CIV/T/53/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEMPE TAU
Plaintiff

and

SETSOMI
JONATHAN TAU 1st Respondent

KHETHISA
JONATHAN TAU 2nd Respondent

MINISTRY
OF INTERIOR AND

CHIEFTAINSHIP
AFFAIRS 3rd Respondent

ATTORNEY
GENERAL 4th Respondent

For the
Plaintiff : Mr. Matooane

For the
Respondents : Mr. Nteso

Judgment

Delivered
by the Honourable Mr. Justice T. Monapathi on the 22nd day of July
2002.

Because
there is confusion in this case I have treated it in a special way. I
have made a point that these litigants will hear and understand what
is happening. This I did by asking Counsel to deal more elaborately
with the long history of the case. It is because it speaks for itself
that these litigants have come to this Court so many times and I have
seen them so many times about this case. The case does not seem to
end.

2

Sometime
ago there was a default judgment in favour of the deceased old man
Tau (Applicant's father) who was Plaintiff in this case. And there
was even evidence which was led by Mr. Phoofolo. It was not the
present Counsel. I made order in favour of the Plaintiff of that day.
That order was later rescinded I suppose it was by agreement between
Counsel.

The case
was later enrolled for hearing and there was argument before me on
points of law. Judgment was reserved afterwards. There was plenty of
submissions and all along involving a matter that this Court takes
seriously. It was a matter about dispute of an area of chieftainship,
which has been serious all along.

It was
serious if a chieftainship is disputed in this country because it
affects ordinary people who get confused as Mr. Nteso has said to me.
If there is that confusion which results there will be disorder. More
often than not there will be bloodshed. And this is the kind of
situation that this Court will not view with any kind of happiness as
the Court is duty bound to bring a stop to situations like that once
its attention is brought by way of cases brought before it.

3

At one
stage in the past, which is important in these proceedings, this case
was withdrawn by the late plaintiff. Here is the application before
me today filed by the son of the late plaintiff, now Applicant. He is
asking for the three prayers which are as follows:

1. That
   the case which was withdrawn must be reinstated.

   
   

2. That
   the Applicant be substituted as Plaintiff in the trial case.

   
   

3. That
   the Respondents pay the cost of this application if they oppose this
   application.

   
   

The
present application is an instance of a case that this Court cannot
only have discretion to deal with. By saying that I have got a
discretion is putting it at a high level. The reality is that there
are technical objections made by Mr. Matooane that I have got to
contend with. Strictly technical objections they are.

Firstly,
once the case was withdrawn it was thereby removed from the register
of the High Court. The application becomes untenable for that reason.
It is very different if a case has been struck off or removed from
the roll. It is because as far as I am concerned this case died the
time it was withdrawn. The situation is compounded by its owner
having died afterwards. Furthermore somebody else, not the owner now
seeks to reinstate the case in the register and

4

be
substituted as plaintiff. It would make sense if it is said the case
was to be reinstated in the roll. This would be so if the case had
not been removed from the register by withdrawal. I respectfully
agreed

The basis
of the present claim is that Applicant is heir of the deceased former
Plaintiff. If the case has been dismissed, as the other side argued,
why is it difficult for Applicant to institute his own case because
he is an heir of his father's rights. But he cannot be an heir over a
virtually dead case. Applicant remains an heir over his father's
rights but not over the case that does not exist.

Secondly,
Applicant wants to be substituted a Plaintiff. Why would he be
substituted because if he were to be substituted there is no cause
for whom he would be substituted when that case does in reality not
exist. I thought Respondent's submission was valid.

I was
tempted to debate this question of the error that Mr. Nteso speaks
about. He said someone who was sent by the deceased plaintiff to
represent him before his lawyer erroneously expressed intention to
have the matter withdrawn while judgment was reserved. Even if as a
factual matter was not being opposed because no answering affidavit
was filed, it remained inherently improbable and difficult to imagine
that a person could go to an extent of withdrawing a case

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when his
instructions was just to speak to a lawyer to convey that the
Plaintiff was unwell. I noted that it was after judgment was reserved
when the withdrawal was made. How could he go to that extent of
saying the case must be withdrawn? It must have been with the
understanding of this vital distinction between withdrawal from the
roll of a claim as against withdrawal of a claim from the register.
The latter situation meaning also that no indulgence is sought by the
plaintiff from the Court for doing so. See Levy v Levy 1991(3) 614.

My
inclination was that this for Plaintiff's representative must have
been influenced by the technicality that the other side took. The
technicality was that this High Court had no right to hear the case
because it had no jurisdiction. Former Plaintiff must have been
influenced by that point and then he felt that he might as well
withdraw the case because it was still going to be filed in another
Court that had jurisdiction. That is what must have influenced him.
That is he probably believed that the technical point was valid that
a subordinate court had jurisdiction. This was a sound reason. Not
that the deceased's representative was on a frolic of his own. In any
even, in my opinion, this has become a moot point.

I was not
pleased in my feeling that this poor Applicant must have been

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misadvised because the best thing he should have done was to
institute his own case in this High Court or in a subordinate court.
If he says he is an heir of his own father's rights he ought not to
be fighting over this case that is not in the register.

It was
for these reasons that I thought it wise to give an instant ruling.
That is to say that the application is dismissed with costs.

T.
Monapathi

Judge