C OF A
(CIV) No.22 of 2004
COURT OF APPEAL OF LESOTHO
LEUTA MAHAO RESPONDENT
HEARD : 7
20 April 2005
dispute - Paramount Chief's powers - Proclamation No. 61 of 1938 -
Leave to appeal - Section 17 of the Court of Appeal
Act No. 10 of
1978 - Principles in issuing a certificate for leave to appeal laid
down - Need to define point of law.
the Appellant's predecessor in title sued the Respondent's
predecessor in title for a certain area falling within the
demarcation of the Paramount Chief dated 27 May 1941. The demarcation
in question was in favour of the Respondent's predecessor
The claim was dismissed by the Central Court, the Judicial
Commissioner's Court and the High Court respectively - Hence
Appeal against the High Court's decision. Appeal dismissed with costs
on the ground that the Paramount Chief's decision was
valid and had
never been changed.
Seldom has a boundary dispute engaged the attention of both
administrative courts as well as courts of law over such a long
period of time, spanning more than six decades, as the instant matter
has. It all began 64 years ago on 27 May 1941 to be precise,
Paramount Chief determined a boundary between the Appellant's
predecessor in title, Tebelo Sebili, and the Respondent's
in title, Tumo Qamako, at a place referred to as Thabana Morena
Mountain. As is often the case in disputes of this
nature in this
country, the parties call the disputed area by different names. The
Appellant calls it Ha Sebili while the Respondent
calls it Linotsing
Ha Leuta. Be that as it may, it is common cause that the Paramount
Chiefs decision in question was in favour
of the Respondent's
predecessor in title in that it confined the Appellant's predecessor
in title to the South of the mountain
thus effectively excluding him
from the disputed area in the North of the mountain which in turn
comprises the villages Meqecheng
to Lebung. This area in the North of
the mountain was thus allocated to the Respondent's predecessor in
1987, which was a period of 46 years after the demarcation of the
Paramount Chief in favour of the Respondent, the Appellant
latter before Ramokoatsi Central Court for the disputed area. The
claim was dismissed on the ground that the Paramount
demarcation of 1941 had been made lawfully and had never been
changed. The Appellant's further appeals to the Judicial
Commissioner's Court and the High Court respectively failed for the
may be observed at this stage that in dismissing the Appellant's
appeal, Moiloa AJ in the Court below was of the view that
circumstances the claim had "prescribed after the lapse of 30
years since May 1941." It is not necessary to
validity of this proposition as the learned Acting Judge did in fact
determine the matter on another ground. Moreover,
there was not, it
seems to me, a full investigation of the issues relating to
prescription in the trial court. It shall suffice
merely to record
that the Appellant has appealed to this Court with leave of the
learned Judge a quo on the following grounds:-
"1. The Honourable Court a quo erred and misdirected itself in
holding that the Appellant's claim had prescribed.
Honourable Court a quo erred and misdirected itself in holding that
the boundary demarcation made on 27th May, 1941 was done
Honourable Court a quo erred in holding that the 1941 demarcation
was made pursuant to an existing boundary dispute between
Sebili and Tumo Qamako. A boundary dispute can only exist between a
chief and another and not between a chief and a person
who is not a
Honourable Court a quo erred in upholding the 1941 demarcation that
directed people to remove from the area they inhabited
generations when such demarcation was invalid."
Section 17 of the Court of Appeal Act No. 10 of 1978 ("the Act")
provides for the right of appeal in civil cases
in the following
"17. Any person aggrieved by any judgement of the High Court in
its civil appellate jurisdiction may appeal to the Court with
leave of the Court or upon the certificate of the Judge who heard the
appeal on any ground of appeal which involves a question
of law but
not on a question of fact."
meaning of this section is that any person who intends to appeal
against the judgment of the High Court in its civil appellate
jurisdiction, as here, must first seek and obtain the leave of the
High Court or of this Court. Furthermore, leave may be sought
a question of law. See Lesotho Union of Bank Employees, in re Moliko
v Standard Bank Ltd 1985-89 LAC 86 at 87. Letsoela
and Another v
Letsoela 1980-84 LAC 275 at 276.
learned Judge a quo's certificate for leave to appeal to this Court
WHEREAS the appeal of the abovenamed appellant from the Judicial
Commissioner's Court was dismissed by me in the High Court of
on the 23rd day of August, 2004. I do hereby certify that this is a
fit case for an appeal on the grounds set out in the
be no doubt in my mind that, subject to what follows hereunder, the
Appellants' grounds of appeal as fully set out in
paragraph  above
raise points of fact in addition to questions of law.
guidance in future, therefore, it is now necessary to lay down the
who apply for leave to appeal and judges of the court granting leave
should ensure that the provisions of section
17 of the Act and the
Rules of Court are strictly observed.
application for leave to appeal should specify the grounds on which
leave is sought.
judge granting leave should clearly define the points of law on
which leave is granted in compliance with the Rules.
leave is granted, the certificate of the judge and the grounds of
appeal should then be delivered by the applicant.
