CIV/A/13/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MOKEKI NTHAKO Appellant
v.
MICHAEL MOTLAMELLE Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice I. Isaacs
on the 23rd day of April, 1981.
The appellant in this case had as plaintiff sued the
respondent in the Motjoka Local Court claiming certain trees
which he alleged were his own and which had been cut by the
respondent. He alleged that such trees had been cut on his
(Plaintiff's) site.
The appellant alleged that he had bought those trees from
one Monethi who appellant said had inherited them from his
father Lekhoe. He said, in his evidence before the Court
that after he had purchased the trees from Monethi, he and
Monethi went to the headman who sent them to the chief
Martins, who ruled that Monethi should be accompanied by one
of the family. Monethi was accompanied by his uncle Raleholi
and the chief was satisfied with the sale concluded in
Raleholi's presence. The appellant in his evidence also said
that Monethi then surrended the site, on which the trees were
to the chief. The appellant applied for this site and completed
the form which was then accepted by the chief and his
advisory committee. The appellant alleged that he was
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confirmed on the site by form "C" which form he handed to the
Court. He also handed in a letter by chieftainess Makopoi
in which she had barred Michael, (The Respondent) from the
trees but, he alleged, Michael had defied her.
In cross-examination by Michael, the appellant said
that Monethi was Lekhoe's heir. He admitted that he knew
about Mamabetla Motlamelle who was said to be Lekhoe's first
son but whose whereabouts were unknown. He admitted that he
was not a subject of 'Mamanehella in whose area of jurisdiction
the trees were. He said that chief Martins had authority to
allocate sites.
The appellant called a witness Moitheri (P.W.1). This
witness said he knew the trees had been sold to appellant by
Monethi. In cross-examination he said he represented
chieftainess 'Mamanehella when Monethi sold the trees to the
appellant. He said that Monethi was accompanied by his
uncle Raleholi when he sold the trees and that Raleholi was
respondent's father. Another witness called by appellant
was one Majankoko (P.W.2), who said inter alia that chief
Martins who had been sent by chieftainess 'Mamanehella,
after a committee had investigated, confirmed appellant
with form "C".
In cross-examination he said he was a witness when the
trees were sold. Another witness called by appellant was
one Raleholi (P.W.3). Ho said that Monethi had sold the
plantation in order to remove mourning cloth from his sister.
In cross-examination he said that Monethi was heir to
Lekhoe and that if Mamabetla was present he would be the
heir. Monethi was called as a witness by the appellant. He
said that appellant had purchased the trees from him for R100.
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In cross-examination he claimed to be Lekhoe's heir.
He had not known where Mamabetla was for 49 years. The
respondent give evidence to the effect that the trees had
been wrongly sold by Monethi. He said that as Mamabetla was
absent the family had Monethi to be a caretaker. He said
the family had been surprised that Monethi had sold the
plantation without notifying them. He said the family had
sued Monethi before this Court and that Monethi had been
defeated in his absence. He was appointed as caretaker by
the family. He handed in a judgment in which Monethi had
been ousted as caretaker by this Court. He denied the
validity of the form "C" relied on by appellant. He said in
cross-examination that the Central Court had found for him
and the trees. The respondent called as a witness one
Thibello (D.W.1).
He said Monethi was not Lekhoe's heir and he denied
the validity of the form "C". He said the heir was
Mamabetla who is still alive. He said Michael was caretaking
the family. Another witness named Thibello was called by the
respondent (D.W.2). He said Michael, the respondent was
his son. And that he was appointed by the family to be
caretaker. The witness said he was the head of the family.
D.W.3 was 'Mamanehella who said she had authority at Mpopo's
for allocating land. In cross-examination she said she was
subordinate to chief Martins Masupha.
It appears that the appellant as plaintiff had, prior
to the case under consideration, sued the respondent for the
trees and had succeeded in the Local Court but on appeal to
the Motjoka Central Court by Michael the appeal had succeeded
and the judgment of the lower court had been altered to
"absolution from the instance," the Central Court had held
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that the plaintiff had not led sufficient evidence to prove
his case.
In the present case the Local Court gave judgment in
favour of the plaintiff, the present appellant. In its
judgment the Local Court found that-
(1)     Monethi was the heir of Lekhoe's estate.
(2)     There was no evidence that Mamabetla was still alive.
(3)     Monethi had sold the plantation in order that he
could fulfil his obligation in the family by removing
the mourning cloth of Lekhoe's daughter.
The present respondent appealled to the Central Court
which dismissed his appeal. He then appealled to the Judicial
Commissioner. The Judicial Commissioner found that Monethi
was not the owner of the plantation but he was the administrator
for the estate and was required by Sesotho Law to have a prior
consent of the paternal uncles and other relatives etitled
by customary law to be consulted.
