CIV/APN/253/80

In the
matter of :

THAPELO MATSOSO Applicant

MOLATO PHATLA Respondent

JUDGMENT Delivered by the Hon. Acting Judge Mr. J.L.
Kheola

This is an application in terms of Section 28(3) of
Central and Local Courts Proclamation No. 62 of 1938 for leave to
appeal against
judgment of the Judicial Commissioner of the 1st
April, 1980 under case number J.C. 278/79. The Judicial Commissioner
has issued
a certificate in which he held that this was not a fit
case for appeal to the High Court and leave to appeal was not
granted.

The onus is on the Applicant to show that he has
prospects of success in the Appeal. The matter was argued before me
on the 20th
March, 1984. Mr. Monaphathi appeared for the Applicant
while Mr. Phakoana appeared for the Respondent. Before I consider
their submissions
I wish to give a short history of the dispute over
the land in question.

On the 13th September, 1968 the Applicant sued the

/Respondent

-2-

Respondent in Mapoteng Local Court under case number CC
165/68. The president of that Court held that it did not appear as
if there
had been any allocation made by the chief to the parties
and. the case was remitted to the chief to make his decision. The
chief
of the area invited the parties to appear before him on the
20th September, 1968. The Applicant did not appear before the chief
on that day but went to the land and ploughed it at night on the 20th
September, 1968. He was charged with "ploughing a land
without
negotiating with the chief." He was found guilty and sentenced
to two months' imprisonment conditionally suspended.
He had pleaded
guilty to the charge.

The Applicant again sued the Respondent at Mapoteng
Local Court under case number CC 83/69 which ended case number CC
83/69 which
ended at the Judicial Commissioner's Court as case number
J.C. 213/69. The case was sent back to Mapoteng Local Court because
the
Court President had not conducted an inspection in loco in order
to ascertain the identity of the land in dispute.

The case started de novo under case number CC 73/73 •
It went as far as Motjoka Central Court under case number CC 70/73,
and it
was again sent back to Mapoteng Local Court because the
Applicant had not attended the inspection in loco.

On the 5th March, 1974 the case again started and went
as far as the Judicial Commissioner's Court. For some reason which is
not clear
from the papers the Judicial Commissioner ordered that "the
case be remitted to Motjoka

/Central

-3-

Central Court for retrial. The appellant to be the
plaintiff and the Respondent to be the Defendant. The land to remain
with Respondent
as it was before 6th May, 1969 up to this stage each
party to bear its own costs."

This order was complied with and the case started at
Motjoka Central Court under case number CC 37/79 and judgment was
entered in
favour of the present Respondent,. The appeal was lodged
to the Judicial Commissioner's Court under case number J.C. 278/79 in
the
learned Judicial Commissioner came to the conclusion that the
parties had not been good in their cross-examination and that the
trial
Court had believed the Respondent's side. He concluded that he
could not say that the lower Court had misdirected itself and
dismissed
the appeal with costs. It is against this judgment that the
Applicant seeks leave to appeal.

At the trial the Applicant gave evidence that this land
is situated at the reeds at a place called Lehlakeng. It originally
belonged
to Matsoso who is the paternal grandfather of the Applicant.
After his (Applicant's) marriage the senior daughter-in-law of
Matsoso,
one 'Mamochatso, convened a meeting of members of Matsoso
family and informed them that she had decided to allocate this land
to
the Applicant, Members of the family agreed to the gift. The
matter was taken to Headman Sekheche and finally to chief Tabola who
approved what Mamochatso bad done and he (as chief of the area)
allocated the land to the Applicant.

/The Applicant

-4-

The Applicant says that Mosala who is the eldest son
of 'Mamochatso, was present when his mother made the gift but he
never objected.
Pheta was also present but he never made any
objection.

