IN THE HIGH COURT OF LESOTHO
In the Appeal of :
Delivered by the Hon. Mr. Justice M.P. Mofokeng
on the 10th day of September, 1982.
The two parties to the dispute were not present on the
day of the trial, each for a different reason. However, they
each had a spokeman. For the plaintiff it was Mr. Phillip
Molantoa and for the Defendant it was Mr. Malebanye Litsebe.
The dispute centres around two fields at Nkokomohi.
The defendant is alleged to have ploughed one of plaintiff's
two fields without the latter's consent. He further drove
away Ntiki's span when preparing to plough for the plaintiff.
It is alleged, further that the plaintiff inherited these
fields from her parents as she "was never married. She is
still at home." It is also alleged that when plaintiff's
mother died, plaintiff was "allocated the fields by chieftainess
'Mamphu who had the right at that time round 1960." One of
the fields plaintiff disputed with Mamoorosana and plaintiff is
alleged to have won the case in all the courts. Defendant
had been living in the village for three (3) years without
a complaint against the plaintiff and suddenly he surprises
everybody. The plantiff, it is alleged, "has never been
deprived of these fields according to law governing land now."
It is finally alleged that defendant has no "rights in the
Litsebe family, who died having no son."
Under cross-examination it was stated that the two fields
were granted to the plaintiff by chieftamess 'Mamphu as a
"confirmation of the inheritance." When questioned by the
court it was revealed that chief Koenaesele Masupha is in
charge of the two fields. He has not said anything about the
matter or given a decision.
Spirit Lekhopa, an old man of about 68 years says that
the two fields-belonged to the father of the plaintiff, chief
Litsebe who had three families. Plaintiff's mother was
allocated the two fields by 'Mampeneka Ralebilu Ntjane. The
witness says he was deputy to chief Mpiti Mothebesoane, He
did not know who gave the defendant the right to plough those
fields. He alleges that plaintiff was never married. She
was illigitimate. As far as he knew plaintiff has always
used the fields and that the defendant was a recent arrival.
In cross-examination he stated, inter alia, that defendant
had not been sued by a chief but the owner of the fields;
that the chief once informed the defendant that he had
ploughed a field belonging to another person, but no decision
had been made on that issue, that Litsebe's children are
dependant on Lekhola; that after plaintiff's mother Lekhola
and others "confirmed that the fields belonged to Makholu
(plaintiff); that plaintiff Is not married to Sankatana Tsekelo,
does not represent Litsebe" to his knowledge.
That was the plaintiff's case.
The defendant, through his spokesman Mr. Malebanye says :
that he has not taken the fields himself but rather that they
have been "given to him by Mothebesoane Litsebe" at a general
meeting of the family that he should live on the lands which
belonged to his father and support all the orphans of chief
Koenaesele K. Masupha and he accepted the family's request.
He was given rights over the fields. The matter was referred
to chieftamess Matholoana Masupha per letter. She accepted
it and encouraged the principal chief 'Mamathe. It was not
true that the plaintiff was unmarried. She was married to
Sankatana Moorosana Masupha. She ngalaed to her maiden home
and stayed there until her mother died. She lived with
Litsebe's children but was never allocated any fields. At
this stage exhibit "B" was handed into "court as part of the
evidence at the trial. This was a document which was
addressed to chief Mpiti Mothebesoane to the effect that
Litsebe's family, at a meeting of the family held on 20th
January 1974 and in the presence of some twenty (20) members,
agreed to the transfer of rights of ownership from Nko
Litsebe to Tsekelo Malebanye (Defendant), that the latter
should succeed the former as those whose duty it was to revive
the family had failed to do so.
Exhibit 'C' is a letter confirming that the defendant
succeeds the late chief Litsebe and that he is alotted
special earmarks. Exhibit "D" is a letter to chieftamess
'Mamathe before whom chief Koenaesele Masupha placed "their
son Tsekelo Litsebe to come and revive chief Litsebe's family."
Exhibit "H" is a letter addressed to the chief of Mamathe
introducing before him a new "headman Tsekelo Daver Litsebe"
and that he had succeeded the "late Litsebe, you will guide
him according to the right channels like others."
The witness further stated that plaintiff knew when
defendant was allocated the disputed fields.
