CIV/APN/36/79
IN THE HIGH COURT OF LESOTHO In the Application of
MPENAPENA CHAKA Applicant
v MASELINA CHAKA Respondent
JUDGMENT
Delivered by the Hon Chief Justice Mr Justice T S Cotran on the 28th day of August 1985
This is an application for leave to appeal from the Judgment of the Judicial Commissioner (delivered on the 7th September 1978) who dismissed the appellant's (and original defendant) appeal from the Judgment of the Matsieng Central Court The Judicial Commissioner, in terms of s 28(3)(b) of the Central and Local Courts Proclamation (Vol X Laws of Lesotho p 193) refused to issue a certificate that the case was fit for an appeal
The application for leave under the proviso to s.28, supra, came before a judge (Mofokeng J) on 2nd April 1979 The lateAdv. Motiamelle represented the appellant There was no appearance and the matter was struck off the roll It then came before another judge (Rooney J) on the 11th June 1979 The application was postponed sine die Adv Motiamelle died reportedly in 1980 and the appellant then briefed Adv. Modisana, who did nothing until he in turn died in 1983
Mr. Attorney Tsotsi was briefed apparently in June 1984 and the application was argued before me finally on the 9th August 1985, eight years almost to the day when the respondent (and original plaintiff)
/sued
-2-
sued the appellant for a plot of land the latter allegedly had usurped.
What has been established at the hearing before me is that the appellant who lost his case eight years ago is still in physical occupation of the land I am not criticizing Mr Tsotsi because he did try and have the application disposed of but certainly what the respondent tells me, viz that she has "been suffering for seven years" (the Basotho way of saying that she has not enjoyed the fruits of her Judgment for that long) has a ring of truth in it It is clear that the appellant had no interest in prosecuting the appeal I am not prepared to grant leave to appeal now
I have nevertheless looked at the merits of the appeal to gauge the appellant's chances of success if leave had been granted Whilst it is true that the first Local Court gave Judgment in favour of the appellant, that finding was found to be perverse by the Central Court as well as by the Judicial Commissioner. It was common cause that the land had been allocated by the senior chief a long time ago (before the appellant's claim that it has been reallocated to him) to the respondent's husband who was himself a lesser chief in the area The appellant was adopted by the respondent and her husband After her husband's death the respondent is said to have married the appellant. It is conceded that the appellant "shared" the crops with the respondent for many years, five or six Her case was that the land never left her and her husband's family When the appellant stopped giving her a share she sued him for the land His case was that the land was allocated to him by the respondent's husband himself with the knowledge of the chief The onus of proof was on him The respondent's husband is dead so he cannot speak The appellant's witness was not the senior chief who allegedly authorised the allocation but a person (who himself knew nothing about the matter) allegedly sent by the chief to testify Such evidence was found by two lower Courts to be worthless
/and
-3-
and with this 1 tend to agree. I would have dismissed the appeal. The appellant to pay the costs here and all the Courts below
CHIEF JUSTICE 28th August 1985
For Applicant Mr Tsotsi For Respondent In Person