CIV/APN/143/87
IN THE HIGH COURT OF LESOTHO
In the application of:-
CHIEF LETSIE BERENG Applicant
vs
MINISTER OF INTERIOR 1st Respondent
CHIEF MASUPHA DAVID SEEISO 2nd Respondent
ATTORNEY GENERAL 3rd Respondent
CHIEF SENTLE MAKHAOLA THABO MOJELA 4th Respondent
CHIEF MOTLOANG PHATELA 5th Respondent
CHIEF SETLOKOANE MATETE 6th Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 3rd day of August, 1987.
The application is fur en order in the following terms:
Restraining First, Second and Third Respondents . from implementing the decision on the boundary between Second Respondent and the Applicant, dated 10th March 1987 on the grounds of the irregularities disclosed in this application.
Quashing the decision on the boundary dated the 10th March, 1987 on the grounds that the boundary in question had been finally defined, determined and settled by the High Commission on the 24th March 1948. Consequently there was no dispute or uncertainty about the boundary requiring definition or determination within the meaning of Section 5 (8) of the Chieftainship Act of 1968 (as amended)
Declaring that in terms of the Chieftainship Act of 1968 (as amended) the Ad-hoc Boundary Committee did not make a proper investigation of the case before it in as much as it did not check the evidence on Government Notices between 1939 and 1964.
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Declaring that the Minister who is First Respondent did not advice his Majesty the King or consider the ad-hoc Boundary Committee's report as provided for by Section 5 (9) and (10) of the Chieftainship Act of 1968 (as amended).
Directing Respondents to pay cost of this application."
It is common cause that in the exercise of his powers under subsection (10) of section 5 of Chieftainship Act No.22 of 1960, as amended the First Respondent appointed an ad hoc boundary committee to investigate the question of the boundary between the areas of Matsieng and Phamong and then to make a report to him. The ad hoc boundary committee was 'composed of the Fourth Respondent who was the the chairman, the Fifth and Sixth Respondents were members. The committee sat and heard the evidence of the Second Respondent who was the complainant and the evidence of the Applicant who was the respondent. The committee submitted its report and recommendations to the First. Respondent. The report is marked Annexure "A" to the founding affidavit, In due course the First Respondent duly submitted the report of the ad hoc boundary committee to His Majesty The King with the recommendations that it be approved (see Annexure "C"). I can see the date stamp of His Majesty's office with the date the 10th March, 1987 and his Majesty's signature. This means that His Majesty's approval has been obtained and this Court is being asked to revoke or set aside the approval of His Majesty on the ground that because of the irregularities committed by the Respondents, the advice given to His Majesty was not in accordance with the law and was null and void.
In his evidence before the committee as well as before this Court the Second Respondent tendered in evidence a copy of a letter (Annexure to the answering affidavit) written by the then Paramount Chief of Lesotho to the Resident Commissioner. The letter is dated the 20th March, 1984.
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It is a detailed definition of the boundary between the Chief of Phamong and the Chief of Matsieng. According to the letter the boundary had been made or determined by the messengers of the Government, the Paramount Chief and the Chief of Phamong Chief Bereng.
The Second Respondent denies that in 1948 a definite boundary was delimited and submitted that only recommendations of the boundary between the Paramount Chief were made (see Annexure A page 5). He admits that a series of gazettes from 1939 to 1954 show that the five chiefs whose areas are claimed as part of Phamong by the Applicant, wore actually gazetted as headmen subordinate to the Applicant or his predecessor. He, however, says that the chiefs might have been properly or correctly gazetted under Phamong but they were wrongly placed inside Matsieng boundary. The committee's concern was the boundary not the proper or improper gazettement of chiefs. He alleges that the gazettes (Annexure "GNI" to "GNS") were not displayed to the committee. He has annexed letters (Annexures 1-12) which clearly show that there has been en ongoing boundary dispute between Phamong and Matsieng from as early as 1973 to the time the ad hoc boundary committee was appointed in 1987.
The First and the Fourth Respondents deny that there have been any irregularities committed by them in the definition of the boundary between the Applicant and the Second Respondent. They also deny that they is any boundary that was drawn in 1948.
The Applicant's case is based on a document with the heading The boundary between Phamong and Matsieng dated the 24th March, 1948 (see Annexure "D"). It was handed in as an exhibit before the ad hoc boundary committee and marked Exhibit D. He also relies on a series of Government Gazettes from 1939 to 1964 (Annexures "GN1". "GN2" and "GN3",
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which clearly show that the chiefs whose areas of jurisdiction are now in dispute were gazetted as subordinate to him and his predecessor. He says that the ad hoc boundary committee never really made an investi-gation within the meaning of section 5 (10) of Chieftainship Act of 1968. as amended. Annexure "C" does not comply with the Chieftainship Act of 1968 because the First Respondent never considered the report of the ad hoc boundary committee in terms of section 5 (10) of the Act but merely submitted it. He never tendered his advice to His Majesty in terms of section 5 (9) of the Act and that His Majesty never signified his acceptance of the recommendations of the committee.
