CIV/APN/77/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

'MATHESELE
'MASERIBANE Applicant

VS

TSEPO
QEFATE NKUEBE 1st Respondent

MINISTER
OF THE INTERIOR 2nd Respondent

ATTORNEY
- GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M. Lehohla on the 12th day of May,
1987.

On 19th
March, 1987 applicant obtained an Interim Order granted by Sir Peter
Allen J. calling upon the Respondent to show cause
on 30th March,
1987 why :

(a) An
order should not be granted setting aside the decision of Respondent
contained in annexure "NM4". (Respondent here
refers to 1st
respondent. See Notice of Joinder in terms of which 2nd and 3rd
respondents were joined unopposed);

(b) The
respondent should (sic) be ordered to provide the applicant with the
necessary stationery for the administration of the
offices of the
Chief of Mount Moorosi;

(c) The
respondent should not (sic) interfere with the applicant in anyway
whatsoever with the ruling and administration of Mt,
Moorosi the area
under her jurisdiction;

(d) The
respondent should not be ordered to pay the costs of this
application;

There is
also a prayer appearing as (3) asking that 1(b) in the notice of
motion should operate with immediate

2

effect.
In the notice of motion prayer 1(b) is set out in a manner that,
though differing from that employed in the interim order,
makes
sense. It requests that a Rule Nisi be issued calling upon respondent
to show cause why:

The
respondent should not be ordered to provide the applicant with the
necessary stationery for the administration of the offices
of the
Chief of Mt. Moorosi.

1st
respondent opposes the application that resulted in the issuing of
the above interim order. After several postponements the
matter came
before me on 28th and 29th April for final determination. At the
beginning of his argument Mr, Mphalane prayed for
and obtained an
order for joinder of 2nd and 3rd respondents namely the Minister of
the Interior and the Attorney-General respectively.
The application
for joinder was not opposed.

I propose
to dispose first of the matter drawn to Court's attention by Mr.
Mphalane; namely that "Respondent i e 1st respondent
has failed
to obey the order of court as set out in (b). Respondent has not
handed over the applicant the stationery." Mr.
Mphalane said he
was leaving this matter to the Court to see what to do in the
circumstances In reply Mr, Pheko for 1st Respondent
stated that he
was not aware if respondent had failed to obey the court order. He
had no instructions on the particular matter.
Moreover there is no
formal application for contempt by respondent. Neither has there been
notice that application would be made
for contempt. He further
submitted that the allegation of contempt made at the replying stage
when no opportunity availed for respondent
to reply was unprocedural.

3

While I
do acknowledge the fact that there is no formal application before
court for contempt I wish to point out that it is not
accurate that
the allegation of contempt only arose at the replying stage. My notes
clearly show that it was one of the first matters
raised by Mr.
Mphalane in his opening address. This is also borne out in the
introduction to his well prepared heads of arguments.
But because
there is no formal notice of application for contempt it would not be
proper for the court to deal with the matter
at this stage.

In moving
her application applicant relies on her affidavit, and that of Chief
Retselisitsoe Sekhonyana as well as other documents
attached to her
papers.

In her
supporting affidavit in para 3 applicant deposes as follows:-

"My husband is the late Nehemia Sekhonyana 'Maseribane who was
the chief of Mt. Moorosi till his death on 3rd November 1986;
and
according to the custom and the provisions of the Chieftainship Act
of 1968 our first bom son Mpara 'Maseribane is the legal
successor to
the Chieftainship of Mt. Moorosi."

Regarding
this paragraph 1st respondent in his opposing affidavit deposes as
follows:-

"Save to deny that the said Mpara 'Maseribane is the legal
successor to the office of chief by virtue of custom, I admit the

contents hereof,"

thus
throwing into issue the question whether Mpara is the legal successor
by virtue of custom as well or at all, while admitting
that he is a
legal successor in accordance with provisions of the Chieftainship
Act of 1968. But see section 5(1) (c) of Act 12/84
Gaz. 25/84.

