CIV/APN/24/80

IN THE HIGH COURT OF LESOTHO

In the Application of :

MOABI MOTJOKA MOABI Applicant

v

1. KOATJA MOABI )

2. SOLICITOR-GENERAL )

3. PRINCIPAL CHIEF OF BEREA ) Respondents

DISTRICT

JUDGMENT

Delivered by the Hon. Chief Justice, Mr.Justice T.S. Cotran on 28th day of October, 1980

In this application Moabi Motjoka Moabi(applicant) claims :-

1. that he is the gazetted headman of Ha Motjoka
   village, T.Y., in the District of Berea, by
   virtue of Government Notice No.15 of 1972;

2. that the village of Ha Mohlaetoa falls under
   his jurisdiction;

(3) that Koatja Moabi(lst respondent) is usurping
his powers in that village with the encouragement
if not the connivance, of the administrative
authorities, represented by the Solicitor-
General (2nd respondent), and the Principal
Chief of the district (3rd respondent).

The applicant seeks orders from this court couched in the following terms:

"1. Interdicting the 1st Respondent from in any way holding himself out as exercising any functions of bugle or ungazetted headman of the village of Ha Mohlaetoa;

2. Interdicting the Government of Lesotho and its
officers from recognising and dealing with the
1st Respondent as an ungazetted headman of the
village of Ha Mohlaetoa.

3. Directing the 1st Respondent to pay the costs
of this Application and, in the event of the

2nd and 3rd Respondents opposing this application jointly and severally with them.

4. Granting the Applicant herein such further or alternative relief as this Court may deem just."

/The

-2-

The application has been resisted by the 1st respondent. The 2nd and 3rd respondents, who were served with the papers, entered no appearance, and I presume that they will abide by the Judgment of the Court.

Government Notice No.15 of 1972 does not concern Ha Motjoka but the areas of Thakampholo's and Makoanyane's and the applicant's name does not appear therein. I think he was actually referring to Government Notice No.15 of 1973 where he was gazetted headman of Moabi's which is probably the same village now known as Ha Motjoka. The applicant however produced no official documentary evidence that Ha Mohlaetoa falls under the jurisdiction of the headman of Ha Motjoka or Moabi's. What can be found in High Commissioner's Notice 170 of 1950 published in "Basutoland Proclamation and Notices 1950" p.124 is that Motjoka Moabi(the applicant's father) was gazetted headman of Moabi, and Mohlaetoa Moabi (the 1st respondent's father) was gazetted as headman of Mohlaetoa's, both equal in status, but subordinate to the Principal Chief of Mamathe's and Thupakubu. High Commissioner's Notice No. 23 of 1952(Basutoland Proclamation and Notices 1952) shows however that the name of Mohlaetoa Moabi was deleted from the list. The 1st respondent says, and there is no reason to disbelieve him, that his father died in that year. It may be that the High Commissioner intended to abolish the headmanship or it may be (and this was more likely) that he was waiting for the usual consultations with superior chiefs and perhaps the Paramount Chief. But rapid constitutional changes were taking place and the matter remained unresolved. One thing, however, is certain, viz, that the applicant was never gazetted over Ha Mohlaetoa.

The position on the ground after Mohlaetoa's death in 1952 appears to have been as follows :-

1. That applicant or his father claimed the headmanship
   of Ha Mohlaetoa but neither was able to get himself
   gazetted to it by the authorities. In fact, the
   applicant has been gazetted at Moabi's through his
   mother, who was acting chieftainess, probably
   during his absence or minority (vide Government
   Notice No. 24 of 1972) until 1973.

2. That in 1978 the applicant convened a family
   gathering that purported to give him Jurisdiction
   over Ha Mohlaetoa, but it is clear nevertheless
   that he only managed to gather the faction that

/supported

-3-

supported him and the administrative authorities were not impressed with this. The 1st respondent alleges it was a fraudulent gathering and there is a ring of truth in this.

3. That 1st respondent resisted the applicant's (or his father's) pretensions from the outset but was, and still is, unable to get himself gazetted though the administrative authorities cooperate with him and pay him a stipend.

Neither Mr. Maqutu nor Mr, Sello were able to refer me to decided cases covering disputes of this kind and I have perforce to decide it on principle.

An applicant for an interim interdict must establish three things :-

(a) a clear right on his part,

(b) an injury actually committed or a well founded
apprehension that the injury will be committed
by the respondent and

(c) that there is no other remedy open to the
applicant which will afford any adequate
protection from the mischief which is being
done or threatened (Setlogela v. Setlogela
1914 (A.D.) 221).

This is, however, an application for a perpetual or permanent interdict and not for an interim interdict. The former is seldom granted on application (see Becks Theory and Principles of Pleading in Civil Actions 4th Ed. p. 196). As we have seen the applicant is not gazetted as headman of the area of Ha Mohlaetoa and has therefore no clear right; if injury there was, (and I doubt it) he (and his father and his mother) had acquiesced in it for 28 years; and finally he has a remedy by appealing to the administrative authorities, and ultimately to the Courts, to persuade them that he is entitled to be gazetted over Ha Mohlaetoa. I think his chances are slim whichever forum he approaches.

The application fails. The applicant will pay the 1st respondent's costs.

CHIEF JUSTICE

22nd October 1980 For Applicant : Mr. Sello
For Respondent: Mr. Maqutu