IN THE HIGH COURT OF LESOTHO
In the appeal:
SEPHEKO MAJORO Appellant
v SEKAKE MAJORO Respondent
Delivered by the Hon. Mr. Justice M.P. Mofokeng on
the 12th day of July, 1983.
This is an appeal from the judgment of the Judicial
Commissioner's Court. In the future, the learned Judicial
Commissioners are well-advised
to follow the judgment of Rooney, J,
delivered in this Court on the 17th December, 1980. (Ntsekele
Ramapepe v Bafelile Ma.supha. 1980(2) L.L.R. 559). The
non-compliance of this may lead to unfortunate consequences to the
prospective appellant for a fault of
which will not be of his making.
The Respondent was the plaintiff and the appellant the
defendant respectively, in the Local Court. I prefer
to adhere to that nomenclenture right through this
The plaintiff won the case in all the courts viz,
Manamela Local Court, Hololo Central Court and the
Judicial Commissioner's Court,
The dispute purported to centre around five (5) head of
cattle, one donkey, 25 goats and land belonging to the late Mantsenki
in reality the dispute was about inheritance of the late!Mantsenkis property. The defendant retained it and said
it was alloted to him by means of a
'Mantsenki and her husband had no children. It would
appear that the defenddant stayed at their home as a herdboy. He was
up as their son.
Concerning succession the heir in this family, it was
common cause, was Motsarapane, if late, then his son Sekake. In fact
puts it thus to show the order of Seniority:
"The first sods of 'Mantseki's grave were turned by
Sekake (the plaintiff) the son of Motsarapane. The present head of
family is you Sekake (plaintiff)."
There is general agreement on all sides that the land in
dispute did not belong to the late 'Mantsenki. It was never granted
by the chief. Defendant says :
"As far as I know, 'Mantsenki was never allocated
a land by a chief It was given her by my
Concerning inheritance, the defendant, despite conceding
that the plaintiff is the head of the Majoro family, produced letters
supported to have awarded him the whole inheritance. (Exhibit
"A" and "B"). The family objected to
these letters. They knew nothing about Exhibit "A".
Sefofane Mofokeng, who lives in Bethlehem, kept the letter and this
fact aroused further suspicion. Under cross-examination by
plaintiff, the defendant said :
"We consulted one another when there is anything in
the family that is taking place."
Concerning Exh. "A" there is no
Seferfane Mofokeng nor any other person as a witness.
Moreover, we are told she was very ill at the time. There is no
the chief nor any indication that the relations had been
consulted. Hence he conceded the true position which every
"The widow may not dispose of anything without
consulting the family and their head."
That is the custom of the Basotho. The Judicial
Commissioner. has tried to change it by emancipating the woman by his
interpretation of Sec. 14(2). The rule is that the male
shall include the female. (Sec. 4(2) of the Interpretation Act
But the custom remains. In every Lesotho family there must
always be a head. It cannot be other wise as long as Sesotho Custom
is the law in this Kingdom. It is part of the life of the Basotho..
(See also Molatoli Ramontsoe v Molefi Ramontsoe, 1980(2)
L.L.R. 438 at 439).
Coming back to Exh. "A" the defendant
"Sefofane's name does not appear on this
letter and I do not know how it may be accepted without his name."
and a little while later:
"T do not know why 'Mantsenki wrote this when she
knew I had been allocated to her house. Being allocated did not mean
been given away."
So he did not belong to that house. Exh. B is a
bewys authorising the sale of animals by Sepheko Majoro for Mantsenki
Mohlohlo. It is dated 16. 4.75.
Defendant called his chief who blatantly lied to the
Court. He said:
/"In my opinion
"In ray opinion 'Mantsenki was justified to
allocate her perperty without consulting the family."
another defence witness, lied by saying:
"The rest of the family agreed that Sepheko was
Under cross-examination he conceded that only a few
individuals did. But then to disply his ignorance, he did not know
the law governing
the widow having to consult the family before
selling anything nor whether Sepheko was ever introduced before the
chief as the heir.
'Makhafa, also a defence witness, teaming up with her
chief stated the law as she knew it and not as the custom
required it which are two different things.
After making appropriate reference to Sections 11(2),
12(2) and 14(2) of chap. 1 of the Laws of Lerotholi (see Duncan:
Sotho Laws and Custom pp. 119 -120), the learned President proceeded:
"It was stated by both sides that 'Mantsenki did
not have a male issue in her house. It was stated before this Court
quarrel started with respondent on the occassion of the
removal of mourning of the late 'Mantsenki Mohlohlo Mohlohlo.
appears to have objected to plaintiff being heir at this
ceremony when the family had met but he did not choose to go to
Plaintiff has by himself and through his witnesses satisfied
this Court with his evidence on all points. Now therefore by judgment
the Court accepts his plea as correct.
Respondent (Sepheko Majoro) is ordered
by judgment to hand over to plaintiff
all property belonging to the late 'Mantsenki
Majoro being 5 head of cattle, 1 donkey and a
foal, 25 goats which he refuses to release as
inheritance due to plaintiff."
In the Hololo Central Court the learned President found
no insuperable difficulty in dismissing the
defendant's appeal. He said, inter alia :
"The court finds that there is common cause that
respondent's father is senior to appellant Sepheko.
"In accordance with custom in this country the
property is due to the heir who is respondent.
"If it had been awarded to appellant, respondent
should have been present lest his rights were encroached upon.
"Appellant's representative admits that the other
property is still in his custody except the goats were bought by him
the son of Sepheko as legal because it encroaches on to the
rights of the heir,"
The defendant, not being satisfied with the judgment of
this Court, appealed to the Judicial Commissioner's Court, That
not and could not in my view find any serious misdirections
nor could the plaintiff's witnesses be described as anything but fair
and candid with the Court. On the other hand, the defence witnesses
were clearly biased. In the absence of any misdirections on
facts, on the part of trial, court, its findings cannot be disturbed
and consequently the appeal ought to be dismissed with costs.
ordered that the judgment of Manamela Local Court with programes
where present since the start of this matter in that Court,
For the Appellant : Mr. Matsau For the Respondent
: Mr. Kolisang.
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