Lekhetho Ntsukunyane

Land Administration Authority (LAA) Director-General, Mahashe Chaka, on Friday filed an opposing affidavit before the High Court, explaining why he suspended the organisation’s Legal and Registry Services Director, Tšeliso Makhaphela.

Mr Chaka suspended Mr Makhaphela on 20 May 2016 after he refused to transfer a piece of land in Moshoeshoe II to Deputy Prime Minister Mothetjoa Metsing arguing the property was the subject of litigation by the Land Court.

Mr Chaka had further called Mr Makhaphela to a disciplinary hearing on Tuesday, 31 May 2016.

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 directed Mr Chaka, the 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 was unlawful.

In his founding affidavit before the High Court, Mr Makhaphela chronicled events that led to his suspension and maintains he “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.

“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 (Mr Chaka ) as the highest ranking employee of the First Respondent (LAA),” he added.

But in his opposing papers filed through his lawyer King’s Counsel Motiea Teele, Mr Chaka says Mr Makhaphela’s application was not properly brought before the High Court.

The application, Mr Chaka contended, was brought contrary to the provisions of Section 6 of the High Court Act of 1978, “in that no leave has been obtained to institute it in this court”.

The case, he added “is a labour dispute and falls within the exclusive jurisdiction of labour tribunals and courts, wherefore, the application (should) be dismissed with costs”.

Mr Chaka adds there is no urgency in the application as the events Mr Makhaphela challenged arose on 20 May 2016 “but the applicant waited until 30 May 2016 – 10 days later, to come to court. Whatever urgency there might be is self-created.”

However, Mr Chaka says in case the application proceeds to the merits, he would like to give his side of what transpired on the day Mr Makhaphela alleges they nearly came to blows over the issue.

“I need to set out the events that took place on 19 May 2016, in full detail and their context for the edification of this honourable court,” Mr Chaka notes in his affidavit. “It was around 5pm when I found the applicant and other managers under his department in his office. I asked the managers to give us privacy because I needed to raise the issue of the particular transfer with him. The transfer is one between Mr Malefane and Honourable Metsing.

“What I wanted to find out from him was whether there had been any court order that had prevented the processing of the transfer between Mr Malefane and Honourable Metsing. I indeed asked him about this, and his response was there was no court order granted in that regard.

“I then asked him whether there were any operational requirements that were missing that would prevent the registration of the transfer. He then said he was apprehensive to go ahead with the registration because there was a case in relation to the same matter in court. He said there was an originating application filed in court already.

“I indicated to him that in the originating application there was not even a prayer seeking to stop the transfer. He countered by saying that when the matter was in court, he does not feel free to process it. He said he would instruct one of his managers to process the same. I then explained to him that I would not accept that he should delegate to his junior a transaction that he perceives to have controversy and that as a senior, he should take responsibility.”

According to Mr Chaka, Mr Makhaphela responded that he would only do the transfer if he was given written instructions to do so for the record.

“I thought that was a reasonable request so that I would take responsibility as the head of the institution. I then went up to my office to draft the instruction. When in my office I noticed that I had not taken the details of the plot number to use as a reference, I went back to applicant’s office and took the said details. I then completed the instruction in my office,” Mr Chaka indicates.

“When I was done, I went down to his office and handed over the file containing the instruction to him. He took the file and violently threw the same on the table in his office. A few paces after giving me his back, he said “’na nke be ka e etsa ntho eno” “I will not do that thing”. He left for his car and was gone. I called directors who were available at the time to express my dismay to them at what had just taken place.

“It is important to disclose to this honourable court that the said transfer has a long history, which the applicant has deliberately suppressed, and failed in his duty to act in good faith in this application. I proceed to give the said history. The site subject matter of the disputed transfer was originally allocated to one Shalane Shale who held a lease thereanent.

“During 1990, the site was transferred to one Madoda Ramajoana, who is the applicant in the originating application that the applicant was referring to in our discussion I referred to earlier, and which is annexed to applicant’s papers.”

Mr Chaka says according to the file in his possession, the site was transferred to Mr Leseteli Malefane in 1994 by Mr Ramajoana.

“The transfer has been endorsed on the original lease of Shale as a second transfer. The original endorsement was upon transfer to Madoda Ramajoana,” he notes.

Mr Chaka adds during 2008—14 years after Mr Malefane took transfer from Mr Ramajoana—Mr Malefane lodged a Deed of Transfer to Mr Metsing.

“During the same year, Madoda Ramajoana wrote to the Commissioner of Lands and asking that the transfer to Honourable Metsing be stopped. To cut the long story short, the records reflect that Ramajoana launched a case in CIV/683/2010 IN THE High Court. It was later transferred to the District Land Court in CIV/DLC/MSU/14/2013, which was withdrawn in April 2014.

“All in all, in none of the cases that I have alluded to, including the present application before the Land Court, had there been a court order stopping the transfer between Mr Malefane and Honourable Metsing.

“I outline this history to demonstrate that it would have been totally irresponsible for the Authority not to process the transfer. Any economic loss that could ensue as a result of its unreasonable refusal to register the transfer would land the Authority in an intolerable situation, where it would be sued for damages,” Mr Chaka noted.

“I am legally advised and verily believe the advice that in fact the altitude of the applicant about the alleged contempt was wrong in law generally and both wrong and unreasonable in the circumstances of this case. The excuse of the pending litigation could not operate indefinitely even if it was valid.

“Mr Ramajoana knew of the matter in 2008, some eight years ago and has not stopped the process or even cancelled the transfer to Mr Malefane. Allowing the applicant to drag the Authority into potential suit for damages could never have been an option.”

Mr Chaka denies Mr Makhaphela’s claim in his court papers that there was “an intense tension that had filled the office in which we were engaging and it ran short of a physical affront”.

“I am not a violent person and could not possibly have used violence on the applicant,” Mr Chaka says in the affidavit. “The applicant was being sensational because he never thought I would accept the request he made to reduce my instruction in writing. That was, however, a reasonable request and as the head, I was happy to take the responsibility as my decision was administratively above board.

“I deny that I was in any manner hysterical or anything of the sort. The fact that the applicant is a lawyer boasting years of experience does not mean that I could sit back and allow him to expose the Authority to delictual liability just because he is a lawyer.

“There is no earthly reason why the registering authorities could give the same excuse of pending litigation for eight years, and escape culpability. However, if the court order was given stopping transfer, then the Authority would be covered. If the transfer was made, it could be cancelled and again the Authority would be covered.

“I dispute that I was not entitled to give the applicant administrative instructions to do his job in the best interests of the Authority just because he is a ‘trained lawyer’. Lawyers as trained as him do not think he was right in his attitude at any rate.”

The case resumes before Justice Semapo Peete on 13 June 2016.