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)