HIGH COURT OF LESOTHO
CHIEF OF MAKHOAKHOA
by the Honourable Mr Justice WCM Maqutu on the 27th day of November,
matter applicant claims:
applicant be declared as the area chief of Makhunoane in the Butha
the Principal Chief of Makhoakhoa (first respondent) herein be
ordered to handover the keys and all property to the office of the
area chief of Makhunoane to applicant.
first respondent (the Principal Chief of Makhoakhoa) pay the costs
1 Facts on which application is based
The applicant (hereinafter referred to as) Boatile and the first
respondent (hereinafter called) Thaabe are brothers. They are both
the sons of the late Tumane Matela the Principal Chief of Makhoakhoa.
Thaabe as the eldest son has succeeded to the office of Principal
Chief of Makhoakhoa at Makhunoane.
Boatile claims that his father (the late Tumane Matela) "Sometime
on the 6th June 1972...in his lifetime made a decision that he is
shedding his responsibility as headchief of Makhunoane and that he is
passing the said responsibility of the area of Chief of Makhunoane to
me. The said decision was addressed to the District Administrator
dated 6-6-72 is annexed and marked "BLM1". This letter is
in Sesotho and is untranslated contrary to the rules of court.
Boatile says the Deputy District Administrative Secretary Mr Lethe
called a national gathering and presented applicant as the Chief of
Makhunoane in the presence of his father, the late Tumane Matela.
Boatile says he was accepted as Chief of Makhunoane, although his
father informed him and verily believed him that he is awaiting the
gazettement of Boatile, "and that he will in the meantime run
the office of the area of Makhunoane, as he did in 1978 and 1979 when
he died". When Thaabe took over after their father's death and
"became the principal chief of Makhunoane, since he was the
eldest son", he overlooked the decision of his father. When
Boatile protested, Thaabe told him that he would place his own minor
son at Makhunoane when he reached majority. Thaabe could not be
moved, even when Boatile went to Thaabe's attorney. Boatile appealed
to the Matela family which supported him, but Thaabe ignored them.
says Thaabe has no right to ignore a decision taken in 1972 and
implemented in 1977.
answer says decision about placing chiefs is governed by law not by
wishes of the holder of that office. Thaabe says he succeeded to the
office in 1977 as the first bom son. Thaabe denies that Boatile was
ever made chief of Makhunoane as he alleges. The Matela family could
never nominate Boatile Chief of Makhunoane while, he Thaabe was still
the incumbent. Nobody has a right to demand to be placed as chief in
his area, Boatile does not even qualify to be a successor as Chief of
2. Dispute of fact
Every allegation made by Boatile is disputed. Consequently this
matter is not a matter that should be brought by way of application.
It has no urgency at all since Thaabe became the substantive holder
of Chief of Makhunoane in 1977. It transpires that when this
happened, Chief Tumane was still alive because, he died in 1979
according to Boatile. Paragraph 7 of the founding affidavit of
Boatile is completely unintelligible, I do not understand how Chief
Tumane Matela could remain Chief of Makhunoane until he died in the
I am also
puzzled by the statement in paragraph 5 where it is claimed the late
Chief Tumane Matela "made a decision that he is shedding his
responsibility as the headchief of Makhunoane. "Headchief"
translated into Sesotho means "Morena Oa Sehloho".
Principal Chief is translated into Sesotho as "Morena oa
Sehloho". "Head" is translated into Sesotho as
"Hlooho". This "headchief" claim has increased
the dispute of fact in this application.
also significant that in 1972 when Chief Tumane gave Boatile the
chieftainship of Makhunoane, there is no allegation or even
suggestion that Thaabe the heir was there. No members of the Matela
family are alleged to have been there or (at least) informed of this
interference with Thaabe's inheritance. It is therefore clear that
not all customary procedures on chieftainship were followed.
puzzled that Thaabe succeeded to the position of Principal Chief of
Makhoakhoa in 1977, at the very time that Boatile claims to have been
made chief of Makhunoane. As if this is not enough Boatile at
paragraph 5 of his replying affidavit says:
"My father decided that I should be installed as Chief of
Makhunoane and he retained the position of chief of Makhoakhoa."
a man vacate office in 1977 and yet give part of that office to
someone else. Boatile does not say when exactly in 1977 he was made
chief of Makhunoane, and when in 1977 Thaabe succeeded his father. To
say that he Boatile was already chief of Makhunoane is vague. If
Boatile really was the chief of Makhunoane, what did he do when
Thaabe took everything? Where was Boatile all along — twenty
three years have passed? He should have known that this application
would be disputed among other reasons because of the delay of almost
a quarter of a century. Key witnesses should have died or at any
event their memories have become dim and substantially unreliable.
factor that puzzles me, and on which Boatile has chosen not to be
frank, is that of the state of mind of his father - Chief Tumane
Matela. Why was he relieved of the Principal Chieftainship,
before he died. Was he still of sound mind or had he become so infirm
in both body and mind that Thaabe had to be made chief in his place?
