CIV/APN/313/86
IN THE HIGH COURT OF
LESOTHO

In
the Application of :

' MAKHABANE MATALA Applicant

and

LESAOANA PEETE 1st Respondent

MINISTER OF INTERIOR 2nd Respondent

ATTORNEY-GENERAL 3rd Respondent

MOKHACHANE MATALA 4th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
31st day of October, 1989.

This is an application in which the Applicant herein
moves the Court for an order, against the Respondents, framed in the
following
terms:

"1. Declaring that the Applicant was duly
nominated as chief of Masaleng village in the Koeneng and Mapoteng
Ward of the district
of Berea in terms of the provisions of section
11(1) and (2) of the Chieftainship Act, 1968.

2. Declaring that the nomination and/or presentation by
the Principal Chief of Koeneng and Mapoteng of Mokhachane Matala as
Chief
of Masaleng in succession to the late Chief Malefetsane Matala
is null and void and is hereby set aside.

2/ 3

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3. 
   Commanding the Principal Chief of Koeneng
   and
   Mapoteng to take all such proceedings
   as may be necessary and
   appropriate to
   inform those chiefs who are his superiors
   and
   the King through the Minister of the
   nomination, announcement,
   application,
   judgement and presentation of Makhabane
   Matala in
   terms of the provisions of sub­
   section (8) of section 11 of
   the Chief­
   tainship Act. 1968.

   
   

4. 
   Granting further and/or alternative relef, and

   
   

5. 
   Costs of suit on an Attorney/Client scale
   against
   the First and Fourth Respondents
   and on an ordinary scale against
   the Second
   and Third Respondents if they oppose
   this
   application."

   
   

Only the first and the fourth Respondents have intimated
intention to oppose this application. The second and the third
Respondents
have not filed any notice of intention to oppose the
application and it may, therefore,be safely assumed that they are
prepared to
abide by whatever decision is arrived at by the Court in
this matter.

Affidavits were duly filed by the parties and, in as far
as it is relevant, the gist of the facts emerging therefrom is that
during
his life time Malefetsane Matala was the chief of Masaleng
within the administrative jurisdiction of the first Respondent who is
the Principal Chief of Koeneng and Mapoteng Ward in the district of
Berea.

3/ According

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According to the Applicant, Malefetsane Matala was
customarily married to four wives viz. 'Maseeng, 'Majobo, 'Malebabo
and 'Mamakhabane
by order of seniority. He had, therefore, four
houses by his four wives. The averments of the Respondents are,
however, slightly
different in that according to them Malefetsane had
five wives viz. 'Majane, 'Majobo, 'Malebabo, 'Mamakhabane and
'Mapuleng.

It is significant that although the applicant says the
name of the first wife of Malefetsane is 'Maseeng, in his answering
affidavit
the 4th Respondent calls her 'Majane. I shall assume that
"Majane" is another name for Malefetsane's first wife,
'Maseeng
i.e. 'Majane or 'Maseeng is one and the same person.

However, what is of some concern to me is that in the
answering affidavits it is averred that only 'Malebabo, 'Majobo and
'Majane,alias,'Maseeng
were lawfully married by Malefetsane whilst
'Mapuleng and 'Mamakhabane were not. The reason advanced for this
averment is that no
"bohali" cattle were ever paid for the
marriage of 'Mapuleng and 'Mamakhabane whereas 18, 20 and 20 head of
cattle wore
paid as "bohali" in the case of the marriage of
'Malebabo, 'Majobo and 'Majane, alias'Maseeng, respectively. These
averments
are. however, denied in the Replying Affidavits deposed to
by Lerema Mphutlane and Dinizulu Mabaso both of whom averred that
"bohali"
cattle were, in fact, paid at least for the
marriage of 'Mamakhabane.

There is clearly a dispute over the existence or
otherwise of a lawful marriage between 'Mamakhabane and Malefetsane.
However, such
a dispute cannot, in my view, be

4/ resolved

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resolved
on affidavit papers.

Be that as it may. it is common cause from the
affidavits that in the first house of 'Maseeng alias 'Majane,
Malefetsane Matala had no children. In the second house of 'Majobo,
he had a son by the name of Jobo, who is admittedly
the father of the
4th Respondent i.e. the question that the 4th Respondent is an
illegitimate son of Jobo and cannot, therefore,
succeed him as a
chief does not arise. In the third house of 'Malebabo a boy was
born. His name was Lebabo. He has since passed
away apparently
leaving no male issue. A number of boys were born in the fourth
house of 'Mamakhabane. They are, by order of seniority
: Makhabane
(the present applicant), Posholi, Mopeli Mohale, Khomo-ea_Leburu and
Poshoane. No male issue was bom in thy fifth house
of 'Mapuleng.

It is, however, worth noting that in support of the
applicant's Replying affidavit a certain Matala Lebabo deposed to an
affidavit
in which he averred that he was the son of Malefetsane
Matala by his wife 'Mamakhabane and, therefore, a younger brother of
the applicant.
He further deposed that he was the gazetted chief of
Sefateng.