In
accordance with provisions of section 11(1) of Act

4

22 of
1968 Chieftainship Act hereinafter referred to as the Act it appears
from the substance of a letter addressed to The Principal
Chief of
Quthing on 4th January 1987 that a meeting was held by the family of
Sekhonyana/'Maseribane wherein applicant was nominated
and presented
to 1st respondent with a request to the 1st respondent to in turn
present applicant before His Majesty the King and
be introduced in
Government Gazette by the Minister of the Interior and Chieftainship
Affairs as Acting Chieftainess of Mount Moorosi.
Translation of the
letter dated 4th January 1987 and addressed to the Principal Chief of
Quthing reads :-

"Acting
Chief of Mount Moorosi Chief, We the family members of Sekhonyane at
a meeting held on the 4th January 1987, Mount
Moorosi, in accordance
with the provisions of the Chieftainship Act, we wish to let you know
that the heir to the estate of the
late Chief Sekhonyana 'Maseribane
is 'Maseribane Sekhonyana (Mpara).

However,
due to the reason that the said heir is at present facing a certain
charge in the courts of law, we have, as members of
the family,
agreed, together with him, to appoint the wife of the late Sekhonyana
'Maseribane, Chieftainess 'Mathesele 'Maseribane,
as an acting
Chieftainess of Mount Moorosi, until the matters of the said heir in
the courts of law are finalised.

We
request further that this our decision be presented before His
Majesty the King, and that chieftainess 'Mathesele 'Maseribane
be
introduced in Government Gazette by the Minister of Interior and
Chieftainship Affairs.

Yours
faithfully,

Sgd. 1.
Chief Letlatsa Sekhonyana

2. Chief
Bohlale Koali

3. Chief
Retselisitsoe Sekhonyana

4. Chief
Tantata W. Sekhonyana

5. Chief
Lesiamo Moqalo

6. Chief
'Nena Sekhonyana

7. Chief
Sekhonyana Hlabi

5

8. Chief
Teboho Sekhonyana

9. Chief
Malefetsane Sekhonyana

10. Chief
Matsoso Sekhonyana

11. Chief
Makopela Sekhonyana

12. Chief
M.P. Sekhonyana.

The last
named is the legal successor. The relevant section i.e. ll(i) of the
Act reads; opposite the marginal note: Power to nominate
and present
a successor

"The person (or persons, in order of prior right entitled to
succeed to an office of chief may at any time be nominated by
that
chief during his lifetime (or by his family if he is deceased or if
he is unable, by reason of infirmity of body or mental
incapacity or
other grave cause, to make such a nomination) by means of a public
announcement of the nomination of that person
(or those persons, in
order of prior right) by that chief or by a senior member of his
family if he is unable as aforesaid to make
that nomination. The
public announcement shall be made at a pitso representative of all
chiefs and other persons in respect of
whom the person (or any one of
the persons) nominated would, if he succeeded to the office of chief,
exercise the powers and perform
the duties of that office."

11(2)
reads

"If the nomination of a person has been duly announced in
pursuance of the provisions of subsection (1); and any other person

claims that the person nominated is incapable of succeeding, or that
some other person who is capable of succeeding should have
been so
nominated instead of the person who was nominated, the person so
claiming may apply to a court of competent jurisdiction
to have the
nomination set aside or varied accordingly."

It is not
without significance that with respect to the person or persons
entitled to succeed 11(i) provides that such persons should
rank in
order of prior right. This reference is made on not less than two
occasions yet going through the same section with a fine-toothed
comb
reveals that words contained in the last set of brackets make no
reference to the phrase "in order of prior right".
In
contradistinction to the two occasions mentioned above

6

they merely refer to "the person (or any one of the persons)
nominated........"

If in its
wisdom the legislature found it important to append the phrase in
order of. prior right immediately after reference to
person or
persons.......... entitled to succeed why should that importance be
dropped in the last similar set of words occurring
in the section in
question? To this extent it seems to me that nomination to applicant
by the family is not excluded. But these
things cannot be considered
in isolation. See section 10(4) of the Act as amended.

Within
the given framework or set of facts before this Court it is clear
that order of prior right of succession is as follows:-

(a) Mpara

(b)
Mpara's wife in the event of Mpara's death or incapacity.

(c)
Mpara's mother in the event that Mpara has no male issue who is a
major or a legitimate brother and failing (b) above.

Section
10(4) supra reads:-

"The
only surviving wife of a person, or the surviving wife of a person
who, but for his death or incapacity, would have succeeded
to an
office of Chief succeeds to that office when it is vacant, and she
has not male issue."