The Applicant deposes that the committee committed serious irregularities in relying on on obscure book (Annexure "14") which had never been published for general information. The committee again erred by saying that the 1948 was made without any reasons and that the person who made it is unknown.
The first issue that I would like to deal with is the findings and recommendation mode by the ad hoc boundary committee to the First Respondent The findings and recommendation are found on page 10 of Annexure A (Translation) and it reads:
"This commission recommends that the Honourable Minister accepts that the 1948 decision was made for no good reason and it is not clear who made it; it should be set aside. The commission recommends the boundary to stand as it appears on page 338 of Ex. 'B' from the word "Telle" up to the word: "Maletsunyane river banks" to be reinstated as stated/pointed out by Chief Masupha D. Seeiso which is attached hereto."
It is not correct that it is not clear who made the 1948 boundary. The very first paragraph of Annexure "D" clearly shows that it is a
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description of a boundary between Phamong and Matsieng which is based on the recommendations of the boundary commission as rectified and confirmed by the Resident Commissioner and the Paramount Chief in Maseru on Tuesday, the 24th March, 1948. By saying that they do not know who made Annexure "D" the committee clearly misread and misdirected themselves because it is clear that it was made by the Resident Commissioner and the then Paramount Chief. Annexure "D" is an extract from a very elaborate document which runs into over 51 pages kept by the Ministry of the Interior. If the committee were in any doubt about the authenticity of the document (Annexure "D") they had the right to summon the Principal Secretary for the Ministry of the Interior to produce the original document for their inspection. Annexure "D" was extracted from the original document by the then Permanent Secretary for the Ministry of the Interior, T.T. Mopeli who certified it as a true copy of the original record. In any case the existence of the 1948 boundary was accepted by the Chief of Matsieng (predecessor of the Second Respondent) in a letter written by him to the Paramount Chief (seeAnnexure "B"). In the third paragraph he said:
"Sir, as to your enquiry why I seek permission to take this 1948 matter to court now in 1959, my reply is that I do not think the judicial courts can refuse to entertain my case on the ground of the long passage of time and, of course, I had to consider this case very seriously for a long time because of its magnitude. I have no doubt that after this explanation you will grant me permission." (my underlining.).
The words I have underlined clearly show that the Second Respondent predecessor accepted the existence of the 1948 boundary; however, he was on the opinion that the courts of law could set aside the decision on the
6
administrative authorities even after eleven years. I tend to agree with that opinion if he was in a good position to prove that estoppel should not run against him. The point I am making is that the existence of the 1948 boundary between Phamong and Matsieng was well known by the predecessors of the Second Respondent and the then Paramount Chief who was obviously against the idea of starting the matter de novo. The committee was therefore wrong to doubt the authenticity of Annexure "D" because it was well recognised by the predecessors of the present litigants. At that time the Paramount Chief was the chief of Matsieng and the writer of Annexure "B" was merely acting chief of Matsieng. The Paramount Chief recognised and accepted the 1948 boundary. and impliedly discouraged the acting chief of Matsieng from taking the case to the courts of law. No wonder why from 1959 to 1986 no ad hoc boundary committee was ever appointed. It was only in 1987 that the committee was appointed.
The 1987 committee found that the 1948 decision of the boundary between Phamong and Matsieng was made for no good reason or that nothing necessitated the changing of the 1924 boundary to be replaced by that of 1946 if in fact it was made by those who had the authority to do so. If by this the committee means that there was no dispute or uncertainty about the boundary between Phamong and Matsieng in 1948, then they are wrong because Annexures 9 and 10 show beyond any doubt that there was a dispute. It may be that these two letters (Annexures 9 and 10) were not shown to the committee. For the sake of easy reference the two letters are reproduced hereunder.
Annexure 9 (trnaslation) reads No.3
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BGL/D AT THE COURT OF CHIEF OF PHAMONG
MOHALE'S HOEK, LESOTHO
27th November, 1943.
Chieftainess 'Mantsebo Seeiso,
MATSIENG
Greetings Chieftainess
Chieftainess,
I am in receipt of your letter No.4/1 of 11th November, 1943 in which you state that you are unable to set down a date of my case against you; because you are preparing to come and see the boundary of 1924 between Matsieng and Phamong.
