CIV/APN/169/01

IN THE HIGH COURT OF LESOTHO

In the matter between:

MACHAKELA MOHALE APPLICANT

AND

MAKOPO LISENE 1st RESPONDENT

MINISTRY OF LOCAL GOVERNMENT 2nd RESPONDENT

ATTORNEY GENERAL 3rd RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice G. N. Mofolo ___________________

On the 4th day of March, 2005___________________

This is an old case dating back to the 1960's. Jacobs CJ (as he then was) in CIV/A/4/72 has given an exhaustive summary of it and from the judgment it would seem the Principal Chief of Tajane teamed up with the District Administrative Secretary, Mohale's Hoek to deprive Chief Mopeli Mohale (applicant's predecessor-in-title) of the area known as Liphofung. The learned Chief Justice had, in his judgement, quoted section 5(2) of the Chieftainship Act, 1968 which reads:

"Each office of Principal Chief or Ward Chief has authority over the office of Chief in its area, and that authority is exercised through the other offices of the Chief that are immediately subordinate to the office of the Principal Chief."

On this basis the learned Chief Justice had then found on page 4 of his judgment:

"The Principal Chief was therefore entitled to claim direct authority over defendant's office and defendant was obliged to recognize that authority and this appears to me to be a complete answer to plaintiffs claim."

Effectively Jacobs CJ was of the view that plaintiffs (applicant's predecessor-in-title) claim was administrative and not legal with the result that courts of law would not interfere. I could not disagree more with this approach which has been severely criticized and discredited by courts of law particularly because in being deprived of his area of jurisdiction Mopeli Mohale was not heard. I should nevertheless caution that in his wisdom this is not what the applicant the instant application has asked the court to decide for the application is couched in the following terms :-

1. Calling upon the Respondents to show cause, why, if any the decision of the Boundary Dispute Committee in reference number LG/INVEST/3/99 shall not be reviewed and set aside.

2. Calling upon Second Respondent to dispatch within 14 days of its receipt of this Notice of Motion, to the Registrar's of this Honourable Court the record of proceedings sought to be reviewed, corrected and set aside, together with such reasons as the Respondent is required and desired to give, and having done so, notify the applicant that he has done so.

3. That first Respondent pay costs of suit.

4. Applicant be given further and/or alternative relief.

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The application was opposed. On 20 September, 2004 when the application was to be argued 1st respondent's counsel has intimated he was engaged in another court and by agreement of the parties the application was postponed to 07 October, 2004.

On 07 October 2004 applicants' Counsel had abandoned the contempt proceedings preferring to proceed with the application. Since not only the contempt proceedings had been withdrawn but also an interlocutory application, it had been agreed that costs be costs in the cause.

Ms Sehapi for the applicant had reminded the court a point in limine had been taken and she wished to argue this. Mr Molapo for the 1st respondent had objected to the point being taken and was overruled on this on account of the point in limine having been taken way back with notice to the 1st respondent who had not, on receipt, taken issue with the point in limine. The court had also found the point in limine was relevant and would help the court in arriving at a just decision. Before me not only was the point in limine argued, merits of the application were also argued.

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Ms Sehapi for the applicant has argued that it was irregular for the chief of Tajane to have been appointed to determine the boundary dispute between the applicant and 1st respondent in that section 5(11) of the Chieftainship Act No. 22 of 1968 forbids this. Now, section 5(8) of the Act reads :

"In the event of a dispute or uncertainty concerning the boundaries of the area of authority of Chief the King.............or upon the application of the Chief concerned determine and define such boundaries

Sub-section 11(a)

"The committee shall consist of not less than two members one of whom shall be the Principal Chief or Ward Chief of the area of authority in which the boundary is situated; Provided that if the boundary concerned is the boundary between the areas of authority of two or more Principal or Ward Chiefs, those Principal or Ward Chiefs shall not be appointed to the committee;

2. The other members of the committee shall be appointed by the Minister in his discretion;

2. Nothing in this or any other law contained shall be construed as prohibiting the Minister from appointing any other Principal or Ward Chief and any Chief or Headman as members of such Committee: Provided the Chief whose area of authority is concerned shall not be a member of the committee. "(my emphasis).