The Judicial Commissioner gave leave to the plaintiff,
the present appellant, to appeal to this Court on the question
whether the sale could be held to be valid or not. In the
grounds of appeal before this Court it is contended inter alia
that "In as much as the Court believed that respondent
was not heir to be estate of the late Lekhoe Motlamelle
there was no valid reason in law why he had a claim against
the appellant."
It is also contended "there is no proof that the seller
of the plantation had no right to sell." There are other
grounds of appeal which I shall consider later in this
judgment together with the submissions made by counsel for
the appellant.
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There seems to be nothing on the record to show that,
as a result of the sale, the appellant had ever obtained
delivery of the plantation except that by aquiring form "C"
he obtained a right of occupation of the land. This form
was given about 3 years ago but there is no evidence to show
that appellant had ever occupied the site. A seller of
property is not bound to give ownership. It is sufficient
if he gives undisturbed possession. Thus there is nothing
to prevent a person from selling another's property. (gp.
Theron v. du Plessis and Schoombie 14 S.C. 192). But before
a person obtains ownership he cannot sue a third party who
is in possession of the property for delivery. It seems to
me the proper remedy of the appellant would have been
either to claim from the seller proper undisturbed possession
or alternatively return of the purchase price and damages
or (on the assumption that he had a valid form "C") claim
from the respondent possession of the site which would have
given him control of the plantation.
The question of whether appellant had a title to sue
the respondent on the particular claim decided on by the
Local Court does not seem to have had considered by any of
the Courts. Mr. Maqutu who appeared for the appellant
contended that the mere possession of form "C" gave him
right to sue for the trees even though they appear to have
been cut down by the respondent. There was a dispute as to
the validity of the issue of form "C" but on the view I take
of this appeal if is not necessary for me to decide on its
validity. The question may also arise as to whether section 13
of the land Act of 1973. (Which, though repealled by Act 17
of 1979, was still in force at that time) has been complied
with, but I am not considering this.
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I em of the view that until the appellant has been given
occupation of the site he did not become owner of the trees
whether or not they were cut. He has not, in my view received
delivery so that ownership has not passed to him. He would
not, therefore, in my view have a vindicatory claim and could
not therefore claim delivery from anybody except the seller.
But I shall also consider this question in the same way
as it has been considered by all the lower courts, that
is, whether Monethi was the valed heir to the estate of his
father Lekhoe.
One of the grounds of the appeal was that it was not
proper for the Court to rule that the site could be sold
separate from and excluding the improvements on the site since
sites were not sold in Lesotho.
I do not think that the judgment of the Judicial Commissioner
suggested that sites could be so sold. Counsel for the
respondent did not dispute this fact. Land in Lesotho is
the property of the State and it is only the improvements
which can become private property.
The main ground of appeal and the main argument of
counsel for the appellant was that Monethi was proved to
be the heir of Lekhoe end could therefore validly give
ownership to the appellant.
The Judicial Commissioner came to the conclusion on the
evidence that Monethi was not the owner of the plantation
but he was the administrator of the estate and that he could
not sell without the consent of various relatives.
The Local Court came to the conclusions that there was
no evidence that Mamabetla was still alive after 40 years but
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in my view this was a misdirection as the question should
have been whether he was proved to be deceased. This was
contended by counsel for the respondent, Mr. Sello, and in
my view he was correct. There has not been any application
to any Court to have Mamabetla declared to be deceased.
Mr. Maqutu contended that Monethi had acquired the
inheritance by acquisitive prescription as he had been in
possession for over 40 years. But to acquire ownership by
prescription the possession must be Nec vi nec clam nec
precerio (gp. Bisshop v. Stafford 1974(3) S.A. 1 (A.D.).
The evidence shows that Monethi was put in possession by the
family as a caretaker. There was a judgment in the Local
Court to that effect (Ex. "C" in the record). Thus his
possession was by consent and in my view precario.
It was contended by counsel for the appellant that such a
judgment was not binding against appellant as he was not a
party. This is correct but it is evidence that Monethi had
not been the heir of Lekhoe and it seems to have been ignored
by the Local Court but was correctly considered by the
Judicial Commissioner.
The grounds of appeal include the contention that
Michael is not the heir to the estate. But the Judicial
Commissioner in his judgment found that Michael was not the
heir but merely the caretaker. The dispute is not whether
Michael was the heir but whether Monethi had been the heir.
In effect the judgment of the Judicial Commissioner means he
found neither was the heir and in my view he was correct.
In my view on the ground that Monethi was not proved to be
the heir and thus could not validly sell the trees to
appellant and also on the ground that even if such trees had
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Accordingly my order is that the appeal is dismissed
the appellant to pay respondent the costs of appeal and the
costs incurred in all the lower courts. The judgment of the
Local Court is altered to absolution from the instance in
favour of the defendant.
ACTING JUDGE.
For Appellant : Mr. W.C.M. Maqutu
For Respondent : Mr. K. Sello.