MASERU – Analysts this week said a deal struck by three state agencies to quell rampant land fraud was mere political grandstanding bound to flounder sooner rather than later.
This standpoint was bolstered by the fact that the Land Administration Authority (LAA), the Directorate on Corruption and Economic Offences (DCEO) and the Lesotho Mounted Police Service (LMPS), were overstretching their job description.
Experts told Public Eye on Tuesday this week the triumvirate “cannot hope to succeed in this regard when they have failed dismally to execute their individual mandates”.
They added that while the Memoradum of Understanding (MOU) might bridge the gap between the land administration court whose mandate is to deal exclusively with land disputes and criminal cases pertaining to land, reprieve for land fraud victims “will be a mammoth of a task to achieve”.
LAA Director General ’Mats’ireletso Lepheana said last week the agreement was intended to fight land crimes including fraud, corruption and “many other issues related to land administration”. Lepheana said the deal would facilitate exchange of information to “address crimes relating to land which seem to be escalating”.
According to Lepheana, the MOU would also help level the field with regards to law enforcement on land issues and “help provide transparent and efficient services to clients”. She called on Basotho across the country to provide information regarding land crimes within their communities.
Also, Commissioner of Police Holomo Molibeli applauded the LAA for engaging other stakeholders to fight fraud and other land crimes, saying land “seems to be engulfed by crime lately”.
“Police alone cannot fight and eradicate crime. It is only through concerted efforts such as working together with relevant stakeholders that we can attain a crime-free Lesotho,” Molibeli said. Molibeli urged personnel from the three entities to ensure collaboration was not only sustainable but also “beneficial for Basotho and Lesotho”.
DCEO Director Advocate Sefako Seema commended the LAA for joining the fight against escalating land fraud. Therefore, Seema noted he immensely appreciated co-operation from other bodies and urged “the public to join this fight”.
According to Seema: “Land defines the Basotho nation and if nothing is done about criminal activities surrounding land issues, then Lesotho is doomed.” Seema warned perpetrators of corruption, fraud and theft the signing of the MOU “marks the end of their dubious activities”.
Independent political analyst Arthur Majara, doubted the MOU would yield the desired results due to water-tight laws governing land issues. These include the now repealed Land Act, 1979 which was replaced by the Land Act, 2010, under which the Land Administration Court was established.
Majara noted there was no nexus between the Land Administration Court, LAA, LMPS and DCEO, and that the institutions were seeking to perform functions outside their jurisdiction.
“LAA is only an administrative body whose mandate is the allocation of land and keeping of the records. It has absolutely nothing to do with adjudication. We also have the DCEO which is an investigative body which investigates cases, working alongside the police to build cases to take to the courts of law,” Majara said.
“What I know for sure is that there is no channel between the DCEO and the Land Administration Court. DCEO has no locus standi to take cases to the land court, even if they have investigated it. The land court only entertains land disputes between individuals.”
Majara added: “So, I don’t see the possibility of the DCEO and LMPS having the right to take cases before the land court. It doesn’t matter what kind of agreements they sign between the three of them. It makes no difference at all. The legal structure does not allow for the operationalisation of that agreement.”
Instead of the three institutions working directly with the Land Administration Court, Majara said, the only channel that victims of land fraud could follow was to approach the police “to ease the financial burden on complainants”.
“Legally, those institutions can only work with normal courts of law and not the Land Court. The Land Court does not have powers to preside over criminal cases involving land. Such cases are dealt with by regular courts, as criminal cases and not land disputes,” Majara said.
“There’s no connection between the land court and the magistrate court. Even when an individual has stolen land, the case will be heard by a normal court as a criminal case, not a land dispute. And, how the case can be declared criminal even if it involves land beats me because, according to the Land Act 2010, disputes are dealt with by the adjudication body of the land court, which means there is connection between the land, magistrates and high courts.
“Because the Land Administration Court does not deal with criminal cases,” Majara said, “there would have to be a law linking the normal criminal processes and those of the land court because it only handles disputes.”
The Land Court, Majara added, also did not deal with disputes involving money but stuck exclusively to land-related issues.
“For instance, if your land was sold say for M1 million and you now want compensation, what the land court will only do is establish who the owner of the land is then direct you to the commercial court to reclaim your costs. The land court is strictly about ownership,” Majara said.
“And, those processes of the land court and adjudication bodies are deeply enshrined in the Land Act 2010 and there is no way that they can be separated or e given a new mandate. It is impossible.”
