CIV/A/17/86

IN THE HIGH COURT OF LESOTHO

In the Appeal of

LIRA CHAKA Appellant

v

MOHLALEFI CHAKA Respondent

JUDGMENT

Delivered by the Hon Mr Justice J.L. Kheola on the 24th
day of March, 1986

The Appellant sued the Respondent at Matala Local Court
claiming R245-00 as compensation for cutting down his trees and
damaging his

fence The court of first instance gave judgment in
favour of the Appellant on the ground that the Respondent's father
had removed
from Qoaling (where the tree plantation is located) to
Likotsi The Matsieng Central Court President upheld the appeal on
the ground
that the represen­tative of the Appellant at the trial
appointed in terms of section 20 of Proclamation No 62 of 1938
committed
a gross irregularity by giving evidence after he had been
inside the court-room and conducting the Appellant's case The Central
Court
President misdirected himseif on a point of law. In all civil
cases the plaintiff and the defendant always remain in court when the
witnesses are giving evidence and yet it has never been said that
because the defendant was in court when plaintiff's witnesses gave
their evidence, he has no right to give his evidence. The
representation of the Appellant had a right to give evidence in the
same
way as the Appellant would have had the right to give evidence.

The appeal to the Judicial Commissioner's Court was
unsuccessful on the ground that the Respondent had never abondoned
his right to
the trees because he had been actively using them and
the garden despite the fact that

/he was ...

-2-

he was living in a different village under a different
chief.

The Appellant is now appealing to this Court on the
following grounds -

"(a) The learned Judicial Commissioner erred in law
in not holding that Respondent's father when he moved to Likotsi was
a Remover

2. 
   the learned Judicial Commissioner erred in law
   in
   holding that the father of the Respondent who had
   removed
   from one Headman to another could still
   have rights over
   treesplantation at the place of the
   Headman from whom he had
   removed

   
   

3. 
   that the brother of the Respondent who is the
   subject
   of the Headman where his father had removed could
   inherit
   property, tree plantations, situated under
   the Headman where his
   father had removed and there­
   fore passed to his younger
   brother.

   
   

4. 
   the learned Judicial Commissioner erred in not
   holding
   that the tree plantations in dispute belonged to Good-

   
   

man, the only member of the Chaka family who remained at
Qoaling where his brothers had removed, and there­fore the
Appellant
was the heir of the property left by Goodman being his
Grandson "

It is common cause that the parties in this case are the
grandsons of Chaka and that the tree plantation in question belongs
to Chaka's
family. Chaka had three sons, namely, Sepota, Moramang and
Goodman Sepota's son is 'Mota. 'Mota had two sons, namely, Chaka
'Mota
and the Respondent Moramang's son is Mpho. Goodman had two
sons, namely, Mafa and Mafanyane. Mafanyane is the father of the
Appellant.
'Maselina is the wife of Mafa.

The issue in this case is whether 'Mota and Moramang
removed from Qoaling bo Likotsi. It is common cause that when the
chief of Qoaling
placed his son at Likotsi to be the chief of that
area, certain of his subjects including 'Mota and Moramang went to
Likotsi with
the new chief. They became the subjects of the new chief
and paid allegiance to him and not to the chief of Qoaling The
Respondent
was wrong to say that 'Mota and Moramang went to live at
Likotsi on temporary basis (motebo-ntloana)

/The term.

-3-

The term "motebontloana" means an entirely
different thing. It covers a situation whereby a man goes to the
cattle post
and takes his family with him. He lives with his entire
family at the cattlepost but continues to pay allegiance to his
chief. He
continues to plough his land and usually sees to it that
his houses are properly cared for by some members of his family At
the cattlepost
the man does not pay allegiance to any new chief, he
remains the subject of his chief and pays his basic tax under the
name of his
chief.

There is overwhelming evidence that 'Mota and Moramang
removed from Qoaling and went to live at Likotsi which was to be the
area of
a new chief. In his evidence Respondent's witness Chaka 'Mota
says (at page 8 line 10 of the record)

"Leponesa on going out to be placed went with
Moramang and 'Mota the son of Sepota".

In his own evidence the Respondent says at page 3 lines
29-31)

"My father 'Mota went to Likotsi whilst I was at
Mokhotlong.

I was informed by my father that he went to Likotsi with
Morena Lepolesa".

Again the evidence of Chaka Maraka at page 11 lines
20-24 where he says

'When Morena Matsoso placed his son Lepolesa at Likotsi
they removed to Likotsi. They removed with their families and
children. Grandfather
Goodman remained at Qoaling"

'Maselina Chaka also confirmed at page 14 line 17 that
"'Mota Chaka died at Likotsi where he had removed.'

In the face of this formidable evidence the Respondent
cannot bo heard to say that Moramang and 'Mota went to live at
Likotsi on

/temporary basis. ... ..