It would have helped, if Boatile the applicant had been more
communicative on this issue.
silence about the reasons for removing his father two years before
his death, and his inaction for over twenty-three years on this issue
makes me doubt his bona fides. His bare allegation that some Deputy
District Administrator of Butha Buthe (Mr Lethe) made him Chief of
Makhunoane is not helpful at all. By what right did Mr Lethe do this?
Where is this Lethe? Is he still alive? What has happened (all of a
sudden) that has made Boatile claim the right he had disregarded all
along? There are too many unanswered questions. Where a matter is
disputed, the court needs some reasons on which to base its decision
to exercise its discretion as to what the best way forward should be.
Boatile has not been helpful in this regard.
3 Definition of issues in chieftainship disputes
It is necessary in chieftainship disputes that issues be clearly
defined from the outset. If what is to be adjudicated upon is
succession, this has to be specified. Courts have jurisdiction to
adjudicate in matters of succession according to the common law,
customary law and the Chieftainship Act of 1968. In other aspects of
chieftainship the role of the courts is not always straight-forward.
the duty to protect chiefs whose rights are clear from invasion by
other chiefs and persons. But in doing so, the courts have to bear in
mind that chieftainship is an administrative institution. It is the
administration that creates the offices of chief to meet the
requirements of administration from time to time. This has been so
since the Native Administration Proclamation of 1938.
thought the Chieftainship Act of 1968 had changed the position, but
as will be shown later, it has not. Chieftainship was expected to be
governed by custom, but that did not materialise because the British
colonial government and the paramount chief did not follow custom,
they carried out their policy of strengthening the authority of the
Paramount Chief through placement and recognition of chiefs and
headmen. This created chaos and contradictions that have not been
resolved to this day. See Duncan Sotho Laws at pages 47-60. This was
inevitable because Principal Chiefs had a tendency to recommend their
relatives to be placed over other chiefs and headmen and the
Paramount Chief and the High Commissioner accepted those relatives
and proclaimed them chiefs.
chieftainship are for the aforegoing reasons no free from
difficulties and contradictions. It becomes necessary to specify
exactly what is in issue so that it can be clear whether a
justiciable issue or an administrative matter is involved. As Schutz
v Peete 1981(2) LLR 559 at 568 said about the need of clarity in
"It is no good to say, as was argued, that he knows. He is
entitled to be told by plaintiff what she complains of, before he
puts his case."
problem of vagueness and generalisation in allegations has caused
this court's time to be wasted unnecessarily. In above-mentioned case
of Ramakoro v Peete because of failure to clarify issues the court
heard full evidence and four years later found that it had no
jurisdiction in the matter, see Peete v Ramakoro C of A (CIV) No.24
of 1986 (unreported). It was a case of placing of chiefs over the
rights of others like this one that is before me.
case I am not sure whether I am dealing with a case of succession or
creation of a new office of chief with the accompanying problem of
boundaries. The latter is an administrative matter. Where there is
lack of clarity, courts should be reluctant to dimly perceive a cause
of action where it is not perceivable - lest they be taken on a wild
goose chase and only to find after several years that there never was
a cause of action. An issue for the court's determination requires
definition at the beginning of court proceedings.
4. Whether courts can make orders on appointment of chief?
In the case of Slowley Molapo v Mateketsi Teketsi 1971-73 LLR 235 the
vexed question of the power of courts in the creation of offices of
chief and the appointment of chiefs came before this court. Tied to
this was the issue of appointment of persons to hold offices of
chief. Jacobs CJ at page 237A said:
"It seems to me that what plaintiff in this case is trying to do
is exactly what plaintiff in the case of Molapo v Molapo 1926-53
HCTLR 210 tried to do, namely ask the court to declare that he, the
plaintiff has chieftainship rights over a portion of an area (the
area of Kuenaneng) of which the defendant has already been proclaimed
chief, a contention which was rejected by the court in that case."
