CIV/APN/221/83

IN THE HIGH COURT OF LESOTHO
In the
Application

MALEFETSANE MAJARA Applicant

v

TUMO MAJARA 1st Respondent

MINISTER
OF THE INTERIOR 2nd Respondent

JUDGMENT

Delivered by the Hon. Mr Justice J L. Kheola on the 14th
day of March, 1986

The application is for an order in the following terms

"1. Directing the second Respondent to revoke, in
terms of section 14 (2) of the Chieftainship Act number 22 of 1968.
the Government
Notice numbered 17 of 1974 in Government Gazette 3 of
the 18th January, 1974.

2. 
   Declaring the Applicant herein to be the
   rightful
   successor to the Chieftainship of Khopane in the
   Berea
   district.

   
   

3. 
   Granting the Applicant such further or
   alternative
   relief as to this Honourable Court may seem just.
   

   
   

4. 
   Directing the 1st and 2nd Respondent to pay the
   costs
   of this Application jointly and severally only in the
   event
   of their opposing the same "

   
   

In his founding affidavit the Applicant deposes that he
is the eldest son of the late Dinizulu Foso Majara who was proclaimed
in the
High Commissioner's Notice No 171 of 1939 as the Chief of
Khopane under the Principal Chief of Majara's in the Berea district.
When
his father died his father's mother 'Madinizulu Majara acted as
chief of Khopane as per High Commissioner's Notice No.170 of 1950.
She died in 1960 and after her death the Applicant claims that he
made representations to

/the Principle..... .

-2-

the Principal Chief of Majara's to have him proclaimed
as chief of Khopane by virtue of his being the heir and lawful
successor to
his deceased father. He deposes that the Principal Chief
told him to

wait as he was attending to the matter.

He further states that in 1982 it was brought to his
attention that the Second Respondent had caused the First Respondent
to be proclaimed
as chief of Khopane in Government Notice No.17 of
1974. He claims that the Government Notice mentioned above is
inconsistent with
the provisions and principles of the Chieftainship
Act No. 22 of 1968 in that the chieftainship of Khopane is not a new
one first
created immediately prior to the publication of the said
Notice.

In his answering affidavit the First Respondent deposes
that the Applicant never showed any interest in the chieftainship of
Khopane
because he knew very well that he was illegitimate and had no
rights of succession When he was presented as chief of Khopane to
the people at a "Pitso" on the 28th May, 1973 the Applicant
was present and did not object despite the fact that the Principal
Chief invited any person who had an objection to raise it. As
Applicant's mother was not legally

married to the late Dinizulu Foso Majara she and her
children were not

of considered for the succession to the chieftainship of
Dinzulu whose office

was at Khopane. When Chief Dinizulu died the rightful
successor was one Bolise the younger brother of the deceased and that
was the
reason why their mother and not the Applicant's mother acted
as chief of Khopane for her minor son Bolise.

I may mention at this stage that on the 19th August,
1985 Sebolai Majara who is the eldest son of the Applicant applied
that he should
be substituted as the Applicant because his father had
died in November, 1984 after the proceeding in this case had been
instituted.
The application was granted. It is also common cause that
the First Respondent has also passed away. He died towards the end of
1985.

/No one

-3-

No one has applied that he should be substituted as the
First

Respondent.

Rule 8 (14) of the Rules of the High Court 1980 where a
dispute
of fact should have been foreseen the Court may dismiss
the application.
In the present case the Applicant should have
foreseen when he launched
this application that a very serious
dispute of fact is going to arise.
He must have known that the
validity of his mother's

marriage to the late Dinizulu F. Majara was challenged
by the family of Majara He must have known why his own mother did
not act
as chief of Khopane when his father died. The Second
Respondent was proclaimed as chief of Khopane in 1974. On the 28th
May, 1973
when he was presented as chief of Khopane to the people at
a "Pitso" the Applicant was present but made no objection.
For
the next ten years the Applicant did nothing until on the 26th
September, 1983 when he instituted these proceedings. No valid reason
has been given why the Applicant delayed so long when he was well
aware that the Second Respondent was to be proclaimed as the chief
of
Khopane The only irresistible inference to be drawn From the
Applicant's lack of interest in the chieftainship of Khopane is
that
he knew he was illegitimate. He must have known that his mother was
not legally married to the late chief Dinizulu from the
fact that his
grandmother and not her mother acted as chief of Khopane.

Even where a dispute of fact has arisen from the
affidavits, the Court still has a discretion to hear oral evidence if
the issues
can be speedily determined by viva voce evidence
(Van Aswegen and another v. Drotskie and another, 1964
(2) S.A 391 (0). In the instant case no issues can be speedily
determined by oral evidence because the two litigants, i.e.
the
Applicant and the First Respondent are late. They are the people who
could give evidence on the issue of the validity of the
marriage
between the late chief Dinizulu Majara and the mother of the
Applicant.

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The application is dismissed with costs.

J.L.KHEOLA

JUDGE.

24th March, 1986.

For Applicant - Mr. Matsau
For Respondents - Mr.
Maqutu.