-4-

temporary basis. In my view they were removers in the
true sense of that word. It is immaterial that the area of Likotsi
falls under
the jurisdiction of the chief of Qoaling What is
important is that the people of Likotsi pay allegiance to their own
chief and not
to the chief of Qoaling The mere fact that the chief
of Likotsi is subordinate to the chief of Qoaling does not mean that
his subjects
must pay allegiance to two chiefs

The next question is whether according to our law the
dependants of a person who has removed can inherit the
treeplantations and gardens
situated at the place from which their
father has removed. The answer to this question is to be found in
section 7 (7) of Part I
of the Laws of Lerotholi regarding the
inheritability of residential sites, gardens and tree plantations It
reads as follows

"On the death of a person who has been allocated
the use of land for the growing of vegetables or tobacco, or for the
purpose
of planting fruit or other trees, or for residential
purposes, the heir, or in the absence of the heir dependants of such
deceased
person shall be entitled to the use of such land as long as
he or they continue to deal thereon."

The learned Judicial Commissioner held that there was
evidence that 'Mota Chaka had been using the trees even though he
lived at Likotsi
and that there was further evidence that Chaka 'Mota
(his son) had been using the fields as well and he eventually wrote a
letter
Exhibit I dated the 1st May, 1980 asking the chief of Qoaling
to bless his passing them to his younger brother (the Respondent).
He
held that Chaka 'Mota had not abondoned the use of the lands but had
been actively using them. With respect, this finding does
not seem to
be supported by the evidence in the record. The learned Judicial
Commissioner seems to have relied heavily on the letter
written by
Chaka 'Mota in 1980 in which he asked the chief of Qoaling to
transfer the tree plantation in question and some fields
to the
Respondent. This letter is not evidence that Chaka 'Mota had been
actively using the lands*

/It is.. .

-5-

It is quite probable that when he wrote that letter he
was already contemplating to institute these proceedings and was
trying to
create the impression that he had been using the lands in
question. In any case there is no evidence that the chief of Qoaling
paid
any attention to that letter which was written by a person who
was not directly his subject. The question one may ask is why has
the Respondent not called the chief of Qoaling as his witness to come
and confirm that he did comply with the request in Exhibit
B and
transferred the rights in the tree plantation to him? Without the
evidence of the chief of Qoaling the Respondent completely
failed to
prove the re-allocation of the tree plantation to him.

The evidence of Chaka 'Mota himself on page 9 of the
record does not support the finding that he had been actively using
the trees.
He says that at his age of discretion the yard was being
used by Mafa and that he (Mafa) used to cut firewood and plant young
aloes
in the place of old ones He further states that after Mafa's
death it was at times ploughed by his widow 'Maselina. She used to
plant maize and she cut firewood from it, and that the Respondent
always asks for firewood from 'Maselina This evidence is confirmed
by the Appellant's witness Chaka Maraka - whose evidence was not even
challenged - that after the death of Mafa the yard has remained
in
the use of 'Maselina. She uses it with the Appellant and there has
been no complaint from anybody. 'Maselina confirmed that after
the
death of Mafa she started using the yard and that the Respondent
always asked for permission from her whenever he wanted to cut
some
trees. At page 9 of the record Chaka 'Mota says that "Respondent
(Plaintiff) always asks for firewood from 'Maselina If
the
Respondent had been the caretaker of the tree plantation on behalf of
Chaka 'Mota, why did he have to ask for permission from
'Maselina
whenever he wanted some firewood? The answer to this question is that
the Respondent knew very well that the yard belonged
to 'Maselina who
inherited it after the death of her husband, Mafa.

/Although.. ..

-6-

Although the Appellant did not give coidence at the
trial, it is clear from the record that his defence was that he had
been sent
by 'Maselina to cut some firewood for her. In her evidence
'Maselina confirmed this. The question which immediately arises is
whether
the Respondent has sued the right person. It has not been
shown that the Appellant is the heir to the estate of the late Mafa.
He
is the son of Mafanyane.

It has been submitted on behalf of the Respondent by Mr.
Monyako who appeared for him in this Court that the Appellant
failed to show how he acquired the rights he is now claiming, whether
it was
through the family resolution or the chief who had the right
of re-allocation or confirmation of the resolution of the family. The
first thing is that the Appellant has never said that the trees are
his property. He uses them only when instructed by 'Maselina
Chaka.
Secondly, it can be safely assumed by this Court that the chief of
Qoaling did re-allocate the yard by conduct because as
soon as 'Mota
and Moramang removed to Likotsi, Goodman their younger brother
remained in the yard and used the trees. The chief raised
no
objection. When Goodman died his son Mafa inherited the yard and the
trees, still the chief raised no objection. When Mafa died
his widow
'Maselina used the yard and the trees, the chief still raised no
objection.

The appeal is allowed and the Respondent is ordered to
pay costs.

J.L KHEOLA JUDGE.

24th March, 1986.

For Appellant - Mr. Pheko
For Respondent - Mr.
Monyako.