 In a
well presented argument, Mr Mohau for the Appellant tried manfully to
persuade this Court that the Appellant's grounds
of appeal raise a
point of law. Apart from the question of prescription, he relied
heavily on ground No.2 and sought to develop
it principally with
reference to Section 3(1) of Proclamation No. 61 of 1938 ("the
Proclamation"). In a nutshell, it
was his submission that of all
the powers conferred on the Paramount Chief under the Proclamation,
none related to delineation
of boundaries between chiefs.
Section 3(1) of the Proclamation reads as follows:-
"3.(1) the High Commissioner may, after consultation with the
Paramount Chief. by Notice in the Gazette, declare any Chief,
Sub-Chief or Headman to be Chief. Sub-Chief or Headman for any
specified area or arears, and may direct that any such Chief,
or Headman shall exercise only such powers as are delegated
to him by another specified Chief. Sub-Chief or Headman with the
of the Paramount Chief."
requires to be noted at the outset that there is no specific section
in the Proclamation expressly dealing with demarcation
submitted nevertheless that it is implied in Section 3 that the power
to demarcate boundaries vested in the High Commissioner
alone. In my
view this proposition is unsound. I consider that the correct
approach is to read the Proclamation as a whole in the
light of the
history of this country. In this regard, it will be recalled that the
Paramount Chief in question was in fact the
successor in title of the
Founder of the Basotho Nation himself, Moshoeshoe I. It is undisputed
that as the absolute Ruler of the
Basotho Nation, Moshoeshoe I had
power to demarcate boundaries in this country. The question that
arises therefore is whether the
Proclamation in question deprived him
of this power either expressly or impliedly.
Since, as I have pointed out in the preceding paragraph, there is no
express provision in the Proclamation dealing with demarcation
boundaries, it is necessary to have regard to sections 4 and 8 (l)
(m) (u) and (v) of the Proclamation. In doing so, one naturally
starts from the premise that it is a cardinal principle of
interpretation to construe a statute in conformity with the common
law rather than against it except where the intention of the
Legislature is clearly to alter the common law itself. See
v Subramanian & Another 1943 AD 160 at 167. Indeed
is that the Legislature does not intend to alter the existing common
law more than is necessary.
Section 4 of the Proclamation provides as follows:-
" 4. It shall be the duty of the Paramount Chief and every
Chief, Sub-Chief and Headman to perform the obligations by this
Proclamation imposed, and generally to maintain order and good
government among the natives residing or being in the area over
his authority extends; and for the fulfilment of this duty he shall
have and exercise over such natives, the powers by this
conferred in addition to such powers as may be vested in him by
virtue of any law or native custom for the time being
be no doubt in my mind that the underlined words are in effect a
saving clause meant inter alia to preserve the customary
of the Paramount Chief to demarcate boundaries. This was no doubt in
conformity with the British policy of indirect
rule since 1868 when
this country became a British Protectorate. The British policy in
this regard was such that the Basotho were
largely left under the
administration of their Chiefs, more especially in land management.
Section 8 (1) (m) (u) and (v) of the Proclamation in turn reads as
"8. (1) Provided that such orders do not conflict with any law
for the time being in force in the Territory, the Paramount
issue orders to be obeyed by natives within the area of his
(m) prohibiting, restricting or regulating the migration of natives
from or to any particular area or arears under his jurisdiction;
(u) prohibiting, restricting, regulating or requiring to be done any
matter or thing which the Paramount Chief, by virtue of any
law or custom for the time being in force and not repugnant to
morality or justice, has power to prohibit, restrict, regulate
require to be done; and
(v) for any other purpose, whether similar to those hereinbefore
enumerated or not, which may, by Notice in the Gazette, be specially
sanctioned by the High Commissioner." (Emphasis added).
again, I am of the view that the underlined words in Subsections 8
(1) (m) and
were intended to save the customary law power of the Paramount Chief
to regulate boundaries in this country.
