LNDC, health ministry fight over land spills into the courts

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…land wrangle could derail Chinese funded M800 million hospital project

Mohalenyane Phakela

A BITTER fight over the ownership of land in Maseru between the health ministry and the Lesotho National Development Corporation (LNDC) has spilled into the courts.

The land in question is part of the site where a Chinese contractor has been engaged to construct the long-awaited Maseru District Hospital and Eye Clinic which is being built in terms of the Sino-Lesotho bilateral agreement.

The LNDC is insisting that the ministry and its contractor, Power China Zhongnan Engineering, must vacate the site. Should this happen, it would derail the construction of the M800 million hospital.

It has taken its fight to regain possession of the land to the Maseru Magistrates’ Court. The Ministry of Health, Attorney General Rapelang Motsieloa, the LAA, Maseru City Council (MCC) and Power China Zhongnan Engineering are the first to fifth respondents respectively in the application.

“The applicant prays that the first respondent (Ministry of Health) has no lawful title to the site in question and should be interdicted from continuing to occupy it or giving unlawful authority to third parties like the fifth respondent which is a Chinese company from occupying the land in question,” the LNDC states in its court papers.

“The circumstances under which the first and fifth respondents are developing the land are unclear as they could not have acquired a lawful permit from Maseru City Council to develop the land in question without production of the lease of the land. The lease is in the name of the applicant.”

The LNDC therefore wants the court to declare that “plot number 12284-529, Maseru Central Urban Area is the lawful property of the applicant and not the first respondent. The first and fifth respondents pay the rent in the amount of M10 per square meter from January 2021 in respect to the unlawful occupation of the applicant’s plot.”

The matter is pending.

Genesis of the dispute

The Lesotho Times has established that the site originally belonged to the Ministry of Health until the government decided on 5 March 1999 to transfer it to the LNDC.

Both are now claiming to be the rightful owner of the land with the LNDC pointing to a lease it was granted by the Commissioner of Lands as proof of its ownership. The Commissioner of Lands used to issue leases before the establishment of the Land Administration Authority (LAA) in 2010.  Now it only issues certificates of use to enable construction to be done on any piece of land.

On the other hand, the health ministry is basing its claim on a Certificate of Use of the plot issued by the same office of the Commissioner of Lands in February 2011.

LAA records show the LNDC as the lease bearer for the site from 4 June 2008. The records indicate that there was no lessee for the site until LNDC obtained one.

According to the MCC website, a lease is required before a building permit is granted.

It is not clear how Power China Zhongnan Engineering began construction work on behalf of the health ministry when the lease for the land is held by LNDC.

Nor is it clear why the LNDC was mum form early last year when construction began at the site.

But on 7 February 2022, LNDC CEO Molise Ramaili wrote to then health principal secretary, Khothatso Tšooana, saying his organisation was the rightful owner of the site and that the ministry was illegally developing the corporation’s land without the latter’s consent.

“The Corporation is the owner of plot number 12284-529, commonly known as Nurses’ Home,” Mr Ramaili stated in his letter to Mr Tšooana.

“It has come to the attention of the Corporation that the contractor appointed for rebuilding Queen II Hospital (Maseru District Hospital) has set up their camp on the plot.

“We wish to bring to your attention that neither the ministry (of health) nor the contractor made an application for the use of the plot in question nor did the Corporation grant consent thereto. Had the requisite consent been sought and granted, appropriate conditions as to general use of the plot would have been negotiated between the Corporation, the ministry and the contractor. Consequently, the occupation of the land by the contractor is unlawful.

“In particular, the environmental conditions, the post construction rehabilitation of the site would have been agreed. Take into account further that the Corporation pays annual ground rent and municipal charges (to the Maseru City Council) in respect of the plot.

“In the circumstances, the Corporation would like to invite you to a round table to retrospectively formalise and discuss the payment due to the Corporation since the occupation of the plot in question,” Mr Ramaili wrote.

Nonetheless, Mr Tšooana ignored the letter, prompting Mr Ramaili to pen another letter on 22 March 2022, reiterating the same issues of “unauthorised use” of the site.

Mr Tšooana eventually replied on 30 March. He insisted the Ministry of Health was the rightful owner of the land and it had a Certificate of Use to prove that. Nevertheless, he invited LNDC to a meeting to discuss the matter.

“We acknowledge receipt of your letters dated 7 February and 22 March 2022 respectively and apologise for the late response.

“Please be informed that the former Nurses’ Home was allocated Ministry of Health according to the User Certificate number MS004/2011 issued by the Commissioner of Lands. We kindly request a meeting with your good office to clarify this matter at your earliest convenient time so that the said lease can be corrected as soon as possible,” Mr Tšooana wrote.

Deadlock

A meeting was subsequently held at the LNDC offices in Maseru on 21 April 2022. The Ministry of Health’s director for legal affairs, Masello Sello and the head of its Estate Management Unit, Mosilo Mosehle met with the LNDC’s legal affairs team comprising of Tšepo Putsoa and Tšepo Mothibeli.

But the two parties failed to reach an agreement. They initially agreed to engage the Land Administration Authority (LAA) to mediate in the dispute.

However, this was not done after Mr Ramaili again wrote to Mr Tšooana on 28 April 2022, saying this was not necessary because the LNDC was the rightful owner of the land. He said there was no way that the ministry’s Certificate of Use could supersede the LNDC’s lease.

“The Corporation reiterates that all construction work on the plot is to cease with immediate effect. The ministry’s presence on the plot is unlawful and constitutes unnecessary trespass thereon,” Mr Ramaili wrote.

Months went by without any response from the ministry which has continued with construction works via its Chinese contractor.

This prompted the LNDC to file the court application to evict the ministry and stop the construction work.

Hospital project in jeopardy

Should the LNDC succeed in its application, this could jeopardise the much-vaunted construction of the proposed M800 million Maseru District Hospital and Eye Clinic. Construction began in February 2021 and is projected to be completed in 2023.

The important project is being funded through a grant from the People’s Republic of China. On completion, it will help at least 400 000 people in Maseru and other districts.

 

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