HIGH COURT OF LESOTHO
matter between :
SELEBELI TEFONYANE APPLICANT
BATHO BATHO & 3 OTHERS RESPONDENTS
by the Honourable Mrs Justice Guni on the 9th day of August 2001.
applicant herein is Chief SELEBELI TEFONYANE. He is the chief of
NOKONG. The office of the chief of NOKONG is directly responsible
under KUENENG and MAPOTENG. -[SEE ANNEXTURE "ST1"
GOVERNMENT NOTICE NO 26 OF 1964]
applicant inherited the title or right to succeed to the office of
the chief of Nokong from his father chief SELLO who also succeeded
his own father chief TEFONYANE. The applicant was confirmed as the
successor to the office of the chief of NOKONG before the Principal
Chief of the area in 1962. The applicant was a miner in the Republic
of South Africa. After his succession to the office of the Chief of
NOKONG, he acted in that office through his uncles while he was away
in the Republic of South Africa. Although he is now present in
LESOTHO, due to his ill health, his wife is the acting chieftainess
in that office of the chief of NOKONG. He does not specify the exact
period during which he personally occupied that office of the chief
of NOKONG. It is not clear if at all he is familiar with the
functions and status of his office.
that he has been treated as and paid for his services as the headman
under the chief of NTSIRELE. His observations, which he made when he
perused the official document which has the list of chiefs and their
offices, are that his office of the chief of NOKONG is of equal
status as that of the chief of NTSIRELE.(REFER TO ANNEXTURE "ST
discovery that the applicant's office of the chief of Nokong is of
equal status as that of the chief of Ntsirele, was made by the acting
chieftainess 'M'ANTSEKE TEFONYANE. [See Annexture 'TM1' and her
supporting affidavit]. The publication for general information, of
the names of headman and chiefs of Berea and their areas of
Jurisdiction, was made on 11th February 1964. In this Government
Notice, although the name of the office of the chief of NOKONG
appears, the name of the chief has bee omitted.
be because of this omission of the name of the chief who occupied the
office of the chief of NOKONG, which caused the applicant to continue
labouring under the false impression that his office is that of a
headman under the chief of NTS'IRELE. Certainly, those who oppose
this application rely on this omission. There is no evidence that
show this court that this applicant is in fact a headman and not a
chief. The respondents apart from relying on their ignorance as to
the facts stated by this applicant have produced no evidence to
contradict this applicant's assertions regarding his position as the
chief of NOKONG.
of the two respondents who oppose this application(i.e. 1st
respondent and 2nd respondent) seems to be an attempt to take
advantage of the omission of the publication of the name of the
applicant in that Government Notice. It is their argument that the
office of the chief of NOKONG is vacant.
of the occupier of the said office has not been published. In 1964
when the said list of names of headmen and chiefs of BEREA and their
areas of Jurisdiction was published, the applicant herein was already
the successor in title and the holder of the position of the chief of
NOKONG. Although he may have been acting through one of his uncles,
the office of the chief of NOKONG was in fact occupied by him. There
was no vacancy which the Area Chief, the Principal Chief of Kueneng
and Mapoteng - 2nd respondent herein or the Chief of NTS'IRELE - the
1st respondent herein, could fill in whichever way she or he pleases.
why the applicant's name, despite the inclusion in the said
publication of his area of jurisdiction and his office, came to be
omitted, is a mystery. There seems to be a general view that the
omission to publish the
the chief of the area while the area was mentioned as distinct and
independent chieftainship, was a mistake. The error of omission was
made in advertently. There is no one who has expressed any view to
the contrary. More particularly, when the averments by the applicant
that he was in fact, the occupant of that position since 1962 when he
succeeded his late father chief Sello Tefonyane.
error of the omission of the name of the applicant was discovered,
efforts were made administratively to try to rectify it. The
cooperation of the Principal Chief of the area was needed for the
rectification to be effected. It appears the Principal Chief, who is
the 2nd respondent herein, was uncooperative. In terms of the law,
the Principal Chief is required to forward the name of the successor
to the office of the chief for the publication for general
information. She has given no good explanation for her failure to
forward the applicant's name for the publication. Her failure to
comply or reply to the letter written to her by the District
Secretary forced this applicant to approach this court to intervene.
The applicant is seeking the order in the following terms:-
the first respondent to stop forthwith from administering the area
of Nokong and treating Applicant as his headman
the second respondent to forward Applicant's name to the third
respondent for necessary publication in the gazette as the Chief of
the third respondent to regularise Applicant's emoluments with
arrears from date of assumption of office to date of regularisation.
the respondents to pay costs of this application.
Applicant any further and/or alternative relief
Applicant has sued the four respondents to perform their legal duties
in accordance with the legal requirements, in his case. All the four
respondents have the specific functions to perform under the
direction or the supervision of the Department of Home Affairs.
Normally in cases of this nature the Department of Home Affairs,
through the office of the Attorney General, represents the parties in
litigation, particularly the department of the Chieftainship Affairs.
The Department of Chieftainship Affairs is the interested party in
this matter or it should be such interested party as the office that
administer the legislation that governs the Chieftainship Affairs.
