HIGH COURT OF LESOTHO
PAULUS LETSOELA Applicant
KOLOJANE 1st Respondent
KUENENG AND MAPOTENG 2nd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 20th day of August,
result in this matter has already been announced to the parties with
a promise that the reasons for judgment would follow at
stage. I now submit such reasons.
an application for an order in the following terms:
1st Respondent to pass to the second respondent the nomination of
the applicant as rightful successor to the chieftainship
Letsoela in the district of Berea.
2nd Respondent in his\her turn to pass such nomination to higher
authority in terms of the Chieftainship Act 1968.
alternative, additional or other meet relief to applicant.
costs against 1st Respondent.
costs against 2nd Respondent if he\she files any opposition in the
applicant avers that on the 8th January, 1991 the chieftainship of Ha
Letsoela in the district of Berea became vacant or unoccupied
the demise of its lawful holder and his uncle, Moifo Letsoela. The
first respondent is the chief of Kolojane and thus immediately
or superior to the chief of Ha Letsoela. The second respondent is the
chief of Koeneng and Mapoteng and thus senior or superior
chief of Kolojane.
applicant further avers that thereafter the family of Letsoela, being
the people vested
right to state or determine the successor to Moifo Letsoela, lawfully
set together and decided that
uncle, Ralikomiti M.S. Letsoela act as chief of Ha Letsoela until
the position be filled aubstantively.
applicant be successor to the late Moifo Letsoela.
the procedure prescribed by the Act governing such succession he was
duly presented as a future chief to the people ruled
at Ha Letsoela
and nobody raised any query or objection. The family of Letsoela and
the acting chief formally advised first respondent
of the applicant's
nomination so that he might in turn pass the same to the chief senior
to him. The response of the first respondent
was a strange one that
he was still considering the matter.
applicant further avers that according to his understanding of the
law the first respondent has no discretion in the matter
to the senior chief. There were rumours in the village that the first
respondent intended to impose upon the family of
Letsoela one woman
living in the Republic of South Africa as the chief on the pretext
that she is the wife of the late Moifo Letsoela.
The applicant and
his family suspected ulterior and improper motives on the part of the
first respondent as they knew that the
woman in question was never
lawfully married to the late Moifo,
were written by the acting chief of Ha Letsoela to the second
respondent seeking assistance in the matter but such letters
answering affidavit the first respondent avers that Paulus Pelele
Letsoela is the father of the applicant and is the younger
half-brother of Letsoela Pelele Letsoela who by virtue of his birth
as the first born son of Pelele Letsoela who was the chief
and Khomokhoana. The office of chief of Hoatane and Khomokhoana is
subordinate to the office of the first respondent.
There is no office
of Chief of Ha Letsoela.
respondent denies that the applicant is capable of succeeding to the
office of Chief of Hoatane and Khomokhoana Ha Letsoela.
being that the holder of that office, the late Chief Moifo Letsoela
was married and has left behind a widow, 'Maletsoela
and a minor son, Letsoela Moifo Letsoela. He denies that the late
Moifo Letsoela was the paternal uncle of the applicant.
He is the son
of the late Moifo's brother. When the late Moifo died the vacant
office of Chief of Hoatane and Khomokhoana was left
open to the minor
son, Letsoela Moifo Letsoela. If Moifo Lesoela had been childless,
the lawful successor would have been his widow
respondent further avers that the nomination of a successor to the
office of the Chief of Hoatane and Khomokhoana took
place in his
absence. But, as the affidavit of Khahlai Seeisa shows, applicant's
name was referred to his office by a faction of
the Letsoela family.
Khahlai Seeisa who was acting in his name as chief of Kolojane
referred the matter back to the family as 'Mamaifo
mother of the late Chief Moifo Letsoela) and others had
'Maletsoela Letsoela, the wife of the late Moifo Letsoela, as regent
for her minor son Letsoela Moifo Letsoela.
respondent further alleges that as far as he is aware Khahlai Seeisa
is still waiting for a nomination by the family as
conflicting nominations were brought while the entire family was
still in mourning and had not removed the mourning cloth.
applicant's faction persisted that the applicant was the lawful
nominee and that no other family meeting was necessary.
knows that Moifo was married to 'Maletsoela (formally Papali Molupe).
