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CIV\APN\192\91

IN THE HIGH COURT OF LESOTHO

In the matter between:

MOTSOALIPAKENG TLOKOTSI Applicant

and

THUSO MOTLALENTOA 1st Respondent

MAPHILLIMON MOTLALENTOA 2nd Respondent

REASONS FOR JUDGMENT

Delivered by the Honourable Mr. justice J.L. Kheola on the 4th day of March. 1992.

On the 14th November, 1991 I delivered an impromptu judgment committing both respondents to prison for contempt of court.

I went on my annual leave on the 13th December, 1991 and returned on the 31st January, 1992. I was informed by the Registrar that the respondents want a written judgment because they want to appeal.

In his application the applicant sought an order in the following terms:

1. That the rules prescribed for service be dispensed with on the basis of the urgency of this application.

2. That a Rule Nisi issue returnable on the date and time to be determined by this Honourable Court calling upon the respondents herein to show cause if any.

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1. The Respondents shall not be arrested by the Morija Police and committed to prison for contempt of Court,

2. The Respondents shall not be ordered to desist and\or refrain from interfering with the applicant's rights to the said field.

3. The Applicant shall not be permitted to harvest the said field.

4. The Respondents shall not be ordered to pay costs of this application.

5. This Honourable Court shall not grant applicant such further and\or alternative relief as it may deem fit.

3. That prayer 2(a) operate with immediate effect as an interim order.

In the founding affidavit the applicant avers that he was the respondent in CIV\APN\18\87 and the first respondent in the present application was the appellant. The High Court passed judgment in the applicant's favour, that the disputed land was his and that the first respondent was therefore unlawfully ploughing and cultivating it and that they should be arrested by the Morija police and be committed to prison for contempt of court.

The applicant avers as follows in paragraph 6 of his affidavit:

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"I verily aver that the 1st and 2nd respondents are still cultivating the

said field inspite of the judgment of the said court."

He avers that the 2nd respondent was also ordered not to cultivate the said field and has disobeyed the said judgment delivered by the Lesotho Court of Appeal (C. of A. (CIV) 20 OF 1987). During the ploughing season of 1991 the respondents did prevent him from using the said land and they have grown maize crop.

In his answering affidavit the first respondent avers as follows in paragraphs 4, 5, 6 and 7:

4. It is not correct that this Honourable Court decided in favour of Applicant. What this Honourable Court did was to confirm the decision of the Acting Principal which instructed Chief Leutsoa to allocate and confirm Applicant on this field. Chief Leutsoa has to-date not done so. In any event Chief Leutsoa would not allocate and confirm Applicant on this field. It is the Land Allocating Committee which should allocate land and it is not bound to act in accordance with the instructions of the Acting Principal Chief. In the premises Applicant has not been allocated the field and has no title thereto for the reasons aforesaid.

4. I admit that I am still cultivating the field in question. I have been ploughing it even before Applicant took me to Court initially. As Applicant has not been allocated the field he cannot complain

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about my ploughing of the field which is not his. Until he is so allocated he has no rights over the same. It is only the chief and the Land Allocating Committee which may complain. They have to-date not done so. At the very least Applicant should have joined them in this application.

6. I deny the contents hereof, a proper reading of this judgment clearly indicates that it dealt with the question of the procedure under rule 52 of the rules of court.

6. I have never prevented Applicant from ploughing this field. I have to mention however that he will have the right to cultivate the field only after he has been duly allocated the same under the law. He has not been so allocated. He has as a result no right to the said field. My allocation has not been declared invalid. It could not be so declared without joining the Land Allocating Committee in such proceedings.

CIC\A\18\87 was an appeal from the judgment of the learned Judicial Commissioner delivered on the 25th October, 1985. He had set aside the judgment of Matsieng Central Court and reinstated the judgment of Matsieng Local Court which had awarded the land in question to the present applicant. At the end of the day the appeal was dismissed with costs.

The present respondents are aware of this judgment but want to give their own interpretation of that judgment. I am surprised that their attorney also pretends that the judgment is not clear. The appeal by the respondents, against a judgment of the Judicial Commissioner which was against them, was dismissed. The respondents have not appealed against the

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judgment of this Court but they are continuing to defy the order of this Court by using the land in question and giving their own interpretation of a very simple and straightforward judgment.

The Court will not allow them to get aware with it. The second respondent has not even filed an opposing affidavit to try to exonerate herself. The applicant has averred that the second respondent and the first respondent, who are husband and wife, are continuing to use the land knowing very well that the appeal they tool against the judgment of the learned Judicial Commissioner was dismissed. They know well that they have not appealed against that judgment which was delivered on the 16th July, 1988. I am most surprised that their attorney who is an officer of this Court drew an affidavit in which the first respondent deliberately and maliciously gives a wrong interpretation of a very simple judgment. Mr. Nathane ought to have advised his clients better. They are obviously involved in delaying tactics.

It is contempt of court to disobey an order of a competent court (See 'Matau Makhetha v. Rex 1975 L.L.R. 431; Section 15 (a) of Central and Local Courts Proclamation No.62 of 1938).

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In the result the application was granted in terms of prayers (a), (b), (c) and (e). The respondents were committed to prison for four months each for contempt of court.

J.L. KHEOLA

JUDGE

4th March, 1992.

For Applicant - Mr. Maqutu

For Respondents - Mr. Nathane.