Strangely enough the Department of Chieftainship Affairs and the
Attorney General have not filed any opposing papers. It therefore
follows that they have no interest which might be adversely affected
by the decision of this court granting or
not many issues in this matter. It is in the common cause that there
are two Chief Offices which seems to merge contrary to the law
governing such offices. 1st respondent is chief Batho-Batho Chief of
Ntsirele. The chiefs office which is separate and different from that
of the Chief of Nokong. [See Annexture ST 1 - Lesotho Government
Notice of 11th February 1964.]
Respondent does not claim to be entitled to hold the position of the
Chief of Nokong. He does not say when and how he became the Chief of
Nokong. 1st and 2nd respondents appear to be pleading ignorance as
their defence to the claims made against them by the applicant. They
do not know that the applicant is the chief of Nokong. They also do
not suggest who the chief of Nokong is. They have therefore, in their
ignorance, no leg to stand on, in order to support their denial that
the applicant is not the chief of Nokong. The law, with regard, to
who is the "Chief was succinctly interpreted by MAHOMED JA, as
he then was, in the case of LEHLOLA MOFOKA v. LINEO LIHANELA, C of A
(CIV) no 6 of 1988.
"A person who is a "Chief" as defined in section 2(1)
of Chieftainship (Amendment) Act, 1984, does not cease to be a chief
merely because his name has not been gazetted. This is evident from
section 14(3) and there is nothing in the definition of a "Chief"
in section 2(1) which makes publication in the gazette a legal
requirement for the status of the Chief." (My underlining)
the above quotation, shows that the status of a chief is a question
of fact which must be established with evidence. The publication of
the office and the name of the Chief is purely for general
information. It does not under any circumstances create a chief.
JONATHANE v. MATHEALIRA.
omission of the applicant's name in that Notice which gives the
respondents the impression that the said chiefs office is vacant, has
but been just a handicap to the applicant for proper renumeration if
the chiefs are paid more that headmen as the applicant had been paid
as the headman. The respondent seemed to have been engaged in making
surreptitious moves with the purpose of carving a portion or taking
over the whole area of jurisdiction of the chief of Nokong - (See
Annexture "BB1", "BB2" issued out under the hand
2nd respondent for the benefit of the 1st respondent.) These moves
are being resisted by the applicant herein. The Chieftainship Act
provides for proper, lawful and open succession to the office of the
Chief. There is no provision for surreptitious take over. The
respondent cannot as they please merge or take over any portion of
any Chieftainship area which is under the jurisdiction of another
chief. MIKHANE MAQETOANE and MINISTER OF INTERIOR and three others C
of A (CIV) No 3 of 1984. In Maqetoane's case the restructuring of the
ward, its hieracy and areas caused the error of leaving out both the
area and the name of Chief Maqetoane. The omission of the name and
area of chief Maqetoane may have been deliberate or inadvertent.
There was controversy as to the reasons for the omission. Even
assuming, without accepting, that the omission was deliberate, in
terms of the law, the party whose name has been omitted was entitled
to be informed and to make representations to resist the intended
removal of his or her name. The applicant was not informed of the
removal of his name in Maqetoane's case. That failure to inform him
entitled him to the restoration of the name of his office and the
area of his jurisdiction. In our present case the name of the area of
Nokong has been published. That fact, of the inclusion of the name of
the area of his
of NOKONG, as a distinct and independent chieftainship from that of
NTSIRELE, supports the general view that the omission was an error.
The area of NTSIRELE and the name of the chief of the area are
included in the Notice as separate and different. There are no
boundary disputes. Clearly the 1st respondent must be the successor
to the office of the chief of NTSIRELE because the occupant of the
office of the chief at the time of the publication [Notice No 26 of
1964] was MAHLOMOLA PEETE, no the 2nd respondent.
respondents have not raised a question of delay. In his head of
argument, the late advocate Mafantiri(Bless his soul), who
represented this applicant felt it appropriate to deal with that
question even though the respondent do not feel that any of them
would be prejudiced on that ground in anyway by the granting of this
grounds upon which the court can excuse delay are numerous.
WOLGROLERS AFSLAERS(EDMS)BPK v. MUNISIPALITEIT VAN KAAPSTAD 1978 (1)
SA 13. The ground of greater significance, is whether there is a
party who will be prejudiced by the granting of the application as it
MAQETOANE v. MINISTER OF INTERIOR(SUPRA). There is no evidence that
anyone is going to suffer actual or potential prejudice by the
granting of this application.
that the applicant was at all material time the occupier of that
office of Chief of Nokong but was treated and paid as a headman was a
prejudice he suffered all along. The granting of the application will
rectify the position. The respondent are not losing anything either.
The 2nd respondent's procrastinations to forward the applicant's name
for gazettement was not benefiting her in any way.
since the applicant acted through his uncles and now through his wife
his absence may have also contributed to the delay to discover the
reasons the application must succeed. It is granted with costs.
APPLICANT - MR MAFANTIRI
RESPONDENTS - MR MONYAKO
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
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Commonwealth Countries' Law
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