CIV/A/12/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

KOKIKA
MATSUMUNYANE Appellant

v

MOFAKACHE
KLAAS Respondent

JUDGMENT

Delivered
by the Hon Mr. Justice J.L Kheola on the 15th day of July, 1985

This
appeal is against the judgment of the Judicial Commi­ssioner's
Court which confirmed the judgment of Salang Central Court.The

dispute concerns a field situated at a place called Patuoe The
present appellant was the defendant and the present respondent was

the plaintiff at Phahameng Local Court where this case started. The
plaintiff lost in the court of first instance but that decision
was
reversed by the central court.

It is
common cause that Chief Matlere Lerotoli is the pro­claimed chief
of Mctsitsong in the Mokhotlong district Subordi­nate
to him is
headman Matjoa Tsita as the proclaimed headman of Sekoka For some
time the area of Molikaliko/Patuoe was supposed to
be under the
direct administration of Chief Matlere Lerotholi. Ho and his
predecessor in title freely allocated fields to their
subjects in
that area and the appellant is one of the people who were allocated
fields in that area by Chief Matlere. This led
to a dispute between
Chief Matlere and Headman Matjoa who claimed that Molikaliko area
fell within his administrative jurisdiction.
The case was finally
decided by this Court in favour of Headman Matjoa Tsita on the 27th
August, 1976 in Tsita v. Lerotholi 1976
L L.R 161 At page 167
Mofokeng J. said

"The respondent in his cross-examination brought out the fact
that in the disputed area were fields which were allocated by

himself, to his own subjects,

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as well as by his predecessor in title. This, as Mr. Sello rightly
pointed out was never disputed by the appellant It is therefore
quite
correct that the Judicial Commissioner found that there was
inter-ploughing in this area.

From the perusal of the record, it is clear to this court that the
appellant was not challenging the rights of the people who wore

allocated fields in this disputed area, for if that was so, he would
have joined them in this action. All the appellant is saying
is
simply that because the fields are in his area, they are under him
and therefore he has the right to administer them This is
the
accepted practice of interploughing."

Although
it was accepted that there was interploughing between Chief Matlere
and Headman Matjoa, it appears that immediately after
judgment had
been given in his favour the latter decided to deprive the subjects
of the former of the fields that had been allocated
to them in the
disputed area. On the 15th September, 1976 he wrote a letter to the
appellant giving him notice that he and his
Development Committee had
decided to terminate his rights in two fields situated at Patuoe and
Molikaliko, and that if he had any
objection he must appear before
him and the Development Committee on the 26th October, 1976 in order
to make any submissions or
representations he may have against the
decision. Headman Matjoa was acting under the provisions of section
13 of the Land Act
No 20 of 1973 The grounds upon which the rights
were to be terminated were

1. "In
   terms of Land Act of 1973 section 21 these crop-lands were never
   customarily and lawfully allocated to you in accordance
   with 1973
   Land Act sections 2 and 17 (1) as these lands were allocated to you
   by the chief who had no right to exercise his allocation
   powers in
   this area which was not his

   
   

2. Your
   allocation is contrary to the Land Act of 1973 section 12 (7),

   
   

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3. From
   1922 when this area was granted that the period on which you were
   entitled to exercise the right of land allocation commenced
   here in
   terms of the Laws of Lerotholi section 7(1) and this was confirmed
   by the High Court judgment CIV/A/17/72 of 27/3/76
   "This was the
   accepted practice of interploughing" the right of the people as
   to the use of land is governed by law"

   
   

On the
19th September, 1976 Headman Matjoa received a letter from the
appellant in which he stated that the two fields were allocated
to
him by the Chief of Motsitseng and that he was the only one who could
terminate his rights to use them

On the
28th October,1976 Headman Matjoa Wrote t6 the appellant and informed
him that after consultation with the Development Committee
of Sekoka
he had decided to terminate his rights in the two fields with effect
from the 28th October, 1976 On the 30th November,
1976 Headman Matjoa
allocated the field situated at Patuoe to the present respondent on
the understanding that the rights of the
appellant in the land had
been lawfully terminated For the next two years the field was used by
the respondent and the appellant
did not appeal to the senior chief
in accordance with the provisions of section 14 of the Land Act 1973.
After two years the appellant
repossessed the field and this led the
institution of civil proceedings by the respondent at Phahameng Local

Court.

