IN THE HIGH COURT OF LESOTHO In
the Appeal of :
MALEFANE NKHASI Appellant
v SEEPHEPHE NKHASI Respondent
Filed by the Hon. Mr. Justice M.L. Lehottla on the 26th
day of September, 1991
After hearing addresses by the parties' respective
Counsel and having perused the record, this Court dismissed the
appeal and reserved
reasons for that decision.
These now are the reasons :
Reading from the record it seems that the Judicial
Commissioner issued his certificate on 28th April, 1986. It appears
that the grounds
of appeal were not filed within the time specified
in the rules. See Section 28(3)(b) of the Central and Local Courts
No.62 of 1958 read with C. of A. (CIV) No. 20 of 1987
Motlalentoa v. Monyane and Another (unreported).
When applying for condonation of late hearing of this
appeal it appears that Mr. Maqutu maintained, and it was
common cause, that despite eight years of its existence
the rule referred to above has not been followed until
Mr. Maqutu prayed that the matter be postponed so
as to be afforded an opportunity to prepare argument in support of
condonation. The Court
accordingly granted postponement but put the
appellant to terms that his application for condonation be moved
within two weeks of
I have perused the record and, regret to note that the
above order appears not to have been complied with.
On this basis alone it would seem there is no appeal
properly brought before Court thus it ought to be dismissed.
However this aspect of the matter was not referred to or
even alluded to by Counsel who appeared before me on 17th September,
It would thus be only fair and proper for the Court to
deal with this matter on the basis of points raised during argument.
Mrs. Kotelo for the appellant argued that it is
common cause that the field in dispute belonged to the widow who had
divided it among her sons.
She argued further that the appellant's
mother did not place the matter before the chief for the Tatter's
blessing. She pointed out
that in all the Courts below a factor which
was omitted was mention of the fact that allotment of the field was
confirmed by the
chief alone instead of by him in consultation with
She referred to page 6 of the record where she relied
on the statement by Seeiso that "the chief
confirmed". She called to attention that in saying "the
it is significant that no mention is made of
committee or its role.
She pointed out that the respondent's father acted as a
chief since 1922. Further that the division was effected in 1953;
law relating to allocation of Land came into operation in
All the widow's three sons had been using the field
without there being confirmation till 1976. She attacked the fact
that chief Moramang
alone effected the allocation. Referring to the
Form C i.e. Exhibit B she said it does not tell much
for the only signature appearing is that of Moramang.
She referred me to page 14 where she submitted regarding
Exhibit "C" that it is significant that the
chief's court formed an opinion that the allocation was done by
Nkhasi and Chief Moramang alone.
She properly submitted that the Plaintiff bears the
burden to satisfy the Court that he has a case.
She submitted that the Lower courts did not look to see
if the document of allocation grounded a valid allocation. The Court
to the Land Act 1973 Section 6(4). The Court's attention
was brought to Section 12(b) showing that the chief sits with
It was prayed that because the chief sat alone then
section 12(7) should apply. It was further prayed in the alternative
Court of first instance should have
granted absolution from the instance,
In answer Mr. Matsau for the respondent submitted
that Counsel for the other side correctly stated where the burden
lies. However that other learned Counsel
maintained that the
respondent, then Plaintiff, had not been given the allocation.
Relying on the basic principle neatly subsumed
in the common sense
saying"what is sauce for the goose is sauce for the gander"
he submitted that the appellant too is
obliged to prove that the
allocation had been granted to him. The learned Counsel submitted
correctly, in my view, that there is
no evidence that there was valid
allocation to the appellant.
The thrust of the appellant's argument had been that the
chief confirmed the allocation to respondent without fulfilling the
requirement that the committee has to be involved in that. Thus
Mr. Matsau proposed to take the Court through the record to
illustrate instances where the position contradicting the appellant's
is revealed. He was quick to submit, properly in my view,
that proof of the existence of any such instances should suffice to
of the appellant's contention and indeed case.
Reference to page 7 shows that chief Pama Moramang said
to the court a quo
"On the 21-4-78 I invited committee members to
consider the applications before my office. The committee had no
allot (sic) . to Plaintiff and on that day I ordered
Phillip to measure the width and length of the field....."
cross-examination at page 8 Moramang answered
"The committee allotted it (field) to Plaintiff,"
Learned Counsel for the respondent submitted that there
was no suggestion that this witness was lying when he said the
of members named in his evidence-in-chief, i.e.
Ntsala Nkhasi, Lebusetsa Nkhasi, Matete Seeiso and Philip Pama the
the land. See page 7.
Thus on page 7 there has been proof of testimony to the
presence of the committee while on page 8 there is proof that the
actually deliberated and made a decision. This would tend
to belie the appellant's contention that any of the above things is
In response to the contention that the appellant or his
representative in the Court of first instance did not challenge as
the statement that the named committee members reached their
decision with the chief, Mrs. Kotelo pointed out that the
appellant being a layman should not be treated as if he is a lawyer
and required to put his case to the other
side in the manner of a
trained legal practitioner. But in C. of A.(CIV) No.5 of 1988
Letlatsa vs Letlatsa (unreported) at 5 it is said :
"Putting a version frequently elicits adverse or
very adverse answers as happened in this case. When that happens the
are further clarified. An adverse answer may either be left
to stand, at the cross-examiner's peril, or he may seek to undo or
it down by further cross-examination. That is largely what the
game is about. Mr. Maqutu claimed that this
happened because of the inexperience of the cross-examiner.
This may or may not be so, but if he was inexperienced that
fact should not be visited upon the
Plaintiff. In the result Mr. Maqutu's attempt to make a virtue of the
fact that these damning answers were elicited in cross-examination
without any substance whatever. If anything, answers so solicited may
carry more weight than those given in chief", (my
I find that the quotation above is closely related to
the issue that Mrs. Kotelo sought to persuade this doubt to
overlook in the instant appeal, In fairness to her she confessed her
ignorance of the authority
cited above when the Court asked if she
had had consideration of the principle it espouses.
The appellant never even gave evidence in the Court a
quo. True enough he Was entitled to have someone to prosecute
the case and conduct it on his behalf but not verbally to impersonate
On the grounds that the record belies the appellant's
contention this appeal ought to be dismissed, It is so ordered. Costs
to the respondent.
JUDGE 26th September. 1991
For Appellant : Mrs. Kotelo For Respondent : Mr.
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