CIV/APN/346/91 IN THE HIGH COURT OF
LESOTHO In the Application between :
JEREMIA CHAKE MAIEANE APPLICANT
CHIEFTAINESS 'MAPIUS M. HLASOA 1ST RESPONDENT
andTHAPELO SEPHULA 2ND RESPONDENT
Before the Honourable Chief Justice B.P. Cullinan
For the Applicant : Mr K.K. Mohau For the Respondents
: Mr S. Peete
Cases referred to :
Leihlo vs Lenono (1976) L.L.R. 171;
Lefojane vs Regina (1960) L.L.R. 99;
Molapo vs Liketso (1991-93) L.L.R. 235.
The applicant avers that he has all along been "a
customary Chief and or headman of the village of Ha Maieane, Tsime,
district." The first respondent, however, since she
took over the chieftainship of Tsime in 1981 from her ailing husband.
Mopeli Hlasoa, has refused to recognise the applicant as
Headman of Ha Maieane, and has instead recognized the second
us such. The Court has granted a rule nisi in the matter
calling upon the respondents to show cause why inter alia
they should not be "restrained from disturbing and
or interfering with the Applicants' Headmanship of his area
except for lawful cause. "There are other prayers
the rule, but they are, I consider, covered by the terms
which I have quoted. The order under the rule covering such terms,
as an interim interdict with immediate effect.
It is clear that Chief Mopeli Hlasoa recognized the
applicant as Headman. On 4th July, 1980 he wrote to the applicant
"Headman Jeremia Chake,
I greet you amidst storms Chief. Chief please inform
to report here on Tuesday 8/7/80 to answer
charges laid against him by for He
should bring his witness along with him.
(Signature) Mopeli Hlasoa Chief of Tsime"
In September, 1981 the first, respondent took over as
Acting Chieftainess of Tsime. She avers that since then "I have
worked with him (the applicant) in that capacity (of Headman),
instead I have always recognized the second Respondent as Headman
Ha Maieane." That obviously led to much friction. On 2nd
September, 1985 the first respondent wrote to the District Secretary
requesting him "not to accept the names of the purported Headmen
of Tsime whose names have been submitted to you
-3-because I as Chief of Tsime, have not appointed
Your names followed, including that of the applicant and
one Mafa Potomane. The first respondent also observed in her letter
"Those whom I appoint, you do not accept."
On 20th September, 1985, however, the Principal Chief of
Butha-Buthe, M.K. Mopeli, decided a claim in his court as to the
of Ha Maieane thus,
"MONEUOA VS JEREMIAH CHAKE CLAIM:
THE RIGHTS OF CUSTOMARY HEADMANSHIP OF HA MAIEANE
I have heard the evidence of both sides together with
statements made by both parties and I have found the evidence of the
given on behalf of Jeremiah Chake to be very strong and it
states that your Moneuoa your father belongs to the Lehloara and even
your mother still resides there presently and I find the rightful
customary headman of Ha Maieane to be Jeremia Chake. This is the
Apparently the first respondent resisted that decision,
as two years later, on 2lst September, 1987, the Principal Chief of
wrote to the Chief of Tsime in the following terms:
"The Chief of Tsime, Tsime.
I greet you Chief,
I hereby order you to publicly announce JEREMIA MAIEANE
as the headman of Ha Maieane. This is according to the decision of
Principal Chief of 1985.
This should be done within five days. This order should
be complied with without mistake.
I will be grateful for your understanding."
That order was apparently not complied with. It seems
the applicant thereafter issued proceedings against the first
the Court of The Principal Chief. The latters decision
in the matter on 16th December, 1988, reads thus :
"The Chief of Tsime is advised of my decision of
the 20/09/1985 in which one Moneuoa Tefo was suing Jeremia Chake the
of Ha Maieane and in which in accordance with the
evidence of the family the Principal Chief made a decision to confirm
to the headmanship of Ha Maieane.
The same decision of 20/09/1985 is therefore hereby
confirmed. This is the decision and it must be respected."
Matters did not rest there approximately one year later
again, on 6th October, 1989 the matter once more came before the
Chief in his Court. His decision in the matter
reads thus :
"BEFORE PRINCIPAL CHIEF KUINI H. MOPELI ASSISTED BY
EXECUTIVE OFFICER MR RAMOTSABI S. RALETHOLA AND THE
CHIEF OF TSIME ON THE 6TH OCTOBER. 1989.