Chieftainess, I am not satisfied with this reply of yours, I realise that you do not wish to open the court for me.
Chieftainess I repeat again that you should set down a date for the hearing of these cases of mine and summon those witnesses of mine who I had already asked of you. Furthermore, Chieftainess I ask you to consider my cases in the same light as you do other cases of ordinary citizens I am saying so chieftainess because even if you are busy with the preparations you allege, cases of the common people are being heard at Matsieng presently it would therefore be amazing why I should be discriminated against the common people.
With regards.
Yours faithfully,
Const. Bereng G. Lerotholi
Chief of Phamong.
Annexure 10 (translation) reads; No.4/1
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AT THE COURT OF PARAMOUNT CHIEF
MATSIENG, LESOTHO.
31st December, 1943.
Chief Const. Bereng G.
Lerotholi, PHAMONG.
Greetings Chief.
Chief,
I received your letter No.3 of 27th November, 1943, in which you allege that I am withholding your cases on the ground that I am preparing to come down for the boundary of Phamong and Matsieng.
Chief, it would surprise me greatly if today my word appears to be to withhold your cases yet on the day I gave it there was no complaint. Please refer to my letter of above reference, the letter of 12th October 1943 wherein you stopped the case from proceeding on the 18th October this year.
Furthermore, chief, I am really surprised because we have . already had a discussion, in which we could not agree, that disagreement has now resulted in this case, and to my understanding, when we could no longer get on together, what was then left was for you to appear before the court of law, which I say if there is any plea that could be made, could be so made before it, and it would for that court to decide whether such can be an acceptable plea which could be entertained.
Chief, in the manner you are handling things I think by directing this matter to me personally, I being an accused person, amounts to oppressing me because I will have no one to appeal to for if I should make lodge my appeal on my own it would, I am afraid, appear as though in doing so I am acting in my own favour.
This is my reply to your letter referred to above, and I hope you will appreciate what I mean.
With regards,
PARAMOUNT CHIEF.
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Annexures 9 and 10 are a proof beyond any doubt that as far back as 1943 the chief of Phamong was already disputing the existence of the 1924 boundary. There was a dispute in 1943 and 1946 which led to the appointment of a boundary commission in 1948 and the recommendations of that commission were rectified and confirmed by the Resident Commissioner and the Paramount Chief who was then the chief of Matsieng. She clearly says so in paragraph 4 of Annexure 10 that she was the defendant or accused person in the case and that she could not be judge in her own case. However, when the commission found in favour of the Chief of Phamong she accepted the finding and confirmed it.
Annexure 7 is a letter dated the 17th October, 1946 written by the Paramount Chief addressed to Chief Mujela T. Letsie and two other chiefs. It is significant that in that letter the Paramount Chief accepted that Headmen Seqhcasho Pakela is subordinate to the chief of Phamong. Annexure 7 also shows that there was a dispute concerning the 1924 boundary.
Annexure 8 shows that the Chief of Phamong had placed his brother at an area known as Ha Lesala but the High Commissioner's Notice No. 171 of 1939 proclaimed the area of Ha Lesala as within the area of jurisdiction of the Chief of Phamong.
I come to the conclusion that the 1948 boundary commission was appointed because there was a dispute concerning the 1924 boundary. In their recommendations the 1948 commission referred to the 1924 boundary several times, for instance, in paragraph 1 and in paragraph 5 the last three lines (Sesotho Version, I refer to Sesotho version because there are some omissions in the English copy), but they delimited a new boundary.
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Another erroneous finding of the 1987 ad hoc boundary committee was in relation to the Government Gazettes from 1939 to 1964 which placed the chiefs whose areas are the subject matter of this dispute under the jurisdiction of the Applicant. The committee said! "It seems the proclamation of chiefs was made in 1939 and the Principal Chief merely mentioned the people he recommended to be proclaimed and to show under whom they were. This commission does not see any problem facing these chiefs if they fall under any Principal Chief." It seems to me that the above quotation of the law regarding the effect of the gazettes by the High Commissioner is wrong. In the case of Goliath Mohale (Chief) v. Bereng Lerotholi (Chief), 1926-1953 H.C.T.L.R. 312 it was held that when a High Commissioner's Notice is gazetted under section 3 (1) of the Native Administration Proclamation (Cap. 54) making a Headman subordinate to a specified Chief, it is strong evidence that the land on which such chief resides, or is in charge of, is the area over which that chief has jurisdiction. Incidentally, the abovementioned case involved the father of the present Applicant and the 1924 boundary. Section 3 (1) of the Native Administration Proclamation (Cap.54) reads
"The High Commissioner may, after consultation with the Paramount Chief, by Notice in the Gazette, declare any Chief, Sub-Chief or Headman to be Chief, Sub-Chief or Headman for any specified area or areas, and may direct that any such Chief, Sub-Chief or Headman shall exercise only such powers as arc delegated to him by another specified Chief, Sub-Chief or Headman with the consent of the Paramount Chief." (My underlining).
