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CIV/APN/466/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAKUENA
SEKHONYANA APPLICANT

and

MOHANOE
LENKOANE 1st RESPONDENT

PRINCIPAL
CHIEF OF BEREA 2nd RESPONDENT

MINISTER
OF LOCAL GOVERNMENT 3rd RESPONDENT

ATTORNEY
GENERAL 4th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mrs Acting Justice A.M. Hlajoane on the 12th
August, 2002

In this
application which was moved on urgent basis, the papers were duly
filed in terms of the Rules of Court and the matter eventually set
for hearing. On the date of hearing parties filed their heads of
arguments which they submitted were sufficient for the court to make
a determination on the matter.

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The facts
of this case are that the Applicant 'Makuena Sekhonyana is the widow
of the late Matjotjo Sekhonyana who passed away in 1939. Applicant
alleges that the deceased was the customary headman of a place called
Pitsaneng Ha Sekhonyana in the Berea district, though first
Respondent also alleges to be the headman of the same area. What is
common cause is the fact that Applicant is a widow of the late
Matjotjo Sekhonyana who passed away in 1939. Also that in succession
the 1st Respondent's family is junior to that of the Applicant and
that the 1st Respondent is the next one to succeed to the headmanship
of Ha Sekhonyana as Applicant has no male issue.

It has
also been common cause that when Applicant's husband died in 1939,
Applicant became the headman of Ha Sekhonyana, acting for Jobo. Jobo
was Applicant's brother's son who was always away in the Republic of
South Africa and only came back home in 1964. I must mention here
that Applicant and 1st Respondent differ when it comes to the year of
Applicant's husband's death. Applicant says it was in 1989 when 1st
Respondent on the other side says it was in 1991.

It is the
Applicant's case that after Jobo's death the Sekhonyana family met
and entrusted her with the Ha Sekhonyana administration, and that she
only used 1st Respondent as her right hand man. In her own words she
says " I used 1st Respondent as my right hand man whom I was
training in the process."

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Applicant
goes further and shows that around 1997 government introduced at her
area the payment of chiefs' monthly stipends and she instructed 1st
Respondent to ensure writing a letter to the 2nd Respondent (through
the area chief) for onward transmission to the District Secretary,
T.Y., and then to 3rd Respondent introducing her name as the future
payee. She says, instead, 1st Respondent replaced her name with his
and on realizing that, Applicant started administering personally
though 1st Respondent was resisting the move. She says she was only
successful in January 1999 when she started receiving the monthly
stipend until September 1999.

First
Respondent on the other hand shows that since his grandfather Jobo
could no longer administer Ha Sekhonyana due to ill health he allowed
him to take over in 1989 and has been there to date. He goes further
to show that from 1989 he has never been removed from office or
suspended by anybody. 1st Respondent denies any knowledge of the
letter styled 'MSF' which introduced Applicant as the successor to
the headmanship after Jobo. In his affidavit 1st Respondent says "I
deny categorically that the Applicant was ever entrusted with the
administration of Ha Sekhonyana." He criticizes the anthenticity
of the letter 'MSI'.

1st
Respondent goes further and states that Applicant only managed to
steal his stipend for the months of September and October 1999
because of the decision which appears in an annexure styled 'MS2' to
the founding papers. I will briefly explain what 'MS2' was all about.
It is a decision by the Principal Chief of Berea dated 14th June
1999, in which 1st Respondent was Applicant and the present Applicant
was the Respondent. The issue for determination was still the
headmanship of Ha Sekhonyana. I may mention

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here that
the decision before the Principal Chief was in favour of the present
Applicant.

Attached
again to the founding affidavit is annexure 'MS3' This annexure is
yet another decision which was made by the same Principal Chief of
Berea on the same issue, between the same parties. The decision is
dated 27th September 1999, but this time found for the 1st Respondent
in this case, who incidentally was the one complaining before the
Chief as in the previous decision. It is Applicant's prayer at
paragraph 14 of her founding papers, that she is asking the Court to
review annexure 'MS3' as she concedes was the basis for withholding
her stipend.

As can be
learned from the submissions by the Applicant, the main issue for
determination is not so much who the customary headmanship of
Pitsaneng Ha Sekhonyana is, but, is seeking a pronouncement on
whether or not her monthly stipend had been lawfully withheld on the
basis of annexure 'MS3' In the case of Nqojane v NUL 1985-89 LAC 369,
the court made a pronouncement of an invalidity of a decision on the
ground that the enabling statute was ultra vires because it makes the
Respondent's council a judge in its own cause by providing that an
Appeal against the Council's decision must be made to council, thus
breaching the rules of natural justice. In the same vein, the
Principal Chief of Berea made a decision, 'MS2' in which she declared
the Applicant to be the headman of Pitsaneng and three, four months
later as appears to be on appeal, reversed her own decision and found
for the Respondent. Both Annexures 'MS2' and 'MS3' have the same
ending, thus done by me........Principal Chief of 'Mamathe.

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I have
not been told on what piece of legislation the Principal Chief relied
on in making her two decisions, but on the basis of what I have shown
above, without necessarily reviewing the decision of an
administrative body on succession, find that there has been a breach
of rules of natural justice which therefore means that the decision
in 'MS3' is null and void. On that point alone, the Application
succeeds with costs.

A.M.
HLAJOANE

ACTING
JUDGE

For
Applicant : Mr Fosa

For
Respondents : Mr Nteso