IN THE HIGH COURT OF LESOTHO
In the Application of :
CHIEF TSEPO QEFATE NKUEBE Applicant
REASONS FOR JUDGMENT.
Filed by the Hon. Mr. Justice I. Isaacs
on the 20th day of May. 1981.
In this matter I dismissed the application with costs
on the 1st May, 1981 and I indicated that I would file
written reasons later. The following are my reasons.
The applicant in this matter by notice of motion asks
for an order
(a) Directing the first respondent to cancel Government
Notice No. 154 of 1975 which appoints third respondent
as acting chief of Lower Moyeni on the grounds that it
is contrary to section 13 of chieftainship act No. 22
(b) Restraining the fourth respondent from using third
respondent as acting chief of Lower Moyeni - Quthing.
(c) Restraining third respondent from exercising the powers of
acting chief of Lower Moyeni - Quthing.
(d) Directing the respondents to pay costs of this application.
Applicant's founding affidavit sets out inter alia
that the third respondent 'Maliako Mekhaola is a widow
presently acting chief of the district in question (which
I shall refer to as Lower Moyeni) and was acting for the
major married son, the fourth respondent who had been
gazetted as chief of Lower Moyeni when he went to the
university to further his education. Applicant alleges
that the third respondent is blind and over 60 years of age.
The applicant states that the fourth respondent has
a wife and two brothers who are majors and who are entitled
by prior right to succeed him in terms of part 111 of
chieftainship act and he alleges that in terms of the
Act the third respondent is not entitled to act for the
The applicant alleges that in 1975 when a proposal was
made by the fourth and first respondent to gazette third
respondent acting chieftainess he (applicant) was consulted
and objected that a blind person who is herself disabled could
not act as chief. Applicant alleges that he pointed out that
her appointment would be on inconvenience to the public.
Contrary to his recommendation the third respondent was
appointed acting chief by the first respondent. He states
that such appointment was not announced at a Pitso.
The applicant alleges that there is chaos and
maladministration at Lower Moyeni. He says he had forwarded
several petitions from headmen bugles and the public to the
first respondent asking for the removal of third respondent
from the position of acting chief. He alleges that the
allocation of land is full of irregularities. He alleges
that the mistakes could not happen if the third respondent
could see. He alleges that as an appellate land allocating
authority he and his land advisory committee spend two much
time on Lower Moyeni matters. He alleges that the first
respondent is a chief under him and is one of his subjects
and that he is refusing to comp]y with the provisions of
section 13 of the act by removing third respondent from the
position as acting chief and appointing the appropriate people.
He says he is making the application for removal of the
first respondent in his own interest as he is now virtually
governing Lower Moyeni and he is receiving many complaints
of maladministration from the public in his capacity as third
respondent's immediate superior. The first respondent
filed an opposing affidavit. He denies that the third
respondent is blind. He says that though her eyes-sight
may not be perfect she is suite capable of seeing end of
discharging the functions of her acting office. He states
that in the middle of 1975, the fourth respondent was
proceeding to Maseru for further studies at the University
of Lesotho and that in terms of section 5(6) of the
chieftainship act he informed his principal chief, the
applicant, that his mother, the third respondent, would act
as chief during his absence from Lower Moyeni, The matter was
referred to the defendant as Minister of the Interior and
he approved the appointment. He soys that at the material time
the wife of the fourth respondent who had the prior right
to act as chief was working end was a resident of Maseru. He
said that one of the brothers of fourth respondent was working
in South Africa and the other was a pilot in the Lesotho
airways. It was for these reasons that the family of the
fourth respondent decided that the third respondent should
act as chief during the absence of fourth respondent. The
first respondent denies that there is chaos and maladministration
in Lower Moyeni. He says that as to alleged irregularities
in the allocation of land his understanding of the position
based on official reports was that much of the so-called
confusion is directly attributable to the activities of the
applicant he asked for the application to be dismissed.
