IN THE HIGH COURT OF LESOTHO In the
PELELE PAULUS LETSOELA Applicant
CHIEF OF KOLOJANE 1st Respondent
OF KUENENG AND MAPOTENG 2nd Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 20th day of August, 1992
The result in this matter has already been announced to
the parties with a promise that the reasons for judgment would follow
later stage. I now submit such reasons.
This was an application for an order in the following
(a) Directing 1st Respondent to pass to the second
respondent the nomination of the applicant as rightful successor to
of Ha Letsoela in the district of Berea.
Directing 2nd Respondent in his\herturn to pass
such nomination tohigher authority in terms of theChieftainship
Giving alternative, additional orother meet relief
Giving costs against 1st Respondent.
Giving costs against 2nd Respondentif he\she files
any opposition inthe matter.
The applicant avers that on the 8th January, 1991 the
chieftainship of Ha Letsoela in the district of Berea became vacant
upon the demise of its lawful holder and his uncle,
Moifo Letsoela. The first respondent is the chief of Kolojane and
senior or superior to the chief of Ha Letsoela. The
second respondent is the chief of Koeneng and Mapoteng and thus
senior or superior
to the chief of Kolojane.
The applicant further avers that thereafter the family
of Letsoela, being the people vested
with the right to state or determine the successor to
Moifo Letsoela, lawfully set together and decided that
Applicant's uncle, Ralikomiti M.S.Letsoela act as
chief of Ha Letsoelauntil the position be
The applicant be successor to thelate Moifo
Following the procedure prescribed by the Act governing
such succession he was duly presented as a future chief to the people
at Ha Letsoela and nobody raised any query or objection. The
family of Letsoela and the acting chief formally advised first
of the applicant's nomination so that he might in turn
pass the same to the chief senior to him. The response of the first
was a strange one that he was still considering the
The applicant further avers that according to his
understanding of the law the first respondent has no discretion in
the matter but
must pass the
nomination to the senior chief. There were rumours in
the village that the first respondent intended to impose upon the
Letsoela one woman living in the Republic of South Africa
as the chief on the pretext that she is the wife of the late Moifo
The applicant and his family suspected ulterior and
improper motives on the part of the first respondent as they knew
that the woman
in question was never lawfully married to the late
Letters were written by the acting chief of Ha Letsoela
to the second respondent seeking assistance in the matter but
In his answering affidavit the first respondent avers
that Paulus Pelele Letsoela is the father of the applicant and is the
half-brother of Letsoela Pelele Letsoela who by virtue of his
birth as the first born son of Pelele Letsoela who was the chief of
Hoatane and Khomokhoana. The office of chief of Hoatane and
Khomokhoana is subordinate to the office of the first respondent.
is no office of Chief of Ha Letsoela.
The first respondent denies that the applicant is
capable of succeeding to the office of Chief of Hoatane and
Khomokhoana Ha Letsoela.
The reason being that the holder of that
office, the late Chief Moifo Letsoela was married and has left behind
a widow, 'Maletsoela
Moifo Letsoela and a minor son, Letsoela Moifo
Letsoela. He denies that the late Moifo Letsoela was the paternal
uncle of the applicant.
He is the son of the late Moifo's brother.
When the late Moifo died the vacant office of Chief of Hoatane and
Khomokhoana was left
open to the minor son, Letsoela Moifo Letsoela.
If Moifo Lesoela had been childless, the lawful successor would have
been his widow
'Maletsoela Moifo Letsoela.
The first respondent further avers that the nomination
of a successor to the office of the Chief of Hoatane and Khomokhoana
in his absence. But, as the affidavit of Khahlai Seeisa
shows, applicant's name was referred to his office by a faction of
family. Khahlai Seeisa who was acting in his name as
chief of Kolojane referred the matter back to the family as 'Mamaifo
(the mother of the late Chief Moifo Letsoela) and others
introduced 'Maletsoela Letsoela, the wife of the late
Moifo Letsoela, as regent for her minor son Letsoela Moifo Letsoela.
The first respondent further alleges that as far as he
is aware Khahlai Seeisa is still waiting for a nomination by the
the above conflicting nominations were brought while the
entire family was still in mourning and had not removed the mourning
The applicant's faction persisted that the applicant was the
lawful nominee and that no other family meeting was necessary.