The Court
President of Phahameng Local Court dismissed the claim on the grounds
that the allocation of the field to the respondent
was invalid
because the appellant had neither emigrated nor died. The Central
Court President and the learned Judicial Commissioner
criti­cised
the judgment of the Local Court President on the ground that he
merely found for the respondent as a result of
an explanation
contained in a certain savingram dated the 1st September, 1981 (Ex F)
which came from the Minister of Interior and
addressed to the Local
Administrative Officer, Mokhotlong and on the ground that Headman

4

Matjoa
was supposed to have passed the letters of revocation to appellant
through his (appellant's) chief. It seems to me that this
is not a
fair criticism because the Local Court President formed his own
opinion which happened to coincide with the decisions
of the Minister
of Interior as well as the judgments of the Central Court, the
Judicial Commissioner's Court and the High Court
(see page 20 of the
record).

I agree
with the learned Judicial Commissioner that the Local Court President
was wrong to hold that Headman Matjoa had no right
to write direct
letters to the appellant. Section 13 (3) (a) of the Land Act 1973
makes it quite clear that the notice must be
served upon the person
affected by it personally It would not be proper service if the
notice were given to the chief to pass it
to his subject I think what
the Local Court President had in mind was that the normal procedure
when a headman wants to deal with
the subjects of his chief he must
go to the chief who will either give him his messenger to accompany
him to the homes of the people
he wants to serve or call such people
to come to "khotla" where they will be served before their
chief. It was most unusual
for Headman Matjoa's messengers to enter
into the village of another chief and serve the chief's subjects with
notices to appear
before the head­man without calling at the
chief Ever policemen and court messengers who serve court process
usually report
themselves at the chief's place. This practice makes
it easy for these officers to prove service. Be that as it may 1
agree with
the findings of the courts a quo that the appellant
received the notice and that in reply to that he wrote a letter (Ex
C) in which
he told the headman that he was allocated the fields by
chief and that he would ignore the revocation

The
judgments of the CEntral Court and the Judicial Commissioner's Court
did not deal with the reasonableness of the grounds upon
which the
revocation was based. They were of the opinion that because

5

Headman
Matjoa followed the procedure prescribed in section 13 of the Land
Act of 1973 and because the appellant had failed to appear
in person
to make his submissions and representations, the revocation of the
appellant's rights in the land was lawful and could
not be challenged
on any grounds. Miss Ramafole, counsel for the respondent, submitted
that revocation and derogation from a grant
is possible where the
procedure prescribed in section 13 is followed (Makhetha v Rex 1 974
- 1975 L L.R 431 at p 434, Tite Qhoqha
v Mahlomola Fokothi 1971 -
1973 L L.R. 274). I agree with this submission but I am not so sure
that the reasonableness of the grounds
upon which the revocation is
based cannot be questioned where the procedure has been properly
followed. It seems to me that in
terms of section 18 (3) (g) of thy
Land Act 1973 the Court may quash the decision if it comes to the
conclusion that the decision
was given in bad faith that is to say
with the intent to defeat or evade or other­wise to avoid giving
effect to any provision
of any law Interploughing is protected by
section 17 of the Land Act 1973 and as I have already pointed out
earlier in this judgment,
it was accepted by both parties in Tsita v
Lerotholi, supra, that there was interploughing and that Headman
Matjoa did not challenge
the rights of the people who were allocated
field in the disputed area. The main ground upon which headman Matjoa
based his decision
to terminate appellant's rights was that the land
had been allocated to him by a chief who had no right to allocate
land in that
area One of the appellant's wit­nesses, Lesitse
Matsumunyane, gave evidence to the effect that at the time the
allocation was
made chief of that area was suspended and that Chief
Matlere Lerotholi directly ruled that area. It was not denied that
headman
Matjoa was ever suspended, all what was said was that he
complained and was reinstated. I am of the opinion that all the
allocations
made by Chief Matlere in that area during the suspension
of headman Matjoa are valid

