NKhetheleng Mohale & Ano. V 'Masenate Letsie & 6 Others (LC/APN/61/2014) [2024] LSHC 105 (18 June 2024)

# NKhetheleng Mohale & Ano. V 'Masenate Letsie & 6 Others (LC/APN/61/2014) [2024] LSHC 105 (18 June 2024) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/105/eng@2024-06-18) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2024/105/eng@2024-06-18) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2024/105/eng@2024-06-18) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2024/105/eng@2024-06-18) [ __](mailto:?subject=Take a look at this document from LesLII: NKhetheleng Mohale & Ano. V 'Masenate Letsie …&body=https://lesotholii.org/akn/ls/judgment/lshc/2024/105/eng@2024-06-18) [ Download PDF (239.8 KB) ](/akn/ls/judgment/lshc/2024/105/eng@2024-06-18/source) Report a problem __ * Share * [ Download PDF (239.8 KB) ](/akn/ls/judgment/lshc/2024/105/eng@2024-06-18/source) * * * * * Report a problem __ ##### NKhetheleng Mohale & Ano. V 'Masenate Letsie & 6 Others (LC/APN/61/2014) [2024] LSHC 105 (18 June 2024) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation NKhetheleng Mohale & Ano. V 'Masenate Letsie & 6 Others (LC/APN/61/2014) [2024] LSHC 105 (18 June 2024) Copy Media Neutral Citation [2024] LSHC 105 Copy Hearing date 15 April 2024 Court [High Court](/judgments/LSHC/) Court registry [Land Division](/judgments/LSHC/LSHC-land-division/) Case number LC/APN/61/2014 Judges [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ) Judgment date 18 June 2024 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Refugees](/taxonomy/case-indexes/case-indexes-refugees) * [Land ownership](/taxonomy/case-indexes/case-indexes-refugees-land-ownership) Summary Read full summary * * * Skip to document content **IN THE LAND COURT OF LESOTHO** **Held at Maseru LC/APN/61/14** In the matter between: **NKHETHELENG MOHALE********1 ST APPLICANT** **‘MAMAKHAOLA MOHALE 2 ND APPLICANT ** **And** **‘MASENATE LETSIE 1 ST RESPONDENT** **‘MATLOTLISO LEBAJOA 2 ND RESPONDENT** **JEREMANE LEBAJOA 3 RD RESPONDENT** **‘MALEHLOHONOLO NTESO 4 TH RESPONDENT** **MOTSAMAI NTSUKUNYANE 5 TH RESPONDENT** **TSEBO / KAMOHELO CHIGANDO 6 TH RESPONDENT** **LAND ADMINISTRATION AUTHORITY 7 TH RESPONDENT** _Neutral Citation:_ Mohale and Another v Letsie and Others [[2024] LSLC 105](/akn/ls/judgment/lslc/2024/105) Lan (18 June 2024) **CORAM: S.P. SAKOANE CJ** **HEARD: 15 th OCTOBER 2014, 17TH NOVEMBER 2014, 10TH DECEMBER 2014, 1ST & 31ST AUGUST 2016, 14TH AUGUST 2018, 15TH DECEMBER 2020****, 12 th SEPTEMBER 2022 ****and****15 TH APRIL****2024** **DELIVERED:****18****JUNE 2024** **SUMMARY** Title to land – acquisition of real rights in immovable property – land sold by predecessor - in title to applicants - respondents issued a lease to same land after transfer by another person who claimed to have bought it earlier from the owner - the late owner’s widow denying sale to that other person - applicants praying for cancellation of lease – whether the transfer of land to respondents and issuance of lease valid. **_ANNOTATIONS_****:** **_CASES CITED_****:** _LESOTHO_ _Shuping v_ _.__Abubaker LAC_ (1985-1989) 186 _SOUTH AFRICA_ _Rasi v. Madaza and another_ [2001] 1 ALL SA 498 (TK) _Grosvenor Motors (Potchestoom) Ltd v. Douglas_ 1956 (3) SA 420 (AD) _Chetty v. Naidoo_ 1974 SA 12 (A) _STATUTES_ Land [Act No.8 of 2010](/akn/ls/act/2010/8) _BOOKS_ Kleyn DG and Boraine A _, Silberberg and Schoeman’s_ _The Law of Property 3 rd Edition_ 1. **INTRODUCTION** [1] The applicants filed an originating application in 2014 claiming the following: a) Cancellation of a lease issued to the 2nd and 3rd respondents. b) Declaring applicants as lawful owners of the site. c) Ordering the respondents to pay costs of this application. d) Granting applicants such further and / or alternative relief. [2] It is a matter of regret that the case has taken this long to be finalized. The delay was caused by a combination of systemic failures, health issues by some litigants, withdrawals and changes of counsel for respondents and ultimate non-appearance from the proceedings. In September 2015 the matter was struck off the roll on account of failure by the parties and their lawyers to appear in court. It was reinstated in November but was thereafter bedeviled by a series postponements for one reason or the other at the request of counsel. The last straw that broke the camel’s back was non-attendance in court by the respondents and their counsel on dates set down for 12th September 2022 for hearing their evidence in answer to applicants’ case. 3. Failure by respondents to appear in person or through counsel forced the applicants to apply that the court proceeds in terms of Rule 56 which authorises proceedings by default. Upon granting the application, the court requested counsel for the applicants to file written heads of arguments which she did on 1st February 2024. The heads were unfortunately misfiled and on this being realized by the court, it requested counsel to refile them, which she duly did on 15th April 2024. **II MERITS** [4] Despite seven respondents cited in these proceedings, the applicants’ claim is directed only on the 2nd, 3rd and 7th respondents. The rest of the respondents only feature in the case as enablers of the acquisition of the disputed plot by the 2nd and 3rd respondents. All of the seven respondents have not answered the applicants’ case by putting their defence through viva _voce_ evidence. 