CIV/A/16/79
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
SELEBALO RAMATEKOA Appellant
v MATLOLA RAMATEKOA Respondent
JUDGMENT
Delivered by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 29th day of April, 1980
The late Seboli Ramatekoa, who was headman of Ramatekoa, married twice. His first son from his first marriage is Selebalo the appellant before me and the plaintiff in the trial Court. That first wife died and he married a second time and from the second wife had a son Matlola the respondent before me and the defendant in the trial Court. Seboli died in 1946 and his eldest son by the first wife Selebalo succeeded him to the headmanship. In 1948 Selebalo went (with his wife) to work and live in the Republic but left a number of persons, one of whom was the late Kahlolo, to look after the chieftainship affairs in his absence. It seems that he also left an aunt, one Mantekoa, in his house to look after it. As heir Selebalo inherited his father's homestead which consisted of a piece of land upon which stood the headmanship administrative offices and his own houses and kraals. Although Seboli's marriages appear to have been monogomous, Matlola's mother, either initially or later but during the lifetime of her husband Seboli, was allocated a separate compound apparently situate "behind" Selebalo's own complex. Matlola (when a man) also went to work in the Republic but apparently made more frequent visits to Lesotho than his older half brother Selebalo. Selebalo retired on pension in 1970 and returned to live in Lesotho permanently. It is common cause that Matlola, sometime in the sixties, had built two houses (at least) on portion of the land that Selebalo
/had
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had inherited, as heir to his father, and when he was sued for ejectment by Selebalo he alleged that Selebalo had in fact given him (as a gift) a portion of that land on which he built the two houses. This allegation was denied. The Tsikoane Local Court, rightly in my view, decided that the onus of proof lies on the defendant Matlola. He called two witnesses, their common uncle Mahloko (called PW 1 in the proceedings) and the superior chief Mohale (called PW 2 in the proceedings) both of whom testified that sometime in the sixties, the half brothers came together for a visit to Lesotho during which visit Selebalo told first his uncle and then confirmed it before chief Mohale that he wanted to give his younger brother part of the plot he had inherited. There was no documentary evidence to support this gift. A certificate of allocation of land (which came into effect initially under the Land (Advisory Boards Procedure) Regulations 1965 (Form C) was not given to or obtained by Matlola. The absence of Form C, however, is not crucial as anyone who has experience of land tenure in Lesotho knows. If I may digress for a moment, although action was
lodged in 1975 and the trial commenced in 1976, the actual dispute between the brothers started in 1972 or 1973, two or three years after the Selebalo's return to live here permanently, when in CC 130/73, (Tsikoane Local Court) Selebalo sued Matlola for ejectment but the Court (as per Exhibit B) dismissed his claim on the ground that the question of land "concerns chiefs" and that there was no evidence either way. It would then seem that Matlola went to see the chief (probably Chief Mohale) who decided in his favour. This "decision" (administrative) is not on the record. Matlola however managed to obtain another Judgment from Tsikoane Local Court (CC 114/74 Exhibit A) which ordered Selebalo to move from his (Matlola's) site. Selebalo then appealed to the Tsifalimali Central Court that gave Judgment on 7th April 1975 (Exhibit D) allowing the appeal and absolving Selebalo from the instance. The Judgment (Exhibit D) concluded that "Matlola is given an opportunity to institute proceedings again when he has enough evidence from the chief of the area that the site is his".
Matlola did not institute proceedings, but quite obviously, he stayed put on the site. Solebalo then brought the present action in a further attempt to eject his brother. The Court found, on preponderance of evidence, that Selebalo had indeed given the plot as a "gift" to Matlola in the sixties. Apart from the evidence or their uncle Mahloko and the superior chief Mohale, Matlola produced a copy of a Judgment (CC 390/68
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- Exhibit C) dated January 1969 from which it can be gathered that one Masulubanyane Rantsosi has sued Selebalo over the same site. Masulubanyane apparently alleged, when claiming the plot in question from Selebalo, that Selebalo had already given the plot of land away to someone else. That someone must have been, by inference, his younger half brother Matlola. The President of the trial Court argued that this supports Matlola's (and his witnesses) case especially because the latter had built three houses without apparent objection and if there was no gift as alleged the plaintiff Selebalo would have taken steps to eject him much earlier than he did.
Selebalo appealed to the Central Court. Matlola failed to appear although summoned. The President of the Central Court (L.S. Noosi, Esq) who had favoured Selebalo all along having dealt with his previous appeal was persuaded that Matlola's allegation that the portion was given to him as a gift was a fabrication and that the evidence was "rigged". Apart from the fact that there was no documentary evidence of the gift he gave other reasons .-
A "gift" must be publicised within the family and there was no family gathering convened to discuss it.
At the time of the alleged gift a man called Kahlolo was acting as chief for Selebalo and he should have been the first to be informed of such a gift if it existed. Kahlolo is now dead but it is common cause that he was not informed and it was also common cause that no family gathering was convened.
There was no explanation as why Matlola should have been given this gift in view of the fact that his mother had been allocated a separate compound of which he was the heir apparent and Selebalo himself had his own heir to provide for. Furthermore the defendant had another site, separately from his mother's,which was allocated to him in 1968 by Kahlolo, in an area called Mafarika.
Matlola appealed to the Judicial Commissioner who allowed the appeal and restored the Judgment of the Local Court on the ground that the trial Court believed the appellant and his witnesses and an appeal court should not upset its findings unless there were strong reasons. The Judicial Commissioner did not find strong reasons to do so. Selebalo has now appealed to me and advanced the further proposition that Mahloko's (his uncle) and Mohale(his superior chief) were perjurers because he had a dispute with his uncle over his
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father's estate and because chief Mohale is disputing his chieftainship rights in the area.
