IN THE COURT OF LESOTHO
In the appeal of:
LESOTHO CHOMANE Appellant
MABELI TANKISO Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice M.P. Mofokeng on the 3rd day of July, 1980
Appellant (plaintiff in the Court below) appeals against a decision of the Resident Magistrate of Maseru granting absolution from the instance in a claim for ejectment and attendant damages against the respondent (defendant in the Court below). For the sake of convenience I shall refer to the parties respectively as plaintiff and defendant.
Plaintiff issued summons against defendant setting its cause of action in the manner following:
3. Plaintiff is the owner of the right to
occupy certain unnumbered residential site
together with the building and other improve
ments situated thereon.
4. Since the end of 1974 Defendant is in unlaw
ful occupation of a portion of Plaintiff's
site, and defendant has destroyed plain
tiff's cattle kraal situated thereon and
fenced in that portion of Plaintiff's site.
5. As a result of the Defendant wrongful and un
lawful acts Plaintiff has been unable to
kraal his cattle in the said kraal.
6. Plaintiff has suffered damages in the sum
2/ 7. Despite ....
- 2 —
7. Despite demand Defendant refuses to vacate the said portion of Plaintiff's site and to pay the damages of R600.00."
and prayed for an order.
"(a) Ejecting Defendant from the aforesaid portion of Plaintiff's site.
Directing Defendant to pay R600.00 damages.
Directing Defendant to pay costs."
Defendant, in his plea, denied the allegations against him by the plaintiff.
Plaintiff and defendant are closely related. Plaintiff is defendant's uncle. Plaintiff stated in his evidence in a nutshell that originally he kraaled his stock in a common Village Kraal. Later he and defendant's father build a kraal in which they kept their stock. However, in 1952 defendant's father refused that plaintiff's stock be kraaled together with his and gave as a reason "that the kraal was his own property alone." Then plaintiff's father applied for a site on behalf of the plain-faff. The site granted was for dwelling houses and a kraal, He says that the following people were present when an allocation for the said site was actually made: Messrs. Mathoanye Makhutla (late); Nts'oleng Kobile (gave evidence at the trial as P.W.2); Mpiti Matsoso (did not give evidence at the trial) and
Tsietsi Maleoa (gave evidence at the trial as P.W.3). He says in 1974 the defendant incorporated a portion of his site to his (defendant's) property and "pulled down the kraal and used some of the stones while others he threw away and he ploughed the site." Plaintiff also alleges that a portion of chief's land suffered the same fate. Evidence does not reveal that the chief did anything about it. How-ever, plaintiff reported the action of the defendant to the chief who ordered the reversion to the status quo but defendant apparently ignored the said order. He was then charged with "contempt" of the chief's order but was acquitted. A civil action was then commenced before a local Court. According to plaintiff's evidence the matter was last heard by
/Central Matsieng/Court." How this happened it is not revealed in
the record of the proceedings before me. The plaintiff concludes his evidence thus:
3 /"I am claiming R600.00 ....
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"I am claiming R600.00 damages for my kraal and I ask that he be ejected from the site. I spent R200.00 damages for stones ... R200.00 damages for loss of cow dung used as fuel. I bought paraffin instead .... "
Ntsoeleng (Nts'oleng) Kobile gave evidence the gist of which was that he was "not among messengers who allocated the site" (to the plaintiff)., He also conceded that he was a forgetful person. Tsietsi Maleoa stated that he and Mpiti Letlatsa allocated plaintiff a site and a kraal and there were no beacons because "there was no dispute" how-ever, he could rot dispute when defendant says that the portion in dispute belonged to defendant's late father's estate. Plaintiff finally called Chief Seqobela Letlatsa ' who gave evidence not from personal knowledge. To quote one instance when he was reminded about the evidence he had given in another Court about this same matter:
" Q. Do you mean plaintiff was allocated site twice?
Q: How did you know this?
A: when they were given orders.
Q: You did not know this except by hearing reports?
A: Yes. ' when he told an untruth it went this way:
" Q: did you then with Court attend an inspection in loco?
Q: Defendant will say that you did not attend inspection (in loco)?
A. I did not reach (the) place."
The defendant gave evidence to the effect that the property in dispute belonged to his family. He pointed out the boundaries. He said that the property had been left to him when his father died. He said he pulled down a kraal which did not belong to the plaintiff. The stones which the plaintiff had lent him (about six corner stones) were made available to the plaintiff who refused to pick them up. Defendant called his mother as his witness. She merely deposed that the property in dispute formerly belonged to her late husband. Plaintiff, according to her,
4/ was not allocated ....
- 4 -
was not allocated a site where the property in dispute is situated but was merely "lend stones to build his kraal within the yard."