rate, and in so far as Section 8 (1) (v) is concerned, it is common
cause between the parties that the Paramount Chiefs demarcation
question was in fact confirmed by the High Commissioner by Gazette
No. 4339 dated 30 December 1964. This gazette is apparently
was however referred to in evidence by the Appellant's own
representative Tebelo Mohale who testified as follows under
"20. I do not deny that the boundaries made by Makafane (the
Paramount Chiefs representative) were confirmed by Gazette No.
as appears from para  infra, the evidence disclosed that as a
matter of customary law, it was the Paramount Chief
who had the power
to allocate land and demarcate boundaries. It is not open to the
Appellant to challenge this evidence on appeal
to this Court. Whilst
the meaning and import of customary law is a matter of law, the
evidence adduced to establish what the law
is, is a matter of fact
and cannot be open to challenge before us in terms of section 17 of
is a striking feature of the Appellant's case that the challenge to
the Paramount Chiefs power to demarcate boundaries was
made for the
first time on appeal before the High Court. Save for an abortive
attempt in 1962 when the Appellant was held to have
sued the wrong
party, at no other time
period of 63 years, as I observe, was such a challenge raised. More
importantly, it was not raised during the pleadings
at the trial.
almost a century ago in Cole v Government of the Union of S.A. 1910
AD 263 at 273 Innes J (as he then was) expressed himself
"But where a new law point involves the decision of questions of
fact, the evidence with regard to which has not been exhausted,
where it is possible that if the point had been taken earlier it
might have been met by the production of further evidence,
Court of Appeal will not allow the point to prevail. Because it would
be manifestly unfair to the other litigant to do so."
approach was approved by the Full Bench in Union Government v Harkins
1944 AD 556 at 560 as well as this Court in Vincent Moeketse
Attorney General C of A (CIV) No,5 of 2003 (unreported).
approach therefore, I am of the view, based on the facts, that it is
possible that if the "point of law" now advanced
Appellant had been taken earlier at the trial it might have been met
by the production of further evidence. It is thus necessary
briefly to the facts.
full facts of the case have been comprehensively set out in the
judgement of the court a quo and it is thus strictly unnecessary
recite them except in so far as is necessary for the determination of
this case. These have largely to do with the chronology
relevant events leading to this appeal. They are indeed common cause,
as even the Appellant's own witnesses could not
dispute them at the
27 May 1941, as previously mentioned, the Paramount Chief allocated
the disputed area North of the mountain through the
Makafane Lehloenya Jobo Nthoana, Lejone Tlali, Chief Tsibane
Ramarothole, Letsatsi Maoela and the Deputy Administrator
referred to by the witnesses as Mari but whose true name was
24 March 1962, the Appellant's predecessor in title, Tebelo Sebili,
"sued" the Respondent for the same boundary
committee of the College of Chiefs in CC13/1961. The committee
comprised the following members: Mopeli Jonathan Molapo
Chief Seeiso Mokotoko, Chief Luis Sechaba Moletsane and Suping
Lehloenya as Secretary. Not
the Appellant's predecessor in title lose the dispute but he was also
ordered to "respect" the decision of the
dated 27 May 1941 which still stood unaltered.
30 December 1964, the disputed boundary was duly published by the
High Commissioner in Government Gazette No.3449, Legal
Notice 137 of
the same year.
14 December 1972, a delegation from the Ministry of Interior was
dispatched to execute the Paramount Chiefs decision of
27 May 1941.
The delegation consisted of Majakathata Phamotse, Chief Tjama
Makimane on behalf of the Principal Chief of Likhoele,
Matseletsele, Matheantsi Maputsoe and Mphanya Lehloenya who
represented the Chief of Thabana Morena. The Appellant's predecessor
in title was again ordered to respect the Paramount Chiefs decision
Similarly, On 16 December 1983, the Principal Chief of Likhoele made
a decision that the Appellant's predecessor in tittle,
Mankhahle at that stage, should "respect" the order of the
Paramount Chief dated 27 May 1941.
is evident from the aforegoing chronology of events that the
Appellant's predecessors in title have never challenged the
Chiefs decision of 27 May 1941 allocating the disputed area to the
Respondent. As previously indicated for that matter,
Appellant nor his predecessors in title have ever challenged the
authority of the Paramount Chief to make the decision
is further evident from his second ground of appeal that the
Appellant is seeking to rely, on appeal, on an unpleaded claim
the Paramount Chief had no authority in the matter. Put differently,
the Appellant is now seeking to make a new case on appeal
did not advance before the trial court.
the avoidance of doubt, the record reveals that at the trial before
Ramokoatsi Central Court, the Appellant's predecessor
in title who
was plaintiff thereat pleaded her claim as she was obliged to by
and Procedure) Legal Notice 21 of 1961 Rules in the following terms
" I dispute my area, which was wrongly taken from me. Because
there was no dispute for these (sic) area. It was taken by Makafane
Lehloenya and allocated it to Tumo Qamako the defendant's father."