Well there is nothing positive to substantiate the appellant's last allegations although they have a smell of truth. When it comes to inheritance and land allocation my experience is that many lies are told and to rely exclusively on "balance of probabilities" as understood in the English and Roman-Dutch systems of law, often results in injustice. Indeed I think this has been recognised by the legislature in the Basuto Courts(Practice and Procedure) Rules 1961. I will cite a few examples to illustrate the difference. No law maker, as far as I am able to discover, has specifically enjoined the Court "not to act in bad faith or from improper motives" or enjoined a President of a court "to apply his mind to the question under consideration and to come, in good faith, to a genuine decision thereon" (Rule 8(a) & (b) or to hear the evidence of a witness without oath or affirmation but only on "admonition" (Rule 17(2) &
I am not at all satisfied with the way things have been conducted in the lower courts which do not appear to have applied one of the most elementary principles of the laws of Lerotholi s.l4(4) which provides :-
"Any dispute amongst the deceased family over property or property rights shall be referred for arbitration to the brothers of the deceased and other persons whose right it is under Basotho law and custom to be consulted. If no agreement is arrived by such persons, or if either party wish to contest their decision, the dispute shall be taken to the appropriate court by the dissatisfied party".
There was no family meeting to arbitrate and in this particular instance I find it utterly incredible that all the Presidents of the Local and Central Courts before whom the cases came allowed the
ials to proceed without bothering to refer the matter to a family council which is usually a condition precedent to lodging an action (see Poulter Family Law and Litigation in Basotho Society p.223 et seq).
For this reason alone I would allow the appeal with costs. I
order that a family council be convened to thrash and resolve the issue if they could. Particularly I would urge the two brothers to give and take. If no agreement is arrived at or if either party
wishes to contest the decision I direct that the party feeling aggrieved should bring the action before the Subordinate Court of a First Class magistrate within whose jurisdiction the land is situate. I am making this direction because the Presidents of the Local and Central Courts of the area are already too familiar with the dispute and may have strong feelings one way or the other and also because I believe this course is more expeditious to bring about a finality since the dispute has been going on for more than seven years. In the meantime I also direct that the status quo should not be disturbed, that is, that the two brothers should stay where they are now without engaging in more construction of buildings or alteration of fences, pending the final outcome.
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What follows is not necessary for my decision but like the President of the Central Court, I find, on the papers as they now stand, unlikelihood of a gift of land being given by Selebalo to his younger brother especially if there is truth in the allegation that Matlola has not only his mother's site to inherit but also because another site was given to him in 1968 by the late chief Kahlolo in Mafarika. Moreover the area allegedly given as a gift had two derelict houses and some kraals and it was sufficiently large to enable him to build two or three more houses. Is it really reasonable that Selebalo with his own heir and children to look after should voluntarily cede part of his inheritance to his brother shortly before he was about to retire?
At the death of Seboli in 1946 the Laws of Lerotholi (s.15) provides that the heir shall inherit all the unallocated property of the estate but he is obliged by custom to use the estate with his father's widow or widows and to share with his junior brothers according to their rank which shall be according to the order in which their mothers were married. Now it is clear that Selebalo did not, at his father's death, deem it necessary to give away from his estate a plot to Matlola, and the reason seems to me to have been the fact, if such it was, that Matlola's mother had been allocated (by Seboli her husband) her own complex already. Matlola's position has been, so it seems, safeguarded by the Laws of Lerotholi s.l4(3) which provides:
"(3) If there is male issue in any house other than the house from which the principal heir comes, the widow shall have the use of all the property allocated to her house and at her death any property remaining shall devolve upon the eldest son of her house who must share such property with his junior brothers in his house; provided that no widow may dispose of any property without consultation with the guardian while that son is a minor, and provided further that on the eldest son reaching his majority he will assume control of the property in his house".
What made Selebalo change his mind in the sixties (after 20 years) when he was about to return to Lesotho? Why was there no publicity in the family? Why did Matlola not get Form "C" when they were introduced in 1965? The uncle Mahloko says (at p.4 of the typed record) that Matlola's house (in yet another site) had collapsed and he wanted his elder brother to allow him to build on the family estate but this
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does not in my view necessarily constitute an irrevocable gift. The "allocation" may well have been an indulgence to a younger brother as a "Toeba ea lithako" (for which doctrine see Duncan Sotho Law and Customs p. 14, and pp 15-18 and also see Poulter -supra - pp 307-315). There was no prima facie a firm intention to donate as far as I can see I may be wrong of course but if the dispute is brought before the Court again I urge the magistrate in charge of the district before whom the trial comes to ensure that a sketch is prepared showing by means of pacing out:
the area Selebalo originally inherited from his father including the number of houses and kraals thereon,
the area allocated to Matlola's mother including the number of houses thereon and its proximity to Selebalo's own land and houses,
the area allegedly allocated to Matlola in comparison to what was left to Selebalo and the number of houses or kraals that were thereon and since built on,
the whereabouts of the site and house which the uncle Mahloko says had collapsed and which prompted the alleged allocation. Is that site developed and to whom does it presently belong?
the whereabouts of the site at Mafarika allegedly allocated to Matlola and the number of houses built thereon.
CHIEF JUSTICE
29th April, 1980
For Appellant . Mr. Mda For Respondent: Mr. Maqutu
