Court in­ter­venes in Mets­ing land saga

Lesotho Times - - Front Page - Lekhetho Nt­sukun­yane

LAND Ad­min­is­tra­tion Au­thor­ity (LAA) Le­gal and Registry Ser­vices Di­rec­tor, Tšeliso Makhaphela, on Mon­day ob­tained a High Court in­terim or­der block­ing his sus­pen­sion for al­leged mis­con­duct.

Mr Makhaphela was slapped with a sus- pen­sion let­ter on 20 May 2016 al­legedly af­ter re­fus­ing to trans­fer a piece of land to Deputy Prime Min­is­ter Mo­thetjoa Mets­ing and had been sched­uled to ap­pear be­fore a dis­ci­plinary com­mit­tee on Tues­day this week.

But a day be­fore the in­quiry, Mr Makhaphela, through his lawyer King’s Coun­sel Haae Phoofolo, sought the High Court’s in­ter­ven­tion and was granted an or­der stay­ing both the sus­pen­sion and dis­ci­plinary hear­ing un­til 14 June 2016.

The court also wants the LAA Di­rec­tor-gen­eral, LAA, LAA Board of Di­rec­tors and LAA Di­rec­tor of Op­er­a­tions cited as first to fourth re­spon­dents re­spec­tively, to “show cause” why Mr Makhaphela’s sus­pen­sion should not be nul­li­fied on the grounds it is un­law­ful. The re­spon­dents have un­til 14 June to file their re­sponses be­fore High Court Judge, Jus­tice ’Mase­shophe Hla­joane.

Ac­cord­ing to pa­pers be­fore the court, Mr Makhaphela is ac­cused of de­fy­ing or­ders from LAA Di­rec­tor-gen­eral Ma­hashe Chaka, who had in­structed him to regis­ter a res­i­den­tial prop­erty in Moshoeshoe II in Mr Mets­ing’s name.

He al­legedly re­fused to com­ply with the in­struc­tion on 19 May 2016 and was sus­pended the fol­low­ing day pend­ing a dis­ci­plinary hear­ing on 31 May.

In his found­ing af­fi­davit sub­mit­ted be­fore the court, Mr Makhaphela chron­i­cled events that led to his sus­pen­sion and why he sought le­gal re­course.

“On the evening of 19 May 2016, I was in my of­fi­cial of­fice at the Land Ad­min­is­tra­tion Au­thor­ity when I was con­fronted by my su­pe­rior, Mr Ma­hashe Chaka, who is cited here­with in his of­fi­cial ca­pac­ity as Sec­ond Re­spon­dent and as the Di­rec­tor-gen­eral of the First Re­spon­dent (Land Ad­min­is­tra­tion Au­thor­ity),” Mr Makhaphela noted in the af­fi­davit.

“The Sec­ond Re­spon­dent asked me why I had not reg­is­tered a deed-of-trans­fer in favour of Deputy Prime Min­is­ter Hon­ourable Mo­thetjoa Mets­ing. I re­sponded by ad­vis­ing him it would not be legally ten­able, if not con­temp­tu­ous, of me to regis­ter a deed-of-trans­fer over the rel­e­vant site be­cause there was a con­test of own­er­ship of land rights over the rel­e­vant site or plot in ques­tion.

“I fur­ther ad­vised the Sec­ond Re­spon­dent that the rel­e­vant Plot Num­ber 13281-403 was the sub­ject of dis­pute in the Land Court un­der ref­er­ence num­bers LC/APN/09/2016 and the pre­sid­ing judge is His Lord­ship Jus­tice Sakoane AJ.

“I fur­ther ad­vised the Sec­ond Re­spon­dent that one of the prayers sought in the orig­i­nat­ing ap­pli­ca­tion is for an or­der declar­ing as null and void, the trans­ac­tion of sale of Plot Num­ber 13281-403 be­tween First and Sec­ond re­spon­dents ((Mr Le­seteli Male­fane and Mr Mets­ing re­spec­tively) in the orig­i­nat­ing ap-

pli­ca­tion (LC/APN/09/2016) and any sub­se­quent trans­fer there for.

“I went fur­ther to in­di­cate that all is­sues which have to do with the site have to be sus­pended be­cause the mat­ter is sub ju­dice and hence un­der con­sid­er­a­tion. I but­tressed the point that it would clearly be con­temp­tu­ous of the First Re­spon­dent to pro­ceed with the trans­fer process un­der the cir­cum­stances.”

Mr Makhaphela said he even alerted Mr Chaka that the Au­thor­ity had been served with court pa­pers on 4 April 2016 per­tain­ing to the plot in ques­tion, “and it would clearly not be in the in­ter­ests of the First Re­spon­dent to en­gage in any ac­tion that would be con­strued as con­tempt of court, par­tic­u­larly by His Lord­ship Jus­tice Sakoane AJ”.

He fur­ther in­di­cated as they spoke, “the tone and at­mos­phere es­ca­lated from rel­a­tive calm to ob­nox­ious hys­te­ria on Mr Chaka’s part”.

Mr Makhaphela noted he was then given an in­struc­tion by Mr Chaka to per­son­ally sign an en­dorse­ment on the No­tar­ial Deed of Trans­fer and fur­ther is­sued an ul­ti­ma­tum “to the ef­fect that if I do not sign it, I would be dis­missed by him for in­sub­or­di­na­tion”.

By this time, Mr Makhaphela said, the ten­sion be­tween him and Mr Chaka had be­come in­tense.

“I wish to bring the hon­ourable court to my con­fi­dence and in­di­cate that at that stage, there was an in­tense ten­sion that had filled the of­fice in which we were en­gag­ing and it ran short of a phys­i­cal af­front be­tween my­self and the Sec­ond Re­spon­dent.

“I then picked my be­long­ings and left the Sec­ond Re­spon­dent in my of­fice and he hys­ter­i­cally came af­ter me de­mand­ing that I yield to his in­struc­tion.

“I aver that I re­fused to yield to the in­struc­tion that was im­posed on me by my su­pe­rior on ac­count of the fact that the said in­struc­tion was not only legally rep­re­hen­si­ble, but also against the spirit of my man­date as the Land Regis­trar.”

Mr Makhaphela in­di­cates in the af­fi­davit that he is a trained lawyer “with an ex­pe­ri­ence of not less than 10 years” and be­lieves he did not do any­thing wrong in the mat­ter hence his chal­lenge of the sus­pen­sion.

“The act of de­clin­ing to yield to the reg­is­tra­tion of a site that is the sub­ject mat­ter of a dis­pute does not amount to gross in­sub­or­di­na­tion but in it­self, amounts to an un­law­ful ac­tiv­ity by the Sec­ond Re­spon­dent him­self as the high­est rank­ing em­ployee of the First Re­spon­dent,” he added.

Mr Makhaphela says a day af­ter the al­ter­ca­tion, he re­ceived two let­ters — one send­ing him on “un­usual leave” and the other sus­pend­ing him.

“I have been ad­vised and be­lieve the same to be true that it is both un­pro­ce­du­ral and ir­reg­u­lar for me to be si­mul­ta­ne­ously placed on Un­usual Leave and sus­pen­sion. I aver that place­ment on Un­usual Leave which was ini­ti­ated by the Sec­ond Re­spon­dent is a bla­tant ad­min­is­tra­tive mal­ady that is il­lus­tra­tive of not only ar­bi­trari­ness but also mal­ice.”

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