IN THE HIGH COURT OF LESOTHO
In the matter between:
TSOHANG MOKONE Appellant
PUSETSO MOKONE Respondent
REASONS FOR JUDGMENT
Delivered by the Honourable Mr. Justice J.L. Kheola
on the 20th day of August. 1992.
On the day this appeal was heard by this Court there was
no appearance for the appellant. A few days later Mr. Phafane,
the appellant, came to my chambers to tender his apology
for failure to appear on the day of the hearing of the appeal. I need
go into the reason why he failed to appear because they are now
the subject matter in Che application for rescission of judgment
was granted in the absence of the appellant and his counsel.
In the court below the appellant sought an order of
ejectment of the respondent from a residential site and improvements
situated on Plot No.1225 in Mafeteng Urban Area.
It is common cause that the appellant is the younger
brother of the respondent. Their father died in August, 1987. He
not made any will and his estate was administered
according to Sesotho customary law. Amongst the properties the
deceased left were
a residential site at Motse-Mocha, a residential
site at Ha Seitlheko, a residential site near the Hospital in
Mafeteng. All the
sites were registered in their late father's name.
The appellant testified that his father was buried on
the 29th August, 1987. On the 31st August, 1987 the respondent called
of the family who were nearby and told them that he was
distributing the deceased's property amongst his brothers and
respondent gave him a Mazda half truck with Reg. No.
E1556; he gave him a house near the hospital which is on site No.1225
immovable properties. The respondent promised to prepare
the documents relating to site No. 1225 so that he could transfer it
him. He never transferred the site to the appellant. It is this
house at Site No.1225 that is the subject matter of this dispute.
The appellant called Mothopi Michael Mokone who
testified that at the family meeting referred to by the appellant the
the house at Site No.1225 to the appellant.
The version of the respondent is a complete denial that
he allocated the site\house to the appellant. He says that he
houses at the Motlere and at Phahameng to the
The learned Senior Resident Magistrate dismissed the
applicant's claim on the ground that her court has no jurisdiction in
of customary law inheritance or succession. She was of the
opinion that the matter could conveniently be dealt with by the Local
or Central Courts or by the High Court.
I doubt if the Local and Central Courts have
jurisdiction in matters of ejectment involving a house whose value
may run into thousands
I tend to agree with the learned Senior Resident
Magistrate that before on order of ejectment can be granted the
appellant must show
that he has a good title to the land in question.
He can show this by producing a certificate of allocation of the land
to him, a
Form C or a lease. The appellant has none of such
documents. I am of the view that the appellant misconceived his
remedy. He ought
to have sought an order to compel the respondent to
transfer the site and the house to him; and also an order compelling
to hand over the transfer documents to him.
I am not sure that the appellant can lawfully eject the
respondent from the premises before the property has
been transferred to him because the property is still registered in
name or in the name of the respondent's father.
For the above reasons the appeal was dismissed.
J.L. KHEOLA JUDGE
11th January, 1993.
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