It is therefore not correct that the Principal Chief merely mentioned the people he recommended to be prolcaimed and to show under whom they were. Surely, the gazettement of chiefs was not as casual
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as the 1987 committee thought it was. There had to be some consultations between the Paramount Chief and the High Commissioner before a chief could be proclaimed as chief over a specified area. Although the High Commissioner's Notice No.171 of 1939, High Commissioner's Notice No.173 of 1950 and Government Notice No.22 of 1964 did not make boundaries, they are very strong evidence that the areas over which the chiefs whose names apppear on page 3 of Annexure "A" exercise jurisdiction, are areas under the jurisdiction of the Applicant because the gazettes show that the chiefs are subordinate to the Chief of Phamong. The 1987 committee misdirected themselves as to the probative weight to be attached to the gazettement of those chiefs.
In the case of Koenane Moshoeshoe v. Mokoenehi Motloheloa, 1925-1953 H.C.T.L.R. 220 it was held that although section 3 of the Native Administration Proclamation of 1938 vests power in the High Commissioner to declare by Notice in the Gazette a person to be a Chief, Sub-Chief or Headman over a specified area and the Court has no jurisdiction to vary such a declaration, yet the Court has jurisdiction in a boundary dispute to decide whether a particular area of land falls within the administrative boundary set out in the High Commissioner's Notice. In the present case the areas of land under the jurisdiction of the Chiefs whose names appear in Annexure "A" fall within the area of jurisdiction of the Chief of Phamong according to the High Commissioner's Notice mentioned above. As I have indicated above even the Paramount Chief accepted that Headman Seqhoasho Pakela was subordinate to the Chief of Phamong (see Annexure 7).
It seems to me that the High Commissioner who was the highest authority in Lesotho and whose word was final in all administrative matters in Lesotho never recognized or approved the 1924 recommendations regarding the boundary between Phamong and Matsieng. I have come to this
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conclusion on the following grounds: In 1939 when the High Commissioner Issued High Commissioner's Notice No. 171 he proclaimed the areas which form the subject matter of this dispute as part of Phamong area. If the proclamation had been made by mistake, one would have expected the Chief of Matsieng to have drawn the attention of the Paramount Chief to that mistake and to have had it rectified. The subsequent High Commissioner's Notices repeated the same thing and no complaint was made by the Chief of Matsieng.
Secondly, Annexure 14 is a letter written to the Resident Commissioner and there is nothing to show that the Resident Commissioner who was the representative of the High Commissioner in Lesotho ever approved or confirmed the boundary as recommended by the boundary commission composed of the messengers of the Government, the Paramount Chief and the Chief of Phamong. I am of the opinion that if the High Commissioner had approved the 1924 recommendations he would not have later in 1939 gazetted those chiefs as subordinate to the Chief of Phamong. I am aware that a number of people including the Paramount Chief recognized the 1924 boundary but there is no evidence that the Chiefs whose names appear in Annexure "A" were ever subordinate to the Chief of Matsieng. In his evidence before the ad hoc boundary committee the Applicant testified that the chiefs mentioned in Annexure "A" went to Phamong when his father, Chief Bereng Lerotholi, was placed at Phamong. Unfortunately, the ad hoc boundary Commiittee made no finding on this important point whether those chiefs had ever been subordinate to the Chief of Matsieng. The balance of probabilities seems to be in favour of the Applicant that they have never been ruled by the Chief of Matsieng.
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I now come to the question whether the administrative authorities, i.e. High Commissioner or His Majesty The King, can define the same boundary between the same parties more than once, e.g. if the 1924 boundary had been properly delimited and defined by the right authority (the High Commissioner) could his successor again define the same boundary in 1948 and in 1987? The answer must be in the negative because once the proper authority has defined the boundary he must become functus officio when a dispute again arises concerning the same boundary. The dispute must be taken to the courts of law for a final decision. In the present case the 1924 boundary does not seem to have been confirmed or approved by the High Commissioner. The 1948 boundary was approved by the High Commissioner. Now the question is whether in 1987 His Majesty The King could again define the same boundary? Was there any uncertainty concerning the boundary between Phamong and Matsieng?