5. The applicants’ case is that the 1st applicant bought the plot from one _Mona Sentje_. The 1st applicant produced a letter and receipts evidencing the sale. The letter is dated 30th August 1997 and was stamped by the area chief on 2 September 1997. _Sentje’s_ passed on in 2012 before the institution of these proceedings but the widow (PW1) has testified [6] The applicants took ownership of the plot but only began to develop it in 2012. They built duplex flats and roofed them. It was at this point that some persons surfaced claiming title to the plot. Their uncle (PW2) corroborates the applicants’ evidence. [7] PW1 is the widow of the late _Sentje_. She confirmed the sale of the plot by her husband to the applicants. When cross-examined, she said she did not know how the 2nd and 3rd respondents acquired a lease to the plot. She also did not know that the 2nd and 3rd respondents bought the plot from the 5th respondent. She denied “TKC1” which is a document according to which her late husband purportedly sold the plot to the 5th respondent. [8] At the end of cross-examination of the applicants and their witnesses, they closed their case. The 2nd and 3rd respondents did not file any answer nor statements and have not testified. The 5th respondent did not file any answer nor enter any appearance. **Discussion** 9. The applicants impugn a lease issued by the Land Administration Authority to the 2nd and 3rd respondents. They assert title to the plot registered per the impugned lease. 10. The evidence of the history of ownership of the plot is found in Exhibits 1, 2, 3 and 4. Exhibit 1 is a family letter to the area chief dated 2nd January 1989. The family letter is confirmation that the plot is owned by PW1’s late husband. 11. Exhibit 3 is an agreement dated 30 August 1997 in terms of which the late husband of PW1 sold the plot to the 1st applicant. The agreement was stamped by the chief on 2 September 1997. Exhibits 2 (72) and 2 (73) are receipts evidencing payment of money by the 1st applicant to PW1’s late husband. [12] Exhibit 4 is a chief’s letter dated 29 February 2012 written to the Land Administration Authority confirming that the 1st applicant has a residential plot of the mentioned size with a request that a lease should be issued according to law. **Whence comes the impugned lease?** [13] The impugned lease issued to the 2nd and 3rd respondents was granted and executed on 28th July 2011 and bears registration date 4th August 2011. The lodgement documents supporting the issuance of the lease are unknown because the respondents have not filed any nor testified. [14] In the answer filed by the 6th respondent, it is attached thereto two documents marked “TKC1” and “TKC2”. “TKC1” was shown to PW1 in her evidence in chief and in cross-examination. The document purports to be an agreement of sale of the same plot between PW1’s late husband and the 5th respondent, entered into on 21st February 1997. PW1 said the signature therein is not of her late husband. The document does not bear the stamp of the chief or any land allocating authority and does not even state the purchase price. Although not an expert in handwriting, the signature on that document does not appear to be the same as that on Exhibit 2, which PW1 confirmed to be that of her late husband. I am inclined to accept PW1’s evidence that the signature on “TKC1” is not that of her husband. In any case, there is no evidence to gainsay PW1’s evidence that her late husband never sold the plot to the 5th respondent. [15] The finding that “TKC1” is a fake leads to the next leg of the enquiry, which is whether “TKC2” in terms of which the plot was transferred to the 2nd and 3rd respondents is valid as to pass ownership rights. **The Law** [16] A seller without title or right to property can enter into a sale agreement with a buyer. But the seller’s lack of title or right to property does not invalidate the agreement[1]. Whether the seller can make transfer to the buyer in due course is a matter governed by the principle that nobody can transfer to another a greater right in a thing than he has not[2]. The learned authors of **Silberg and Schoeman****, The Law of Property**[3]**** elaborate on this principle as hereunder: “…(c) Transfer must be effected by the holder of the real right concerned or by a duly authorised agent on his behalf. This means that although a person may validly and legally contract to sell a thing which does not belong to him and thereby undertake the obligation to transfer ownership in it to the buyer, only the owner of that thing can actually transfer the right of ownership in it. Thus the seller of a thing which does not belong to him must either first acquire it for himself and then transfer it, or induce the owner to transfer his real right of ownership direct to the buyer, and the same applies _mutatis mutandis_ to any other real right. In other words, _nemo dat qui non habet_ : nobody gives something he does not have. This rule is based on the old Roman law maxim _nemo plus_ _iuris transferre potest quam ipse habet_ _:_ nobody