IN THE HIGH COURTOF LESOTHO In the appeal of
KAHLOLO RAMOHOLI Appellant
v LECHAKO LECHAKO Respondent
Delivered by the Hon. Mr. Justice Sir Peter Allen on the
5th day of November, 1987
This is a third appeal in an old land dispute which has
been pending for ten years. In the Makokoane Local Court, which was
court, the respondent Lechako was the plaintiff and the
appellant Kahlolo was the defendant. In order to avoid confusion I
refer to the parties as plaintiff and defendant as they proceed
up through the various courts.
The original case brought by the plaintiff was CC.118/72
in Mokokoane Local Court and judgment was delivered on 21
1972. The claim concerned a field of about nine acres
situated at Koung under Nts'ekalle's which the plaintiff maintained
belonged to his late uncle Mosiuoa, who when alive had been
looking after the two children of his (Mosiuoa's) unmarried sister.
ages and names of these children were not recorded and,
throughout the case, they were referred to as "the orphans."
Apparently Mosiuoa died and, from 1933 onwards, his
nephew the plaintiff acted as guardian of the orpahns and occupied
the field for the sole purpose of maintaining them.
This apparently went on until in 1969, thirty six years later, when
served written notice on the plaintiff, on 5
September 1969, that he was to vacate the field It was then
allocated to the defendant
Kahlolo on 20 September 1969, that is 15
days later, and he ploughed the land and harvested a crop of maize
The plaintiff brought his claim against the defendant
in Makokoane court. He called only one witness, a man called
Kheekhe. As usual in the lower courts no particulars of
this witness were recorded so it is not possible to know whether he
relative or a neighbour or just what his involvement was in
this matter It is very unhelpful when these particulars are not on
The plaintiff did not claim the land for himself but
persisted in his version that he only occupied Mosiuoa's land in
order to maintain
the "orphans". However, the alleged
eviction of him by the chief occurred in 1969 which was 36 years
after his first occupation.
By then these "orphans" were
probably in their 40's or even older and were certainly no longer in
his care or guardianship.
Indeed it appears that both had married and
one had died The two children whom the plaintiff named as still being
in his care seem
to have been the children of one of the "orphans".
Both parties are now old men
/It is ..
It is extraordinary that the lower courts seem to have
ignored the passing of time and referred to the "orphans"
as if they
were still children in need of guadian-ship and care.
Quite obviously this was not so. Moreover, the plaintiff did not call
to testify, nor anyone of their relations,
nor the chief who authorised his occupation of the land (if he was
Consequently the trial court did not accept the
plaintiff's version and gave judgment against him, ordering that the
land should go
to the defendant together with its crop.
The plaintiff then filed an appeal to the Ts'ifalimali
Central Court (CC 174/72) which gave judgment on 18 December 1972.
based its decision on a legal point. This was in
connection with s.9(1) of the Land (Procedure) Act 1967 (Act 24/67)
" A Principal or Ward Chief, a Chief or a Headman
shall, before revoking or derogating from any allocation or
grant or terminating
or restricting any interest or right in or over
land, give at least thirty days written notice to the person affected
his intention to do so."
The Land (Procedure) Act was repealed in 1973 by the
Land Act, 1973 (Act 20/73) which contains a similar provision in
also requiring a chief to consult the Development
Committee. However, when the events occurred in the present dispute
the 1967 Act
was still in force, so that is the one which applies
The Central Court held that the plaintiff was given only
15 days notice instead of 30 days which made the
allocation of the land to the defendant by Chief
Makhobalo unlawful. The appeal was allowed and the trial court
decision was reversed
and the land restored to the plaintiff until he
could be removed according to the law. The defendant was given time
in which to reap
the crop planted there by him.
The defendant then appealed to the Judicial
Commissioner's Court (JC.49/73) which gave judgment about 3½ years
later, on 6 May 1976.
In that judgment the Judicial Commissioner
agreed with the Central Court that the chief had not complied with
s.9(1) of the Land
(Procedure) Act and he dismissed the defendant's
In that judgment the Judicial Commissioner added this
" In my view in the light of the evidence that the
present dependants are minors I see no reason why their guardian
be allowed to sue on their behalf as they cannot
themselves sue unassisted by him."
It is not clear to whom the Court was referring. Clearly
the "orphans" had ceased to be minors a very long time
If he meant the two children of one of those "orphans",
there was no evidence before the court, apart from what the plaintiff
said, that he was their appointed guardian, and this could not be
There is one other matter which was not considered by
the lower courts. Under Roman-Dutch Law prescription is a. method of
ownership of land, according to George Wille in his highly
respected "Principles of South
African Law." Possession must be by one person of
another's property continuously for 33 years peaceably, openly and
not on suffrance,
but as of right and adversely to the owner.
According to Duncan on "Sotho Laws and Customs" (page 115)
the law of prescription
also applies in Lesotho. He was a former
In this case the owner was Mosiuoa and his heirs, of
whom the plaintiff evidently was not one, since he made no such
claim. But clearly
the plaintiff was in peaceful possession of that
land for well over 30 years and it seems that he could have claimed
it for himself
by prescription. But he did not do so. Instead he
based his claim on an alleged guardianship which he made no attempt
This was unfortunate and probably due to his ignorance and
having obtained no legal advice. But he did have an interest in the
That is very clear.
I agree with the two appeal courts below that Chief
Makhobalo did not comply with the requirements of what was then the
(s.9(1) Land (Procedure) Act, 1967). Consequently the
revocation of the plaintiff's right to occupy the land and his
unlawful. The ground of appeal to this Court as
certified by the Judicial Commissioner was on that legal point alone.
Accordingly this appeal is dismissed and the decisions
of Ts'ifalimali Central Court and the Judicial Commissioner in favour
plaintiff/respondent are upheld and confirmed with costs to
P. A. P. J.T ALLEN JUDGE
5th November, 1987 Mr. Monaphathi for the appellantMr. Matlhare for the respondent
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