The party who was not satisfied with the 1948 boundary ought to have taken the dispute to a court of law. The predecessors of High Majesty had already decided the matter and His Majesty had become functus officio. The First Respondent was therefore wrong to involve His Majesty in a matter which had long been decided by His Majesty's predecessors. The advice he purported to give to His Majesty was a nullity because he wanted the King to reverse or to confirm a matter that had been decided by the predecessor.
In prayer (c) of the Notice of Motion the Court is asked to declare that in terms of the Chieftainship Act of 1968, as amended, the ad hoc boundary committee did not make a proper investigation of the case before it inasmuch as it did not check the evidence of Government Notices between 1939 and 1964. I have already stated above that the ad hoc
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boundary committee did consider the High Commissioner's Notices but failed to appreciate their probative value.
In prayer (d) the Court is asked to declare that the First Respondent did not advice the King or consider the ad hoc boundary committee's report as provided by section 5 (9) and (10) of the Chieftainship Act of 1968, as amended. The Act does not have any schedule providing for a form or the manner in which the Minister must consider the recommendation and how he must formulate his advice to the King. I am of the opinion that Annexure "C" was sufficient because it quoted the relevant sections.
For the reasons stated above the application is granted in terms of prayers (a), (b) and (e) of the Notice of Motion.
J.L. KHEOLA
JUDGE.
3rd August, 1987.
For Applicant - Mr. W.C.M. Maqutu
For Respondents - Mr. Lenono.
CRI/S/20/87
In the matter of :-
REX
v
MOKOTO SETIPA
The accused was committed for sentence by the High Court after he was convicted of culpable homicide by a third class magistrate at Thaba-Tseka. The charge against the accused was that on or about the 18th September, 1986 and at or near Semenanyana in the district of Thaba-Tseka, the said accused did wrongfully and unlawfully assault one Nkoliapa Thakholi and inflicted upon him certain injuries which caused the death of the said Nkoliapa on the 22nd September, 1986, and the said accused did negligently kill Nkoliapa. The accused pleaded not guilty to the charge but at the end of the day he was found guilty as charged.
The evidence by the Crown showed that on the day in question the accused and one Tumiso Tlhoboliso (P.W.2) were herding their parents' livestock in the veld not far from where the deceased was also looking after his employer's livestock. The accused and his
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companion came from a village called Linotsing while the deceased came from a different village called Toeba's.It so happened that while they were still herding their respective animals two girls from the village of the deceased arrived and started collecting wild vegetables in the fields. The accused and his companion decided to go and propose love to the two girls. The girls ran away when the accused and his companion came to them. The accused and his companion chased them. It was at this stage that the deceased shouted at them and ordered them to stop chasing the girls from his village. They stopped and accused suggested to his companion that they should go to the deceased.
When they came to him accused asked him why he referred to him as "monna" (man) when he shouted at them and poked him on the chest with a stick inviting him to fight. All the Crown witnesses told the court that the deceased had no stick at that time and refused to fight. Suddenly the accused struck him on the head twice with his stick. The deceased ran away and one youth named Ntsko Thakholi (P.W.3) stopped the accused from assaulting deceased. After the fight was stopped the deceased went home and complained to his parents that he had headache. He was taken to Semenanyana clinic and examined by a nurse who suggested that he should be taken to Paray Hospital because the injury appeared to be serious. The deceased died before he was taken to the hospital.
According to the doctor who performed the post-mortem examination of the body of the deceased formed the opinion that death was due to intracerebralt haemorrhage causing a haematoma at the right side posterior of the head. He was also of the opnion that a blunt instrument was used to cause the injuries.
The accused's version of what happened when he came to the. deceased differs slightly from that of the Crown. He alleges that when he came to the deceased the latter referred to him as a "boy" and suddenly tried to hit him with his stick. He (accused) warded off that blow with his own stick before he struck the deceased on the head with a stick. He denies that he killed the deceased because when they were separated the deceased was still in good health. .
I agree with the trial court that there was overwhelming evidence that the deceased was not holding any stick that day and that he never delivered any blow. I am also convinced that the injuries which caused the death of the deceased were caused by the accused. There is evidence that immediately before the assault the deceased was very healthy and did not complain of any headache. Immediately after the assault he complained of headache till he died. The accused was properly found guilty of culpable homicide and that there was no novus actus interveniens.
In passing sentence I took into account that the accused is only an unsophisticated heardboy aged about 20 years and that he is a first offender. He showed no remorse and insisted that the deceased had provoked him. He is sentenced to twelve (12) months' imprisonment of which half is suspended for 3 years on condition that the accused is not found guilty of any offence involving violence to another person committed during the period of suspension.
25th August, 1987.
For Crown - Mr. Mokhobo
For Accused - In person.
