LAND Administration Authority (LAA) Director: Legal and Registry Services, Tšeliso Makhaphela, has been suspended pending a disciplinary hearing next week for “gross misconduct” among other alleged offences.
Mr Makhaphela is accused of refusing to take instructions from his boss, Director-General Mahashe Chaka, to register a deed of transfer for a residential property in Moshoeshoe II last week.
However, on Monday Mr Makhaphela sought the intervention of the Local Government principal secretary, arguing Mr Chaka’s instruction was “contemptuous in the eyes of the courts of law”.
In the letter, Mr Makhaphela says he could not carryout the instruction to register the property as it was the subject of litigation in the Land Court.
Deputy Prime Minister Mothetjoa Metsing is the second respondent in the case in which the applicant, Madoda Ramajoana, is challenging the transfer of the property to the deputy premier. The other respondents are Leseteli Malefane (first), Registrar of Deeds (third), LAA (fourth) and Attorney-General (fifth).
“One of the prayers in the originating application is for ‘an order declaring as null and void, the transaction of sale of Plot No.13281 – 403 between First and Second Respondents (Mr Malefane and Mr Metsing respectively) and any subsequent transfer thereof,” notes Mr Makhaphela.
“I did advise the Director General that Plot No.13281 – 403 is the subject of a dispute pending before the court and thus in the hands of the law. I further advised that proceeding with the transfer would be contemptuous in the eye of the court.”
Mr Makhaphela says Mr Chaka disregarded the advice and directed him to proceed with the transfer.
“. . . (the) action would be construed as being contempt in the eyes of the court, more so because we had been duly served with the court process on 4 April 2016,” he argues.
“It would not be in the best interests of the Authority to engage in any action that would be construed as contempt by the court of law, given the circumstance.”
Mr Makhaphela adds: “Furthermore, I would have failed in my duty to properly advise the Authority in legal matters in that regard. Despite my legal advice in the matter, I was suspended allegedly for gross misconduct, action which, in my view, amounts to victimization given the circumstances.
“It is on the basis of the issues outlined above that I hereby humbly request for your urgent intervention because this suspension and the likely consequences would leave me with no other option other than redress from the courts of law.”
The Lesotho Times is also in possession of two letters from Mr Ramajoana’s lawyers – Hudson’s Chambers – addressed to the LAA Land Registrar and Mr Chaka respectively.
In the first letter dated 19 May 2016, the lawyers remind the LAA Land Registrar of Mr Ramajoana’s High Court application which “was served on your office on 4 April 2016”.
“Before we deal with the specific legal issues germane to his title to the land in issue which is pending before the Land Court, allow us to indicate that the complaints foreshadowed by our client in his originating (sic) application against Mr Malefane and Hon Metsing by necessary implication must therefore assume the integrity and neutrality of your office in stopping to do anything over the disputed plot pending finalisation of the case,” reads the letter.
“It is against the above understanding that we proceed to consider what happened after 4 April 2016. The matter first came before Justice Peter Sakoane on 19 April 2016 and was postponed to 20 April 2016 for pretrial conference which actually ensued. After the pretrial conference it was postponed to 19 and 23 (April 2016) for hearing.”
The lawyers say the matter was postponed to 9 June 2016 at the instigation of Mr Malefane’s counsel in order to make way for an out of court settlement.
“It has been discovered beyond doubt that while your organisation was supposed to wait for the judgement of the court in the matter our client made findings which are intimately related to continuing wrongs deliberately aided and abetted by your offices to his prejudicial detriment,” the lawyers argue.
According to the solicitors, Mr Malefane applied for a consent certificate over the disputed site on 8 April 2016.
“The application for consent was approved (on the) same day in favour of Hon Mothetjoa Metsing. The consent certificate is therefore fundamentally flawed in terms of the law,” the lawyers state.
“It is therefore no wonder that Advocate Mamello Nkoebe submitted transfer papers on 12 May 2016 and subsequently the transfer and stamp duties were calculated on 17 May 2016.
“What defense does your office has over this calculated steps of lawlessness and maneuvers? Our client got to know about this infamous development today (19 May 2016) which is relevant to how we should approach this matter sensitively from both sides.”
The lawyers then demand that the LAA Land Registrar avail the contents of the file involving the property.
“ . . . specifically the Consent Certificate and transfer papers so that we can take further instructions given that all these alleged unlawful transactions are being done while the matter is pending before courts of law.
“We, in fact, demand you to give us those contents and report to us in writing as to why our client cannot lay criminal charges against your personnel or whoever found to have been complicit to this fraudulent escapade. This is an overarching consideration in our view, not unless there are considerations to the contrary.”
In the letter to Mr Chaka dated 20 May 2016, the lawyers state that the LAA cannot make a decision on the transfer of the property since the issue was before the courts.
They also accuse LAA of “undermining the decorum of the court seized with this pending case” by proceeding with the land ownership transfer process.
“We doubt you know the contents of the answer by Mr Malefane before the High Court. In the answer he signed for and filed on 19 April 2016, he says there are no transfers filed as yet between him and Hon Metsing with your office and that Hon Metsing has been joined in the present dispute for reasons better known to our client.
“As it turned out, through your instrumentality, the certificate of consent had already been approved by your offices on the 8 April 2016 notwithstanding the contents of the originating application filed with the High Court on 24 March 2016.”
The lawyers argue that Mr Chaka placed their client in an “invidious position” by facilitating the transfer of his property in a way “which is not transparent”.
“We have examined the implications of your decision to force Advocate Tšeliso D. Makhaphela to sign for the transfer of the disputed property in favour of Hon Mothetjoa Metsing to the detriment of our client notwithstanding the pending case,” further state the lawyers.
“In our considered view, that decision you reached if you allow us, can be classified as having been preceded by flawed logic on grounds of abuse of power.”
The lawyers add: “We may not properly understand your operations as Director General, but what we know is that the law does not allow you to force Deputy Land Registrars to sign and endorse questionable transfer documents of plot No 13281-403 without adequate justification. “It is advisable that you stop whatever you are doing about our client’s immovable property.”
Meanwhile, the Lesotho Times has learnt that Hudson’s Chambers, who also happen to be Mr Makhaphela’s lawyers, intend to file an urgent High Court application tomorrow challenging their client’s suspension.
Efforts to get comments from Mr Metsing and Mr Chaka proved fruitless yesterday.