MASERU – TWO Mokhotlong development organisations are suing the Lesotho Highlands Water Project (LHWP) for “violating their rights”.
Eight individuals have also joined the lawsuit.
The Mokhotlong Business Forum Development Trust, the Community Resources Development Trust together with the eight want the project declared unconstitutional.
They argue that the LHWP forced them to establish cooperative societies that would be used solely for public projects instead of attending to their individual needs as affected people.
They have approached the Constitutional Court claiming that both Phases 1A, 1B and Phase II of the projects failed to pay their members prompt and full compensation, together with interest at commercial lending rate set by the Lesotho Bank from 1986.
They say the continued entry and interference into their property that were compulsorily acquired to pave way for the construction of Katse Dam, Mohale Dam, and now Polihali Dam is unconstitutional.
They also accuse the project of violating their rights in that it failed to pay their development fund and thus denying them and their members an opportunity to gain a livelihood, contrary to Constitutional provisions.
They are asking for an order that the LHWP and its agents must pay them and their members compensation and development fund, styled “community infrastructure development fund”, with interest at commercial lending rate of Lesotho Bank from the date of entry.
Five of the applicants, ’Malebohang Moqekela, Lakabane Mokoatsi, ’Mankopane Moeketsi, ’Mabatho Sennana, and Tsotang Moqekela say the project should pay them as it promised in a letter dated January 28, 2019.
The five together with other applicants Kose Sekonyela, Lebohang Lengoasa, and ’Maoetsi Tekane were arrested in 2022 and earlier this year when they protested near the dam construction in Mokhotlong.
They want the court to declare that their arrest, detention, torture and prosecution was unconstitutional.
In an affidavit, Limpho Natsoane told the court that the bilateral treaty between Lesotho and South Africa for the delivery of water to Gauteng was also meant to generate power for Lesotho and undertake auxiliary developments such as irrigation, tourism features and other projects for economic and social developments.
Natsoane argued that the treaty said measures should be taken to implement, operate, and maintain the project which would be compatible “with the protection of the existing quality of the environment and, in particular, shall pay due regard to the maintenance of the welfare of persons and communities immediately affected by the Project”.
“The Lesotho Highlands Development Authority (LHDA) shall effect all measures to ensure that members of local communities in the Kingdom of Lesotho, who will be affected by flooding, construction works, or other similar project-related works, will be enabled to maintain a standard of living not inferior to that obtaining at the time of first disturbance,” Natsoane quoted provisions in the treaty.
“We as applicants are entitled to compensation for the property rights encroached upon and/ or compulsorily acquired by the (LHWP),” Natsoane said.
“We as applicants and our members also have a right to development and or development fund from the (LHWP) in terms of section 44(2) of the LHDA Order, in terms of which the standard of living and the income of the applicants and their members should not be lower than the standard of living and the income prevailing before they were affected by the (LHWP)’s works,” he said.
“However, we have not been compensated for our communal land and useful grasses from 1987 when the Project commenced, to date.”
Natsoane said in some cases, instead of compensating them and their members, the LHWP forced them to form cooperatives or associations which were not affected in any manner whatsoever because they were legal entities which were formed after the fact.
He said the treaty provides that in the exercise of its powers the LHDA “shall be liable to pay the occupier of the land or the owner of the servitude, right or other property entered upon”.
The compensation, he said, should be “payable to such occupier or owner at the commercial lending rate of the Lesotho Bank, from the date of such entry, exercise or interference, until payment of such price or compensation.”
“I wish to take this honorable court into confidence that the said compensation rates were only approved and applied from 1997 under Phase 1 and Phase II where our landed properties were affected long before then as far back as on or about 1986 or 1987 as the case may be when properties were acquired,” he said.
“Secondly, the said rates were unlawful since they were not in terms of sections 56 of the Land Act 1979 as they were not in accordance with the market rates.”
Natsoane argued that the LHWP Compensation Policy 1997 and LHWP Compensation Rates 1997 are unlawful.
He said section 44(1) of the LHDA Order pertains to compensation as a form of restitution of our property that has been taken or affected by the LHWP while on the other hand section 44(2) is the section that provides for the development fund of them and their members to ensure better standard of living.
“Thus for the (LHWP) to force us to form development projects with our compensation fund when we don’t even have any means of livelihood, nor income for even mere transport is completely unfair and unlawful.”
Staff Reporter
