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