CIV/APN/357/86
IN THE HIGH COURT OF LESOTHO
In the Application of:-
MORENA SEEISO BOFIHLA Applicant
vs
LEUTA MAHAO Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola on the 24th day of March. 1987
In this application the applicant sought an order in the following terms:-
That Rule Nisi issue returnable on the date and time to be determined by the Honourable Court, calling upon the Respondent to show cause (if any) why:-
The Respondent shall not be restrained from exercising the Chiefly powers of the village of Ha Mpolelo, pending the outcome of an action to nullify his Headmanship to be instituted in the High Court;
The Applicant shall not in the interim be in direct administration and control of the said village, pending the outcome of the action referred to in (a) hereof;
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The Respondent shall not be restrained from instigating and or inciting the people of Ha Mpolelo to fight and or indulge in civil comotion:
The Respondent shall not be ordered to pay costs hereof:
The Respondent shall not be given such further and or alternative relief.
2. That prayer 1 (a), (b) and (c) operate as an interim . interdict with immediate effect."
On the 13th November, 1986 Mr. Nthethe counsel for the applicant, appreared before me in chambers and moved this application on urgent ex parte basis. I granted the application in terms of prayers (a), (b). (c), (d) and (e) and refused to grant prayer 2 because it was clear to me that there was going to be a dispute of fact whether the respondent was a headman or not. In addition to that it was clear that the respondent had already been criminally charged before the Mafeteng magistrate court and it was unlikely that he would continue to cause any disturbances while the matter was sub judice.
After several extensions of the rule nisi the matter was finally argued before me on the 9th March, 1987 and on the 24th March, 1987 I discharged the rule with costs.
The applicant is the chief of Thabana-Morena in the district cf Mafeteng. In his founding affidavit he deposes that at all material period since his assumption of office as chief of Thabana-Morena, the respondent held himself out as the headman of the village of Ha Mpolelo but in his capacity as ward chief of the area where the respondent holds himself out as headman, he never recommended respondent to any appropriate authority for such chiefly appointment. He further alleges that. prior to his assumption of office no ward chief or Principal chief of
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the area ever recommended the respondent to any authority for such chiefly appointment. The respondent has no right in law to pretend to Be headman of the village of Ha Mpolelo. The applicant alleges that even if by miracle this Court were made to believe that the respondent rightly holds himself out as headman of the said village, he avers that his assumption of office was not in accordance with the provisions of The Chieftainship Act No. 22 of 1968.
The applicant further deposes that the respondent constantly and continuously causes disturbances to peace, tranquility and harmony in the applicant's area. He incites people to fight others in his (applicant's) area of jurisdiction. Respondent's men, through his instigation have recently attacked Headman Lebeoana Mathibe's village and burnt down the whole village and that this matter is sub judice in the Mafeteng Magistrate Court. In addition to this the respondent continues to cause endless administrative problems in the area. Because of his propensity to distabilise administration and lust not to live in peace with other people he has rendered life dangerous and uncertain. As a result of the respondent's behaviour the applicant's subjects are threatening to undermine applicant's authority and revenge on the numerous losses of lives in the area.
The last averment by the applicant is that he is going to issue a civil summons against the respondent wherein he is going to request this Court to nullify the respondent's chiefly powers.
In his answering affidavit the respondent deposes that he is lawfully a headman pursuant to lawful recognition of his office by His Majesty the King which appears in Government Notice No.60 of 1969 in Government Gazette No. 11 dated 14th March, 1969 (Annexure B). He denies
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that he is presently holding himself out as headman of the village of Ha Mpolelo. He alleges that as he was appointed by law, the Minister of Interior ought to have been joined in these proceedings.
The respondent deposes that he was recommended for recognition as headman by the late Bofihla Griffith Lerotholi who is father of the applicant.
The requirements for an interdict are :-
A clear right on the part of the applicant.
An injury actually committed or reasonably apprehended.
The absence of any other satisfactory remedy available to the applicant.