Under cross-examination the witness stated that apart
from the documents already handed into court as evidence he
had no other evidence. The fields were allocated to the
defendant by chief Koenaesele Masupha Before then the fields
were ploughed by the plaintiff.
Mpiti Mathe Qesoane . He appointed the defendant to be
heir to the late chief. Mafa Litsebe is the late chief's son.
Maja's son who was born in the Republic of South Africa refused
to succeed his father as chief and so did his brother,
Sekhohola, who comes after him also refused and went to live in
another village. A family meeting was therefore called and
confirmed defendant as the chief to succeed the late chief
Litsebe as Sekhohola and the other son, in the presence of the
family, at the family meeting, refused to become chiefs. Thus
in 1974 defendant was presented to chief Koenaesele Masupha who
was represented by Phillip Moloantoa who "accepted that the
defendant has succeeded to Maja's rights including his fields
and wrote a letter to chieftamess 'Matholoana who affirmed that
"Tsekelo has succeeded to these rights." The principal chief
as well as the District Administrator did not refuse but
accepted the request.
Under cross-examination the witness stated that . the
two fields have always belonged to the late chief Mafa
and were ploughed by the plaintiff before the defendant was
given a right to use them. Plaintiff had been authorised
by the witness what to do while she still stayed with the
family. Plaintiff used these fields for about ten (10) years.
When plaintiff had a dispute over the same fields with
'Mamoorosane the witness was her spokesman. The rights of
the defendant's inheritance from the late Litsebe were confirmed
by Phillip Moloantoa (cross-examiner). Even the rights to the
fields was confirmed by him personally. The cross-examiner had
sent Seboko Selai as his representative to confirm the
defendant's rights in the fields. The defendant was given a
form "C" for the fields. The fields belonged to Litsebe's
family and not to Makholu's family Litsebe had four fields.
Two which are not in dispute are ploughed by the defendant.
The witness denied that the other two fields belonged to
plaintiff. It was the cross-examiner who encouraged chief
Koenaesele's office to present the defendant before chieftamess
'Matholoana. The witness reiterated that he was the chief
of Mothebesoane's village. He allocated land even though he
was not gazetted.
Elia Mokhejane, a middle aged man, informed the court that :
the fields in issue belonged to the late chief Litsebe: They
never belonged to Makholu. Mafa succeeded Litsebe and at
Mafa's death they were given to his wife Mamoorosane Litsebe.
After her death the lands were given to the defendant. He
inherited them as rights of Litsebe.
He is the chairman of chief Litsebe. According to him,
plaintiff is married. He did not know why she was sent to
her maiden home. She was not given the right to live off the
Under cross-examination he states :
The fields were given to the defendant by the chief and
defendant's family, the chief who did so was Mpiti Mothebesoane.
Although the chief responsible for the allocation of fields
is Koenaesele, chief Mpiti Mothebesoane is only a headman.
The fields were used by chieftainess 'Mamphu and on her death,
by Malibeo who used them after the death of her husband chief
Litsebe. Maja used the fields after the death of Malibeo.
Then Mamoorosane used the fields. Makholu, being illigitimated,
depended on the fiels. The spent a long time in her family
She still dependant on the fields.
Chief Mohale Masupha states that :
Plaintiff is the legal wife of Sankatana. She is the
daughter-in-law to Mamoorosana.
He knows that bohali was paid. The head at Masupha's in
Moorosane's family is Sankatana. On the death of Sankatana
he gave plaintiff her husband's mourning cloth but she did not
wear it however when the children of Sankatana cut their hair
the plaintiff was present.
Under cross-examination he states :
The witness is related to Sankatana. The mother of
Sankatana is the second wife of his wife. The eldest son
of Sankatana's family is Molomo. Eight (8) cattle were paid
for plaintiff's bohali. Plaintiff was now living in her
maiden home. She went there in order to give birth to Kholu.
She has three children. All children are married. All bohali
cattle for these girls was paid to Sankatana. Sankatana was
supporting plaintiff at her home.
He had no knowledge concerning the disputed fields.
The witness then positively says that plaintiff wore
Sankatana's mourning cloth, but has no knowledge as to whether
she has even put it off.