ON THE HEADMANSHIP OF HA MAIEANE AND HA POTOMANE
According to the evidence of both sides and particularly
the letter of Chief Mopeli Hlasoa the Chief of Tsime dated 04/07/80
with the oral evidence of Chief Mopeli
Hlasoa the headmanship of Ha Maieane belong to the
it is the inalienable right of the sons of Maieane which
taken away by anybody.
Therefore Jeremia Chake is the headman of Ha Maieane
according to the recommendation of the Maieane family.
As for Chief Napo Potomane, there is no dispute that he
is the headman and it must be respected.
It is the decision of the Principal Chief of Butha-Buthe
and it must be respected."
All of the above documents were received, not as
evidence of their contents, but as evidence of their making, in other
words of the
fact that as early as 1980 the Chief of Tsime,
Mopeli Hlasoa, recognized the applicant as Headman of Ha
Maieane and that thereafter, if not before that, the
Principal Chief did likewise, that is, two successive
Principal Chiefs judging by the signatures and names on
documents before me. The first respondent contests only
latter document ("annexure 'C'"), that is, of
6th October, 1989.
She contests it on the basis that,
"I had never seen this annexure 'C' before.
Secondly, if it had been through Chief Mopeli's letter (of 4/7/1980)
and oral evidence
that applicant be appointed Headman of Ha Maieane,
in 1980, than the Principal Chief would not have written annexure 'E'
of 21st September, 1987) in 1987"
But it is the first respondent's own evidence that she
took over the duties of Chief in 1981. Indeed there is her letter of
1985 addressed to the District Secretary, in fact
quoted above: though she did sign the letter "for the Chief of
it was she who apparently wrote the manuscript letter,
in which she used the words, "I, as Chief of Tsime: Certainly by
she was writing and signing letters as the Chief of Tsime. All
of this accords with the applicants averment that,
"during the Chieftainship of Chief Mopeli Hlasoa,
before he became ill and his wife, the first Respondent, acted in his
my portion had been made very clear, but since the first
Respondent assumed office of the Chief of Tsime, there has been
and endless problems and disturbances emanating from
the Respondents "
The evidence, in particular that of the first respondent
herself, indicates that from 1981 onwards she' carried out the duties
Chief. The Principal Chiefs' letter of 21st September, 1987 was
then addressed to the first respondent, and there is therefore
inconsistent between that document, whose admission the first
respondent does not contest, and the document dated 6th October,
Indeed three letters of protest written by the first respondent
to the Principal Chief, on, 23rd July,1990, on 20th November, 1990
and again the 20th May, 1991, confirm the fact that two successive
Principal Chiefs continued to recognize the applicant as Headman
The contests of those letters are contrary in places to
the first respondents' opposing affidavit. In the letter written in
she said :
"Further with due respect Chief, may I inform you
that chief Mopeli Hlasoa was appointed headman of Ha Maieane by his
Hlasoa Molapo in 1930, and even to dates, that villages
is still known as Lifefong Ha Mopeli. Secondly neither Jeremia's
his grand father have ever been appointed headmen of that
Further, Jeremia and one Moneuoa Tefo once appeared
before Hololo Central Court disputing the Headmanship of the said
the Court's ruling was that, since the village
belongs to Chief Mopeli, he is the only one who knows
- 8 -buggle in the village".
That letter does not of course constitute evidence of
its contents. Nowhere in her opposing affidavit does the first
to the village in question as other than Ha Maieane.
Again, nowhere does she refer to the portions involved as that of a
(bugle) As Mofokeng J, observed in Leihlo vs
Lenono (1) at page 174.
"A phala is nothing else but a village head. This
position, moreover, is not hereditary. A phala is a servant of the
headman or chief and he can be dismissed at any time (see
Duncan, Sotho Law and Customs, 1960 Ed. P.55)"
Throughout the opposing affidavit the first respondent
refers continually to the first involved as that of "Headman of
Quite clearly Chief Mopeli Hlasoa did not regard
the applicant as a bugle. He addressed his letter of 4th July, 1980
(Headman) Jeremia Chake" and then proceeded
twice to address him as ("Chief". Again, the first
in her correspondence with the District Secretary
and the Principal Chief, continually referred to the post as that of
as did the Principal Chief himself.
At this stage I observe chat the word "Chief"
is used in the
Chieftainship Act to describe "a Principal Chief, a
Ward Chief and a Headman and any other Chief." I have difficulty
appreciating the import of the words, "any other
in any event they serve, if nothing else, to emphasise
the fact that a Headman is regarded as a Chief. That no doubt is why
was so addressed by the Chief of Tsime. It will be seen
that under sections 10 and 11 of the Chieftainship Act that
the post of Chief, or Headman, is a matter of
hereditary succession : see Lefojane v Regina (2) per
Elyan J. at p. 102 & Leihlo v Lenono (1) per Mofokeng J.
