CIV/APN/249/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

PASEKA
MASOABI Applicant

V

SOLICITOR
GENERAL 1st Respondent

COMMISSIONER
OF POLICE 2nd Respondent

MINISTER
OF INTERIOR 3rd Respondent

DIRECTOR
OF IMMIGRATION

AND
PASSPORT SERVICES 4th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice D.S. Levy on the 19th November, 1985.

Applicant
seeks a declaration that he is a citizen of Lesotho and for
consequential relief in the following circumstances :-

On 24th
May 1984 applicant and two others were charged with the offence of
fraudulently obtaining a passport from the Lesotho Government
on his
affidavit that he was born in Lesotho, and the applicant was
acquitted of that charge. It is alleged that the applicant
is a
fugitive from justice in South Africa where he is wanted on various
charges including armed robbery. If expelled from Lesotho
applicant,
it seems certain, will be brought to trial in South Africa on these
charges.

On 2nd
November 1984 applicant was arrested by certain policemen acting on
an expulsion order issued against him under the Aliens
Control Act
1966, on the

2

grounds
that he is an alien in Lesotho.

An
interim interdict was issued by this Court as a matter of urgency at
the instance of applicant restraining the Minister of the
Interior
from putting the expulsion order into effect pending an action to be
instituted by the applicant for the relief claimed
in this
application, that is, for a declaration that he is a citizen of
Lesotho and for an order setting aside the expulsion order.

It is a
matter for regret that applicant was advised to seek relief by way of
application well knowing that his allegations concerning
his
nationality would be disputed by the Minister. However in view of the
unusual nature of the application and the sense of urgency
which
surrounds it. I allowed viva voce Evidence to be led forthwith at the
hearing of the application on the disputed issues.

The
issues that arose in the application were :

1.
Whether the applicant was born in Lesotho.

2. Where
the onus of proof lies in regard to the allegation that the applicant
is an alien

in
Lesotho.

On the
issue of applicant's birthplace, he alleged that he was born at Ha
Mofoka and that both his mother and father are now dead
as also is
certain Taole whose evidence, he says, would have supported this
allegation.

The
applicant stated in oral evidence that he was told by his grandmother
that his mother had died at his birth at Ha Mofoka and
that at the
age of 3 he was taken

3

by his
grandmother to live with her at Clocolan in the Republic of South
Africa. Whilst living at Clocolan his grandmother, who
was then ill,
asked her sister Ellen Tlale to take care of him and he then went to
live with her at Thaba Nchu. He took the name
of Johannes Tlale when
he went to school since Mrs Tlale regarded him as her child.

An
affidavit by a certain Ellen Tlale was filed by Respondents from
which it appears that she is the mother of Johannes Tlale and
that he
was born at Thaba-Nchu during 1949.

However,
this same person has since attested to a further affidavit in which
she alleges that she is not applicant's mother, that
she had not
known what the contents were of this first affidavit to which she
affixed her mark, but that she was misled as to its
contents by the
Police officers who had approached her for this affidavit. In her
subsequent affidavit attested to in Lesotho and
to which she again
made her mark, she offers evidence corroborative of applicant.

In view
of the fact that this witness –

1. is
   illiterate and would not herself know the contents of any document
   to which she affixes her mark;

   
   

2. did
   not have translated to her or explained to her the contents of her
   2nd affidavit;

   
   

3. was
   apparently available as a witness but was not called by applicant;

   
   

it would
seem proper to give no weight to either affidavit.

In
particular it must be emphasised that Ellen Tlale who may will be the
great aunt of applicant and who

4

lives at
Thaba Nchu would have been readily available as a witness for
applicant but no explanation was offered for not calling
her as a
witness. Her relationship to applicant and her intimate knowledge of
the circumstances of his childhood made her potentially
a most
supportive witness of applicant. At best for applicant then it must
be inferred that his failure to call her as a witness
is because she
would not advance his case. See Elgin Fireclays Ltd. v Webb 1947(4)
S.A. 744(A).

The other
evidence that might have been corroborative of the applicant's
allegation that he was bom in Lesotho is a document apparently
signed
by Joel Mofoka who is chief of Ha Mofoka. Joel Mofoka gave oral
evidence that the signature to the document is not in his
writing but
is the writing of the late Taole. He stated nor was it challenged
that while Taole who was his clerk was authorised
to sign on his
behalf in such matters, he had no authority to write this witness's
name as though it was his signature.

A further
document signed by chief Lehlola Mofoka in which he certifies that
applicant is a 1st taxpayer takes the matter no further
since this
chief had no personal knowledge of the facts but accepted applicant's
statement in that regard.

Lastly,
the Respondents have produced an identity document issued by the
Department of Home Affairs of the Republic of South Africa
which
admittedly bears the applicant's photograph and his fingerprints.