Ratebane Mafoso (PW.1) was a bugle in the village at the
relevant time. He says that after the family had decided that the
land should
be given to the plaintiff he was asked to take plaintiff
and Mosala to chief Tabola who approved what the family had done and
instructed
one Moji to go and allocate the land to the plaintiff. A
portion of the land was given to Mosala.

The evidence of the plaintiff is confirmed by Phetela
Nomo (PW.2), Mafenekha Makoaba (PW.3) and Lekunutu Makopotsa (PW.4)
who testified
that they were present at the family meeting at which
'Mamochatso gave the plaintiff the land in dispute.

The Applicant handed in as exhibits a number of extracts
from the previous proceedings when the case was being sent back to
start
de novo. He did this because some of the witnesses, Mosala
Matsoso and Sekheche Matsoso, are late. The extracts were marked
Exh.A,
B, C, D, E and F. He also intended to show some contradictions
in their evidence.

In terms of section 20 of the Central and Local Courts
Proclamation No.62 of 1938 the Respondent authorized one Thamahane
Phahla to
represent him at the trial. The Central Court President
approved that representation and Thamahane

/gave

-5-

gave evidence to the effect that the land in question
was allocated to his younger brother Pheta by chief Nkutu. He says
that it was
during Kaizer's War (First World War) when the land was
allocated to Pheta. It was then a fallow land and Pheta had to
remove some
stones and some other things in order to cultivate the
land. After the death of Pheta and his wives their orphans were taken
to chieftainess
'Mathebe so that provision could be made for them
during their minority. Chief Mitchell was then acting on behalf of
chieftainess
'Mathebe allowed the guardian to use the late Pheta's
lands to bring up the orphans. The arrangement worked smoothly until
September
1968 when the plaintiff ploughed this land at night. He
says that the Defendant does not claim this land for himself but as
guardian
of Pheta's orphans.

Chief Mitchell Tabola Peete (D.W.1) testified that he
came to know that the land in dispute belongs to Pheta when Molato
had taken
Pheta's orphans to chieftainess 'Mathebe in order that they
could be allowed to use the land until they reached the age of
majority.
Chieftainess 'Mathebe accepted this and instructed one
Libenyane Maluke (D.W.2) to go and inspect the lands in question. He
says
that after he had succeeded chieftainess 'Mathebe as chief of
the area there was a dispute between the Applicant and Molato Phahla.
His decision awarded the land to Molato Pheta. He does not know when
Pheta was allocated this laid.

Libenyane Maluke (D.W.2) confirmed that chieftainess
'Mathebe ordered that the orphans of Pheta should be brought

/up

-6-

up on those lands and that when they reached the age of
majority they should be brought to him for confirmation on those
lands. He
does not know when the land was allocated to Pheta "but
he only saw when Pheta was using the land.

Moeketsi Setjeo (D.W.3) says that he assisted Pheta when
they removed stones from the fallow land before it was ploughed.

Mr. Monaphathi has submitted that the evidence of
Thamahane Phahla amounts to giving evidence by representation because
the Defendant
did not give evidence. Section 10 of Basuto Courts
(Practice and Procedure) Rules Government No. 21 of 1961 provides
that no person
whatsoever shall appear and act for any witness. I
have carefully read the evidence of Thamahane Phahla and found
nothing to suggest
that he was giving evidence on behalf of the
Defendant. The facts he deposed to were within his personal
knowledge. I do not think
that the mere fact that the Defendant has
not given evidence makes the proceedings a nullity because in some
cases the plaintiff
or Defendant may have no personal knowledge such
as where his property has been stolen in his absence. In such cases
he conducts
his case just like a prosecutor in a Criminal case. He
calls witnesses who saw when the Defendant stole his property and
leads them.
In the present case there is evidence that the Defendant
is the guardian of his brother's orphans and that the land was
originally
allocated to his brother, Pheta.