6

It is
also common cause that when the father of headman Matjoa died it took
the Administration almost two years before headman Matjoa
was
proclaimed headman of Sekoka area, during that period headman Matjoa
acted as a bugle to Chief Matlere (Tsita v. Lerotholi,
supra, at page
155) All these instances show that at one time or another Chief
Matlere had direct control over the Molikaliko area
and as such had
the right to allocate land in that area. The ground upon which
headman Matjoa based his revocation was totally
invalid It is also
clear that his sole purpose and Intent was to defeat or evade or
otherwise to avoid giving effect to section
17 of the Land Act of
1973 which protects the practice of inter-ploughing. In Tsita's case
(supra) it was pointed out that the
rights of the people who have
lands in the disputed area is governed by law and this means that
their rights of interploughing
under section 1 7 of the Act are
protected.

There is
no doubt that headman Matjoa has the right to administer all the
fields in the Mohkaliko/Patuoe area but in doing so he
is bound to
apply the law and must show good faith. I am convinced that
immediately after winning the case headman Matjoa decided
that he was
going to give the subjects of Chief Matlere who have fields in the
disputed area a lesson (see pages 15-16 of the record).
This was a
clear sign of bad faith, if he had wanted those people to transfer
their allegiance to him he would have invited them
to do so, but if
they refused to do so he would still not have the right to deprive
them of their fields (section 15 (2) of the
Land Act). The right to
administer the fields in the disputed area meant that when Chief
Matlere's subjects who owned fields in
the disputed area removed or
died it would be headman Matjoa who would have the right to
re­allocate the fields that have become
vacant I must immediately
add that revocation or derogation was still possible if valid grounds
existed because even where there
is no interploughing a chief

7

has the
right to terminate the rights of his own subjects if there are valid
grounds I have come to the conclusion that in the present
case there
were no valid grounds except that the chief of the respondent wrongly
interpreted the decision of this court in Tsita
s case

Mr Pheko.
for the appellant, argued that section 13 (4) of the Land Act 1973
did not make it mandatory that the person notified
"must appear
in person". He submitted that the appellant had made his
submissions in writing and that was sufficient.
I think there is
substance in this submission because the words used in the subsection
are that a person notified "shall be
entitled to appear"
and make any submissions or representations It seems to me that the
word shall refers to the entitlement
only. Be that as it may the
headman received the submissions in the letter and ought to have
considered them One of the grounds
for termi­nation of the right
was that he declined to appear before the Devlopment Committee of
Sekoka on the 26th October,
1976 (see page 14 of the record). This
ground was also invalid because the head­man had the submissions
in writing and had
to consider them.

It was
argued on behalf of the respondent that the appellant failed to
comply with the provisions of section 14 which require that
a person
who is aggrieved by the decision of the chief must within thirty days
after the decision has been communicated to him
note an appeal and
lodge it with the chief who made the decision. This section must be
read with subsection (3) (g) of section
18. It has also been argued
that the appellant took the law into his own hands when he
repossessed the field. This is true but
a distinction must be made
between a field and other objects which are capable of being in
actual physical possession of a person
There is no evidence that at
the time the appellant repossessed the field the respondent was in
actual occupation, in the sense
that he was ploughing it or

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harvesting
some crops on it or that the appellant ploughed under any crops that
were growing on the land In any case respondent's
possession was
unlawful

Regarding
the two questions of law reserved by the learned Judicial
Commissioner for the decision of this Court, I think both of
them
must be answered in the negative This is eminently a case in which
the maxim "omnia praesumuntur rite esse acta donec
probetur in
contrarium" must be applied because the appellant did not
challenge the regularity of the proceedings at the court
of first
instance

The
letter (Ex B) was nothing other than a notice in terms of section 13
of the Act and cannot be interpreted as a letter a revocation

In the
circumstances the appeal is allowed with costs

J.L.
KHEOLA

JUDGE.

15th
July, 1985

For
Appellant Mr Pheko

For
Respondent Miss Ramafole