The
applicant admits that the document was issued to him originally at
Thaba Nchu and the particulars contained

5

in it
are, inter alia, that applicant was bom at Thaba Nchu in 1949. The
applicant says that his cousin accompanied him to the officials
who
issued this document to him and that it was his cousin who furnished
the required information. Even if that be so, applicant
certainly
knew that his cousin had stated on his behalf that applicant was born
at Thaba Nchu in 1949 and made the assertion his
own by failing to
correct his cousin's misinformation.

There was
a muted suggestion that this information was falsely placed before
the official concerned in order to obtain the identity
document
required by applicant. But that suggestion, showing as it does that
wherever it suited his own purposes he was prepared
to be a party to
a dishonest representation, leaves his credibility in considerable
doubt. Applicant, so he says, also obtained
a South Africa passport
in 1973 which showed his place of birth as either Johannesburg or
Thaba Nchu. Here once again the applicant
has served his purposes by
showing his place of birth to have been in South Africa.

This
leaves the applicant's ipse dixit that his birth place was in
Lesotho, uncorroborated and unreliable.

It is
further questionable whether such evidence as he has tendered himself
as to the place of his birth based as it is only upon
the information
given to him by his grandparents is admissible in proof of his
citizenship

A police
officer, sergeant Molise, who is a fingerprint expert, has given
evidence that a comparison of the applicant's fingerprints
in Lesotho
Mounted Police records

/(L.M.P.
35)

6

(L.M.P.
35) with the fingerprints in the identity book issued by the S.A.
authorities show them to be those of one and the same
person. The
comparison shows that applicant is the person wanted by the Lesotho
Police on charges of attempted robbery under the
name of Paseka
Masoabi Johannes while they are also the fingerprints of Johannes
Tlale whose identity number is 4678245 as recorded
by the S.A. police
and in applicant's identity book.

The
undisputed evidence is that applicant was brought up in South Africa
where he went to school and lived until a short time ago
when, using
a South African passport, he entered Lesotho and there obtained a
Lesotho passport with the assistance of Taole, who
is since deceased
and who forged the chief's signature for that purpose.

As to
onus, the order of the Minister of the Interior which the applicant
seeks to have set aside was for his expulsion from Lesotho
as an
alien in accordance with the provisions of section 25 of the Aliens
Control Act 1966. Section 32 of that Act provides that
the onus of
proving or disproving any facts the proof or disproof of which is
required to establish for any of the purposes of
this Act that a
person is not an alien shall lie on that person.

Applicant's
claim to relief in respect of the expulsion order is based on the
allegation that he was bom in Lesotho and, as such,
is not an alien
to whom the Aliens Control Act is applicable. His claim to
citizenship is based on the allegation that he was born
in Lesotho
and he further contends that as a citizen of

7

Lesotho
he is not an alien who would be subject to the provisions of the
Aliens Control Act.

If he was
bom in Lesotho the applicant would have acquired citizenship under
section 23 of the Lesotho Independence Order 1966 which
provided that
every person who was born in Basutoland shall become a citizen of
Lesotho on 4th October 1966. He would have retained
his citizenship
under section 3 of Lesotho Citizenship Order 1971 which provides that
every person who immediately before the coming
into operation of this
Order was a citizen of Lesotho by virtue of the provisions of the
Lesotho Independence Order 1966 shall
continue to be a citizen of
Lesotho unless he ceases to be a citizen in terms of this Order or
any other law.

The
incidence of onus must clearly fall upon a claimant for citizenship
on the grounds of birth in Lesotho, It would not be enough
for the
purpose of the declaration sought by applicant for him to say that he
is a citizen. He must prove that he falls within
one or other of the
categories of persons entitled to citizenship. In casu, be must prove
his birth in Lesotho before he can claim
citizenship under the 1971
Order.

The
Minister has issued an expulsion order alleging the applicant to be
an alien. Applicant denies that he is an alien, that is,
he says he
is not an alien to quote the words of section 23 of the Aliens
Control Act. The applicant bases his denial that he is
an alien on
the allegation that he was bom in Lesotho. Section 23 casts the onus
of proof of that fact on him, which may be discharged
by proof on a
balance of probabilities of the

8

disputed
fact. I am satisfied that the applicant has failed to discharge such
onus because generally he is an unreliable witness
who readily
changes the facts to suit his purposes and who has twice previously
declared himself to be a citizen of South Africa.

To this
may be added as well the fact that by obtaining identity documents in
South Africa the applicant acquired citizenship of
the Republic of
South Africa in consequence of which and in accordance with the
provisions of section 8(2) of Lesotho Citizenship
Order 1971 as a
citizen of Lesotho he ceased to be such.

The
application is dismissed with costs.

D.5. LEVY

ACTING
JUDGE.

19th
November, 1985.

For
Applicant : Mr. Khauoe

For
Respondents : Mr. Muguluma.