Libeo Molefi simply states that it is true that her sister,
the plaintiff, is married at Moorosane's family. She has no
rights in Litsebe's family. She finds it surprising that she
claims the fields from her father, the defendant, who has
succeeded to his father
She knows when chief Sankatana died. Plaintiff wore his
Under cross-examination she states :
She knows the two fields being disputed. After Malibeo died
the fields were under the control of chief Mpiti. She is on
good terms with plaintiff She did not know when it was
when plaintiff disputed the fields with Mamoorosane. She
knows plaintiff to be married. She saw eight (8) head of
cattle paid for plaintiff's bohali. Plaintiff did wear
Sankatana's mourning cloth.
The Judgment of the president of the Local Court is a
little confused. The defendant's defence is referred to as
the plaintiff's point of view. It is the plaintiff's evidence
that she was never married but defendant's evidence is that
the plaintiff was married to Sankatana and that eight bohali
cattle were paid. The president has reversed the order. Then
the president introduces a totally unknown name and refers to
that person (Makhanya Litsebe) as the defendant. Well, in
this present matter the defendant is Tsekelo Litsebe, This
totally unknown defendant is, according to the president's
judgment, supposed to have given evidence. But according to
the record of the case there is no such evidence and there
was no complaint when the appeal was heard that the record
was faulty. I am therefore bound by four corners of the
record since the matter before me is an appeal.
The plaintiff is found according to the Local court
president's Judgment, to have supported her case by attaching
the "decision of the Judicial Commissioner" where the same
fields were disputed between Mamoorosana Masupha and the
plaintiff and apparently absolution from the instance was
then granted. All that is reflected is the names of the
parties and the result of the appeal why the court came to
that decision the president in present proceedings did not
know. All he could say about the result of that appeal was
that the dispute had not come to an end. Nobody had won.
So the inclusion of that extract served no legal purpose
whatsoever except, perhaps, to confuse the issues before
him and appear as though the plaintiff had in fact won the
dispute as the cross-examination tended to show.
The learned president came to several conclusions
1. "That the dispute is about fields which cannot
be inherited by anybody in this country but
one can have rights over them if he has been
given them by the chief and the family members."
The first portion is quite correct and in accordance
with the law. (See the recent decision in Tsepo Molapo v.
Lebotsa & Another, CIV/APN/38/80 dated 13th August, 1982).
However, the ultimate decision is made by the chief of
the area or his representative. In this matter the greater
part of the defence evidence was devoted solely to establishing
this very same principle which the learned president says
ought to have been established. Through uncontradicted evidence
the defendant was able to establish how he came to believe
that he had rightly been allocated the fields and everything
which rightly belonged to the late chief Litsebe. The chief of
the area, through his representative, allocated the same
fields which had been allocated to the late chief Litsebe.
He was given a form "C". This fact has not been denied. The
family of the late chief had met and agreed that the defendant
would come into the family of Litsebe and revive it because
those whose responsibility it was to do so have, before the
family congregation, refused and elected to live away from their
home. On the other hand, the plaintiff told a cold lie,
through her representative, and said she inherited the
fields (disputed) from her parents as she "was never married."
She also claims that on her mother's death the fields were
allocated to her by chieftainess 'Mamphu. But there was no
evidence of this which she called. It was said that one of
the fields being disputed she had previously disputed with
'Mamoorosana and "won the case in all the courts." This is
not quite true at least of the Judicial Commissioner's Court.
On this first conclusion of the president's judgment, the
defendant passes the test laid down by the learned president
The learned president says that it is not clear that
the plaintiff was married. Defendant called evidence which
clearly established that plaintiff was married to Sankatana
Masupha. To have required more would have been tantamount
to placing the onus on the defendant or if the onus was on
him to discharge it beyond reasonable doubt and not on a
balance of probabilities. Whichever way, he more than
discharged the onus on him as required in civil procedure.
The fact that the plaintiff may have been allowed to
use the fields while his mother was still alive and shortly
thereafter while the family was still persuading the
rightful heirs to take their places, did not create rights
for her by efflux of time. She is disqualified according to
custom particularly because she is married to the Masupha
family and according to custom she has no rights in the affairs
of Litsebe's family. If she was alloted the fields in her
own right and proved that to be so and also proved that she
had been emancipated as a minor her argument would be
understandable. But all the evidence in the present case point
to the fact that she purported to acquire the fields after the
death of her natural parents as inheritance.