can transfer a greater right than he himself has. This may be described as the ‘golden rule’ of the law of property”. **Law****applied on****Facts** [17] The 1st applicant bought the plot from the late _Sentje_ in August 1997 with the knowledge of the area chief. In February 2012, the chief vouched for the 1st applicant’s ownership of the plot by letter to the Land Administration Authority requesting that a lease be granted. The chief did so pursuant to section 30 (2) (c) (iii) of the **Land[Act No.8 of 2010](/akn/ls/act/2010/8)**. The applicants had began developments on the plot without knowledge of the impugned lease. [18] Document “TKC2” dated 11 December 2010 annexed to the answer filed by the 6th respondent is a transfer of the same plot by the 5th respondent to the 2nd and 3rd respondents. The document bears the chief’s stamp of 12th November 2010. There is an anomaly in the dates. The date on the chief’s stamp is 12th November whereas that on the document is 11th December. In other words, the chief’s stamp was affixed before the agreement was made / signed! There is no explanation for this discrepancy. [19] The applicants’ cause of action to have the lease cancelled is an assertion of their right to vindicate the plot. Their right of ownership was acquired on conclusion of a sale agreement with late the _Sentje_ on 30 August 1997. The agreement bears the chief’s stamp of 2 September 1997. There is no other agreement before or thereafter entered into with by _Sentje_ to sell the plot. Annexure “TKC1” which purports to be another agreement to sell the plot to the 5th respondent is a fake in that it does not bear the true signature of _Sentje_. Neither does it bear the chief’s stamp. This means that this agreement to transfer the plot to the 2nd and 3rd respondents was not brought to the chief’s knowledge. Otherwise, he could not have stamped the agreement between the 1st applicant and _Sentje_ made seven months after “TKC1” well aware of the purported sale of the plot to the 5th respondent. Thus, the 5th respondent did not own the plot and, therefore, had no right to transfer it[4]. [20] The transfer of the plot by the 5th respondent to the 2nd and 3rd respondents does not extinguish the applicants’ rights to the plot. By virtue of the doctrine of _re_ _i_ _vindicatio_ (vindication) the applicants are entitled to wrest the plot from the 2nd and 3rd respondents. It cannot avail the respondents that they may have accepted transfer of the plot in ignorance of the applicants’ rights to it. In the memorably words of **Centlivers CJ** : “…the rule _ignorantia juris neminem excusat_ [ignorance of the law is not an excuse] applies to everyone, including the men in the street. If I seek to recover any property from a man in the street, he cannot be heard to say that he is under no obligation to restore it to me because he bought it from a third person and paid for it under the belief that that person was the owner of it because I allowed him to be in possession of it”.[5] [21] The applicants have proved their right of ownership to the plot. Their ownership continues even against _bona fide_ third parties. Cancellation of the impugned lease is geared towards preserving their exclusive rights to the plot through _rei vindicatio_ of which _:_ “one of its incidents is the right of exclusive possession of the _res,_ with the necessary corollary that the owner may claim his property wherever found from whomsoever is holding it. It is inherent in the nature of ownership that possession of the _res_ should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g a right of retention or a contractual right)”.[6] **DISPOSITION** [22] The impugned lease must have been issued by the 7th respondent on the strength of information supplied by the 2nd and 3rd respondents. That information which must have included the purported sale by _Sentje_ to the 5th respondent and the latter’s transfer to to the 2nd and 3rd respondents was false in all material respect in that _Sentje_ never sold the plot to the 5th respondent. Being the predecessor-in-title, _Sentje_ alienated the plot to the applicants with the knowledge of the chief. The purported sale to the 5th respondent, as pointed out earlier, is founded on a document that bears a false signature of _Sentje_. **Order** [23] The applicants’ case has merit and their claim is warranted. In the result the following order is made: 1. It is declared that the applicants are the lawful owners of the plot. 2. The 7th respondent is ordered to cancel lease Number 11292-323 issued to the 2nd and 3rd respondents. 3. The 7th respondent must issue a lease to the applicants on submission of a proper application. 4. Costs are awarded to the applicants. ….…………….. **S. P. SAKOANE** **CHIEF JUSTICE** **For the Applicants** : Ms P. Thabane **For the Respondents** :**** No appearance * * * [1] Shuping v. Abubaker LAC (1985-89) 186 [2] Rasi v. Madaza and Another [2001] 1 All SA 498 (TK)@ 511a-c [3] Kleyn and Braine, _Silberberg and Schoeman’s The Law of Property_ 3rd Edition (Butterworths) 76 [4] Footnoe 2 [5] Grosvenor Motors (Potchestoom) Ltd v Douglas 1956 (3) SA 420 (AD) 425 D -E [6] Chetty v. Naidoo 1974 (3) SA 13 (A) @ 20 B-C #### __Related documents ▲ To the top >