Judge overturns Land Tribunal ruling

Patricia Edwin
Staff Writer | Friday May 17, 2013 00:00

A Land Tribunal sitting on March 30, 2012 had ruled that Kebailele was not entitled to a hearing regarding her contention about a piece of land in Serowe. Kefalotse and Ogakolotse have interest in the same land.Kebailele was appealing the decision by the NLB to issue a certificate in terms of the Land Tribunal Act for a piece of land to Kefalotse and Ogakolotse.

'It was her contention that the land belonged to her by virtue of being a successor of the previous owners,' said Makhwade. The Land Tribunal had ruled in favour of the respondents citing that the appellant did not have the right to bring proceedings for rectification of the certificate of customary land grant before the Land Board or the Land Tribunal. Makhwade said that he understood why the issue of locus standi was never brought up as the Tribal Land Act imposes a duty upon the Land Board to ensure that there are no conflicting claims to land prior to allocation or transfer of land. 'When the appellant raised an objection the Land Board engaged the parties,' he said. Makhwade further said that it is a fundamental principle of law that for a person to bring proceedings before any body or tribunal, that person must demonstrate that he or she has a right to be heard. 'This is what locus standi is all about. The position of the law is that such a person should have a direct and substantial interest in the subject matter of the proceedings,' said Makhwade.

He further stated that in this particular matter, the appellant was of the view that she had an interest in the land in contention. 'Her view was that there was an error which was only picked up when the Land Board did an actual measurement after she made an application for its transfer into her name. 'It is not unknown that errors do occur in the normal course of transactions.

It is also not unknown that title documents may have errors, which may require rectification. Errors can also occur in contracts and appropriate circumstances, the same can be rectified,' said the judge. Makhwade said in his view the appellant has a direct and substantial interest in the subject matter of these proceedings as she also lays a claim to the piece of land.

'The mere fact that she holds a certificate which shows dimensions less in extent than the whole piece of land does not bar her from making a claim to the additional land based on allegations made by her.  In my view she is entitled to enter the merits of the matter. I therefore hold for this reason alone that the Land Tribunal was in error in concluding that she is not entitled to a hearing,' said the judge.

The appellant also queried that the land allocated to Kefalotse and Ogakolotse overlapped with her piece of land. 'In my view the appellant was entitled to a hearing to the extent that the land allocated to her could not be allocated to any other person because that infringed on her rights and for that reason the appellant was entitled to a hearing,' said Makhwade. He remitted the matter back to the Land Tribunal for determination on merits and that the respondents should bear her costs of appeal on a party and party basis.