Court intervenes in Metsing land saga
…blocks suspension of Land Administration Authority Legal and Registry Services Director, Tšeliso Makhaphela
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 suspension 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 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 application (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”.
“The only counter-argument I received from him was that there is no court order interdicting the First Respondent from processing the said transfer, but I reacted by reaffirming the position that irrespective of that status, it would be legally reprehensible for myself, as the Land Registrar acting on behalf of the First Respondent as an institution, to prejudice a case that is still sub judice,” he stated in the founding affidavit.
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 did not even get the opportunity of locking my office thereof as it was already later after working hours and already dark outside – around 1800hrs or thereabout.
“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.”