The Applicant is basing his claim on a donation made

/to him

-7-

to him by one 'Mamochatso Matsoso who is the senior
daughter-in-law of Matsoso. He has called a number of witnesses who
have confirmed
his story but all his witnesses have not stated the
time when the Applicant was allocated this land. In my view, time is
of essence
in this dispute because it seems that the dispute started
in September 1968 under case number CC 165/68 when the Court
President
of Mapoteng Local Court ruled that it appeared that there
had been no proper allocation made by the chief to any of the
parties.
He referred the matter back to the chief to make his
decision. The Applicant did not go to the chief but ploughed the land
at night
without the chief's authority. He was charged and convicted.
If prior bo September, 1968 the land was being used by the Applicant
and that he had been in undisturbed possession of the land the onus
is on him to prove these points. He has led no evidence at all
to
show what the position was prior to 1968. We do not know when it was
that chief Tabola allocated this land to him.

On the other hand the Respondent has led evidence that
the land was allocated to Pheta during Kaizer's War (First World
War). His
evidence and that of his witnesses is that when he went to
the chief to introduce the orphans of Pheta he was not claiming the
land
for himself but was seeking some provision for the minor
orphans. Mr. Monaphathi has contended that because the Defendant has
not
given the ages of the orphans this claim is fraudulent because
the so called orphans may have long reached age of majority. There
is
evidence in the papers that the orphans were minors

/when

-8-

when they were introduced to the chief of the area. If
it is the plaintiff's case that they were not minors the onus is on
him to
prove that they were not. None of his witnesses over refuted
the allegation that Pheta's children were minors when he and his wife
died.

The evidence of chief Mitchell Tabola Peete is
challenged on the ground that it is hearsay because he says he does
not know when the
land was allocated to Pheta, nor was he chief of
the area at the time the allocation is alleged to have been made. I
disagree.
Chief Mitchel made it quite clear that he did not know
anything about the allocation of this land to Pheta but only came to
know
about it when Molato came to the chief and introduced the
orphans in terms of section 7(5) (a) of the Laws of Lerotholi.

The evidence of Libenyane Maluke (D.W.2) is also
challenged on the same ground that he does not know when the
allocation was done.
I agree but he has stated that Pheta had been
using the land before his death.

Mr. Phakoana submitted that the evidence of the
Applicant and his witnesses merely shows allocation of a land that
had already been
ploughed. The evidence of the Respondent shows 3ome
originality in that he says stones were removed from the land and
certain herbs
and plants had to be cleared. to prepare for the
ploughing of the land. That the land was fallow land when it was
allocated to Pheta
is confirmed by Moeketsi Setjeo (D.W.3) who
testified that he was invited by Pheta to go and help him in clearing
the land before
it

/was

-9-

was ploughed. This evidence shows that Pheta was the
first person to be allocated the land in dispute.

The judgment of the trial Court has been criticized on
the ground that too much reliance was made on the evidence of chief
Mitchell
Tabola Peete. The Court President concluded his judgment by
saying, "After the Court has weighed the evidence of both
parties,
it has come to the conclusion that the evidence includes
that of chief Mitchell T. N. Peete who is the litigants' chief whom
the
Court regards as having the best information as to whom this land
lawfully belongs." I do not think that the evidence of chief
Mitchell was very material as to the allocation to Pheta of this
land. He only came to know that the land belonged to Pheta when
Pheta's orphans were brought to chieftainess 'Mathebe. I do not see
how the trial Court would have heavily relied on the evidence
of
chief Mitchell because he did not know anything about the allocation.

For the reasons I have stated above I do not think that
it can be said that the trial Court misdirected itself where it
believed the
Defendant's story and dismissed the plaintiff's case.
The onus was on the plaintiff to prove on a balance of probabilities
that the
land was allocated to him. In my view he failed to discharge
the onus.

The application for leave to appeal against the judgment
of the Judicial Commissioner in case number J.C.

/278/79

-10-
J.C. 278/79 is refused. Costs are awarded to
the Respondent.

9th April, 1984.

For the Applicant : Mr. Monaphathi For the Respondent:
Mr. Phakoana