Regarding (a) above the applicant had his facts wrong because he was labouring under the wrong impression that the respondent was not a lawfully appointed headman. It is clear from Annexure B and Annexure D that after proper recommendation by the appropriate authority to His Majesty The King, the respondent was recognised as headman of the village of Ha Mpolelo subordinate to the chief of Thabana Morena in the Ward of Likhoele. Although the applicant was wrong to say the respondent was holding himself out as headman of the said village, I am of the opinion that a chief has a right to restrain any headman subordinate to him from causing disturbances in the areas of his jurisdiction. Because the respondent has not denied all the serious allegations made against him of causing disturbances in the ward of the applicant, this Court must accept the allegations as true. If no other legal actions had been taken against the respondent the applicant could be entitled to apply for an interdict.
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With regard to (b) above the injury has actually been committed; a certain village has actually been destroyed by fire through the instigation of the respondent.
The last requirement that the applicant must show the absence of any other satisfactory remedy is the only one that gives me problems. It is common cause that the respondent has now been cri-minally charged in the Mafeteng Magistrate Court in connection with the alleged disturbances caused by him. Section 37 (5) (b) of Chieftainship Act No. 22 of 1968 provides that in addition to imposing a penalty, the court convicting a chief of ah offence against a provision of this Act may "recommend to the person or body having power and authority in that regard, that the person convicted be deprived of his office, or of the right to exercise the functions of an office of Chief, or be suspended from office, for a period and subject to conditions specified in the recommendation, including the loss of the whole or part of the emoluments of that office."
In my view the applicant is not entitled to an interdict by this Court because the Mafeteng Magistrate Court is already seized of the same matter. That court has the power to deprive the respondent of his office or to suspend him for a specified period. The matter is pending before Mafeteng Magistrate Court which may give the same remedy sought by the applicant in this Court. I do not think that the applicant is entitled to obtain an interdict from this Court while the matter is sub judice before another competent court. In any case there is no evidence that after a formal charge had been preferred against him, the respondent continued to commit the alleged offences, or that there was a likelihood that he would do so. Having resorted to the criminal court which has the powers to give the same remedies sought by the applicant in this Court, I am of the view that this application must fail and that
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that this court must refuse to intervene in the matter.
The other remedy which was available to the applicant is that provided in section 16 and section 17 of the Chieftainship Act No. 22 of 1968. Section 17 (i) makes it a disciplinary offence for any chief to behave in any manner that is prejudicial to public safety or to public order, or to the dignity, status and reputation of that office or the office of Chief generally. And subsection (j) of the same section makes it a disciplinary offence any conviction for any criminal offence of any chief whether or not the court has made a recommendation under section 37 (5). The applicant ought to have started disciplinary proceedings in terms of section 16 by reporting the matter to the Principal Chief and to the Secretary of the Disciplinary Committee. What the applicant or the State did was to resort to the criminal proceedings which happen to provide for the remedies the applicant is seeking in the present proceedings. The applicant is not entitled to resort to two forums which have powers to give him the same remedies.
The applicant failed to ascertain the facts before he rushed to the Court. It was submitted on his behalf that the matter of the application is not in dispute regard being heard to the fact that respondent's gazettment, as claimed " flies in the face of the Chieftainship Act Mo. 22 of 1968." If the applicant had made some inquires before the lodged this application, he would have found out that the gazettment of the respondent was made under the provisions of The Basutoland (Constitution) Order in Council of 1959 and that. His Majesty The King recognised the respondent as Headman of Ha Mpolelo in terms of section 80 of the said Order in Council. This recognition was made on the 2nd day of January, 1968 long before the Chieftainship Act 1968 was enacted. The Chieftainship Act 1968 was assented to on 9th May, 1968 and came into force on the 22nd July, 1968. Although the
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actual publication in the Gazette was made on the 14th March, 1969 (about 14 months after The Kings decision to recognise the respondent as headman), I do not think that the Chieftainship Act, 1968 had anything to do with the gazettement of the respondent. Recommendation for the gazettement had been made by the Standing Committee of the College of Chiefs in terms of section 78 (1) of the said Order in Council.
For the reasons stated above the rule was discharged with costs on the 24th March, 1987.
J.L. KHEOLA
JUDGE
4th June 1987.
For Applicant - Mr. Nthethe
For Respondent - Mr. Maqutu.