I most
heartily appreciate the moral grounds and considerations of decency
which impelled the family to let Mpara forego his nomination
and
subsequent installation while finalisation of the criminal charge
against him is being effected. Indeed as succinctly put in
NM3 by the
Attorney General in answer to the Minister of the Interior and
Chieftainship Affairs' reaction to this plausible attitude
by the
family that under our law everyone is assumed

7

to be
innocent until proved guilty to wit:- "However, this argument
ignores other interests, such as good administration and
the image of
Chieftainship in the public mind. It also ignores the fact that it is
the King who makes Chiefs, something which is
repeated throughout the
Act." The moral virtue of this view cannot be over­emphasised:
Each chief made by the King projects
the light that radiates from the
King.

Section
10(7) of the Act provides that a successor does not become a chief
unless and until the King acting on the advice of the
Minister has
approved such succession. According to the Lesotho (No.2) Order 1986
the Minister must direct his advice to the Military
Council which '
shall duly advise the King. It is a matter for conjecture whether the
Military Council is bound to follow the advice
of the Minister.

I think
pare 3 of NM3 sets out the position correctly. I wish to. quote it in
extenso because it appears to be so important :-

"Prior to January 1986, the King was bound to follow the advice
of Cabinet Ministers. Individual Ministers were collectively

responsible for decisions of the Cabinet. So that if the Minister of
the Interior gave a certain advice to the King, he would be
doing so
on behalf of the Cabinet of which he was a member. After January
1986, things changed. All laws must be read subject to
the Lesotho
(No.2) Order 1986 which provides, that all things which are done by
the King must be done with the advice of the Military
Council, "All
things" includes executive matters and the Minister's advice to
the King under Chieftainship Act is an
executive matter. In my view
the Minister has, under the new regime, lost his direct touch with
the King. If the Military Council
is not willing to advise in favour
of the succession, then in accordance with section 10(7) of the
Chieftainship Act, the succession
will have no effect.'

To hark
back to provisions of section 11(1) read against section 10(4) which
is an amendment it appears that by

8

narrowing
the line of succession and thereby leaving hardly any elbow room in
the nomination by the family in terms of 11(1) particularly
the words
appearing in the last bracket thereof the legislature has taken away
from the family with one hand what it gave to it
in the other. Regard
must also be had to the fact that later statutes prevail against
former ones.

Furthermore
while the forms of incapacity to nominate a successor to an office of
chief as envisaged by section 11(1) seem to be
very broad as they, on
the one hand consist of death, inability by reason of infirmity of
body or mental incapacity or any other
grave cause, on the other
hand, the forms of incapacity to succeed to an office of chief when
that office is vacant as envisaged
by section 10(4) are confined to
only two factors, namely death or incapacity. Notable by its absence
in section 10(4) is the phrase
or any grave cause among the forms of
incapacity to fill a vacant office of chief. It would seem therefore
prospects of coming
worse off at the end of criminal proceedings do
not accommodate or condone any hesitation on the brink by a legal
successor. Even
with regard to section 11(1) employing the Noscitur a
soclis: a test of construction of a single word; where there is a
string
of words in an Act of Parliament, and the meaning of one of
them is doubtful, that meaning is given to it which it shares with
the other words. So, if the words 'horse, cow or other animal' occur,
'animal' is held to apply to brutes only. See Ejusdem Generis.
In
like manner the phrase "other grave cause would relate to the
type that affects the mind or body making it incapable.

Another
matter worth mentioning is that in interpreting

9

statutes
they should have reference to the present. It is trite that they
should not be interpreted either prospectively or restrospectively.

Consequently as at present until proved guilty Mpara is according to
our law presumed innocent section 10(4) does not apply. The
view
expressed above and relating to interpretation of statutes has
support in the rule that should be observed namely:-

"semper ita fiat relatio ut valet dispositic - let the reference
always be so made that the disposition may avail," See
6 CO. 76.

Mr,
Mphalane gave reasons in his reply why the application was brought
before court and these are his words:-

"Application before court is made as contemplated by section
11(2). Any party aggrieved can apply to Court."

