CIV/A/2/84

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

LEHLOLA MOFOKA Appellant

and

LINEO LIHANELA Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai
on
the 28tn day of August, 1986.

The Appellant and the Respondent were Plaintiff and
Defendant before the Matsieng Central Court, sitting as the court of
first instance,
where the former claimed against the latter, for an
order barring her from interfering with his chiefly rights over Ha
Mokoena.

The trial court dismissed Plaintiff's claim on the
ground that Ha Mokoena fell under the jurisdiction of the Defendant
and not the
Plaintiff who did not. therefore, have chiefly rights
over that place. The Plaintiff was un­happy with the decision
against which
he appealed to the court of the Judicial Commissioner.
The appeal was dismissed and it is against this decision that the
Plaintiff
has now appealed to the High Court on a long list of
grounds which can, however, be summed up in that the decision was
against the
evidence.

In short, the evidence heard by the trial court was that
Plaintiff was a gazetted chief and the Defendant (also gazetted) a
headman
responsible to him (Plaintiff). The Plaintiff and the
Defendant lived in the villages of Ha Mofoka and Ha Lihanela,
respectively.
The villages of Ha Mokoena and Ha Lihanela were divided
by Malehlakana stream. Ha Mokoena was on the east whilst Ha Lihanela
was
on the west of that stream. There was no gazetted headman at Ha
Mokoena.

2/ According to

-2-

According to the evidence adduced on his behalf Ha
Mokoena had always been administered directly by the Plaintiff or his
predecessors.
However, in 1980 the Plaintiff was told by one
'Mamokete (who did not testify before the trial court) that the
defendant was allocating
arable lands and residential sites at Ha
Mokoena. It was Plaintiff's contention that the aforesaid action of
the defendant cons­tituted
an interference in his chiefly rights
at ha Mokoena. Wherefor he instituted the present proceedings against
her.

Defendant did not dispute that she had been alloca­ting
arable lands and residential sites at Ha Mokoena as alleged by the
Plaintiff.
She, however, contended that her action did not amount to
interference in the chiefly rights of the Plaintiff for Ha Mokoena
had
always been administered directly by the Headman of Ha Lihanela
and not the Plaintiff or his predecessors. As proof thereof defendant
handed in a number of exhibits the most important of which were
exhibits "1" and "10".

Exhibit "1" was a letter which, in 1967, the
chief of Ha Mofoka or the predecessor of the Plaintiff had addres­sed
to
the headman of Ha Lihanela requesting the latter to send before
his (Plaintiff's) administrative court two prospective litigants
who
were apparently living at Ha Mokoena. Likewise exhibit "10"
was a letter which, in 1979. the Plaintiff himself had
written to
the headman of ha Lihanela advising that the people of ha Mokoena had
been before him to recommend a certain 'Mamokete
Mokoena as the head
of the family of Mokoena. In the absence of the headman of Ha
Lihanela Plaintiff said he was unable to accept
the recommendation of
Mamokete Mokoena as the head of the family because the people of Ha
Mokoena were reportedly her (headman of
Lihanela's) subjects.
Wherefor, ho instructed the headman of ha Lihanela to appear before
him at 10 a.m. on Saturday, 20th October,
1979, and personally
recommend 'Mamokete as the head of the family of Mokoena if her
recom­mendation were, at all, to be given
proper recognition.

3/ As mentioned

-3-

As mentioned earlier, the trial court found, on
evidence, that Ha Mokoena was under the jurisdiction of the Defendant
and not the
Plaintiff. If,as far back as in 1967 Plaintiff's
predecessors were summoning prospective litigants from Ha Mokoena
through the headman
of ha Lihanela and, in 1979, Plaintiff himself
required the recommendation of 'Mamokete as the head of the family of
Mokoena to be
made through the headman of Ha Lihanela, it would
appear that there was a recognition of long standing by the Plaintiff
himself and
his predecessors that ha Mokoena fell under the
jurisdic­tion of the headman of Ha Lihanela. There was,
therefore, nothing unreasonable
in the trial court finding, as it
did, that Ha Mokoena was under the direct administration of the
defendant and not the Plaintiff.

That being so, it seems to me that the defendant, who is
admittedly a gazetted headman, was entitled to, and could lawfully,
allocate
arable lands and residential sites at Ha Mokoena. Plaintiff
could not, therefore, be heard to say by so doing she interferred
with
his chiefly rights.

In the circumstances, I come to the conclusion that
Plaintiff hod, on a preponderance of probabilities, failed to
establish his case
against the defendant and the court a_ quo
correctly upheld the decision of the central court of Matsieng.

I would, therefore, dismiss this appeal with

costs.

B.K..MOLAI

JUDGE
28th August, 1986.

For Appellant : Mr. Tsotsi,
For Respondent: Mr.
Moorosi.