Top lawyer in land “scam”

… Phafane accused of improperly getting LCS land for private use

’Marafaele Mohloboli

A company owned by prominent lawyer, Advocate Salemane Phafane (King’s Counsel), allegedly obtained a 30-year lease agreement on a strategic piece of land owned by the Lesotho Correctional Service (LCS) under questionable circumstances.

The new management of the LCS now want to have the lease cancelled and the matter probed by the Directorate on Corruption and Economic Offences (DCEO) for the prosecution of everyone who partook in the “irregular transaction”.  The LCS only discovered the “scam” when they tried to access the land to build the institution’s own headquarters.

Adv Phafane’s company, Strategic Investments (SI) (Pty) Ltd, is said to have acquired the lease over the 31 000 square metre piece of land in 2019.

The company proposed to use the land next to Maseru Maximum Correctional Institution, to expand its business through the construction of a shopping complex, a filling station, and an office block, among other options.

SI offered to pay M100 000 rent per annum over the 30-year period, a proposal that was duly accepted by the LCS.

However, that lease arrangement has now dumbfounded the current management of the LCS, which alleges the deal was “questionable” and should be reversed as a matter of urgency. Even the M100 000 figure is now being disputed as a rip-off.  It was just too small for a prime location.

LCS Commissioner, Mating Nkakala, yesterday told the Lesotho Times that the institution’s management only learnt about the “questionable” agreement when they were about to start developing the site in question for the LCS’s envisaged new head-office.

Commissioner Nkakala further said most members of the LCS management were shocked by the “secrecy” surrounding the deal.

“I am very aware of the agreement in place, which I and the rest of the management, and to our shock, we only became aware of when we were preparing for our own project to develop the site for our headquarters,” Commissioner Nkakala said.

“We were all surprised to learn about it (the lease agreement) and no one seemed to have answers, but there is nothing much that can be done except to get our land back from the lessee.”

Commissioner Nkakala would not indulge this paper further on the issue, but the Lesotho Times has since learnt through its sources that the current LCS management wants the leased land back with immediate effect, and has reported the matter to the DCEO for investigation.

This paper has also established from LCS sources privy to the matter, that the agreement was allegedly done clandestinely by former Commissioner ‘Matefo Makhalemele and former Law and Justice Principal Secretary (PS), Advocate Lebohang Mochaba, without the widespread consultations required for a deal of this magnitude.  No other relevant authorities, including the rest of the LCS’s senior management in place at the time, knew about the deal.

SI, already owned a smaller 5000sqm plot near the LCS land in question. It wanted to use that plot to upgrade its Fruit &Veg City shop along Kingsway Road in Maseru into a fully-fledged Food Lovers’ Market, a popular South African franchise. That Food Lovers Market would form part of a new shopping complex, with other envisaged developments.

However, because SI’s own piece of land was too small, the company then began the process of acquiring the larger adjoining plot owned by the LCS.  It approached the LCS under the leadership of Ms Makhalemele, to lease the LCS’s site next to SI’s own plot that borders Pioneer Mall to the northeast and the LCS site to the south, just next to the maximum prison.

The LCS site is approximately 31,000 square-metres and bears plot No. 12284-717.

SI had in its application explained why it needed the LCS plot. Among the reasons were the need for more space to upgrade its Fruit and Veg business, into Food Lovers Market, a popular grocery and vegetable chain in South Africa, create adequate parking space for clients, and have more room for trucks to manoeuvre when delivering goods.

The arrangement would have long-term benefits for the LCS, the city of Maseru and the country as a whole in terms of job creation, SI explained.

A proposal for a sub-lease was made on 26 September 2016, in which SI offered to pay LCS a land occupational rent of M100 000 per annum. The proposal was subsequently approved on 14 August 2019.

PS Mochaba had on 24 July 2019, written a letter to the Commissioner of Lands at the Land Administration Authority (LAA), asking for the transfer of the LCS site in question to SI. The Lesotho Times has a copy of that letter.

The letter, titled Provision of Powers of Attorney, reads: “PS Lebohang Mochaba, as custodian of the Ministry of Justice and Correctional Service, is responsible for the administration of the entire ministry, including the Lesotho Correctional Service (LCS), and has the authority to oversee all activities of the LCS.

“She has powers vested upon her to superintendence the service on behalf of the department regarding the lease application of Plot No. 12284-10008 and 12284-10009 and surrender and transfer of lease No. 12284-377 of Maseru Central Correctional Institution site. Please assist accordingly in this regard.”

The letter further reads: “LCS, under the Ministry of Justice, grants concession to Strategic Investments for the use of the site for a period of 30 years, and to the extent necessary the parties agree to conclude an agreement of sub-lease. Upon expiry of the said 30-year concession period, Strategic Investments will have an option to extend such period on giving written notice at least six months before expiry on terms to be agreed between the parties. Should such extension not occur, then the use of the site together with the development thereon, revert to the correctional service at a negotiated value.

“The Lesotho Correctional Service will remain the owner of the land being the site in terms of the provision of this agreement. The Correctional Service shall have access to enter the premises for inspection when the need arises at any reasonable time and shall, in that event, notify Strategic Investments (PTY) Ltd by writing within seven working days.”

A separate agreement between SI and the LCS stated that SI would provide and construct a shopping complex, a filling station, and an office block on the site with the development being designed and construction supervised by independent consulting architects.

SI would further erect a fence with specifications similar to the existing fence of the LCS adjoining the property.

The company would also “… plan and finance the development of the properties and associated facilities, maintain and manage the properties with the right to levy access and utilisation charges to tenants renting spaces within the properties.

“…appoint a professional consultant team, contractors and any other service-providers to carry out the works and complete the development of the site and associated facilities and manage the properties.

“…pay the Ministry /Correctional Service an amount of M100 000 as ground rent per annum, payable five years after final completion of development.”

However, LCS sources said the whole deal was highly improper.  Such a complex could not be developed next to a prison with a maximum-security facility as this obviously compromised security arrangements. But the LCS could appropriately build its headquarters there to oversee its prison.

When contacted for comment yesterday, Adv Mochaba told the Lesotho Times she remembered the agreement but needed to refresh her memory on its details. She also said there was a possibility the current LCS management did not know about the contract, given

how the institution functions.

“Some officers work in silos. I know about such an agreement but can’t really recall much about it unless my memory is revived by it being availed to me,” Adv Mochaba said.

“I also remember that when I came into office, it was already on the desk of Commissioner Makhalemele, but Commissioner Mothepu (former) is the one who saw it to finality.”

Mr Mothepu succeeded Ms Makhalemele in 2018 after the latter was fired by then Prime Minister Thomas Thabane. However, Mr Mothepu was also fired by Mr Thabane’s successor, Moeketsi Majoro, in August 2020, while Commissioner Nkakala took over the reins in May 2021.

Contacted for comment, Mr Mothepu said he was busy and would revert to the Lesotho Times once he was free but never did. The Lesotho Times phoned him again later in the day but he did not pick the calls.

On the other hand, both Ms Makhalemele’s mobile phones were not reachable yesterday.

Adv Phafane said he was occupied when the Lesotho Times also phoned him for comment and asked to be called later. However, at the time he had asked to be called again, his phone continued to ring unanswered.

Meanwhile, DCEO spokesperson, ‘Matlhokomelo Senoko, said the anti-graft body had not received any information on the matter.

“We are not aware of the information you are asking about; maybe they are yet to come forward,” Senoko said.

The current management of the LCS is adamant that the deal was entered irregularly and cannot proceed. It was unheard of that a shopping complex could be erected to directly border a prison.