Applicant knows that Moifo was married to 'Maletsoela
(formally Papali Molupe). Not only is there a marriage certificate
"M") but "bohali" cattle were
handed over to the parents of "Maletsoela. This marriage is
and the Letsoela family of which the applicant is a
member and caused the said wife of Moifo to wear a mourning cloth.
In her supporting affidavit 'Mamoifo Letsoela avers that
she is the widow of the late letsoela Pelele Letsoela and the mother
Letsoela, the chief of Hoatane and Khomokhoana who has
just died on the 8th January, 1991. He was the gazetted chief of
Khomokhoana, He married Papali Molupe by both Sesotho
custom and by civil rites. The first five cattle were driven to
Mokone by the late Ralipoli Letsoela and Chieftainess
'Mampoi Letsoela on the 27th May, 1978. Moifo and Papali went through
marriage ceremony on the 16th August, 1978. On the 19th
February, 1980 six cattle (in money) were paid towards the "bohali"
of her daughter-in-law making a total of eleven head of cattle.
'Mamoifo avers that the reason why a faction that
supports the applicant met without inviting and consulting the entire
Letsoela is that they are trying illegally to seize the
chieftainship of Hoatane and Khomokhoana. She alleges that she was
in mourning. She alleges that she was still in mourning when
she was advised by some members of the family that Dingane Letsoela
and his faction had introduced the applicant as a successor to the
chieftainship of Hoatane and Khomokhoana. She immediately took
to stop the first respondent from recognising the applicant as the
successor of the late Moifo.
Her late son Moifo has a twelve year old son born on the
30th July, 1979.
'Maletsoela Bapali Letsoela has also filed a supporting
affidavit in which she avers that as appears more fully from Annexure
to first respondent's affidavit she is the wife of the
late Chief Moifo Letsoela. She eloped with the late Moifo in May,
was accepted by the Letsoela family and a sheep was
slaughtered to accept her as a daughter-in-law by the Letsoela
family. On the
16th August, 1978 she went through a civil marriage
ceremony with her husband. Letsoela was born on the 30th July, 1978.
with her husband until January, 1980. Because of persistent
assaults continued cohabitation became dangerous and intolerable. She
was force to leave the marital home. While she was at her maiden home
she went to the Republic of South Africa. She now has three
children who were born during the period of her separation from her
late husband. After the death of her late husband she came
her marital home and she was made to wear a mourning cloth by the
Kahlaisa Seeisa acts as chief of Kolojane in the absence
of the first respondent. In his affidavit he confirms what the first
has already said in his answering affidavit. It will serve
no good purpose to repeat the contents of his affidavit.
In his replying affidavit the applicant avers that the
late Chief Moifo lawfully married 'Maliboho Letsoela, the daughter of
M. Ralikomiki Letsoela under Sesotho law in 1970 and that he
was therefore debarred by the Marriage Act 1974 from marrying another
woman thereunder while such Sesotho marriage still subsisted. The
alleged marriage to Papali Molupe is therefore null and void in
of the Marriage Act 1974 and that its issue is therefore
illegitimate. He avers that he and the family acted and act in the
matter on the basis of their knowledge that the late Moifo has no
lawful widow apart from 'Maliboho Letsoela and that no other woman
can beget a legitimate son while that Sesotho marriage still exists.
In his supporting affidavit Digaane Letsoela avers that
the late Chief Moifo Letsoela lived with several women during his
He referred to
all such women as his wives but he never lawfully
married such women. He admits that when the late Chief Moifo had died
Papali Letsoela actually arrived on the day of the
burial. He denies that she was made to wear the mourning cloth by the
Ralikomiki Stephen Letsoela is the father of 'Maliboho
Letsoela and confirms in his supporting affidavit that her daughter
to the late Moifo in April, 1970. She lived with her
husband until the first respondent forced him into exile in the
South Africa. During the late Moifo's absence in Lesotho
'Maliboho went to her maiden home and subsequently got married to
man at Mokotoane's where she has remained since then.
The law governing the succession to the office of chief
is section 10 of the Chieftainship Act No.22 of 1968 as amended.
(1), (2) and (3) read as follows:
(1) In this section a reference to a son of a person is
a reference to a legitimate son of that person.
When an office of Chief becomesvacant, the
firstborn or only son ofthe first or only marriage of theChief
succeeds to that office, andso, in descending order, that
personsucceeds to the office who is thefirst-born or only
son of the firstor only marriage of a person who,but for his
death or incapacity,would have succeeded to that officein
accordance with the provisions ofthis subsection.
