CIV\T\113\93

IN THE HIGH COURT OF LESOTHO
In the matter
between:

SETHA LEHLOENYA PLAINTIFF

vs

TUMO LEHLOENYA 1ST DEFENDANT

ACTING PRINCIPAL CHIEF OF MATSIENG 2ND DEFENDANT

MINISTER OF INTERIOR 3RD DEFENDANT

ATTORNEY GENERAL 4TH DEFENDANT

JUDGMENT

Delivered by the Honourable Acting Mrs Justice J.K. Guni
on the 19th day of June, 1995

In this action plaintiff issued out summons in the High
Court against these four (4) defendants. Tumo lehloenya of Rapoleboea
ha Mahlomola
is the 1st defendant. The second defendant is the Acting
principal chief of Matsieng. The 3rd defendant is the Minister of
Interior.
The 4th defendant is the Attorney General sited in his
capacity as the legal representative of the Government of Lesotho.

2

In his prayers the plaintiff seeks an order in the
following terms:-

1. 
   Declaring that First Defendant is not the rightful
   heir
   to the headmanship of Rapoleboea Ha Mahlomola;

   
   

2. 
   Declaring null and void and of no legal effect
   the
   placement by Second Defendant of First Defendant;

   
   

3. 
   Directing the Third defendant to gazette the
   Plaintiff
   as the headman of Rapoleboea Ha Mahlomola;

   
   

The jest of the plaintiff's complaint as indicated in
his declaration is to the effect that the 1st defendant Tumo
Lehloenya is wrongfully
and unlawfully placed as the headman of
Rapoleboea Ha Mahlomola. This wrong should be rectified or corrected
by this court by declaring
that placing of Tumo Lehloenya as the
headman of Rapoleboea Ha Mahlomola, null and void and of no legal
effect. This declaration
will in its effect create a vacancy at the
office of the chief or headman of Rapoleboea Ha Mahlomola. Part of
the plaintiff's prayer
is to the effect that such a vacancy is filled
by his own placement in that office of the chief of Rapoleboea Ha
Mahlomola.

This dispute arises from the operations of the
CHIEFTAINSHIP ACT NO.22 OF 1968. Part III of this Act regulates
succession to the office
the chief\headman.

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Section II (2) of chieftainahip Act provides the forum
for the settlement of disputes arising from the nomination or
placement of
chiefs or headmen. The relevant portion of that section
reads as follows;

"(1), and any other person claiming that the person
nominated is incapable of succeeding, or that some other person who
is capable
of succeeding should have been so nominated instead of the
person who was nominated, the person so claiming may apply to a court
of competent jurisdiction to have the nomination set aside or
varied accordingly." (my underlining)

Plaintiff has followed the terms of this provision for
some distance. He has so far shown this court that " the person
nominated
(TUMO LEHLOENYA) is incapable of succeeding or that some
other person who is capable of succeeding (himself SETHA LEHLOENYA)
should
have been so nominated instead of Tumo Lehloenya. The second
step that the plaintiff should have taken, was to take his claim to
the proper forum to determine the dispute and take corrective
measures that would effect the change the plaintiff desires.

It is, in the common cause that the dispute between
these two parties involves succession to the office of the chief or
headman. It
is also in the common cause that such dispute should be
resolved in accordance with the chieftainship Act which has specified
the
court before which such disputes should be taken.

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1st Defendant specially pleaded that; the Plaintiff's
action violates section 6 of the High Court Act of 1978: In that it
has been
brought to the High Court without leave of court although it
is a succession to the chieftainship matter which a subordinate court
has jurisdiction. According to the argument of the 1st Defendant's
counsel the summons commencing this action should have been issued
out by the subordinate court, not the High Court. The counsel for the
Plaintiff does not agree that the Plaintiff's action should
have been
commenced at the Subordinate Court for the following reasons:-

1. 
   Plaintiff has a right to commence hie action in
   any
   court of his choice depending on his considerations
   as
   regards where he fancies his matter will receive
   beat
   handling.

   
   

2. 
   The Court of Appeal when it confirmed the meaning of
   the
   terms "Court of Competent Jurisdiction" to mean
   the
   Subordinate Court, lacked proper appreciation of
   Basotho
   Custom, culture and tradition pertaining to
   Chieftainship
   especially considering the lack of
   Ethnicity in that court's
   composition.

   
   

3. 
   Even if there is a requirement to apply for and
   obtain
   leave of the court before the action was brought,
   this
   court must proceed to hear the matter without that
   leave
   having been obtained because, had the leave been
   applied
   for it would have been granted anyway.