A curious thing about the averments of Matala Lebabo is
that he was not mentioned as one of the brothers of the applicant in
either
the founding or the answering affidavits. Although he claimed
to be the gazetted chief of Sefateng no gazette was annexed or cited
as proof thereof. I have also tried to search for such a gazette but
all in vain. I can

5/ only take

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only
take his word that he is the gazetted chief of Sefateng.

I must, however, point out that in proceedings of this
nature it is important that parties annex documents they rely upon
as proof
of their averments. Failure to do so does not render the
task of this Court easy.

It is further common cause that Malefetsane Matala had
two brothers viz. his elder brother, Makotoko, who was the chief of
Sefateng,
and his younger brother, Maletapata, who was the chief of
Menyameng. Both Makotoko and Maletapata had no issues. In his
founding
affidavit the applicant avers that during his life time
chief Makotoko (now deceased) requested Malefetsane Matala to give
him a
child who would succeed him in the chieftainship of Sefateng. A
family council was consequently convened and a decision taken that
Jobo, the father of the 4th Respondent, should be given to chief
Makotoko as his adopted child. Jobo did go to Chief Makotoko at
Sefateng but returned to his father at Masaleng after a very short
time.

In this regard the applicant is corroborated by Lerema
Mphutlane who, in the affidavit he filed in support of the
applicant's founding
affidavit, deposed that in 1943/44, and on the
instructions of Malefetsane Matala, he actually took Jobo to Chief
Makotoko at Safateng.

It must, however, be mentioned that although in the
affidavit which he filed in support of the applicant's founding
affidavit Lerema
Mphutlane was positive that the year in which he
took Jobo to Sefateng was 1943/44, he was not so positive in the
second affidavit
which he filed in support of the applicant's
Replying

affidavit. In the second affidavit he merely contended
himself with the averment :

6/ "I

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" I remember that at one time the late
Malefetsane sent me to take Jobo his son by his wife 'Majobo to
live with Makotoko and I did so."

(My underlining;)

I have underscored the words "at one time"
and"to live with" in the above cited passage to indicate my
view that
in the second affidavit Lerema Mphutlane was ambiguous and
not so certain that it was in 1943/44 when he took Jobo to Chief
Makotoko
at Setateng. Likewise what is meant by the words "to
live with" is ambiguous in as much as it does not necessarily
imply
adoption.

In any event, the applicant went on to aver that when
Jobo returned from Sefateng to Masaleng, Malefetsane Matala told him
that since
he had refused to be adopted by Makotoko he would not
recommend him to be the chief of Masaleng or any other area. Indeed,
on 10th
April, 1982 Malefetsane convened a family meeting at which he
decided to appoint the applicant as his succes­sor to the
chieftainship
of Masaleng. The family meeting agreed to the decision
of Malefetsane that the applicant would succeed him in the
chieftainship
of Masaleng.

In his answering affidavit the First Respondent who, as
it has already been pointed out earlier, is the Principal Chief of
Koeneng
and Mapoteng Ward averred that if Jobo had, indeed, gone to
Sefateng as the adopted son of Chief Makotoko the records in his
office
would have reflected that important event. They have not. He
nonetheless conceded that he had information that Jobo never went to
Sefateng albeit for a very short period.

7/ It is

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It is significant that notwithstanding his averment that
he had information that Jobo never went to Sefateng albeit fora short
period
the first Respondent does not disclose the source of his
information. The result is that such averment is hearsay and of no
evidential
value. In support of his averment that on 10th April, 1982
Malefetsane convened a family meeting at which he intimated his
decision
to appoint him as his successor in the chieftainship of
Masaleng and the decision was agreed to by the family meeting, the
Applicant
has attached annexure 'A' to the founding affidavit. It is,
however, worthnoting that according to annexure 'A' only Malefetsane
attended the so called family meeting. For reasons unknown to
Malefetsane other members of the family did not attend despite the
fact that they had been invited. A list of signatories is made on a
separate piece of paper which is attached to the Sesotho version
of
annexure 'A'. Assuming the correctness of the contents of annexure
'A' there is no doubt in my mind that no family meeting was
ever held
on 10th April, 1982, as alleged by the

Applicant. He has, on a later day obtained the list of
signatories which is

and attached on the separate paper/attached to the
Sesotho version of

annexure 'A' only in an attempt to deceive this court
into

believing that a family meeting was held. In my view the
onus was on the

Applicant to prove, on a balance of probabilities, that
Jobo was

given to Chief Mokotoko as his adopted child to succeed
him in the

chieftainship of Sefateng. He has not satisfactorily
discharged

that onus.

Be that as it may, following the death of Chief
Malefetsane Matala, on 2nd September, 1984, the family of Matala held
a family meeting
at which it was decided that the Applicant be
recommended to the appropriate authorities to succeed in the

8/

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chieftainship of Masaleng. This decision was, however,
turned down by the Principal Chief of Koeneng and Mapoteng who,
instead of
the applicant, recommended and installed the 4th
Respondent as the chief of Masaleng. The applicant is aggrieved by
the decision
taken by the Principal Chief and hence the present
application.