If when an office of Chief becomesvacant there is
no person whosucceeds under the precedingsubsection,
the first-born or onlyson of the marriage of the Chiefthat
tool place next in order oftime succeeds to that office, andso,
in descending order of theseniority of marriages according
tothe customary law, that personsucceeds to the office
who is thefirst-born or only son of the seniormarriage of
the Chief or of a person
who, but for. his death or incapacity, would have
succeeded to that office in accordance with the provisions of this
There is evidence by 'Mamoifo Letsoela, the mother of
the late Chief Moifo Letsoela, that the late Chief Moifo Letsoela
to 'Maletsoela Papali Letsoela. Eleven head of cattle
were paid for "bohali". Out of this marriage a son.
born. He is over twelve years of age because he was
born in 1979. The Sesotho law marriage took place on the 27th May,
On the 16th August, 1978 the couple went through a civil
The applicant has not challenged the validity of the
Sesotho law marriage between the late Chief Moifo Letsoela and
Letsoela (born Molupe). His argument is that the
late Chief Moifo married 'Maliboho Letsoela in 1970 and that he could
into any other marriage with another woman while such
Sesotho marriage was still in existence. Reference is made to the
Act 1974 but no particular section has been quoted. If the
respondent had in mind section 29 (1) of the
Marriage Act 1974 he is mistaken because that section
refers to marriages entered into under civil rites. Section 29 (1)
abolish polygamy. This is made very clear by section 42 of
the Marriage Act 1974 which provides that -
"This Act shall apply to all marriages solemnized
in Lesotho save and except marriages contracted in accordance with
law and custom, and nothing herein contained shall be taken
as in any manner affecting or casting doubts upon the validity of any
such last-mentioned marriages contracted before or after the coming
into operation of this Act."
The marriage between the late Chief Moifo Letsoela and
'Maletsoela Papali Letsoela (born Molupe) was contracted in
Sesotho law and custom. "Boheli" cattle
were paid. I am of the' opinion that there was a valid marriage
contracted in accordance
with Sesotho law and custom between the late
Chief Moifo Letsoela and 'Maletsoela Papali Letsoela until the former
The applicant avers in his replying affidavit
that the late Chief Moifo Letsoela contracted a marriage
with one 'Maliboho Letsoela in accordance with Sesotho law and custom
1970. That lady is allegedly still alive and she has been married
by another man. She has apparently lost any interest in the Letsoela
family because after the death of her alleged husband she has not
taken any action to claim her rightful position in the family of
Letsoela. In any case because she has no. legitimate son, the son of
'Maletsoela must succeed to the office of his late father in
section 10 (3) of the Chieftainship Act 1968.
The power to nominate and present a successor to the
office of Chief is clearly set out in section 11 of the Chieftainship
Subsection (1) of section 11 reads as follows:
"The person (or persons, in order of prior right)
entitled to succeed to an office of Chief may at anytime be
. nominated by that Chief during his lifetime (or by his
family if he is deceased or if he is unable, by reason of infirmity
or mental incapacity or
other grave cause, to make such a
nomination) by means of a public announcement of the
nomination of that person (or those persons, in order of prior right)
Chief or by a senior member of his family if he is unable as
aforesaid to make that nomination. The public announcement shall be
made at a pitso representative of all Chiefs and other persons in
respect of whom the person (or any one of the persons in respect
whom the person (or any one of the persona) nominated would, if he
succeeded to the office of Chief, exercise the powers and perform
duties of that office.".
The most important words in the subsection are "in
order of prior right". These words mean that members of the
nominate the successor do not have a free hand to choose
whoever they like. They must follow the provisions of section 10 of
Chieftainship Act 1968 in which the order of prior rights is set
out in detail. 'Meli Ntsoele v. 'Mamolomong Ramokhele 1975 L.L.R.
130. I am of the view that in the instant case the family of Letsoela
nominated the wrong person because the
late Chief Moifo has a son and a widow.
The first respondent had a right as the Senior Chief to
query the nomination and ask the family to reconsider it in terms of
Ntsoele v. Ramokhele - supra.
In the result the application was dismissed with costs.
JUDGE 25th November, 1992.
For Applicant - Mr. Seotsanyana For Respondents -
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