSHC 54 (5 July 2013) where it is stated: [18] The provisions of the Land Act of 2010 and the District Land Court Rules are silent as to whether or not the Commissioner of Lands can also cancel leases or sub-leases. In contrast, the provisions of the Deeds Registry Act, referred to above 2(d) specifically empower the Registrar of Deeds to among other duties, cancel leases and release of any part of the property leased. The provisions of section 7(1) of this Act prohibit the cancellation of a certificate of title or other deed conferring or conveying title to immovable property etc. except upon an order of court. This is couched in mandatory terms and the provisions of section 2(1) interpret and describe the word Court as meaning the High Court of Lesotho. [19] In the premises, the argument that this Court has no jurisdiction to entertain this application is misleading. Clearly since the Land Court is a division of the High Court and also because the lease and sub-lease subject-matter in this application have been registered by the Deeds Registry Office in terms of the provisions of the Deeds Registry Act (supra) it follows therefore that it is the Registrar of that office who shall effect cancellation of same upon an order of this Court.

8 [20] It is for the foregoing reasons that the point of law raised herein is dismissed because only the Land Court as a division of the High Court has jurisdiction to order such cancellation. The Registrar of Deeds is prohibited from so cancelling any titles on immovable property as provided in the Deeds Registry Act except upon an order of Court, which means the High Court. [9] In countering this proposition, Mr. Mokaloba for the 1 st respondent, submits that Parliament has created the Land Courts and conferred them with full jurisdiction under section 73 of the Land Act, 2010 to determine all land-related disputes. As such, this entails issuing of consequential orders to issue and cancel leases. Otherwise, it would be absurd to provide for jurisdictional competence bereft of the power to grant consequential orders. III. ANALYSES [10] The Land Act, 2010, unlike all previous legislation on land-related matters, creates Land Courts. This Act provides that: 73. The following courts are established with jurisdiction, subject to the provision of this Part, to hear and determine [all] disputes, actions and proceedings concerning land: (a) the Land Court; and (b) District Land Courts. 74. The Land Court shall be a division of the High Court. 8

9 75. The Subordinate Courts are the District Land Courts for the purposes of this. 76. The Chief Justice may, in consultation with Minister responsible for land, make rules for the practice and procedure in the land courts. [11] It is proper and acceptable to have regard also to the statement of objectives and reasons for the enactment of the Land Act, 2010 as an aid to fully understanding its legislative purpose. This approach is supported by the learned author Sullivan in his works on construction of statues where it is stated: The reports of Law Reform Commissions, Parliamentary Commission and other similar studies have long been admissible as evidence of the mischief or evil legislation was designed to overcome. More recently, the courts have begun to look to these and other sources as direct evidence of legislative purpose. Statements made about a statute in the legislature especially by Ministers introducing or defending it, are admissible and may be considered sufficiently reliable to serve as direct or indirect evidence of legislative purpose. Statements issued by government departments or agencies involved in the administration of legislation may also be looked at. See Driedger On the Construction of Statutes 3 rd Edition (Toronto and Vancouver: Butterworths) p.52. [12] The statement of objectives and reasons is annexed to the Act itself for public information. I then cannot see why I should not have regard to it. Unlike explanatory memoranda to a bill which it is not permissible to admit as an extrinsic aid in interpretation of an Act, there is every reason to have 9

10 regard to this statement of reasons and objectives as it contains public declaration of the intentions of Parliament and the objectives of the Act. The statement of objectives and reasons are published with the Act. They are not part of a bill. Cf. S v. Makwanyane And Another 1995(6) BCLR 665 (CC) para (14) [13] In the Statement of Objects and Reasons for the Land Act, 2010 it is stated, among others, that: 2. The Current Position Furthermore the following have been found to be some of the shortcomings in the 1979 Land Act (c) land disputes not disposed of quickly, Land Tribunal centralized in Maseru and its jurisdiction limited to certain cases section 64 of the Land act 1979; 3. Rationale/objectives to be achieved through the Land Act 2010 The intention of this Act is to address the following issues (a) (b).. speedy disposal of land matters through creation of specialized Land Courts is necessary so that economic activities on land are not hampered; [14] This statement of the objects, reasons and rationale for the creation of the Land Courts leave no doubt that these courts are special courts dedicated 10