Assuming the correctness of the averment that the 4th
Respondent is the legitimate son of Jobo who was admittedly born, in
the second
house whilst the applicant was born in the fourth house of
the late chief Malefetsane Matala, it would appear that the 4th
Respondent
is, by virtue of his being a descendant in the second
house, senior to the applicant. He has, therefore, a better right to
succeed
his late grandfather in the chieftainship of Masaleng.

This otherwise simple and straightforward issue was,
however, complicated by the averments that Jobo, the father of the
4th Respondent
was, by the decision of Malefetsane Matala and his
family meeting given to Makotoko, the elder brother of Malefetsane,
as his adopted
son to succeed him in the chieftainship of Sefateng.
Jobo allegedly returned to Masaleng. In other words, he refused to be
adopted
by the elder brother of Chief Malefetsane Matala who then
deprived him of his birth right to succeed in the chieftainship of
Masaleng
or for that matter, any other area.

I have already found that there is no convincing
evidence that Jobo was adopted by chief. Makotoko to succeed him in
the chieftainship
of Sefateng. It is perhaps convenient,

9/ at this juncture

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at this juncture, to pose a rhetorical question viz.
whether or not, in Sesotho law and custom a child has a right to
decline its
its adoption.

I shall assume, for the sake of arguments, that the
answer is in the negative.. In that event it seems to me that if it
were true
that Malefetsane and the family council had taken the
decision that he was adopted, Jobo became the child of Makotoko, the
chief
of Sefateng, regardless of whether he returned to Masaleng or
remained at Safateng. By the decision of Malefetsane and the family
council he had forfeited his birth rights in the house of
Malefetsane, including the right to succeed him In the chieftainship
of
Masaleng, and acquired new rights in the house of Makotoko
including the right to succeed him in the chieftainship of Sefateng
particularly
so, because the latter had admittedly no other child to
succeed him.

It is common cause that both Makotoko and Jobo are now
deceased. The latter is, however, survived by the 4th Respondent. If
Jobo were
indeed, the adopted child of Makotoko it is only logical
that his surviving heir, the 4th Respondent, would have succeeded him
in
the chieftainship of Sefateng. However, as it has been pointed out
earlier, a certain Matala Lebabo who claims to be a younger brother
of the applicant is, in his own averment, the gazetted chief of
Sefateng. How could he be gazetted the chief of Sefateng in the
presence
of the 4th Respondent, the rightful heir to the
chieftainship of Sefateng.

It must always be borne in mind that succession to the
office of chief is, in Lesotho governed by the provisions of Part III
of the
Chieftainship Act, 1968. The alleged decision

10/ of Malefetsane

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of Malefetsane Matala to deprive Jobo of the right to
succeed to the office of chief in any area was contrary to the
provisions of
Part III of the Chieftainship Act, 1968. It was
for that reason null and void and of no legal effect. That being so
the 4th Respondent who is Jobo's heir and therefore,
his lawful
successor to the chieftainship of Sefateng would have been gazetted
at Sefateng.

If, on the other hand, it were assumed, for the sake of
arguement, that the answer to the rhetorical question is in the
affirmative
then it must be accepted that when he returned from
Sefateng and came back to Masaleng, thus declining the adoption by
Makotoko,
Jobo was exercising his lawful right. That being so, there
could be no justification for Malefetsane Matala and his family
council
to deprive Jobo of birth right to succeed him in the
chieftainship of Masaleng, as the applicant wants this court to
believe that
the former did. As it has been stated earlier,
succession to the office of chief is governed by the provisions of
Part III of the
Chieftainship Act, 1968 and certainly not by
the wishes/decisions of Individuals and/ or family councils. It,
therefore, necessarily follows that
the family council was wrong in
deciding, as the applicant avers it did, that the applicant should be
recommended to the appropriate
authorities to succeed his late father
in the chieftainship of Masaleng in accordance with the wish/decision
of Malefetsane Matala.
The Principal Chief of Koeneng and Mapotang
Ward and, indeed, this Court cannot be bound by the wrongful decision
of Malefetsane
Matala and/or his family council.

11/ Regard being

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Regard being had firstly to the fact that the 4th

Respondent is the only surviving son of Jobo who was
admittedly the eldest son of Malefetsane Matala and, therefore,
entitled to succeed
him in the chieftainship of Masaleng,secondly to
the fact that there is no conclusive evidence that Jobo was given to
Makotoko as
his adopted son and successor to the chieftainship of
Sefateng and thirdly that Matala Lebabo is, in his own words the the
gazetted
chief of Sefateng, I am of the view that the 4th Respondent
and not the applicant is entitled to succeed Malefetsane Matala in
the
chieftainship of Masaleng. That being so, this application ought
not to succeed.

I accordingly dismiss it with costs.

B.K. MOLAI
JUDGE

31st October, 1989.

For Applicant : Dr. Tsotsi
For Respondent : Mr.
Maqutu.