IN THE HIGH COURT OF LESOTHO
In the appeal of:
MAJARA MASUPHA Appellant
MASUPHA M. MASUPHA RespondentJUDGMENT
Delivered by the Hon. Mr. M. P. Mofokeng on the 26th day of May, 1980
occupying his land and building a house thereon. Both the Local and Central Courts found for the plaintiff while the Judicial Commissioner sot aside such finding and entered a judgment of absolution from the instance.
This is an appeal from the decision of the Judicial Commissioner.
The respondent, to whom I shall refer to as the plaintiff, sued the appellant (hereinafter referred to as the defendant) for unlawfullyidence before the Local Court established that:
Plaintiff and defendant are brothers being the sons of one of
Chief Moorosano's wives called 'Mamajara. The defendant is the
older of the two sons.
Each of Chief Moorosane's wives bad her our homestead which
Ramabele was Chief Moorosane's son by his first wife and
was thus the overall heir.
The plaintiff lived with Chief Moorosano during the latter's
Plaintiff fenced in the whole of his father's (i.e. Chief
Moorosane's) homestead. He improved the grounds by building
dams and planting trees of various types.
6. Plaintiff also erected his own house within the area of the homestead as he did not have a separate residential area. The area allocated to him had been given to the defendant.
7. All Chief Moorosane's wives and other descendants left the home-stead and their houses within it leaving only the Chief, the mother
of the parties and the plaintiff therein.
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8. During the lifetime of Chief Moorosane respondent resided on a separate site. Only long after the death of the Chief and his wife did the respondent move into his late mother's house and began to build a shack.
The case for the plaintiff can be put in a nutshell as follows.-
That during the year 1940, evidently knowing that ho has no
rights of heirship in his father's estate, sought and was
allocated a residential site;
That his father, after consultation with the Respondent and
other members of the family who he names, prevailed upon him to
make over this site to the Respondent in return for his
Then the Respondent, most probably at his father's expense,
duly proceeded to set up a residence on this site upon which
he then resided with his family right up to the death of
his father on the 29th August, 1971.
With the knowledge that the late Chief Moorosane'a homestead
had been given to him, plaintiff proceeded to make extensive
improvements without an objection from a single member of the
family least of all the respondent.
(c) Knowing that the homestead had been given to him, plaintiff was presented to various senior chiefs culminating with the presentation of the certificate of allocution form the relevant authority.
The defendant moved into the late 'Mamojara'a house, firstly
to nurse her and finally to "keep an eye on two empty boxes
belonging to 'Mamajara." He was not moving into the house
to assort his right as the heir.
In terms of exhibit "B" various distributions of the late
Chief Moorosane's fields were made. This was in accordance
with the wishes of the family.
Respondent's cases rest on the premise that the house of 'Mamajara belongs to him as her oldest son. He says that the plaintiff inncrited. 'Matjopa's field. But does not say how this could have happened since the plaintiff was not 'Matjopa's son. Defendant also says that exhibit "B" is a fake because he did not sign it although his name appears thereon. This document is very important and was also considered by the Lower Courts. It reads:
"Morena Jonathan Mathealira, Tsikoane.
I am informing you that the children of the late Morena Moorosane whoso names are as follows:
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1. Morona Ramabele Masupha
2 Mohalo Masupha
3 Masupha Masupha
4 'Mamajara Masupha
5. 'Ma 'Miki Masupha
have been before me in connection with a misunderstanding in the family
concerning fields of their father and even also the yard.
Morena the way in which this family arrived at a settlement concerning these our children , we agreed as a family that Morena Masupha must live (subsist) on the late Mofumahali 'Mamajara's field. Morena Mohale Masupha must live (subsist) on that of 'Ma Ntolo masupha. Morena Majara Masupha must live (subsist) on the field of Mofumahali 'Matjopa Masupha and also on the yard. As for 'Ma 'Miki Masupha following what the family realised that Mohale has legally got four fields the family has arranged that Mohule must leave one field of his and give it to 'Ma 'Miki.
Morena as you know me to be the mother and father of these children, your son Morena David Masupha because of ill-health delegated mo to preside over this matter, and that is why I am informing you of this decision in which I was assisted by head of the
family Morena Ramabele Masupha and I am asking you to accept it as being correct and true.
for the Principal Chief."
This letter does not only deal with the disposition of certain family property to the plaintiff but to all the children of the late Chief Moorosane. In addition to the field of 'Ma Tjopa the plaintiff is given the yard (jaretong). This is specifically singled out. The plaintiff has not inherited 'Ma Tjopa's field as an heir but in accordance with the wishes of the family. These fields are separate from the fenced in yard. Now this letter was merely recording the final decision of the Masupha family concerning the disposition of the immovable property of the late Chief Moorosane. It was information from one senior chief to the other. Hence the signature of the defendant was not required. The plaintiff was not being particularly favoured. All the children of the late Chief Moorosane were fairly dealt with. Surprisingly enough, even a woman was awarded a field. The courts aquo believed the genuiness of this document.
Although an appeal is in the nature of a re-hearing, this is not a re-hearing in the fullest sense. It is a re-hearing upon special lines because the appellate court does not enjoy the same opportunity to judge the credibility of witnesses by observing their demeanour; or of being steeped in the atmosphere of the trial or of observing their appearance and whole personality. Where these features are present, the appellate
Court is usually very reluctant to upset the findings of the trial judge. Now the judgment of the Local Court was based essentially on the credibility
of the parties and their witnesses. The Judicial Commissioner has pointed out no misdirections by the trial court and consequently the presumption that this conclusion is correct has not been displaced. It is true, as
4/ as the learned ....
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as the learned Commissioner points out that plaintiff in case 131/73 the plaintiff did not prove that the family had reached any decision. However, a perusal of the case reveals that the jugment was awarded on the plaintiff's default.
That case, in any event, concerned Chief Mohale Masupha being made guardian.
In view of the evidence before the Local Court and the advantage that the trial Court enjoyed of assessing the factors already mentioned and the
absence of any misdirections, I am of the opinion that the decision of the
Local Court confirmed by that of the Central Court is justified and correct. The finding of the learned Judicial Commissioner is set aside and that of the Local Court is hereby confirmed .
I must mention, (in fairness to Mr, Monaphathi, that he conceaded that he found it increasingly difficult to support the learned Judicial Commissioner's
The defendant (respondent) is ordered to pay the costs in all the Courts.
For Appellant. Mr. K. Sello
For Respondent. Mr. T. Monaphathi
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