CIV/APN/315/82
IN THE HIGH COURT OF LESOTHO
In the Application of
CHIEF NGATA MOLETSANE Applicant
and
CHIEF TS'EPO G. LETSIE 1st Respondent
CHIEFTAINESS 'MATHAPELO
MAKHATE 2nd Respondent
SOLICITOR GENERAL 3rd Respondent
MINISTER OF INTERIOR 4th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 29th day of March, 1985.
The applicant herein seeks an Order of this Court directing that the proceedings and the decision of the 1st repondent in the boundary
dispute between himself and the 2nd respondent be reviewed, corrected or set aside and that the respondents pay the costs of this
application. Only the 2nd respondent opposes the application.
On 9th August, 1979, an ad hoc committee appointed by the 4th respondent in terms of the provisions of Section 5(10) of the Chieftainship Act No, 22 of 1968 proceeded to Taung in the district of Mohale's Hoek to make investigations on a boundary dispute between the applicant and the 2nd respondent who were respectively the plaintiff and the defendant. The committee consis-sted of 3 members of whom 1st respondent was the chairman. The other two members were M. Moeketsi and Leuta Mahao, the Secretary.
At the commencement of the hearing, the plaintiff and the defendant appointed, with the approval of the committee, representatives to conduct their cases. After evidence had been led on their behalf, the parties closed their cases and the investigation was apparently
adjourned
2
presumably for the committee's decision,
When the proceedings resumed on the 2nd of October, 1979, defendant's representative was not in attendance although defendant himself
attended. The plaintiff's second witness, one Khampepe Ntsoele was recalled presumable by the committee as he had already given his evidence. The defendant was given the opportunity to cross-examine Khampepe Ntsoele but, according to the committee's report he declined saying "He had long spoken through his representative".
In his founding affidavit, the applicant supported by his spokesman, Toka Mahlehle, averred that when they were adjourned on 9th August, 1979, the proceedings were adjourned sine die and they (applicant and Toka Mahlehle) were never served with any notice for the hearing of the 2nd October, 1979. For that reason the spokesmen, Toka Mahlehle, did not attend. This, so argues the applicant, was an irregularity prejudicial to his case. This is however denied by the second respondent supported by Chieftainess 'Mantsase Moeketsi, the Principal Chief of Taung who deposed in their answering affidavits that on 9th August, 1979, it was publicly announced that the proceedings were being adjourned to the 2nd October, 1979. The applicant and his representative, therefore, knew that on the 2nd October, 1979 the proceedings would continue. The applicant and Toka Mahlehle deliberately did not however attend on that day and applicant had to be fetched from his hiding place by Chieftainess Mantsase Moeketsi.
It is clear that the irregularity on which the applicant basis his application is that the committee did not act in terms of the
provisions of Section 5 (12) of the Chieftainship Act No. 22 of 1968 which provides
"The secretary shall advise the chief concerned when and where the committee shall sit to receive the presentations for the
determination and definition of the boundaries of his area of authority."
3
This fact is, however, disputed and cannot be determined on the papers before me. Assuming for the sake of argument that the committee did fail to act in terms of the provisions of Section 5 (12) of the Chieftainship Act and therefore, committed an irregularity, the important question that immediately arises is whether or not such an irregularity was fatal to the proceedings and, therefore, entitled this Court to interfere.
In Joel v. Minister of Interior & 2 Others CIV/APN/318/77. Isaacs, A.J. was seized with a similar problem and decided "But even assuming that the committee had not acted according to the provisions of the Statute, I do not think the Court can interfere ....." "It seems to me that the only remedy the applicant has is to make representations to the Minister pointing out the breaches of Statute, if any."
I agree with the statement of the law as stated by the learned judge. It follows, therefore, that on the authority of the above cited decision the answer to the question whether or not the committee's failure to comply with the provisions of s. 5 (12) of the Chieftainship Act was fatal to the proceedings and, therefore, entitled this Court to interfere must be in the negative. That being so the relief sought by the applicant cannot in my view, be sustained and the application is accordingly dismissed with costs.
JUDGE.
29th March, 1985.
For the Applicant : Mr. G.M. Kolisang
For the Respondents: Mr. W.C.M. Maqutu (Law Office)