IN THE HIGH COURT OF LESOTHO In the Appeal
SAMUEL MOTJEBEKOA Appellant
v'MAMULANE TABA Respondent
J U D G M E N T.
Delivered by the Hon Mr. Justice B K. Molai on the
8th day of June, 1981.
This is an appeal against the Judicial Commissioner's
decision dated 27th July, 1976 whereby it was decided that the heir
a residential site so long as he continues to dwell
thereon under the Laws of Lerotholi Part 1 Section 7(7).
The case was originally brought before the Matala Local
Court by Samuel Motjebekoa (present appellant) against one Tebelo
1st defendant and 'Mamulane Taba (present respondent) as 2nd
The issue in dispute as explained by Samuel Motjebekoa
and recorded by the trial Court in terms of Section 36 of the Basuto
(Practice and Procedure) Rules Government Notice No. 21 of
1061 was that he was suing Tebelo Taba for placing his mother
inside Tsepo Motjebekoa's site (Tsepo being his late uncle)
without his consent. This claim was denied by both Tebelo Taba and
mother 'Mamulane Taba.
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The trial Court then proceeded to hear evidence which
briefly disclosed that.-
After the death of his wife (Motselisi) in the
FreeState, Republic of South Africa, Tsepo Motjebekoa
and'Mamulane, alias, 'Mamojela, although not lawfullymarried
to each other, lived together as "husband" and"wife".
Tsepo and 'Mamulane later left the Republic of
SouthAfrica and came to Lesotho where they settled atThamae's
under chief Moshe.
On 21st July, 1971 Tsepo and 'Mamulane were
jointlyallocated a dwelling site at Thamae's as evidenced
by Form C bearing a date stamp impression of the chief
'Mamulane and Tsepo lived on the site till the
letter'sdeath in February, 1973.
Tsepo was the paternal uncle of Samuel Motjebekoa.
Samuel Motjebekoa is Tsepo's rightful heir.
Samuel Motjebekoa lives at Makhoathi's and is a subject
of a different chief from the chief of Thomae's.
The trial Court accepted this evidence and in its
judgment said that Samuel Motjebekoa should work in
consultation with 'Mamulane and if the latter did not co-operate then
"quit and leave the site which shall remain
Section 42 of the Basotho Courts (Practice and Procedure
Rules) Government Notice No. 21 of 1961 provides inter alia that.-
"A Basuto Court may, subject to any provision of
these Rules relating to judgments by default or consent, as the
result of the
trial of a civil action grant -
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(a) Judgment for the plaintiff (or applicant) in
respect of his claim in so far as he has proved the
(b) Judgment for the defendant (or respondent)
inrespect of his defence (or reply) in so far ashe has proved
Now, Samuel Motjebekoa had raised the issue that Tebelo
Taba had placed his mother 'Mamulane inside the late Tsepo
In reply Tebelo and 'Mamulane denied this and
averred that 'Mamulane had been placed on the site by the chief of
evidence accepted by the trial Court proved that
Tebelo had in fact not placed 'Mamulane on the site On the contrary
she had been
placed there by the chief of Thamae's as evidenced by
the Form C dated 21st July, 1971. In my view in terms of section 42
Government Notice referred to above, the trial Court ought to
have dismissed Samuel's claim that Tebelo had placed 'Mamulane on the
site in question in so far as the evidence did not support his claim.
The trial Court, however, drifted away and avoided
giving a decision on the issue before it by ordering what may he
considered a conditional
ejectment against 'Mamulane. For obvious
reasons 'Mamulane was unhappy with the decision and appealed to the
Central Court of Matsieng.
The Central Court considered the appeal and as can be
expected found that the trial Court had "lost sight" of the
that had been placed before it. In allowing the appeal the
Central Court, however, had this to say -
''Before the Lower Court, respondent (Samuel Motjebekoa)
handed in EXH "D" which is form "C" which he says
to his uncle Tsepo and that he is disputing under the force
of this form. According to this
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EXH."D" the site appears to have been piloted
jointly to Tsepo and 'Mamojela Motjebekoa who is appellant in this
Tsepo died, and the site remained with 'Mamojela as hers.
EXH."D" was processed during Tsepo's lifetime on 21st July,
1973. The chief's date stamp confirms this. Other than this, I do
not find any other authority on which respondent "bases
because he is a subject of chief Makhoathi at Lentsoe's and the site
in dispute is at chief Moshe's who is not responsible
Makhoathi and that chief Moshe has not granted respondent this site
or removed it from respondent in terms of Act 24 of
1967 Sec. 9(1)
(2) (3) (a) (b) (c). Appeal is allowed ..."
According to this passage it would appear that the
Central Court of Matsieng was under the impression that Samuel
Motjebekoa was claiming
inheritance of the residential site. If that
were the case I would agree totally with his line of reasoning. But
that was not the
case As I have pointed out supra, the issue that
the trial Court was required to decide upon, was whether or not
Tebelo had placed
his mother on the site But the trial Court lost
sight of that issue and granted what may be regarded as a conditional
order of ejectment
against 'Mamulane - an issue for which its
judgment was not called for - It is for that reason that the judgment
of the trial Court
is unacceptable and cannot be allowed to stand.