For the Land Court to broaden its scope in terms of the nature of cases it dealt with, Majara said there needed to be laws linking the function of that court with the rest of the court but that the new laws would have to be compatible with the law on which the land court was founded.
“Yes, there needs to be a new law linking the normal courts to the land court and their cases but still, it is going to take a long time for that to even happen. Even for the land court to come to life, it took nearly five years for it to be where it is today.
“But I don’t see any amendments working because they have to be compatible with the law. When you make amendments, they have to be compatible with the main statute, in this case being the Land Act 2010. I don’t see how any amendment will fit in,” Majara claimed.
As regards the LMPS, Majara suggested that the entity was toothless as things stood because it could not intervene in land disputes but could only act as an arbitrator.
“It is irritating that when there are disputes, people take matters up with the police, only for the police to just mediate because they have no powers to intervene.
“Theirs is just to play the role of arbitrator by calling the warring parties. Beyond that there is nothing they can do as they have no powers to take anyone to court regarding land disputes,” Majara added.
On their own, Majara alleged, the LMPS, DCEO and LAA had failed in their individual capacities at institutional level.
“So, what are these institutions are trying to do now that they have failed to do for a long time at institutional level? DCEO can call you for investigations but does not adjudicate. DCEO has a statute under which it was established. The LMPS operates in line with the Police Act, 1998 which does not give the institution the powers it is trying to usurp through this venture, while the LAA was founded on the Land Act 2010 which has regulations by which the body functions.
“The three of them don’t have powers to do what they have signed to do. It’s purely a political gimmick. DCEO in terms of pursuing corruption cases is failing while the police, on the other hand, have also failed in terms of their crime statistics. Even LAA is also failing dismally.
“Those institutions in terms of the Acts on which they were founded, are failing to execute their mandates. How can they now add a more disturbing load for which they don’t have a mandate? They create the impression that they can handle matters beyond their jurisdiction.”
However, Transformation Resource Centre (TRC) Socio-Economic and Social Justice Officer Rapelang Mosae was more upbeat about about the MOU, noting that while there were challenges created by the spike in land fraud, the agreement sought to close the gaps left by non-existent links between the land court and the three entities and the lack of clarity on how land was allocated.
Mosae acknowledged fraud had been on the rise “for quite a while now” caused primarily by conflict between chiefs and the community councils “on who has the authority to award land”.
“The LAA has also failed to curb this (fraud) and thousands of Basotho have fallen prey to this. Land related cases often drag on for a long time in the Land Administration Court and often fail to provide the desired relief to litigants,” Mosae said.
“The MOU therefore has potential to bridge the gap left by the Land Administration Court, which only comes into play when the deed has been done. Fraud is also a criminal offence and the Land Administration Court has no jurisdiction on criminal matters hence the MOU may help bring perpetrators to book.”
Mosae, however, expressed concern that restoration of land to original owners could prove to be a turbulent exercise. “Restoration of land is bound to be a very turbulent exercise due to the fact that it may now be in the hands of those who are ‘legal owners’ of it by virtue of being in possession of valid legal documents which the victims may not have,” Mosae submitted.
“For example, a victim may only have a Form C while the new owners now have a fully-fledged lease. Moreover, you may find the land thieves are not the only ones owning the land hence it is going to lead to a long-drawn out property dispute in a bid to restore the rightful owners.
“In short, the intervention that via the MOU will surely lead to a Pyrrhic victory where the only winners are law enforcement officers who may gain popularity for putting perpetrators before courts of law while the victims are left suffering.”
Mosae said, the MOU would not in any way “seek to interfere with the processes of the land court”.
By signing the MOU, LAA, LMPS and DCEO might have had in mind victims like Qacha’s Nek businesswoman Mosimoli Manamolela, who has been locked in a fight with one Tebello Khoromeng, also a businessman in the district, who mysteriously grabbed the Manamolela family plot at the center of the Qacha town and built a shopping complex which he currently rents out to different businesses.
The disputed land was left to Mosimoli by her late father Mojari Manamolela in a holographic will of September 2006, where the late businessman who died in 2015 divided his estate between his son Thabiso Manamolela and his daughter.
The Manamolela struggle with Khoromeng began in 2008 when the latter started building on the land without a lease, raising questions as to how his plan was approved and granted a building permit despite not owning the lease of the land in question.
The case stalled in the Qacha’s Nek Magistrate Court before Magistrate Nkhauhele Jobo-Kopung, while Khoromeng went on to build a massive shopping complex on the disputed land.