According to the evidence on record the plaintiff has
failed hopelessly to discharge the onus on her but the
defendant presented a corroborated evidence which had a
ring of truth in it.
In my view the proper judgment ought to have been in
favour of the defendant.
The matter went to Motjoka Central Court and the
defendant's appeal was dismissed in the following words :
"I cannot find where the respondent's (plaintiff)
right to use the fields was lessened according
to the law governing allocation of land."
In my view that issue did not arise because there was no
proof that there had been proper allocation. At first,
plaintiff said she had inherited the fields from her parents.
That could not be true as it is contrary to the customary
law. She is a woman, whether illigitimate or not. By being
illigitimate she does not become an exception to the law. As
stated by Duncan in his book : SOTHO LAWS & CUSTOMS, 1960 Ed.
p. 11 "An illigitimate child cannot be an heir in Sotho
customary law." However, it has been established beyond doubt
that she is married and belongs to the Masupha family and could
therefore not inherit anything in the family of Litsebe. The
witnesses for the defendant speak of inheritance. What they
mean is that defendant had stepped into the shoes of the late
chief Litsebe. He could not have inherited anything as he was
from "outside" so to speak. However, there was evidence that
the proper allocation had been made in his case in connection
with these fields.
The appeal, in my view, ought to have been successful.
There was a further appeal to the Judicial Commissioner's
Court. The judgment of that court was very brief :
"I have said we cannot really say the respondent
(plaintiff) was confirmed on this land but she
was definitely in control of the land or lands
and she was left in control by the judgment of
the Judicial Commissioner while it may be that
the respondent is married to the Masupha's
and has no rights in the Litsebe's family. This
Court agrees with the Central Court that any
decision or intention to remove the lands from
the respondent should be brought by compliance
with the compliance with the provisions of the
Land Act 1973."
It was therefore ordered that the lands should remain with
respondent (plaintiff) until they are properly taken away
from her in accordance with the provisions of section 13 of
Land Act No. 20 of 1973.
Firstly the leanred Commissioner concedes that it has
not been proved that plaintiff had been confirmed by any
chief. But I am of the view he overlooked to say that the
defendant had successfully proved to have been so. Secondly,
it is not quite clear to me whether the word "control" is used
instead of "possession." I believe the learned Commissioner
wished to use the word "possession." The control of the
fields was in the hands of the chief through his representative
in the village. The earlier judgment of the Judicial Commissioner
(Exh.A) did not put the plaintiff in control of the lands or
fields but put her in possession of them. It must be made
clear that the Land Act applicable in this case is not the
present one but the one which was in force at the time.
Compliance of the relevant provisions of the land mentioned
in the learned Commissioner's judgment is not necessary because
the defendant had not been allocated these fields in accordance
with the procedure laid down in the same law. The person who
had been allocated those fields was the late chief Litsebe.
Those who used the lands after him merely did so with the
consent of the family and the chief or his representative in
the village and this would only continue when a successor to
the late chief was found and the necessary presentations
were made to the senior chief. These had been done
(Annexures speak for themselves). Then the fields were
specifically allocated to the successor to late chief Litsebe
pricesely because in customary law, they are not inheritable.
Plaintiff tendered not such a strong evidence as the defendant.
Before I conclude I wish to point out that there is a
provision in the Laws of Lerotholi akin to the pretrial
conference Rule in civil trials. This is Part 1 :14(4) which
simply states that any dispute amongst the deceased's family
over property shall be referred for arbitration to the
brothers of the deceased and other persons whose right it is
under Basotho law and custom to be consulted. This provision
is of considerable importance and it does not seem to me that
it was applied in this case. It must not be shouted down.
There must be evidence in the future that it was complied with
or at least an attempt to do so. It should not be ignored
The answer posed by the Judicial Commissioner when
granting the appeal certificate is answered in the affirmative.
In my view the defendant ought to have had judgment
entered in his favour at the Local Court. He ought to have
won the appeals at the Central and Judicial Commissioner's
Courts. It is so ordered. He is awarded costs in all the
For the Appellant Mr. Masoabi
For the Respondent : In person.
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