But
clearly the wording of that section shows that by an aggrieved party
coming to court is envisaged someone aggrieved by the nomination
of
another. Nowhere in the papers before me has anyone been nominated to
warrant this application. In any case if there was it
was for
applicant to join him or her as respondent in the application.

I have
been referred to MN4 a letter by respondent in which in his capacity
as Principal Chief and Senior Chief of Mount Moorosi
he acknowledges
the "incapacity of Mpara" to presently occupy the position
of chief as set out in the attitude adopted
by the Military Council
and he defers to that and appoints a care-taker to attend to the
affairs of Mount Moorosi while the family
is contemplating on the
nomination according to law of an alternative successor.

Indeed
respondent has no right to nominate anybody to exercise the powers of
a chief precedent to the right of the

10

family to
nominate. However the statute as shown abovehas whittled away the
family's power to nominate anybody of its choice by
setting out who
in place of who can be legally be nominated that one wonders why in
the first place was the family given somewhat
a false sense that
there was any latitude in exercising its right to nominate and
present a nominee at all.

Another
matter of concern regarding which Mr, Mphalane not without cause
raised his dissatisfaction appears in para 16(c) of 1st
respondent's
opposing affidavit. Indeed this paragraph invited some mud-slinging
it reads:-

"E/R. Sekhonyana persists in this wrong appointment because his
own appointment as chief is in clear violation of the Act
in as much
as he snatched the powers of one Monica Sekhonyana who is a rightful
person to hold the office he is holding."

My
appraisal of the contents of this paragraph incline me to a passage
by Vessels C.J. in Findlay vs Knight 1935 A.D. 58 where the
learned
C.J. with reference to a similar situation said at p. 71 :-

"Qualified
privilege implies two principles of public policy (1) That the
welfare of society demands that an advocate or attorney
who pleads
the cause of his client should have a large degree of freedom in
laying his client's case before the Court, even though
in so doing he
defames the other party or even a third party. The decided cases show
that he has this privilege when opening a
case in open Court, when
examining and cross-examining witnesses, and when addressing the
Court. For the same reasons the pleader
must enjoy this qualified
privilege when he files formal pleadings and other documents
necessary to place his client's case before
Court. To hamper his
freedom in this respect would be contrary to public policy, and
therefore our Courts accord to attorneys and
advocates a large
measure of freedom in drawing pleadings and pleading causes.

11

(2) The
other principles of public policy which underlies qualified privilege
is that the process of the courts shall not be want
only used for the
purpose of defaming either litigants or third parties. The courts
cannot allow advocates or attorneys to use
the process of the courts
for an illegitimate purpose; (for manifestly the law cannot
countenance an abuse of the privilege.. And
where the privilege is
abused, malice is inferred -Kleynhans vs Usmar 1929.A.D. 121 at
"126)."

Although
the statute does not give respondent a right to nominate in place of
the family yet practice shows that where the office
of a Chief is
vacant by virtue of authority deriving from incidence of the
Chieftainship a Senior chiefs can appoint a headman
whose appointment
is determinable at will. This form of appointment has been given
recognition in the sense that the Ministry of
the Interior and
Chieftainship Affairs has often if not always paid stipends to the
appointee in Such office. See Jonathan vs Mathealira
1977 LLR. 314. I
may just point out that in the papers before me no siniter motive has
been proved against respondent suggesting
that his daughter who
happens to be legal successor's wife be care taker according, as he
put it, to law...

It would
also seem that the case of Nkuebe vs Minister of the Interior &
Others 1981(1), LLR. 181 is distinguisbable from the
present case in
that in that case the appointer of a care taker was a chief in his
own right therefore the principal chief was
barred from interfering
by purporting to appoint the holder's wife as against the mother who
was to act as care taker in the absence
of the substantive holder.
See sections 5(b) and 13(7) of the Act read with Nkuebe supra at
186-187.

Because
of the somewhat complicated wording in sectio /11(1)

12

11(1) I
am not persuaded that applicant fully knew she had no locus standi.
She may well have understood,and reasonably so,that
absence of
relevant words in the last brackets thereof supra implied that she
was entitled to succeed if only in an acting capacity
as caretaker.

The rule
is therefore discharged with costs on party and party basis.

12th May,
1987.

For the
Applicant : Mr. Mphalane For the Respondent : Mr. Pheko.