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CIV/APN/229/94

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

LETSEMA
TSEHLO Applicant

Vs

NCHELA
NTSASA Respondent

JUDGMENT

Delivered
by the Hon. Mr Justice M.L. Lehohla on 27th day of September 2000.

On
18-05-1998 this Court reserved for oral evidence the portion which
could not be resolved on papers. The following therefore is in
essence the balance of the Judgment that was granted previously.

The
present stage of the matter before court falls within a very, very
narrow compass of the case, namely whether it is possible or not for
the applicant to reach the field in point, and whether in fact there
had existed a way which later became

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occluded
by the act of the respondent. That is in a nut-shell what this Court
is to determine.

The
applicant's counsel called oral evidence. The Court, accordingly
heard the evidence of the applicant himself, Letsema, who testified
that he had this field at Malefikanyana and that to reach it he has
to travel between Sootho's field and that of the respondent. In this
respect although he was somewhat rattled by the first question

which was
put in cross-examination to the effect that concerning this field the
description he had given relates not to Malefikanyana but rather to
Matsoeteng I am nevertheless quite satisfied that what is in issue
here relates to Malefikanyana as was testified in fact by the
respondent himself.

Needless
to say the witness PW2 Thabiso Ntsasa who was called by the applicant
supported this view in toto and of significance is the fact that - I
don't know whether it was by design or by an accidental omission, if
it was by an omission it is a regrettable one because - this witness
was not cross-examined at all. That he bears the surname of the
respondent is something to which I attach some significance. He said
:

"I am 29 years old. My name is Thabiso Ntsasa. I know PW1. I
know

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respondent also. I filed supporting affidavit supporting PW1. PW1
complains of a closed path that he uses, and which has been closed by
the respondent. The fields affected by the closure of the path are in
Malefikanyana area. My field is also involved. This being my father's
field. My father is disabled so I plough his fields. The path that is
closed is one leading to Malefikanyana it has been closed for a long
time by Nchela, the respondent. The spot where there is closure is at
the heath. There used to be a path such as would let two cars to pass
each other in breadth.(abreast). There were fields on either side.
The field being of Monaheng Sootho Monyane. Monaheng's was relatively
new. On the other side was Nchela's field. He ploughed his field such
that only a path remained for a human being to pass through".

This is
what I attach a lot of importance to. It shows that there used to be
a position which later changed. The witness goes further to say
Sootho was allocated this land in 1991 or 1992. He goes further and
explains :

"For I came to Maseru, when I did so that space was not
ploughed. When I went back home in 1993 I found the path was ploughed
up. When the respondent closed the path I was not present but I know
this for I saw his cattle plough there, but I had not known when he
first ploughed that".

So from
this evidence which was never challenged at all, at all, at all it is
clear to me

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that
prior to 1993 there was a path which allowed at least two cars to
pass abreast but later i.e. post 1993 then there was this closure.

Now once
a thing of that nature occurs then it means somebody's rights have
been interfered with. The evidence that has been given by the
applicant and answers to the questions which were put to the
respondent seem to support the view that the applicant had cause to
complain; and he did so to various chief's. At the start the
respondent tried to show that nothing of the sort happened but when
confronted with documents which show that in fact, and as the record
shows that indeed the applicant took upon himself to seek relief from
whatever authorities, then the respondent conceded that there does
seem that the applicant did take such steps although he didn't
thereby concede that he himself had closed the path. That's why the
court even asked him whether after Sootho had utilised the area which
was used as an island for cattle, the respondent's own field
increased to a certain measure. He denied that it did but I don't see
how such a denial could carry the day in view of the fact that the
applicant's witness indicated that it was only after Sootho had been
allotted the land and during the time when Sootho had been given the
adjacent land that a path remained - which was used by the applicant
to reach his own field - that the respondent narrowed the remaining
path to the extent that it amounted to total closure.

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thereof.
It would seem inescapable in this particular respect that the
respondent is not

telling
the Court the truth when he denies closing the path which had enabled
the applicant to gain access to his field without unnecessary
hindrance previously. Thus I reject his evidence in favour of the
applicant's case.

Now it
seems the applicant is no longer able to reach his field with his
scotch-cart as a result of the respondent's unlawful and selfish act.
But the law whose function is to protect every man's rights would
entitle him to have such access. A merit was made of the fact that
even if he is given that right of way then there will be further
obstruction ahead. It seems that the further obstruction ahead
consists of a field belonging to applicant's own family. I would
rather such bridge was crossed when it is come to. For the moment it
is of utmost importance that the grievance of the applicant be
redressed and in my judgment a path has to run through the field of
the respondent allowing the breadth of a cart because the applicant
has always been saying that his scotch cart is unable to move where
it used to be able to do so. So this state of affairs has to be
restored to enable his scotch cart to go through where it used to do.
It is not the Court's business to allocate land and do things of that
nature but where it is clear as it is now to me, that prior to a
certain date this way or path did exist, then it is only fair that
the user should not be denied its use at the whim of

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another
man.

I was
amazed when the respondent gaily said that the applicant in order to
reach his field has to ask permission from whoever including himself.
In my view that, if allowed, would be a very sad state of affairs
indeed. Every man has got to have free access to his property not on
sufferance or act of goodwill or charity by anybody, but as of right.
Otherwise what if the other party says he shouldn't have any access
to his field!! It means he has to starve with his children. That
cannot be allowed.

I am also
far from being in favour of the argument by Mr Mafantiri for the
respondent that because a trekpath can be a heavy burden on another's
property then the evidence adduced for the applicant cannot be relied
upon as having discharged the onus required. (Emphasis supplied). See
also Van Heerden vs Pretorius 1914 AD at 80 where the italicised
words were extracted.

My
attention cannot be distracted by a suggestion following on the above
italiced words that while an actus differs from a trekpath in that an
actus can only have a width of a few feet, a trekpath may well be 800
yards wide. There has been

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no
suggestion in the evidence given by the applicant and his witness nor
was it remotely hinted to the respondent and his witness during
cross-examination that the applicant sought any relief beyond what is
necessary for his scotch cart or his sledge to reach his own field
without destroying crops on respondent's own field and on the field
adjacent to the respondent's as had been always the case prior to
1993 when the closure took place by the respondent's own unlawful and
unwarranted act.

In my
judgment therefore the applicant has a right of way over the land
where the respondent, after Sootho had been granted the field
adjacent to his, came and ploughed it up. The respondent is ordered
by judgment of this Court to stop and desist from interfering with
the applicant's rights in that regard. That is the Judgment of this
Court, and the applicant is entitled to costs. I may indicate that I
refuse the application for half-day costs requested on behalf of the
respondent as a result of a request by applicant's Counsel to have
just half a day's postponement to enable her to prepare heads of
arguments for the convenience of this Court.

JUDGE

27th
September, 2000

For
Applicant: Mrs Kotelo

For
Respondent: Mr Mafantiri