   
   

4. 
   Plaintiff in his prayers seeks specific
   performance.
   The removal of one headmen and his replacement
   by
   another. By the nature of the relief sought this matter
   is
   put beyond the jurisdiction of the Subordinate court.

   
   

Section 29 Subordinate Court Order 1988 makes the list
of matters which are beyond the jurisdiction of the subordinate

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court. Section 29 (d) " provides that the court
will have no jurisdiction in matters in which is sought the specific
performance
of an act without an alternative of payment of damages."

Plaintiff's claim may be of that nature. But there are
statutory provisions specifically enacted to regulate and govern the
determination
of disputes in matters of chieftainship. This section
must be read in conjunction with those provisions which have greater
weigh
in this matter, This point was raised and therefore the Court
of Appeal did decide upon it in the case of NKO C. OF A. (CIV) NO.
14\91. This case of Nko is on fours with our present case. The orders
sought in these two cases are identical. The words used to
ask for
those orders may be different but the effect of the order is the
same. The Court of Appeal in Nko'a case declared in no uncertain
terms that "chieftainship ad succession to chieftainship are not
excluded by section 29" of subordinate court order
1988. In that case Fiorina Mantja Mapapali Nko instituted an action
in the High Court against respondent,
for an order declaring her to
be the rightful successor to the headmanship of Phuthiatsana Ha Nko.
The plaintiff in our present case
did exactly the same. He sought an
order directing the Minister of Interior to gazette him as the
headman of Rapoleboea Ha Mahlomola.
This is to happen

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after plaintiff had ask the court to order that the
placement of the present holder of that office of headman at
Rapoleboea Ha Mahlomola
null and void and of no legal force.

To argue that in our present case plaintiff is seeking
specific performance, and therefore the matter is excluded from the
jurisdiction
of the subordinate court is unsuccessful attempt to
circumvent the authority of Nko's case. There are no difference
whatsoever between
these two cases. The Court of Appeal made the
pronouncement that "Chieftainship and succession to
chieftainship are not excluded
by section 29" after that court
had thoroughly examined those provisions contained in section 29 of
subordinate court order
1988.

There is a further criticism made against the judgment
in Nko's case regarding the lack of proper appreciation of Basotho
Custom,
culture and tradition in relation to chieftainship.
Plaintiff's counsel seemed to suggest that because their Lordships
are of a different
culture, fail to appreciate properly or are not
sensitive enough to the Basotho culture and tradition. The decision
in relation to
the propriety or improprieties of culture as far as it
affects chieftainship, has already been made by the legislator of our
law.
It is our legislators who decided that the dispute arising
from chieftainship Act must be

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determined by a Court of competent jurisdiction. That
forum is chosen by our legislators. - not by the Court of Appeal. The
Court
of Appeal merely interpreted our relevant statute law to arrive
at what the law maker intended. Their sensitivity to, or appreciation
of our culture has no bearing on the conclusion they arrived at in
their interpretation of our statutes. Our legislators: in the
form of
the parliament or orders by Military Council, are all Basothoa.
Sentiments expressed here, of lack of proper appreciation
of our
culture are absolutely ridiculous, considering that it is the
legislators intention which is embodied in the wording of the
statutory provisions that were being interpreted.

Another point raised by plaintiff's attorney appeared to
suggest that even though leave was not applied for nor obtained
before this
action was instituted, now from the bar such an
application was being made or the court itself on its own motion may
grant such leave.
The authority sited in support of this submission
was Seisa Nqojane vs National University of Lesotho. C. of A. (civ)
No 21\92. In
this case the honourable Leon J.A observed as follows; "
I have not a slightest doubt that, had the point been taken, leave
would have been granted because prayers 2 (c) and (d) are ancillary
to the main relief sought." In this case Mr. Nqojane was
seeking
an order that would effect his

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reinstatement and payment of his salary in terms of the
contract of employment. As a fringe benefit that went with the job
there was
a provision of accommodation. Restoration of occupation of
the University house by Mr. Nqojane was an ancillary to the main
relief
of reinstatement to his previous job or post. In our present
case the order sought directing the Minister of Interior to gazette
plaintiff as the headman of Rapoleboea Ha Mahlomola is the main and
the only relief sought. The special plea was timeously made.
It was
not belatedly raised as the exception taken in Nqojane's case.

It is in this circumstances that I am satisfied that 1st
Defendant's special plea must succeed with costs. It is so ordered.

K.J. GUNI ACTING JUDGE

For Plaintiff : Mr. Hlaoli For Defendant : Mrs
Kotelo