Not only is there a marriage certificate (See Annexure
but "bohali" cattle were handed over to the parents of
"Maletsoela. This marriage is common knowledge
and the Letsoela
family of which the applicant is a member and caused the said wife of
Moifo to wear a mourning cloth.
supporting affidavit 'Mamoifo Letsoela avers that she is the widow of
the late letsoela Pelele Letsoela and the mother of
the late Moifo
the chief of Hoatane and Khomokhoana who has just died on the 8th
January, 1991. He was the gazetted chief of Hoatane
He married Papali Molupe by both Sesotho custom and by civil rites.
The first five cattle were driven to Futhong
Ha Mokone by the late
Ralipoli Letsoela and Chieftainess 'Mampoi Letsoela on the 27th May,
1978. Moifo and Papali went through
a civil marriage ceremony on the
16th August, 1978. On the 19th February, 1980 six cattle (in money)
were paid towards the "bohali"
of her daughter-in-law
making a total of eleven head of cattle.
avers that the reason why a faction that supports the applicant met
without inviting and consulting the entire family of
Letsoela is that
they are trying illegally to seize the chieftainship of Hoatane and
Khomokhoana. She alleges that she was still
in mourning. She alleges
that she was still in mourning when she was advised by some members
of the family that Dingane Letsoela
and his faction had introduced
the applicant as a successor to the chieftainship of Hoatane and
Khomokhoana. She immediately took
steps to stop the first respondent
from recognising the applicant as the successor of the late Moifo.
son Moifo has a twelve year old son born on the 30th July, 1979.
Bapali Letsoela has also filed a supporting affidavit in which she
avers that as appears more fully from Annexure "M"
respondent's affidavit she is the wife of the late Chief Moifo
Letsoela. She eloped with the late Moifo in May, 1978.
accepted by the Letsoela family and a sheep was slaughtered to accept
her as a daughter-in-law by the Letsoela family.
On the 16th August,
1978 she went through a civil marriage ceremony with her husband.
Letsoela was born on the 30th July, 1978.
She lived with her husband
until January, 1980. Because of persistent assaults continued
cohabitation became dangerous and intolerable.
She was force to leave
the marital home. While she was at her maiden home she went to the
Republic of South Africa. She now has
three other children who were
born during the period of her separation from her late husband. After
the death of her late husband
she came back to her marital home and
she was made to wear a mourning cloth by the Letsoela family.
Seeisa acts as chief of Kolojane in the absence of the first
respondent. In his affidavit he confirms what the first respondent
has already said in his answering affidavit. It will serve no good
purpose to repeat the contents of his affidavit.
replying affidavit the applicant avers that the late Chief Moifo
lawfully married 'Maliboho Letsoela, the daughter of Stephen
Ralikomiki Letsoela under Sesotho law in 1970 and that he was
therefore debarred by the Marriage Act 1974 from marrying another
woman thereunder while such Sesotho marriage still subsisted. The
alleged marriage to Papali Molupe is therefore null and void
of the Marriage Act 1974 and that its issue is therefore
illegitimate. He avers that he and the family acted and act in
matter on the basis of their knowledge that the late Moifo has no
lawful widow apart from 'Maliboho Letsoela and that no other
can beget a legitimate son while that Sesotho marriage still exists.
supporting affidavit Digaane Letsoela avers that the late Chief Moifo
Letsoela lived with several women during his lifetime.
He referred to
women as his wives but he never lawfully married such women. He
admits that when the late Chief Moifo had died 'Maletsoela
Letsoela actually arrived on the day of the burial. He denies that
she was made to wear the mourning cloth by the Letsoela
Stephen Letsoela is the father of 'Maliboho Letsoela and confirms in
his supporting affidavit that her daughter was married
to the late
Moifo in April, 1970. She lived with her husband until the first
respondent forced him into exile in the Republic of
During the late Moifo's absence in Lesotho 'Maliboho went to her
maiden home and subsequently got married to another
Mokotoane's where she has remained since then.
governing the succession to the office of chief is section 10 of the
Chieftainship Act No.22 of 1968 as amended. Section
10 (1), (2) and
(3) read as follows:
this section a reference to a son of a person is a reference to a
legitimate son of that person.