In this respect the applicant, in, his replying
affidavit, states that.
"I inherited my headmanship from my parents and
grand parents who were headmen long before the 1st Respondents acted
husband. Before she acted, I had already been working in this
capacity with Chief Mopeli, her husband."
Mr Peete points to the fact that the applicant has not
produced any Gazette to show that he, or his father, have, under the
recognized as a Headman : he submits that the onus is upon
the applicant to show that he is a gazetted Headman and it is not for
either of the respondents to show otherwise : he submits in
particular that the appointment previously held by the applicant was
no more than that of a bugle, which could be terminated at any time
by the immediate Chief, that is, the Chief
of Tsime, under the direct authority contained in the
provisions of section 5 (4) of the Act.
- 10 -
But that, as Mr Mohau submits, in contrary to the case
made out by the first respondent in her opposing affidavit, and
indeed by the
second respondent, who has contented himself with
swearing an affidavit in which he deposes that "I hereby verify
she says about me in her affidavit is true and
correct", namely, that he was appointed Headman in place
of the applicant. The point is, that the first respondent conceded in
her opposing affidavit that at one stage the
applicant was Headman of
Ha Maieane. It seems to me that thereafter she is estopped from
submitting, through her Attorney, that the
applicant held the post of
no more than a bugle. In her opposing affidavit she overs.
"It is true that at one stage during the
Chieftainship of Chief Mopeli Hlasoa applicant worked as a Headman of
Ha Maieane having
been appointed by Chief Mopeli, but when I started
acting as Chief of Tsime. Applicant had abondoned his duties and in
second Respondent had been appointed. The evidence
pertaining thereto had been given by Chief Mopeli Hlasoa in CC 77/85
Court dated the 14th March, 1986.'!
The applicant contests the allegation that he had
"abandoned his duties". The first respondent did not annex
of the Central Court, but in any event such proceedings,
as much as the documents pertaining to the decisions of the Principal
would not constitute evidence before this Court, that is,
- 11 -
as to the truth of the contents thereof. Further the
first respondents' own evidence on the point would seen to be
One aspect which emerges from the above extract, is that
the first respondent therein and throughout her affidavit laboured
misconceptions that a Headman is appointed by his immediate
Chief. In this respect the applicant regards the reference to his
"appointed" by Chief Mopeli Hlasoa as a "pointing"
or nomination under section 11 of the Act, but nonetheless
his replying affidavit that,
"In any event, I wish to categorically make the
point clear that I had not been pointed by Chief Mopeli but I
succeeded to the
headmanship of Ha Maieane as of right".
There is no doubt that the applicant could have silenced
all apposition with the production of the relevant gazette notice,
the case of Molapo vs Teketsi (3) per Jacobs C.J. at
P 238) but the point is, the first respondent concedes, as I have
said, that the applicant held the post of
Headman under her husband.
Thereafter, under section 12 (1) of the Act, the post being
hereditary, the tenure is for life. The Act
the discipline to be exercised over Chiefs in default of
their duties, I indeed provides under section 21 that wilful
of duty is a criminal offence. But only a Disciplinary
Committee appointed under section 15 of the Act can "deprive (a)
all or some of the powers and duties of his office."
, Such deprivation or suspension, however, could not, it seems, be
the Act providing in section 18 thereof that any such
order would have effect "to an extent and for a period
specified in such order ". There is no such evidence before
me of any such disciplinary proceedings and there can therefore be
question that "in his (the applicant's) place second Respondent
had been appointed" as Headman. Indeed, under section
13 (2) (b)
of the Act had the applicant ever been deprived of his powers and
duties by a Disciplinary Committee, his customary successor
exercise such powers and duties.
The second respondent makes no claim to Headmanship by
the customary law of succession. The applicant does. The first
that the applicant at one stage held the
Headmanship of Ha Maieane. There is no evidence that he was lawfully
deprived thereof, to
any extent nor for any period. The applicant
does not seek a declaration that he is statutorily recognized as
Headman, which would
raise the issue of a gazette notice. For the
purpose of this application, therefore, on the
basis of the papers before me, the applicant has a clear
right to protect.In all the circumstances --'-''- the circumstances
the application is granted and the ruit is confirmed with
costs to the applicant.
this 16th Day of January, 1995.
(B.P. CULLINAN) CHIEF JUSTICE
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law