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:-

1. 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:-

   
   

1. 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;

   
   

2. 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;

   
   

2

3. The
   Respondent shall not be restrained from instigating and or inciting
   the people of Ha Mpolelo to fight and or indulge in
   civil comotion:

   
   

4. The
   Respondent shall not be ordered to pay costs hereof:

   
   

5. 
   The Respondent shall not be given such further and or alternative
   relief.

   
   

2. 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

3

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

4

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 :-

1. A
   clear right on the part of the applicant.

   
   

2. An
   injury actually committed or reasonably apprehended.

   
   

3. 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.

5

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

6

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

7

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.