That seems to be what Boatile the applicant is asking this court to
do in respect of Makhunoane - where Thaabe as Principal Chief was
proclaimed in 1977 twenty three years ago. It is also clear that
Boatile like Slowley Molapo, has never been in the "existing
lists of holders of offices of chiefs and headmen" see Slowley
Molapo v Mateketsi Teketsi at page 238A and Jacobs CJ at page 239B
dealing with a similar delay said "But more than 20 years have
elapsed since the decision in Molapo's case (supra) and plaintiff and
his predecessors have had more than sufficient time to approach the
proper authorities for recognition as a separate office of chief for
the area which plaintiff claims".
I do not
find it mentioned anywhere that Boatile ever approached the
authorities in the last 23 years. I am therefore puzzled by his
are only empowered to intervene where succession to chieftainship is
involved. In administrative matters such as delineation of
boundaries, creation of new offices of chief they cannot interfere.
As Isaacs AJ said in Tefo Tope v Minister of Interior & Others
1978 LLR 222 at page 224:
"It is the King, who is to act on the advice of the Minister,
who defines boundaries. This is entirely on administrative power and
the court will not interfere with an administrative act except on
very limited grounds."
chieftainship of Makhunoane is to be carved out of the existing
Principal Chieftainship, therefore it has to have a proper boundary
deliniation to distinguish it from the existing Principal
Chieftainship's area of jurisdiction.
creation of a new chieftainship of Makhunoane which is distinct from
the Principal Chieftainship of Makhoakhoa is a purely administrative
act; so is the appointment of a new chief of Makhunoane who shall be
added to the list of chiefs and headmen. In the case of Leloko
Jonathan v Lechesa Mathealira Jonathan 1977
Leloko Jonathan was claiming the headmanship of Tsikoane. He had been
placed by the late Jonathan Mathealira, the father of Lechesa the
Ward Chief of Tsikoane, he had served as headman of Tsikoane for
twenty years and was even paid a headman's stipend by the Government
of Lesotho. When Lechesa succeeded his father as Ward Chief of
Tsikoane, he dismissed Leloko from headmanship. This court dismissed
his claim because he was ungazetted and his office of chieftainship
was not recognised nor had it boundaries been deleniated from the
Ward Chieftainship of Tsikoane.
Motsarapane v Motsarapane 1979 LLR 112 Mooki had been placed by the
Chief of Hleoheng over the area of Hleoheng. Cotran CJ said such a
placing has no legal validity. At pages 117 and 118 Cotran CJ
"Since the Chieftainship Act 1968 'platings' in the old
customary sense are dead and buried."
has made a very skeletal case about his placing. In affidavit
proceedings more has to be said because affidavits constitute both
the pleadings and the evidence. See Saunders Valve Co. Ltd. v
lnsamcor (Pty) Ltd 1985(1) SA 144 at 149. Boatile (in this case) does
not even claim (like Leloko Jonathan who had been placed and acted as
headman for 20 years) that he received a stipend from Government. We
only have his word that he was ever placed as chief of
by the Deputy District Secretary, Butha Buthe. Even if he had been,
Thaabe could remove him from that position in the same way that
Lechesa Mathealira removed Leloko Jonathan, notwithstanding the fact
that Leloko Jonathan had been headman for twenty years and received a
Government stipend. Boatile has produced no evidence to prove that
even in 1977 he ever operated as Chief of Makhunoane for a portion of
that year, because that is the year Thaabe took over from their
father as Principal Chief at Makhunoane.
I have said above, it should be abundantly clear that applicant
Boatile has not provided the court with any evidence, even if he had,
he has formidable legal obstacles to overcome. The fact that he
waited twenty-three years before bringing these proceedings while
Thaabe was in possession of a right he claims, does not help his
case. He must have been aware that he had no enforceable right to the
words, Boatile had no title to sue for the chieftainship of
Makhunoane, because there is no separate office of Chief of
Makhunoane nor has he been recognised as chief of Makhunoane by the
King (acting on the advice of the Minister) and proclaimed as such in
a Government Gazette for general information.
5. Order of court
For the above-mentioned reasons, I have no choice but dismiss this
application with costs.
applicant : Mr Putsoane
respondent : Mr T Hlaoli
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