For different reasons, therefore, I would agree with the decision of
Court in allowing the appeal.
It is common cause that Samuel Motjebekoa appealed to
the Judicial Commissioner's Court against the decision of the Central
of Matsieng. The Judicial Commissioner's Court considered the
appeal and agreed with the view held by the Central Court, namely,
that the heir may inherit a residential site as long as he continues
to dwell thereon
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under the laws of Lerotholi Part 1 section 7(7). As
Samuel Motjebekoa is admittedly living under a different chief from
the one in
whose area the site is situated, his appeal cannot
therefore succeed. Whatever title Samuel may-have will depend on a
to him by the chief concerned. The appeal was for
those reasons dismissed.
I respectfully agree that this is a correct statement of
the position under the Basotho custom and it would serve a useful
in a case where the claim was for inheritance of a
residential site. However, that was not the claim which the trial
Court was called
upon to decide. Correct as the statement may be in
a proper context it does not resolve the problem created by the trial
avoiding to give judgment on the issue for which it was
called upon to do, namely, whether or not Tebelo had placed his
Tsepo's site without the consent of Samuel Motjebekoa,
his acknowledged heir.
Samuel Motjebekoa then appealed to this Court against
the decision of the Judicial Commissioner's Court. The appeal to
is based on the grounds that the learned Judicial
Commissioner confused the right of inheritance to improvements with
the right of
occupation of the land on which the improvements are
situate. Appellant's contention was that on a proper construction
of the Laws of Lerotholi Part 1 "Gives the heir the
legal right to use the land in question irrespective of the wishes of
chief. It does not deprive the chief of the power to grant such
use of the land to an heir who doesn't reside in his area."
Assuming for the sake of argument that the claim was in
fact for inheritance or the use of the residential site.
- 6 -The relevant section reacts as follows:-
"On the death of a person who has been allocated
the use of land for the growing of vegetable or tobacco, or for the
of planting fruit or other trees, or for residential
purposes, the heir, or in the absence of the heir, the dependants of
person shall be entitled to the use of such land so
long as he or they continue to dwell thereon."
It is common cause that Tsepo died in February, 1973.
Assuming this residential site had been allocated to him alone.
his acknowledged heir, would no doubt have been
entitled to the use of the site but only on condition that he dwelled
on the site
or came to dwell thereon and continued to do so after
Tsepo's death. In this case however it is common cause that Samuel
lives at Makhoathi's and does not dwell on the site in
question. In the premisses Samuel Motjebekoa cannot be entitled to
of the site under the provisions of this section.
As regards the contention that section 7(7) does not
deprive the chief of the power to grant such use of the land to on
heir who doesn't
reside in his area I hold the view that on the other
hand the section is certainly no authority that the chief is
empowered to grant
such use of land to an heir who does not reside in
his area. If he does, the chief will clearly he acting ultra vires
in as much
as section 7(7) does not empower him to do so
Even if it were accepted therefore that the claim before
the trial Court was that of inheritance over the site I am of the
that the learned Judicial Commissioner cannot be said to have
erred in holding, as he did, that Samuel Motjebekoa was not entitled
to inherit the residential site under the provisions of section 7(7)
of the Laws of Lerotholi
- 7 -Part 1.
As I have pointed out earlier this was not the dispute
over which the trial Court was required to deliberate upon. The claim
Tebelo had placed 'Mamulane on the site. The trial Court had
a duty to give a decision on this claim on a balance of
It has been argued before me that this Court has in the
past held the view that pleadings in the Basotho Courts are usually
stated and the Court ought to consider the evidence to
determine the real issues in dispute. In the present case the Court
likewise consider the evidence and hold that the claim before
the trial Court was that of inheritance and / or ejectment of
To hold the contrary would imply that this Court is
departing from precedent established by itself.
No authority was referred to me in support of this
argument. I am not convinced that the argument is in keeping with
of the legislative in section 36 of Government Notice
No. 21 of 1961 which clearly provides that.-
"The Court shall, before proceeding to hear
evidence, require the parties to explain the issues which are in
dispute, and such
issues shall be recorded."
In any event the argument might have substance, perhaps,
in a case where the claim was not clearly explained in terms of
supra. But in the present case, the claim was clearly
explained before the trial Court, as being that Tebelo had placed
on the site. Samuel Motjebekoa had raised this issue. The
onus of proof rested on him. Considering the evidence as a whole he
has, however, failed to discharge that onus on a balance
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of probabilities. On the contrary the evidence accepted
by the trial Court supported defendants' reply that 'Mamulane had
on the site by the chief of Thamae's and not Tebelo Taba.
In the circumstances I hold the view that the trial Court ought to
dismissed plaintiff's claim or alternatively given judgment for
the defendants in terms of section 42 (b) of Government Notice No.
of 1961 in so far as the evidence had supported their reply to
In the premisses, it is clear that I am of the opinion
that this appeal cannot succeed and the decision of the trial Court
Accordingly the appeal is dismissed with costs and the
Judgment of the trial Court reframed to read:-"Plaintiff's claim
day of June, 1981.
For Appellant Mr. K. Sello For Respondent : Mr.
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