an office of Chief becomes vacant, the firstborn or only son of the
first or only marriage of the Chief succeeds to that
office, and so,
in descending order, that person succeeds to the office who is the
first-born or only son of the first or only
marriage of a person
who, but for his death or incapacity, would have succeeded to that
office in accordance with the provisions
of this subsection.
when an office of Chief becomes vacant there is no person who
succeeds under the preceding subsection, the first-born or only
of the marriage of the Chief that tool place next in order of time
succeeds to that office, and so, in descending order of
seniority of marriages according to the customary law, that person
succeeds to the office who is the first-born or only son
senior marriage of the Chief or of a person
who, but for. his death or incapacity, would have succeeded to that
office in accordance with the provisions of this subsection.
evidence by 'Mamoifo Letsoela, the mother of the late Chief Moifo
Letsoela, that the late Chief Moifo Letsoela was married
'Maletsoela Papali Letsoela. Eleven head of cattle were paid for
"bohali". Out of this marriage a son. Letsoela was
is over twelve years of age because he was born in 1979. The Sesotho
law marriage took place on the 27th May, 1978. On
the 16th August,
1978 the couple went through a civil marriage ceremony.
applicant has not challenged the validity of the Sesotho law marriage
between the late Chief Moifo Letsoela and 'Maletsoela
(born Molupe). His argument is that the late Chief Moifo married
'Maliboho Letsoela in 1970 and that he could not
enter into any other
marriage with another woman while such Sesotho marriage was still in
existence. Reference is made to the Marriage
Act 1974 but no
particular section has been quoted. If the respondent had in mind
section 29 (1) of the
Act 1974 he is mistaken because that section refers to marriages
entered into under civil rites. Section 29 (1) does not
polygamy. This is made very clear by section 42 of the Marriage Act
1974 which provides that -
"This Act shall apply to all marriages solemnized in Lesotho
save and except marriages contracted in accordance with Seaotho
and custom, and nothing herein contained shall be taken as in any
manner affecting or casting doubts upon the validity of any
last-mentioned marriages contracted before or after the coming into
operation of this Act."
marriage between the late Chief Moifo Letsoela and 'Maletsoela Papali
Letsoela (born Molupe) was contracted in accordance with
and custom. "Boheli" cattle were paid. I am of the' opinion
that there was a valid marriage contracted in
accordance with Sesotho
law and custom between the late Chief Moifo Letsoela and 'Maletsoela
Papali Letsoela until the former died.
applicant avers in his replying affidavit
late Chief Moifo Letsoela contracted a marriage with one 'Maliboho
Letsoela in accordance with Sesotho law and custom in
1970. That lady
is allegedly still alive and she has been married by another man. She
has apparently lost any interest in the Letsoela
family because after
the death of her alleged husband she has not taken any action to
claim her rightful position in the family
of Letsoela. In any case
because she has no. legitimate son, the son of 'Maletsoela must
succeed to the office of his late father
in terms of section 10 (3)
of the Chieftainship Act 1968.
to nominate and present a successor to the office of Chief is clearly
set out in section 11 of the Chieftainship Act 1968.
of section 11 reads as follows:
"The person (or persons, in order of prior right) entitled to
succeed to an office of Chief may at anytime be . nominated
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
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
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 in respect
of whom the
person (or any one of the persona) nominated would, if he succeeded
to the office of Chief, exercise the powers and
perform the duties of
important words in the subsection are "in order of prior right".
These words mean that members of the family
who nominate the
successor do not have a free hand to choose whoever they like. They
must follow the provisions of section 10 of
the Chieftainship Act
1968 in which the order of prior rights is set out in detail. 'Meli
Ntsoele v. 'Mamolomong Ramokhele 1975
L.L.R. 130. I am of the view
that in the instant case the family of Letsoela nominated the wrong
person because the
Chief Moifo has a son and a widow.
respondent had a right as the Senior Chief to query the nomination
and ask the family to reconsider it in terms of the
law. Ntsoele v.
Ramokhele - supra.
result the application was dismissed with costs.
Applicant - Mr. Seotsanyana
Respondents - Mr. Maqutu.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law