The learned magistrate came to a number of conclusions
after hearing the evidence on both sides. These were:
That there was no clear evidence by the
plaintiff as to the extent of the area of the
portion claimed by him;
That plaintiff and his witnesses were unable
to point out any boundaries or beacons or
even fixed points indicating the extent of
the area in dispute. (An inspection in loco
That plaintiff did not prove the quantum of
damages claimed by not producing receipts
or leading evidence of the payment of the
various sums claimed. (Plaintiff was able to
rattle the items on which he spent a large
sum of R600 00 without referring to any record
whatsoever about transactions which allegedly
took place a number of years back).
That he disbelieved the defendant when he said
that the piece of land in dispute was part
of the area allocated to him by his late father without the chief's confirmation i e that it was inheritable.
and the Judgment concludes:
"While, rejecting the claim of defendant the Court finds that plaintiff too has not on balance of probabilities substantiated his claim by sufficient evidence ... "
The first question to be decided is whether the learned magistrate's judgment is appealable. The answer, in my view, has been neatly put by Lord de Villiers, C. J. in his judgment in the case of Steytler, N.O. v. Fitzgerald 1911 A.D. 295 at 304 when he said:
"The test would be simplified and would not be less sound if put in this way: whether on the particular point in res-pact of which the order is made the final word has been spoken in the suit,
5/ or whether ....
- 5 -
or whether in the ordinary course of the same suit, the final word has still to be spoken Take the case of a judgment of absolution from the instance. It is classed by VOET (42,1,5), among interlocutory sentences, but it has the force of a definitive sentence inasmuch as by our practice the particular suit in which it has been pronounced is ended, and a fresh suit is necessary to enable the plaintiff again to proceed against the same defendant. It has accordingly been frequently held in our Courts that a judgment of absolution from the instance may be appealed against
It would be different, however,
whore a Court refuses to grant absolution
from the instance on the application
of the defendant. Such a refusal is purely
interlocutory and has not the effect of
a definitive sentence, inasmuch as the
final word in that suit has still to
I, with respect, entirely agree. The question is, therefore, answered in the affirmative.
The learned magistrate erred in (4) above. The legal position is made quite clear, in circumstances similar to these described by the defendant, by Section 7(7) of part I of the Laws of Lerobholi referring to inheritability of residential sites, gardens and tree plantations. The section reads (in translation):
"On the death of a person who has been allocated the use of land for the growing of vegetables or tobacco, or for the purpose of planting fruit or other trees, or for residential purposes, the heir, or in the absence of the heir dependants of such deceased person shall be entitled bo the use of such land so long as he or they continue to dwell thereon."
Thus according to the evidence of the defendant, supported by that of his mother, revealed the true legal position. It is not true as plaintiff and his witness deposed to the contrary, namely that such property cannot pass on to the heir. The only occassion when the rights of the heir will automatically be forfeited is when the heir removes i.e. leaves the area and goes to live in the area of another chief because he cannot owe allegiance to two chiefs. (See Poulter: Family Law and Litigation in BaSotho Society 1976 Ed. pp. 248 - 9).
6/ Resulting from ....
- 6 -
Resulting from the above-mentioned misdirection by the learned Resident Magistrate an important question arises, namely, whether he would still have disbelieved the defendant in the absence of that grave error. In other words, would he have given the same judgment as he has done or would he have dismissed plaintiff's action bearing in mind that the onus was on the plaintiff? The expression onus is here used in its original sense viz. the duty cast on the particular litigant (in this case the plaintiff) in order to be successful, of finally satisfying the Court that he is entitled to succeed on his claim. (See Timothy Macheli and Another v. Litanini Sesulu CIV/A/4/76 (unreported) dated 29th October, 1976 at pp. 4-5; South Cape Corporation (Pty) Ltd. v Engineering Management Services (Pty) Ltd., 1977(3) S.A 543(A) )
The test which the learned Resident Magistrate ought to have applied at the close of the whole case has been neatly put by Wessels, J.A in the matter of National Employers Mutual General Insurance Association v. Gany, 1931 AD 187 at 199 (See also Koster Kooperatiewe Landboumaatskappy Bpk. v. Suid Afrikaanse Spoorweë Hawens, 1974 (4) S A. 420).
"This Court does not readily differ from
the lower Courts' findings upon matters
of fact, but it must be remembered that
an appeal is in substance a new trial,
and this Court must be satisfied that
there are sound and substantial reasons
for the Court a quo to held that an onus
resting on the plaintiff, as it does in
this case, has in fact been discharged
whore there are two stories mutually des
tructive, before the onus is discharged,
the Court must be satisfied upon adequate
grounds that the story of the litigant
upon whom the onus rests is true and the
other false. It is not enough to say that
the story told by Qark is not satisfactory
in every respect. It must be clear to
the Court of first instance that the ver
sion of the litigant upon whom the onus
rests is the true version, and that in
this case absolute reliance can be placed
upon the story as told by A Gany "
(however, see the remarks of Davis, J, (with which I entirely agree) in the case of Maitland & Densington Bus Co (Pty) Ltd. v Jennings, 1940 C P D. 489 at 492 about the use of the phrase "absolute reliance").
