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 late
Adv. 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