Sub-section 11 above allows Principle Chiefs, Ward Chiefs and Headman to be appointed to the Boundary Dispute Committee. It however prevents them from being appointed to and sit on a Boundary Dispute Committee deciding a boundary within the area of authority of the Principal Chief, Ward Chief, Chief or Headman concerned. In other words, while the section allows the Minister to appoint any Principal, Ward Chief, Chief or

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Headman to sit on the committee, such a Principal, Ward Chief or Headman cannot be appointed to and sit on a committee deciding a boundary within the area of his authority.

I read the Act to say that Chiefs in their various categories may be appointed to be Boundary Dispute Committee though they are disqualified from appointment if the area in dispute is the area falling within their area of authority. The logic extended would mean that Chiefs cannot act on a tribunal deciding their own area of authority for to do so could make them judge in their own cause. A fine distinction has to be drawn for it seems to me that Principal Chiefs and Ward Chiefs are not prohibited to sit on these boundary Dispute Committees deciding boundaries of Chiefs and headmen under them what's objectionable and prohibited being for either Principal Chiefs, Ward Chiefs, Chiefs or Headmen to sit on a Dispute Committee deciding a boundary falling directly under their area of authority.

Applicant's and 1st respondent's case is such a case. As expounded in CIV/A/4/72 above at page 2 "it appears that until the 1950 Notice the area of Liphofung was probably regarded as part of the area of Kopialena which was being administered by plaintiff and his predecessors." Also at page 3:

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"Now I must say at once that there is strong evidence that until the latter half of 1968 defendant in practice did consider his office as subordinate to that of plaintiff and that defendant's subjects i.e. the those resident in the area referred to as Liphofung paid tax under plaintiff. There is also evidence that when the lists of holders of office of chief were reviewed in the early sixties ----------plaintiff objected to defendant's office being shown in the then exciting lists as immediately subordinate to the Principal Chief of Tajane instead of subordinate to himself."

And then the crunch ibid:

" In 1968 the Principal Chief of Tajane and defendant apparently decided that in law defendant's office was not subordinate to that of plaintiff and that in future the Principal Chief would exercise authority directly through Defendant's office'

The learned judge then came to the conclusion that because of a letter written by the Principal Chief to the District Administrator to the effect:

"I pass before you Thukhube Lisene (defendant) that he be allowed to pick out (apparently from the tax register) his subjects from those of Mopeli (plaintiff)."

I have already expressed my disavowal of this procedure above but suffice it to say that it was the Principal Chief of Tajane who excised Mopeli Mohale's (applicant's predecessor) subjects from the tax register and placed them directly under himself. How could he do this and having done so, sit on a committee determining a boundary in his area of authority? But there are too many things at stake in this application. The Principal Chief of Tajane has set on a Boundary Dispute Committee determining a boundary between Chief Mopeli Mohale and Thukhube Lisene before. This was in terms of INT/INVEST/76 where the heading reads:-

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IN/INVEST/76

CHIEF MOPELIMOHALE PLAINTIFF

Vs

HEADMAN THUKHUBE DEFENDANT

CLAIM: AN AREA UNDER THE CHIEF OF TAJANE

BEFORE KONYAMA CHABA CHAIRMAN

PHILLIMON 'MABATHOANA MEMBER

CHIEF NKHAHLE MOHALE CHIEF OF TAJANE MEMBER

Of Paramount importance is that the area in dispute is claimed to fall "under the Chief of Tajane" and directly falling under the Chief of Tajane, Chief Nkhahle Mohale "Chief of Tajane" was appointed to the committee and set on it. Please note that this Boundary Dispute Committee is not challenged by the applicant. The court is using it to illustrate irregularities. And while the dispute was reputedly between Mopeli Mohale and Headman Thukhube, it appears this was only an eye wash for the dispute was in effect between Mopeli Mohale and Chief Nkhahle Mohale the Principal Chief of Tajane. There were too many peculiarities in this investigation for although Thukhube claimed not to be Chief Mopeli's subject the general tenor of his

