Reli Khobotle V Qacha's Nek Urban Council (C of A (CIV) 52/2025) [2025] LSCA 73 (7 November 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD IN MASERU In the matter between: C OF A (CIV) NO.52/2025 RELI KHOBOTLE APPELLANT AND QACHA’S NEK URBAN COUNCIL RESPONDENT CORAM: SAKOANE CJ VAN DER WESTHUIZEN AJA MATHABA AJA HEARD: 16 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE Land Law – Allocation of land – Validity of Form C – Applicable legislation – Whether land allocated under the Land Act 1973 or the Land Act 1979 – Determination governed by the date of allocation and issuance of Form C – Principal Chief’s authority under section 4(2) of the Land Act 1973 – Commencement of the Land Act 1979 on 16 June 1980 – Absence of proof that appellant unlawfully allocated land to himself – High Court misdirected itself by treating Form C as issued under wrong statute – Appeal upheld; Form C validly issued under the 1973 Act. Held: The validity of a Form C depends on the law in force at the date of allocation. Since the appellant’s Form C was issued on 1 June 1979—before the Land Act 1979 commenced on 16 June 1980—it fell squarely under the Land Act 1973. Under section 4(2) of the 1973 Act, the Principal Chief was the competent authority to allocate land; there was no evidence that the appellant had unlawfully allocated land to himself. The High Court misdirected itself by misreading the date of issuance and applying the wrong statute, thereby wrongly cancelling the Form C. Appeal upheld with costs; the High Court’s judgment set aside and replaced with an order dismissing the appeal. JUDGMENT SAKOANE CJ: Introduction [1] This is a second appeal in terms of section 17 of the Court of Appeal Act No.10 of 1978 on the following grounds certified by Mahase J: “(a) Whether it is wrong for the Appellant’s land to have been allocated to him in terms of the 1973 Land Act. (b) Whether the Appellant has unlawfully and irregularly allocated the plot in dispute to himself without following proper procedures.” Litigation history [2] The proceedings are about a dispute over a plot of land situated in the Qacha’s Nek Urban Area. The respondent instituted an originating application in the District Land Court for the following relief: “(a) That the respondent (appellant) be directed to remove the erected poles from the extended area. That respondent be interdicted, stopped or refrain from interfering with the site in question. That respondents (sic) be ordered to remain within their (sic) allocated area and the boundaries as shown by the Form C measurements. Further or alternative relief. The costs of suit in the event of opposition.” (b) (c) (d) (e) [3] Annexed to the respondent’s originating application was a Form C in the names of the appellant issued on 1 June 1979 by the Principal Chief.1 The measurements of the plot in the Form C are “50 x 30”. [4] After closure of pleadings, the parties’ legal representatives attended a pre-trial conference on 18 June 2022 before the learned Magistrate. The following were minuted as common cause facts: “Common Cause Facts 3.1 Parties and their descriptions are correct. 3.2 Cause of Action arose wholly within the Jurisdiction of this Honourable Court. 3.3 The Applicant has the authority to allocate land. 3.4 That the Respondent’s site is situated at Leropong near Civil Aviation and was allocated to him in 1979. 3.5 That the Respondent has been in occupation of his allocated plot in terms of the Form C since 1979 to date. 1 Power to allocate land provided for in section 4(2) of the Land Act No.30 of 1973 3.6 The Form C attached to the Applicant’s Originating Application is for the plot occupied by the Respondent. 3.7 Respondent’s allocation has never been revoked. Issues to be determined on the merits 5.1 Whether the poles erected by the Respondent are within the boundaries as depicted by his Form C. 5.2 Whether the disputed portion of the plot is owned by the Applicant and/or Civil Aviation or the Respondent.” [5] The PTC minutes were signed for by the legal representatives on 28 August, 2022. [6] On 16 November 2022 the respondent applied to amend its originating application and the amendment was allowed by the District Land Court. The amendment removed prayer (c) and substituted it with the following: “That respondent’s Form C be cancelled.” [7] The two issues that fell for determination by oral and documentary evidence are those narrated in para 5 of the PTC minutes. At the end of the trial of those issues, the learned Magistrate made the following order on 16 January 2023: “It is hereby ordered that: 1. It was not clear whether the whole of Respondent’s site, fenced and unfenced falls within the Civil Aviation plot at the latter plot as the latter plot had not been measured. 2. The Applicant’s claim is not clear whether the Form C sought to be cancelled means the whole of the Respondent’s site; fenced and unfenced is illegally obtained as the latter said the measurements encompass the whole plot. 3. The issue of illegality of Respondent’s Form C has not been supported by law. 4. Applicant failed to discharge the onus of proof, its story is not convincing and cannot be wholly believed. 