CIV/A/11/1980

In the Appeal of:
LAKA MOETSANA Appellant
v
CHIEF TLHABELI TSIKOANE Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice F.X. Rooney
On the 28th day of September, 1981

Mr. A. Mda for the Appellant
Mr. G. Kolisang for the Respondent
The present respondent commenced the proceedings in the
Motjoka Local Court against the appellant and his mother for
trespass in a forest. The appellant denied the trespass and
claimed that the forest had belonged to his father and that
he was the heir.
In its judgment the Local Court discussed the evidence
and the arguments placed before it. It is a very obscure
document and it concludes with the words "The part that the
boundary was made in 1945 cannot belong to the plaintiff, but
he said it belongs to the State. The question is by whom can
the state use because the chief is in dispute with his subject.
In as far as the second defendant is concerned she could have
been left aside like on the previous case. The plaintiff
should bear their own cases".

Section 26 of the Central and Local Courts Proclamation
provide as follows :
"26. Every Magistrate, in his capacity as a holder
of a Subordinate Court, shall at all times have
access to all Central and Local Courts in his
district or the district in which he is serving,
and to the records of such Courts, and may of his
/own motion

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own motion or on the application of the accused
in a criminal case or of either of the parties
in a civil cause or matter-
(a) revise any of the proceedings of a Central
or Local Court, whether of first instance
or appellate and whether civil or criminal,
and make such order or pass such sentence
therein as the Central or Local Court could
itself have made or passed: Provided that a
magistrate shall not alter an acquittal to
a conviction or increase any sentence of fine
or imprisonment or other sentence in any
criminal proceeding, or make any order in any
civil proceeding to the prejudice of any
party in such proceeding, without first giving
the accused or such party, as the case may be,
an opportunity to be heard: Provided further
that if an acquittal be altered to a conviction,
or if any sentence shall be increased, or if,
in a civil proceeding, an order to the prejudice
of any party in such proceedings shall be made
under the provisions of this section, the accused
or such party may within thirty days from the
date of such order or sentence appeal therefrom
to the High Court;
(b)     order any case to be re-tried either before the
same Central or Local Court or before any other
Central or Local Court of competent jurisdiction;
(c)     transfer any cause or matter, whether civil or
criminal, either before trial or at any stage
of the proceedings, whether before or after
sentence passed or judgment given, to any

In a recent case Notsi v. McPherson CIV/A/2/8l(unreported)
Mofokeng ACJ said :
"This section gives the magistrate powers of
revision. As Cotran J, (as he then was) stated
in the case of 'Matau Makhetha v. Rex, 1974-75
L.L.R. 431 at 432, these powers are certainly
very wide. But, continued the learned Judge in
the case of T. Malope v. M. Tlale, CIV/APN/5/75
(quoted in Makhetha's case(supra) at page 432E);
'        a magistrate should not under the
section, constitute himself a court of
appeal and arbitrarily interfere with the
working of the lower Court. But he is

irregularity on the face of the proceedings
or prejudice or bias in a decision given
by the President of a Local or Central
Court*.
Again in the words of Evans, J, in the case of
'Makhoana Tlale v. Tseko Malope. CIV/A/8/72
(unreported)

/Court

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Court or President had a personal interest
in the case, malafides by him or gross
irregularity in the conduct of the proceedings'".
The magistrate had a right to revise the proceedings
in the Local Court and in view of the obscurity which
surrounded the decision of the Local Court he should have
made an order under sub-section (b) that the case be re-tried.
Instead he called the parties before him on the 11th May 1980,
heard their evidence and acted in the matter as if he were
exercising appellate functions. In the result he made the
following decision :
"The Local Court findings are set aside.
Substituted by one that Plantation in-question is vested into the administration
of the Chief of Ha Tsikoane as a Public
Plantation without prejudice to any person
who might claim a better title of the
plantation in the family of Laka Moetsana
but residing at Ha Tsikoane under Chief
Tlhabeli Tsikoane."
In his notice of appeal to this Court, the appellant
raises issues of fact and law which go to the merits of the
dispute between the parties. He is thus asking this Court to
adopt the roll which,had the magistrate not intervened, would
have fallen to the lot of the court of the Judicial Commissioner.
The magistrate should have confined himself to the
exercise of his revisionary powers. This Court does not wish
to compound his error by another consideration of the merits.
The decision of the magistrate on review and of the
Motjoka Local Court are hereby set aside. The case is referred
back to the Local Court for re-trial. In the course of the
re-trial the Local Court may consider the evidence already
placed before it and such additional evidence as either party
may seek to adduce. The Local Court is required in any event
to give a clear and unambiguous decision in favour of one or
other of the parties to the dispute.
I make no order as to the costs of this appeal.
JUDGE
28th September 1981
Attorney for Appellant:Mr.A.P.S. Mda
Attorney for Respondent:Mr.G.M. Kolisang