CIV/A/6/77

IN THE
HIGH COURT OF LESOTHO

In the
appeal of

KAHLOLO
RAMOHOLI Appellant

v

LECHAKO
LECHAKO Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 5th day of November,
1987

This is a
third appeal in an old land dispute which has been pending for ten
years. In the Makokoane Local Court, which was the
trial court, the
respondent Lechako was the plaintiff and the appellant Kahlolo was
the defendant. In order to avoid confusion
I shall refer to the
parties as plaintiff and defendant as they proceed up through the
various courts.

The
original case brought by the plaintiff was CC.118/72 in Mokokoane
Local Court and judgment was de­livered on 21 September
1972. The
claim concerned a field of about nine acres situated at Koung under
Nts'ekalle's which the plaintiff maintained had once
belonged to his
late uncle Mosiuoa, who when alive had been looking after the two
children of his (Mosiuoa's) unmarried sister.
The ages and names of
these children were not recorded and, throughout the case, they were
referred to as "the orphans."

2

Apparently
Mosiuoa died and, from 1933 onwards, his nephew the plaintiff acted
as guardian of the orpahns and occupied and cultivated
the field for
the sole purpose of maintaining them. This apparently went on until
in 1969, thirty six years later, when Chief Makhobalo
served written
notice on the plaintiff, on 5 September 1969, that he was to vacate
the field It was then allocated to the defendant
Kahlolo on 20
September 1969, that is 15 days later, and he ploughed the land and
harvested a crop of maize

The
plaintiff brought his claim against the defen­dant in Makokoane
court. He called only one witness, a man called Maphutseng
Kheekhe.
As usual in the lower courts no particulars of this witness were
recorded so it is not possible to know whether he was
a relative or a
neighbour or just what his involvement was in this matter It is very
unhelpful when these particulars are not on
record.

The
plaintiff did not claim the land for himself but persisted in his
version that he only occupied Mosiuoa's land in order to maintain
the
"orphans". However, the alleged eviction of him by the
chief occurred in 1969 which was 36 years after his first
occupation.
By then these "orphans" were probably in their 40's or even
older and were certainly no longer in his care
or guardianship.
Indeed it appears that both had married and one had died The two
children whom the plaintiff named as still being
in his care seem to
have been the children of one of the "orphans". Both
parties are now old men

3

It is
extraordinary that the lower courts seem to have ignored the passing
of time and referred to the "orphans" as if
they were still
children in need of guadian-ship and care. Quite obviously this was
not so. Moreover, the plaintiff did not call
the "orphans"
to testify, nor anyone of their relations, nor the chief who
authorised his occupation of the land (if
he was still alive).

Consequently
the trial court did not accept the plaintiff's version and gave
judgment against him, ordering that the land should
go to the
defendant together with its crop.

The
plaintiff then filed an appeal to the Ts'ifalimali Central Court (CC
174/72) which gave judgment on 18 December 1972. That court
based its
decision on a legal point. This was in connection with s.9(1) of the
Land (Procedure) Act 1967 (Act 24/67) which reads
as follows

" A Principal or Ward Chief, a Chief or a Headman shall, before
revoking or dero­gating from any allocation or grant or

terminating or restricting any interest or right in or over land,
give at least thirty days written notice to the person affected

thereby of his intention to do so."

The Land
(Procedure) Act was repealed in 1973 by the Land Act, 1973 (Act
20/73) which contains a similar provision in s.13(1) but
also
requiring a chief to consult the Development Committee. However, when
the events occurred in the present dispute the 1967
Act was still in
force, so that is the one which applies here.

The
Central Court held that the plaintiff was given only 15 days notice
instead of 30 days which made the

4

allocation
of the land to the defendant by Chief Makhobalo unlawful. The appeal
was allowed and the trial court decision was reversed
and the land
restored to the plaintiff until he could be removed according to the
law. The defendant was given time in which to
reap the crop planted
there by him.

The
defendant then appealed to the Judicial Commissioner's Court
(JC.49/73) which gave judgment about 3½ years later, on
6 May
1976. In that judgment the Judicial Commissioner agreed with the
Central Court that the chief had not complied with s.9(1)
of the Land
(Procedure) Act and he dismissed the defendant's appeal.

In that
judgment the Judicial Commissioner added this comment

" In my view in the light of the evidence that the present
dependants are minors I see no reason why their guardian should
not
be allowed to sue on their behalf as they cannot themselves sue
unassisted by him."

It is not
clear to whom the Court was referring. Clearly the "orphans"
had ceased to be minors a very long time before
If he meant the two
children of one of those "orphans", there was no evidence
before the court, apart from what the plaintiff
said, that he was
their appointed guardian, and this could not be assumed.

There is
one other matter which was not considered by the lower courts. Under
Roman-Dutch Law prescription is a. method of acquiring
ownership of
land, according to George Wille in his highly respected "Principles
of South

5

African
Law." Possession must be by one person of another's property
continuously for 33 years peaceably, openly and not on
suffrance, but
as of right and adversely to the owner. According to Duncan on "Sotho
Laws and Customs" (page 115) the
law of prescription also
applies in Lesotho. He was a former Judicial Commissioner.

In this
case the owner was Mosiuoa and his heirs, of whom the plaintiff
evidently was not one, since he made no such claim. But
clearly the
plaintiff was in peaceful possession of that land for well over 30
years and it seems that he could have claimed it
for himself by
prescription. But he did not do so. Instead he based his claim on an
alleged guardianship which he made no attempt
to prove. This was
unfortunate and probably due to his ignorance and having obtained no
legal advice. But he did have an interest
in the land. That is very
clear.

I agree
with the two appeal courts below that Chief Makhobalo did not comply
with the requirements of what was then the relevant
law (s.9(1) Land
(Procedure) Act, 1967). Consequently the revocation of the
plaintiff's right to occupy the land and his eviction
was unlawful.
The ground of appeal to this Court as certified by the Judicial
Commissioner was on that legal point alone.

Accordingly
this appeal is dismissed and the decisions of Ts'ifalimali Central
Court and the Judicial Commissioner in favour of
the
plaintiff/respondent are upheld and confirmed with costs to the
respondent

P. A. P.
J.T ALLEN

JUDGE

5th
November, 1987

Mr.
Monaphathi for the appellant

Mr.
Matlhare for the respondent