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evidence was that he was his subject for "fields he is ploughing allocated to him by chieftainess 'Malijeng 'M'amopeli and the rest by Chief Mopeli himself. Agrees he was present when, the village of Chief Mopeli was built at Noka Nts'o. Although he had said he had not paid tax at Mopeli's in fact he paid it him—." (pages 38-39 of the Record of Proceedings).

Of salutary importance is that Chief Nkhahle who signed himself as Principal Chief of Tajane found "there is no boundary which can be pointed between Chief Mopeli and Thukhube is nothing in this area (my emphasis) How could and how was another Boundary Dispute Committee appointed in which the Principal Chief of Tajane set when the same chief (even if his predecessor) had disclaimed Thukhube (Ist respondent's predecessor) to the area of Liphofung? In any event how could the Principal Chief of Tajane sit on a committee determining and concerned with his area of authority and an area in which he has personal interest?

Perhaps this is a typographical error but INT/INVEST/1/74 being recommendation of the committee the committee recommended that the complaint of plaintiff Chief Mopeli be accepted that Chief Thukhube Lisene "was proclaimed by mistake..........by the Principal Chief even without

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him." Further, "even Thukhube himself had already presented successor to Chief Mopeli with a cow......." The committee also recommended that "the proclaiming of Thukhube be cancelled", (see page 42 of the Record of Proceedings). For some reason it would appear recommendations of this committee were ignored and allowed to gather moss only for another Boundary Dispute Committee to be appointed per LG/CA/INVEST/3/99 consisting of:

1. Ntate Ts'eliso Nts'ala - Chairman

2. Morena Tlali Mohale - Member

3. Morena Moqathinyane Molapo - Secretary

It is common cause that Morena Tlali Mohale is the Principal Chief of Tajane. Although the Boundary Dispute Committee I referred to above of which chief Nkhahle Mohale chief Tlali Mohale's predecessor-in-title had found "there is no boundary which can be pointed between chief Mopeli and Thukhube is nothing in the area" and Thukhube's degazettment recommended, the above committee had found there was such a boundary. Surprisingly, among some of the committee's finding is that "this committee finds at no stage was a finding made regarding the disputed boundary." This hardly surprises because applicant's counsel's address to me is that applicants' evidence was suppressed.

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In his address, Mr. Molapo for the 1st respondent has said the committee did not act irregularly and applicant should have come by way of appeal and not review. He also says the chief of Tajane was not a member of the Boundary Dispute Committee for he did not append his signature meaning he did not endorse the finding of the committee. He also says the application was burdensome in that too many unnecessary documents formed part of the application. He has also said the court has no jurisdiction over boundary dispute claims.

I disagree that the application should have come by way of appeal for the application is here concerned with an irregularity. It is immaterial whether or not the Principal Chief of Tajane signed for he was appointed to the committee, set on it and influenced its decision. The withholding of his signatures was intended to deceive the unwary. I disagree that the application was burdensome in that documents furnished belie the claim that the applicant did not prove his case. As for the court not having jurisdiction in the matter, I have alluded to this above saying this approach is behind times and discredited. Indeed this was the reasoning by Jacobs CJ in CIV/A/4/72 above that since the matter is administrative than legal, courts cannot interfere.

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A similar problem arose in RAKHOBGSO VS. RAKHOBOSO (LLR & Legal Bulletin, 1997-98 p.l) and it centred around whether, once a chief is proclaimed in a particular area that is the end of the matter and the powers that be may not be called to account.