11 wholly to adjudicating land disputes throughout the districts of the Kingdom. This is a radical departure from the previous statutory regime under the repealed Land Act 1979 which had a Land Tribunal sitting in the capital city Maseru and inaccessible to litigants at district level. [15] The turn-around is indicated under section 3 of the Land Act, 2010 which provides: 3. On and after the commencement of this Act, notwithstanding any other written law to the contrary, except the Constitution of Lesotho 1993, this Act shall apply to all land in Lesotho. 11 By elevating the Land Act, 2010 above all other statues in the terms of section 3, Parliament s intention was to ensure that no other written could be construed to compete with or circumscribe the jurisdiction of Land Courts. In other words, the jurisdiction of other courts in land matters is ousted. I am fortified in this view by the following dictum of Goldstone J in Mathope And Others v. Soweto City Council 1983 (4) SA 287 (W) at 291 H: Mr. Van Niekerk also referred me to the provisions contained in the Water Act. It has never been doubted that in respect of matters governed by that Act the jurisdiction of other courts of law has been ousted. However, if one has regard to the provisions of statutes such as the Water Act, the Income Tax Act, the Patents Act and the Copy-right Act, it will be seen that Parliament has gone to lengths to set up specialized courts to deal with the matters governed by those

12 statutes. In such cases there are cogent reasons of policy for reading those provisions as ousting the jurisdiction of the ordinary courts. Parliament clearly did not envisage those special courts having concurrent jurisdiction with the ordinary courts of the land. See also CGM Industrial (Pty) Ltd v. Lesotho Clothing And Allied Workers Union And Others LAC ( ) A-C [16] This principle applies even to the High Court s jurisdiction by virtue of section 89 of the Land Act, 2010 which reads as follows: 89. Where a case relating to land was pending before the High Court or Subordinate Court prior to the coming into effect of this Act, the case may continue to be heard by the High Court or Subordinate Court until a completion and the ruling emanating therefrom shall have the same effect as of made after the coming into effect of this Act. [17] The contention of Mr. Mariti that the District Land Court does not have jurisdiction to grant an order cancelling a lease because section 7(1) of the Deeds Registry Act, 1967 confers such competence on the High Court has no merit in the light of what has been said in paras [15]-[16] (supra). That section of the Deeds Registry, Act must be taken to have been impliedly repealed. The Land Courts are vested with special and full jurisdiction to hear and determine all land matters and to grant remedies. I, therefore, reject Mr. Mariti s contention and accept Mr. Mokaloba s submission that it leads to absurdity to suggest that District Land Courts can hear disputes and grant remedies except that of cancellation of a lease. A 12

13 circumscription or attenuation of the competence of the District Land Courts in the manner suggested by Mr. Mariti flies in the face of the provisions of the Land Act, 2010 and contradicts the reasons for its enactment and its stated objectives. [18] To the extent that there is any contrary suggestion in the Roma Valley Cooperative Society judgment (supra), I respectfully differ. I cannot discern anything that can and should prevent the District Land Court from ordering the Commissioner of Lands to cancel a lease or sub-leases which are judged to have been issued or entered into contrary to the provisions of the Land Act, If a District Land Court has jurisdiction in terms of section 85, as it has to declare a transaction or title void and of no effect, why can it not grant consequential relief to order cancellation of such void title? This question is merely posed to reject any contrary suggestion. To reserve the exercise of the powers of cancellation upon an order of the Land Court would also defeat the clearly stated intention of Parliament to decentralize judicial adjudication to district level for disposal of land matters in a speedy and cheaper manner so as not to hamper economic activities. [19] The parties are on common ground that there are ejectment proceedings in 13 CC/896/2011 pending in the Maseru District Land Court. This dispute in

14 regards to the same land and is between the same parties. The applicant herein says because that the 1 st respondent was issued with a lease during the pendency of those ejectment proceedings in the court below, he cannot challenge the issuance of that lease in that court because it does not have jurisdiction to order cancellation of a lease. I have demonstrated the fallacy in that reasoning. [20] The Maseru District Land Court has jurisdiction in the matter. The application to cancel a lease in case LC/APN/30/2013 can and should have been instituted in the court a quo. There is in any event no leave which has been sought to bring it before this Court as required by Rule 9(2) of this Court s rules. I, therefore, decline jurisdiction to entertain it and I dismiss it: see Lintša v. Mahloko And Others LAC ( ) para [6] IV. DISPOSITION [21] There being no urgency and good reason to stay the ejectment proceedings in the court a quo, this application is dismissed with costs. [22] It follows that the application in LC/APN/30/2013 to cancel 1 st respondent s lease should be launched in the court a quo where the issues can be conveniently dealt with once and for all. 14

15 S.P. SAKOANE ACTING JUDGE For the Applicant: For the Respondents: K.A. Mariti instructed by T. Hlaoli & Co. V.M. Mokaloba of V.M. Mokaloba & Co. 15