The applicant filed a replying affidavit. He repeats
that the third respondent is blind and that he had sent
medical evidence to the first respondent in proof. He said
that it was not true that the family of the first respondent
made any recommendation as to who should act for the third
respondent. He said if it had been so he would have known
because in terms of section 5(b) the name of the person
recommended must be forwarded to him and the first respondent
would have the recommendation forwarded to him by the applicant.
He said that fourth respondent alone mode a recommendation to
him which he did not accept end he sent first respondent a
letter to the fact that third respondent was blind and did
not qualify to act in terms of section 13. He denied the
allegations that he was responsible for the confusion.
By leave of the Court the first respondent filed an
answering affidavit, to the replying affidavit. He says that
the family of fourth respondent did make a recommendation
and he annexes a copy of such. He also annexed a letter from
fourth respondent to the Permanent Secretary of the Interior,
and also attached a letter of the applicant to the Secretary
and certain other letters.
had not attended.
As was conceded by counsel for the applicant, Mr. Maqutu
there was a great deal of irrelevant matter set out in the
application which was dealt with by the respondent in reply.
The only point which this Court can consider is whether or
not the appointment of the third respondent to the acting
chieftainship of Lower Moyeni was in any way contrary to the
chieftainship act of 1968. The allegations of maladministration
are not matters with which this court can deal with.
I considered the question as to whether the applicant had
locus standi to make the application to Court as in general
a member of the public has no locus standi to complain to
the Court that another person has contravened a statute
unless he can show a personal interest in the matter. The
actio popularis of Common Law was not part of the Roman
Dutch Law (gp. Patz v. Greene and Co. 1907 T.S. 427, and see
Wood and Others v. Ondangwa Tribal Authority and Another 1975
(2) SA. 294 (A.D.) ).
It seems to me, however, that the applicant has a
personal interest in the matter as he is in an appellate
position in regard to allocation of land that might be made
by the third respondent.
The only question to be considered by this court on the
merits of the application was, as I have indicated, whether
there has been any contravention of the chieftainship act and
more particularly of section 13 of that act.
Section 13(5) of Act 22 of 1968 (as amended) provides:-
"Subject to the provisions of section 5, the holder of an
office of chief may either generally or from time to time
as occasion may arise and subject to authorisation under the
provisions of section 5 and to such conditions and limitation
as he may impose.
Section 13(7) of the act (as amended) provides "no
person shall exercise the powers or perform the duties of
an office of chief in terms of this section unless and until
the King acting in accordance with the advice of the minister
has approved of such person."
Section 5(6) of the act provides. "It is the duty of
every chief intending to be absent from his area of
authority of his principal or Ward chief from whatever
purpose to notify the chief immediately senior to him in
writing of his intended absence and the place to be visited
by him, and to inform the chief of the name of the person who
is authorised in accordance with the provisions of section 13
to exercise the powers and perform the duties of his office
during his absence. For so long as an authorisation is in
force under this subsection the person so authorised may
exercise the powers and perform the functions of the office
of the chief while he is absent."
In my view there is no doubt but that the fourth
respondent was entitled in terms of the above provisions
to appoint the third respondent to act as chieftainess during
the absence of the fourth respondent. There is nothing on
the papers before me to show that the conditions of the
appointment as set out in section 5(6) and section 13(7) have
not been carried out. In fact paragraph 5 of the opposing
affidavit of the first respondent, the minister of the Interior
(who is the minister referred to section 13 of the act) show
that the conditions were carried out. In any case in
accordance with the principle embodied in the maxim omnia
proesumuntur rite esse acta donee probetur in contrarium,
it is to be presumed that every condition necessary for the
appointment of the third respondent was duly carried out by
the first respondent there being nothing on the paper before
me to prove the contrary. (c/p. S. v. Manelis 1965 (1) 748
at p. 757).
For the above reasons I dismissed the application,
the applicant to pay the costs incurred by all the respondents.
20th day of May, 1981.
For Applicant -Mr. W.C.M. Maqutu
For Respondents-Mr. K.R.K. Tampi.
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