In effect I understand Mr. Molapo as saying since administrative bodies are not obliged to give reasons for their decision their decisions cannot be questioned by courts of law. My reaction to this is that this reasoning was brought under the spotlight in Rakhoboso's case above. In that case, the Principal Chief purported to remove the appellant from office by designating the second respondent as the headman in his place. In the instant application the Principal Chief has purported to strip applicant's predecessor of an area of his administration in favour of the 1st respondent much as I have shown that the same principal chief renounced his earlier position. As in the present application, it was not clear why the Principal Chief acted as he did in Rakhoboso's case except for the oft touted claim that administrative decisions cannot be questioned based on section 13(6) of the Chieftainship Act, 1968 which reads;

'(6) The King acting in accordance with the advice of the Minister may at any time withdraw such approval without assigning any reasons therefore."

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It is indeed on this basis that Mr. Molapo has contended this court has no jurisdiction to question administrative decisions and as has already been observed, it was for precisely the same reason Jacobs CJ in CIV/A/4/72 above decided the matter was administrative and not legal. I have already said above for times without number though under the aegis of the audi rule that this approach has been severely criticized. As was said in Sachs v. Minister of Justice, 1934 AD 11 at 40, Joyi v. Minister of Bantu Administration and Development, 1961(1) SA 210 (C) at 216B; Klopperberg v. Minister of Justice, 1964 (1) SA 813 (D), courts have traditionally viewed with anxiety statutory provisions which relieve administrative agencies of the duty to provide reasons for what they do. In Rakhoboso's case above Gauntlett AJA has gone on to say an important characteristic of any State under the rule of law, or Rechtstaat is that its officials should, when challenged, account for their actions, and to do that, as a general principle, they should give reasons. Gauntlett AJA in course of his judgment has posed a question whether, as in the case under review, where the legislature had seen it fit expressly to exclude a duty to give reasons, does this, as a consequence, exclude the operation of the audi rule too?

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It has been said there is some earlier support for the approach as in Jooma v. Lydenburg Rural Licensing Board, 1933 TPD 477 at 485 though the case has been heavily criticized in Steyn Uitleg van Wette (3 ed 1983) 266; Wilson v. Pretoria Rural Licensing Board, 1949 (4) SA 449 (T) and Corder, 1980 (43) THRHR 156 at 171 and the approach given a quietus in the judgment of Schreiner JA in Pretoria North Town Council v. Al Electric Ice Cream Factory (Pty) Ltd, 1953 (3) SA 1(A) 13B - F

According to Wiechers (Administrative Law) at p. 16, the administration occupies an independent position vis-a-vis the judiciary "except in so far as the judiciary exercises an inherent control over the acts of the administration." In exercising its control, it would seem the judiciary cannot go the whole hog though it is expected of it to, for example, desist from expressing views on the desirability and efficacy of administrative acts and as a rule will not demand that its orders be carried out by the administration. Nevertheless at p. 261 Wiechers also says judicial control over administrative acts is regarded as the corner-stone of the system of government in any democratic state. Further, on the same page he says "it is fallacious to state that no administrative law exists in a state in which the

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courts have no power to exercise control over the actions and powers of administration."

The author has gone on to say in South Africa, as in many other countries courts have in exercising control over administrative actions built up a totality of case law containing most important and authoritative legal principle governing the organization, powers and actions of the administration, principles which have been entrenched in our law by the force of precedent forming the foundation on which requirements of legality in the practical state administration are built. The author also sees judicial control over administrative actions as an authoritative and final means of solving administrative disputes.

Since there is plenty of authority that this court has control over administrative acts and actions, I reject the contention that this court has no authority or jurisdiction to inquire into Boundary disputes. This court has also found that there was too much manipulation and deceit by the Boundary Dispute Committee and accordingly not only is the point taken in limine allowed, the application as a whole is granted and the Boundary Dispute

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Committee's decision under reference LG/INVEST/3/99 is set aside with costs to the applicant.

G.N MOFOLO

JUDGE

For the Applicant: Ms. Sehapi

For the 1st respondent: Mr. Molapo

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