Staff Reporter
The High Court has directed the Lesotho Highlands Development Authority (LHDA) to pay over M240 million in outstanding ground rent fees and arrears to the Land Administration Authority (LAA).
This decision follows a prolonged legal battle in which the LAA sought to compel the LHDA to settle its dues for a land plot registered under its name. The case, initially launched in 2019, was concluded with a ruling by Justice ‘Maseforo Mahase in 2023. However, the written judgment was only made available this week.
The LAA turned to the Land Court Division of the High Court after numerous attempts to secure payment from the LHDA had failed. According to the Land Act of 2010, ground rent is to be paid annually, but it remains unclear how many years’ worth of fees remain unpaid for the disputed plot, identified as 36242-042.
While the LHDA did not dispute its debt, it argued that the case should have also involved the Lesotho Highlands Water Commission (LHWC) and the ministers responsible for water and land.
However, Justice Mahase dismissed these objections, ruling that the LHDA is an independent legal entity responsible for its own lease obligations. She further stated that no laws require the involvement of the aforementioned parties in the dispute.
“In the premises, it is the view of this Court that the said preliminary objections raised by way of a special answer should, and are accordingly dismissed with costs on an ordinary scale,” Justice Mahase ruled.
The LAA had requested the High Court to order the LHDA to pay the full outstanding amount of M240,265,097.38 and cover legal costs if the application was contested. The LAA stated that the LHDA had repeatedly ignored written demands, including a final notice issued in November 2019, despite being legally obligated to make the payments.
In its defence, the LHDA raised preliminary objections, claiming that the dispute was an intra-governmental issue and that the LHWC had a direct and substantial interest in the case.
However, the court found no legal basis for this claim, emphasising that the LHWC is not listed as the leaseholder for the disputed land and thus has no obligation to pay the ground rent.
Although the LHDA did not contest its debt, it argued that the case should have included the Lesotho Highlands Water Commission (LHWC) and the ministers responsible for water and land.
However, Justice Mahase dismissed these objections, ruling that the LHDA is an independent legal entity responsible for its own lease obligations and that no laws require the involvement of the mentioned parties in the dispute.
“In the premises, it is the view of this Court that the said preliminary objections raised by way of a special answer as indicated above should, and are accordingly dismissed with costs on an ordinary scale,” Justice Mahase ruled.
In the court papers, the LAA requested the High Court to order the LHDA to settle the full outstanding amount of M240 265 097.38 and to cover legal costs should the application be opposed.
The LAA stated that the LHDA had continuously ignored multiple written demands, including a final notice issued in November 2019, despite being legally obligated to make the payments.
The LHDA, in its defense, raised preliminary objections, claiming that the dispute was an intra-governmental matter and that the LHWC had a direct and substantial interest in the case.
However, the court found no legal basis for this argument, noting that the LHWC is not listed as the leaseholder for the disputed land and therefore has no obligation to pay the ground rent.
“The respondent filed an answer through which it opposes the applicant’s claim. The basis upon which it opposes this application is spelt out at paragraphs 1, 2 (a), (b) and (c) of its answer filed of record. To that extend it raised preliminary objection by way of a special answer as already referred to above.
“It is to be noted that in essence, the respondent does not deny any indebtedness to the applicant in the way that the applicant alleges. It alleges that there is ‘non-joinder of an entity called Lesotho Highlands Water Commission (LHWC) which is a separate and distinct entity from the Lesotho Highlands Development Authority (LHDA).
“The LHDA in actual fact is a holder of lease document of number 36242-042. The Lesotho Highlands Water Commission is not at all a leaseholder of the plot in question,” Justice Mahase said in her judgment.
She continued; “In its argument, counsel for the respondent has gone into great lengths to show how the said Lesotho Highlands Water Commission will be negatively impacted should judgment be granted in favour of the Lesotho Highland
Development Authority.
“Refer to paragraph ten (10) of its answer filed of record as well as to its written submissions. It alleges a material non-joinder of the Lesotho Highlands Water Commission by the Lesotho Administration Authority and argues that the Lesotho Highlands Water Commission has a, direct and substantial interest in the applicant.
“How that is so has not really and clearly been spelt out in so far as collection of ground rent fees by the applicant is concerned. Also, counsel for respondent does not deny that the Lesotho Highlands Water Commission is not a holder of lease number 36242-042 as is alleged by the applicant. How then is a non-holder of this lease document obligated to pay ground rent fees has come about has not been explained.
“In the lease document annexured herein, no other entity is reflected as being a lease holder other than the applicant herein.”
Justice Mahase said the party which is obligated to pay ground rent fees is the actual holder of the lease, and not any other party even if such other party has dealings of some, kind with the leaseholder.
“The respondent does not even refute allegations that it has ignored, neglected and refused to honour its obligations in terms of the lease that it holds, but now when a claim for payment of the ground rent is issued, it raises for the first time the issue of the Lesotho Highlands Water Commission.
“This is untenable because the Lesotho Highlands Water Commission is not the holder of the lease in question. This I say with the greatest respect.
“If indeed the Lesotho Highlands Water Commission were obligated to so pay ground rent fees in terms of the conditions spelt out on that lease document, the respondent should have responded to the numerous letters of demand addressed and received by it to say that in fact such correspondence should be, send to the Lesotho Highlands Water Commission instead of it ignoring such crucial correspondence.
“The respondent has not annexed any documentary proof to provide evidence that the Lesotho Highlands Water Commission is obligated to pay ground rent Fees and or that payment of such rent by the Lesotho Highlands Development Authority would adversely impact on the dealings of the Lesotho Highlands Water Commission.
She said there was no evidence indicating how the payment of ground rent fees owed to the LAA by the LHDA would impact on the LHWC, which is not a lease holder of the land in question.
“The alleged intra-governmental dispute is just a fiction of one’s mind for the simple reason that each of the entities which are parties herein have legal standing in their own right. In respect of the applicant, the relevant law establishing it is the Legal Administration Authority Act No.9 of 2010, particularly section 4 (3) which stipulates that this entity is a legal entity which can sue and be sued in its own names.
“There is no iota of evidence presented by the respondent to the effect that any ministerial consultations should be sought or obtained and granted before the applicant performs its core duties as spelt out in the above shown Act, Legal Notice No. 9 of 2010.
“With the greatest respect, it is the considered view of this Court that it would be stretching and extending the duties of the Lesotho Administration Authority just too far off its circumscribed duties if it were to be accepted that the Lesotho Highlands Water Commission should have been joined and or Consulted before the Lesotho Administration Authority performs its Mandatory statutory functions and duties.
“This is because the Lesotho Administration Authority is a completely separate and independent entity in so far as issues pertaining to collection of ground rent fees are concerned. These are exclusively the functions of the Lesotho Administration Authority, and of no other entity in terms of the relevant law(s).
“In the premises, it is the view of this Court that the said preliminary objections raised by way of a special answer as indicated above should, and are accordingly dismissed with costs on an ordinary scale,” Justice Mahase concluded.
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