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Aphiri loses botched land sale case

Aphiri loses botched land sale case
February 05
14:09 2018

Aphiri loses botched land sale case

 THABO BAGWASI

The controversial David Aphiri, who was at some point a fugitive and a suspect in the ritual murder of Segametsi Mogomotsi, has sprung back into the spotlight following a botched land sale involving one Ramapolo Hugh Masekela.

Court papers show that Aphiri sold a piece of land measuring 8957 square metres in Mochudi to the Kgatleng District Council for the sum of P44, 360. He sold the land on behalf of Masekela in 2002. However, in 2009 Aphiri sought to renounce the sale of the land long after the specified two-year bar-period.

He would later claim that the money paid to him was rental but not payment for the sale agreement. Aphiri instituted proceeding at the High Court in 2009 seeking to overturn the transaction.

Despite incisive efforts, this publication could not immediately establish if the Ramapolo Hugh Masekela named in court papers is the late celebrated South African jazz legend.

Masekela, who passed on a fortnight ago, also used the same names of Ramapolo Hugh Masekela, sometimes styled as Hugh Ramapolo Masekela.

Over and above, Masekela was once resident in the country at the height of the apartheid rule in his homeland for some good four years. Ironically, Aphiri also once fled prosecution from his homeland for South Africa after being implicated by Mogomotsi’s father in the murder of his 14-year-old child over two decades ago.

The case brought the country forth to the precipice with Gaborone descending into chaos by the day. Aphiri also instituted proceedings of unlawful arrest against the Attorney General before the turn of the century.

The Court of Appeal (CoA) on Friday found Aphiri’s claim for Masekela’s tract of land to be without merit and dismissed it with costs.

Masekela had authorized Aphiri through power of attorney to sell the land for him to the Kgatleng District Council in 2002. Aphiri lodged a case with the High Court wherein he sought the court to declare the agreement between Masekela and Kgatleng Land Board, with him representing the former, as invalid.

He also sought the court to force the Kgatleng Land Board to issue a survey diagram over the plot as already paid for.

Furthermore, he wanted the court to direct that the sale agreement reached by him and KDC be struck of as invalid and without any legal force and effect.

At the High Court, KDC argued that the case was time-barred, meaning that it was instituted outside of the prescribed two years within which proceedings can be brought against a Local Authority.

KDC also went a step further. It launched its own counter application in the case, seeking an order cancelling Masekela’s rights, title and interests in the property declaring itself the rightful owner.

Furthermore, it also ordered Aphiri to sign all the necessary documents to effect the transfer of the property to it within 14 days, warning that failure to do so would result with the sheriffs being ordered to sign the documents. It also ordered the Land board to transfer the rights from Masekela into the ownership of KDC.

In the CoA proceedings, Aphiri’s lawyer performed what might be considered a tactical error that pulled the plug off their prospects through conceding that the agreement entered into with the KDC was a sale agreement of Masekela’s rights, going against Aphiri’s protestations at the lower court.

Aphiri’s lawyer also conceded that the purchase price was paid and accepted by Aphiri on behalf of Masekela with the knowledge of the Land Board, through which the rights, title and interest was assessed by the Department of Lands.

Justice Isaac Lesetedi writes in the judgement: “This concession gives the lie to and destroys the very foundation of the appellant’s (Aphiri) cause of action in the court a quo (High Court) i.e. that he had only entered into a lease agreement with the 2nd Respondent (KDC) and that the amount paid in the sum of P44, 360 in 2002 was not the purchase price but rental.”

Justice Lesetedi also noted that during Aphiri’s submissions, the lawyer also conceded that once the sale was completed, the only conceivable cause of action could arise from the time when he sought to renounce the sale agreement.

He then states, “With this concession therefore, the statutory time bar of two years had long kicked in at the time he instituted proceedings against the KDC”.  Lesetedi also states of how Aphiri’s lawyer also conceded to the legality and lawfulness of the sale as per the Tribal Act.

At the end of the judgement he notes, “Notwithstanding these concessions, the appellant’s counsel stood by his heads of argument yet nothing remained to stand on.”

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