CIV/APN/13/83

IN THE HIGH COURT OF LESOTHO

In the Application of

MENSEL KHETHISA Applicant

and

JOANG KHETHISA 1st Respondent

DINIZULU KHETHISA 2nd Respondent

SHOAEPANE MASUPHA 3rd Respondent

BOLOKOE MOTSOENE 4th Respondent

SOLICITOR-GENERAL 5th Respondent

MINISTER OF INTERIOR 6th Respondent

JUDGMENT

Delivered by the Hon. Mr Justice B K. Molai
on
the 12th day of June, 1985

The applicant herein moves the court for an order
declaring him as, the rightful successor to the chieftain­ship of
Bokong ha
Kennen in the district of Leribe, direc­ting the sixth
respondent to place him as the Chief of Bokong ha Kennen, granting
him
further or alternative relief and costs of this application only
in the event of opposition by the Respondents. Only the 1st and
2nd
Res-poendents oppose the application.

It is common cause that the late Chief Khethisa Molapo
was married to several wives of whom 'Malepikoane was the most senior
The
first Respondent who became the Chief of Thaba Phatsoa and
Mahobong is the eldest son in the house of 'Malepikoane. The second
wife
was 'Mamatoli. One of the boys born in the second house was
Kennen Khethisa who became the chief of Bokong ha Kennen. The late
Chief
Khethisa Molapo had several other junior wives the most junior
of whom was Raselane. At the time of his death Chief Khethisa Molapo
had no issue in the house of Raselane.

According to the first Respondent, after the death of
Chief Khethisa Molapo, the family took a decision that

2/ his son

2

his son by the second house, Kennen Khethisa, should
raise seed in the house of Raselane and the applicant was one of the
children
born out of that union. The applicant is, therefore, the son
of the late Chief Khethisa Molapo and not Kennen Khethisa on the
basis
of the Sesotho adage that "Bana ke ba khomo" (cattle
beget children).

Applicant, however, denies that Kennen Khethisa was
merely allowed by the family to raise seed in the late Khethisa
Molapo's house
of Raselane and avers that Kennen Khethisa actually
re-married Raselane and he is the eldest of the children born out of
that marriage.
As such he is, therefore, entitled to succeed in the
chieftainship of Bokong ha Kennen.

That Kennen Khethisa re-married Raselane after the death
of his father Khethisa Molapo, the applicant is sup­ported by
Tomaki
Ramapepe who deposed that following the death of Khethisa
Molapo ten (10) head of cattle were paid as bohali towards the
re-marriage
of Raselane

I am not so sure that the custom which according to the
1st Respondent took place between Kennen Khethisa and Raselane can be
considered
marriage at all, particularly after coming into operation
of the Laws of Lerotholi If it were not marriage, it seems to me
that
the Applicant was born out of wedlock and in terms of 5.10(2)
read with (1) of the Chieftainship Act 1968 he would not be entitled
to succeed to chieftainship even that of Khethisa Molapo let alone
that of Kennen Khethisa. Again I have serious doubt whether according
to that custom a step son would be allowed to raise seed with his
step mother. On the other hand, I do not understand how the bohali
cattle would have to be paid by the Khethisa family for the
re-marriage of Raselane who was already married in that same family.

Be that as it may, it is common cause that when he made
children with Raselane, Kenneth Khethisa was already married to
another women
namely 'Mamothobi with whom he had no children. When in
1953 Kennen Khethisa passed away, his widow, 'Mamothobi Khethisa, was
gazetted
in her own right as chieftainess over the chieftainship area
of Bokong ha Kennen. She was the chieftainess over

3/ that area

- 3
that area in her own right until her death in
1976.

It seems to me that if the applicant were indeed the
legitimate son of the late Kennen Khethisa, the

widow, 'Mamothobi would have been gazetted in an acting

capacity and not in her own right, that is, assuming
that

the applicant was still a minor. This is clearly in
accordance with the provisions of S.3(1) of the Laws of Lerotholi
Part I which section reads as follows

"3.(1) If a chief dies leaving a minor son the
senior widow or the younger brother of the deceased chief may act as
chief during
the minority of such son, and when that son ceases to be
a minor the widow or the younger brother shall give place to him."

I am not convinced that on the papers before me the
applicant has established a case entitling him to the reliefs he
seeks in this
application. I have, therefore, no alternative but to
dismiss the applicant's application with costs.

B K MOLAI
JUDGE

12th June, 1986.

For Applicant Mr. Monaphathi,

For
respondent Mr. Maqutu (for 1st and 2nd Respondents)