5. Applicant’s claim is dismissed with costs.” Appeal to the High Court [8] On 24 February 2023, the respondent filed a notice of appeal in the High Court. The appeal was on these grounds: “1. The court a quo erred and misdirected itself in holding that all applicants’ witnesses have not shown if respondent’s alleged site wholly or partially falls within plot 41581-030 which is a plot (sic) initially belonged to Civil Aviation. 2. The court a quo erred and misdirected itself in holding that it is not clear whether the Form C sought to be cancelled was whole or part of respondent’s site.” [9] Mahase J heard the appeal and upheld it with costs. The appellant is before this Court appealing against the judgment of Mahase J in terms of the two certified questions referenced in para [1]. [10] Apropos the two issues raised by the grounds of appeal, namely, (a) which of the two Land Acts govern the issuance of the Form C and (b) whether the appellant issued the Form C to himself, the learned judge addresses them in paragraphs [10] and [16] of her judgment as follows: “[10] The gist of the applicant’s case is the unlawful allocation of the portion of what was part of the site for Civil Aviation. It is undisputed that the respondent has unlawfully and irregularly allocated this portion of the said land to himself without following proper procedures hence why the applicant approached the court for reliefs spelt out in its originating application. ….. [16] Also of cardinal importance is the fact that in its submissions, under the heading “The facts common cause from evidence” it is argued or submitted that the plot (sic) said to be situated at Leropong since 1979 but a Form C was issued in terms of the 1973 Land Act. This cannot be true and the question is why has the Form C certificate been issued in 1973 whilst the allocation of that plot to the respondent was made in 1979?” [11] It is clear that in answering the two issues against the appellant, the learned Judge failed to see that the date of 1 June 1979 is decisive on the law under which the Form C was issued to the appellant. [12] The Land Act, 1979 received Royal Assent on 15 December 1979 and the date on which it would came into operation was to be determined by the Minister by notice in the Gazette.2 The Minister issued the Commencement Notice and fixed 16 June 1980 as the date of operation of the Land Act, 1979.3 2 Section 1 3 Government Notice No.71 of 1980 [13] Section 82 protects the rights of title holders to land that was allocated to more than one person before the Act came into operation. It reads thus: “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 allottee who has used the land and made improvements thereon shall hold title to the land in preference to any allottee who left the land unused and undeveloped.” [14] No person or body joined the proceedings to contest the Form C of the appellant on the basis that he also has title to the plot and has developed it. A faint suggestion was made that the appellant unlawfully allocated to himself a portion of the plot that belonged to Civil Aviation, but no evidence was adduced to prove the assertion. [15] Thus, the learned Judge asked the question, in para [16] of her judgment, namely, “the question is why has the Form C certificate been issued in 1973 whilst the allocation of that plot to the respondent was made in 1979?” That question is wrong and yielded a wrong answer because the Form C was not issued in 1973 but in June 1979 approximately a year before the Land Act, 1979 came into operation. [16] The common cause facts in the pre-trial minute could not have been more clearer regarding the date of issuance of the Form C and occupancy of the plot by the appellant. The respondent impugned the Form C on the basis that it was not issued by the proper authority and that it was not issued in terms of the Land Act, 1979. The respondent was wrong on both accounts. Firstly, The Principal Chief was the proper authority to allocate land in terms of section 4(2) of the Land Act, 1973. Secondly, on 1 June 1979 when the Form C was issued, the Land Act, 1979 had not yet become a law or commenced to operate. Disposition [17] The learned Judge fell into error by upholding the appeal and cancelling the Form C. Order [18] In the result the following order is made: 1. The appeal is upheld with costs. 2. The order of the court a quo is set aside and replaced with the following: “The appeal is dismissed with costs.” _______________________________ S. P. SAKOANE CHIEF JUSTICE I agree __________________________________ J. VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL I agree _________________________ R. MATHABA ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV M. NTAOTE FOR THE RESPONDENT: MISS M. LESUPI 9