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."

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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

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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

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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

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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