IN THE HIGH COURT OF LESOTHO In the Appeal
MOLEFI PHAFA Appellant
HASISA MORASENYANE Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
9th day of August. 1989.
The appellant was the defendant and the respondent the
plaintiff in the court of first instance. I propose to refer to
terms of their original designation in that court.
The court of first instance found for the plaintiff-The
defendant appealed to the Central Court which found for him and
decision of the Local Court, The plaintiff appealed to
the Judicial Commissioner's Court which upheld his appeal. The
being dissatisfied with that decision has appealed now to
this Court on the grounds that :-
The learned Judicial Commissioner erred inreversing
the judgment of the court below,although Respondent who was
plaintiff didnot know when the plantation in question
The learned Judicial Commissioner erred inreinstating
the judgment of the Court offirst instance although it is based
on theevidence of P.W.1 Lebohang Sematla who isonly 35 years
old just because he claimedhe was once given wood from this
plantationby Respondent's father who was also hismaternal
3. The learned Judicial Commissioner ignored the facts
that P.W.1 Lebohang Senatla's mother is the sister of Respondent who
in the Court of first instance.
A. The Court ignored the fact that the evidence of P.W.2
Tlelima Mohasisa was entirely hearsay.
The learned Judicial Commissioner disregardedthe
evidence of 5 witnesses for appellantalthough it could not be
The court of first instance and the
JudicialCommissioner's court erred in finding forRespondent
although the boundaries of theplantation he claims have not been
According to the plaintiff's evidence on the page
preceding the 2nd page 02 the suit against the defendant is based on
the fact that
the latter had cut
"my trees situated at the valley I inherited it
(sic) after the death of my father
when questioning respondents as to why they cut my
trees, they said that I should go to them, but I didn't since I was
afraid of them.
They cut it on the eastern side of the boundary.
There are two rocks in the forest, one is on the east while another
is on the northern
side of the forest, commonly known as "Lefika
Under cross-examination on 2nd page 02 in answer to the
2nd question 4 the plaintiff said
"There is a boundary that devides our forests."
If the evidence in chief as to the position and locality
of this boundary was sketchy and lacking in necessary information,
elicited by cross-examination attempting to establish the
actual boundary was even less informative.
The plaintiff's witness Lebohang Senatla confined
himself to stating that the plaintiff's father had shown him the
the plaintiff's and the defendant's forests. He did
not say where the boundary lay. With fairness to him under
his answer to question five merely approximates
what was required of him. He said, perhaps meaning the forest
"Yours is on the west side of the rock whilst the
plaintiff's is on the south of it."
Bearing in mind that a rock merely constitutes not an
entire boundary but only a physical point in a boundary, confining
describing the rock does not throw any light on the other
points which necessarily must constitute a line or lines making up
boundary. All that I can make out from this witness's evidence is
that the boundary is a rock in the forest. This does not describe
I have noted that the defendant's evidence in chief was
not recorded in the court of first instance,, However reference to
made in the judgment at page 9. I can only say that this
constitutes an irregularity which no doubt prejudices the defendant.
In the inspection of the disputed boundary the findings
of the Court were different from the plaintiff's own evidence in
totally new story emerged based on totally new physical
features. For the first time it emerged that a donga running from
to the place where it reaches an aloe tree constitutes his
boundary. Mr. Maqutu for defendant was charitable enough to
concede that the emergence of another physical feature called
Lefika-le-motsopho alleged to
constitute part of the boundary by
plaintiff at the inspection may well pass for Fika-le-motopo referred
to earlier. There is in
this inspection mention of Qoeaneng stream
which was not referred to in the plaintiff's evidence in chief.
These appear to be. such outstanding physical features
that if plaintiff knew them to constitute the boundary he should have
them to the court in his evidence and not refer to them for
the first time only when the inspection of the property was being
The onus was on the plaintiff to adduce evidence
which serves to indicate the boundary. I find that he
has not discharged that onus.
Lastly, although proof has been furnished before me that
plaintiff's attorneys were notified of the hearing date of this
he nor the said attorneys appeared in court. The
appellant's name was called three times outside court and there was
Regard being had to the fact that withdrawal from
litigation requires no ritual, it would not be wrong to proceed on
the basis that
the plaintiff had withdrawn from this litigation. But
the matter was nonetheless argued as if it was opposed. It was
course of that argument that it emerged that the Court of
first instance had erred by not giving due weight to the importance
the discharge of the onus by the party upon whose shoulders it
In summary, I wish to observe that the inspection in
loco merely helped confound the already existing confusion.
R vs Sewpaul 1949(4) SA 978 at 979 is authority for the
"purpose of an inspection in loco is to enable the
court to follow and apply evidence."
In the instant case it seems that the unintelligible
evidence of the plaintiff was rendered even more confused by the
and results of the inspection of the forests. This runs
counter to the dictum of the authority just cited.
Mr. Maqutu submitted that the inspection in loco
was held in the presence of plaintiff's witnesses who later confirmed
the fresh points of the
boundary described at inspection by the
plaintiff. Indeed such corroboration of a party's evidence leads to
a failure of justice.
Buckingham vs Daily News Ltd (1956) ALL.E.R. 90
disapproves of the type of an inspection in loco the effect of which
is to afford a party an opportunity not only
to give fresh but also
to produce real and direct evidence.
An irregularity seems to have been committed by the
court of first instance in that whereas nowhere did the defendant
claim the stream to be the boundary yet that court at
page 9 lines 15 to 17 says he claimed it to be.
On the basis of Dlhumayo vs Rex 1948(2) SA 677
this court felt obliged to interfere in this appeal because as
indicated in the judgment of the court of first instance
at page 9
the narration of the facts by the court does not correspond with the
record of plaintiff's evidence at the inspection in
loco as borne out
at pages 4 and 5 of the record.
For the above reasons the appeal was upheld with costs
in all courts.
JUDGE. 9th August, 1989.
For Appellant : Mr. Maqutu. For Respondent : In
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