7/ If, therefore ...
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If, therefore, the above test had been applied (as modified by Davis, J) at the end of the trial of the instant case and the misdirection had not occured, the learned Resident Magistrate would not have made a finding of absolution from the instance Now, at the conclusion of the hearing of all the evidence in a civil case and the onus is on the plaintiff as in the instant case, and he is found to have failed to discharge that onus on a preponderance of probability (see Ley v. Ley's Executors and Others, 1951(3) S.A. 186 (AD) at 192) the question arises whether the judgment should be entered for the defendant or it should merely be one of absolution. This is crucial for in the former a final judgment is given and in the latter the plaintiff can take fresh proceedings without having to face a plea of lis finita. It is not correct that because a Court, after hearing evidence on both sides, does not find that the plaintiff, on whom the onus lies, has not discharged that onus then judgment should be one of absolution from the instance. In such a case the plaintiff would be given an advantage over the defendant who would be dragged into Court again This should be avoided.
The true position appears to be as follows.
(i) if the Court on all the evidence (i.e. from both plaintiff and defendant) finds against the plaintiff then it is entitled to enter judgment for the defendant rather than grant absolution,
(ii) if the Court on all the evidence (i e from both plaintiff and defendant) finds against the plaintiff and defendant asks for judg-ment and the evidence warrants it, the Court will be bound to enter judgment in favour of defendant.
(iii) whore the onus is on the defendant and he fails to discharge it, then there cannot be any question of absolution but that judgment will be entered in favour of plaintiff. however, if defendant discharges the onus cast on him judgment will be entered in his favour.
(Herbstein & Van Winsen: The civil practice of the Superior Courts of South Africa, 1959 Ed pp. 381 - 2).
8/ As I stated ...
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As I stated earlier in this judgment the parties have been through many Courts - The chief's Court, Local Courts magistrates Court and now this Court The question now is: Can this Court reach a finality in this case without throwing the parties back to the magistrate's Court9 I have indicated previously. in the matter of Selomo v. Selomo, CIV/A/15/77 (unreported) at p. 4 that in cases such as the present it is in the interest of the parties involved (in the dispute over land) as well as the whole commumity that the sooner a finality is reached' the better. This helps towards good administration and augurs well for the maintenance of law and order. This matter has been before several Courts during the last six (6) years. That is a long time indeed, I am of the view that the learned Resident Magistrate ought to have asked himself whether any good purpose would be served by giving an order of absolution from the instance since he had made such an adverse finding upon the plaintiff on whom (as I have said earlier) the onus lay The provisions of S. 58 of Subordinate Courts Proclamation 58 of 1938 ( Part II, Civil Matters ) allow for such an approach It reads, in part, as follows-
"58 The High Court may, on appeal:
(a) Confirm, vary or reverse the judgment
appealed from, as justice may require;
(b) ...... . ...
(c) .. . . .
(e) . .
It must, however, be noted that Although the general rule is that the appeal court may not alter a judgment against the appellant unless the respondent has noted a cross-appeal, the above-quoted section gives this Court very wide powers indeed. This Court is bound to deal with the judgment of the learned Resident Magistrate "as justice requires. " (See Cohen v Coetzee, 1912 E.D.L. 305 at 307) The Court has now read the evidence The learned Resident Magistrate, in my view, correctly rejected plaintiff's evidence. It was most unsatisfactory and contradictory considering that plaintiff and his witnesses had given evidence on the same matter on numerous occasions before numerous Courts.
9/ On the other hand
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On the other hand the defendant, in my view, gave a straight forward credible evidence. He was able, for instance, to point out the boundaries of his site. As I have pointed out earlier, his version was disbelieved on a misunderstanding of the law by the learned Resident Magistrate That being so, I am of the view that the learned Resident Magistrate ought to have dismissed the plaintiff's action. The instant case is one in which, in my opinion (and I have already indicated the long uncertainty surrounding this case) Justice requires a variation of the learned Resident Magistrate's judgment so that it reads that the plaintiff's claim is dismissed with costs
To sum up then: Firstly, the appeal ought to be dismissed with costs and it is accordingly so ordered; Secondly the judgment of the learned Resident Magistrate is altered into one for the defendant with costs.
For Appellant. Mr. C. Maqutu
For Respondent: Mr G Kolisang
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