She then "place[d]" Tebelo Mohale to conduct
her case. Not
once did the latter seek to challenge the authority of the Paramount
Chief to make the decision in question. On the
specifically directed his challenge at Makafane Lehloenya in
cross-examination. Moreover, he is recorded on page 6
of the record
as having given the following material answers in that regard:-
"5. The boundaries were made by Chief Makafane Lehloenya.
was the messenger of the Paramount Chief.
was not directed by the Paramount Chief.
letter from the Paramount Chief should be there if he was
ordered/directed by him."
following answers by Teboho Mohale under cross-examination prove
clearly, in my view, that the Appellant simply regarded the
Chief's decision as Makafane's decision as the learned Acting Judge
"11. The decision made by Chief Makafane was not respected.
Because even now it is still in dispute.
decision says between Chief Teboho Sebili and Tumo Qamako, Chief
Tebelo should live on the South of this area and Tumo Qamako
were no Land markings or a stone.
believe Thabana-morena is a mountain, which was mentioned that the
other live on the North of it. And the other one on the East
did know and made the boundaries.
Paramount Chief has the power to demarcate boundaries through
Paramount Chief has not set the boundaries.
not deny that the paramount chief set the boundaries in 1952.
not deny that he did not make the decision.
not deny because I was not there.
I do not
deny that the boundaries made by Makafane were confirmed by Gazette
No 4339 dated 30.12.1964.
22. A gazette is the Law.
23. Even though this boundary was gazetted it is not legal. This
boundary is not Legal even though it was gazetted.
24. I do not deny that the messenger (sic) of this court, Chief of
Likhoele and Chief of Thabana-morena accomplished that judgement.
25. I do not deny that Chief of Likhoele and district secretary
accomplished this judgment.
26. Makafane's order said Tebelo his power is on the North, while the
defendant in on the South."
Mohale's answers from the court's questions continued in the same
"1. Chief Makafane's decision took part of Chief Tebelo Sebili's
is the first time that the plaintiff dispute this area.
believe that Makafane personally make this gift (the boundary
decision in question) and he was not wearing the Paramount Chiefs
is important to bear in mind then that in so far as the authority of
the Paramount Chief is concerned, Tebello Mohale is
having said the following under cross-examination:-
"16. The Paramount Chief has the power to demarcate boundaries
Indeed this view was supported by Appellant's witness Samuel Mokone
who testified as follows under cross examination:-
"14. The Paramount Chief is the one who has the right to
It was no
doubt precisely for that reason that the Paramount Chiefs messengers
included one Murray who, as will be recalled, was
Administrator of Mafeteng. This in my view, is support for the
proposition that the High Commissioner was involved in
demarcation in question.
the Appellant is precluded from now challenging the authority of the
Paramount Chief is clear from such cases as Frasers
Lesotho Limited v
Hata-Butle (Pty) Ltd 1999 - 2000 LLR& LB 65 (LAC) at 68.
Malerotholi Josephine Sekhonyana & Another v
Standard Bank of
Lesotho Ltd 1999 -2000 LLR & LB 416 (LAC) at 420 - 421. The
of the Lesotho National Olympic Committee v Paul Motlatsi Morolong C
of A (CIV) No. 26 of 2001 (unreported).
main principle stressed by these authorities is that it is in
particular wrong to direct the attention of the other party
issue and then attempt to canvass another. In my view, it is
particularly wrong to do so for the first time on appeal as
remains then to say that, as a matter of policy, it would be wrong
for this Court to allow the Appellant to effectively
open a can of
worms, so to speak, after 64 years since the Paramount Chief's
decision in question. Although each case must admittedly
its own facts, this would in my view most probably lead to confusion
and uncertainties over similar boundaries throughout
the country with
disastrous results. It would undermine law and order and to prevent
all of these is the fundamental function of
this Court. The
Appellant's inordinate delay in challenging the Paramount Chief's
decision in these circumstances was rightly held
to adversely affect
any rights he might have had.
of law on which the Appellant was granted leave to appeal cannot
therefore be upheld and the appeal should be dismissed.
the result, the appeal is accordingly dismissed with costs.
at Maseru, this 20th day of April 2005.
APPELLANT : MR K.K. MOHAU
RESPONDENT : MISS L.V. MOCHABA (ASSISTED BY MR S.T. MOSHOESHOE)
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