IN THE HIGH COURT OF
HELD AT MASERU CIV/APN/115/06
In the matter between:-`MALIBAKISO
SALAE OROPENG LETSIE 1ST RESPONDENT
NKARABI LILLANE 2ND RESPONDENT
MAAMA MAPOKI 3RD RESPONDENTMINISTER OF
HOME AFFAIRS &
CHIEFTAINSHIP AFFAIRS 4TH RESPONDENT
ATTORNEY GENERAL 5TH RESPONDENT
Delivered by the Honourable Acting Judge M. MahaseOn
the 23rd February 2007
This is an application for rescission and other relief
includingthe substitution of the applicant in the place of her
latehusband as the respondent. The application was filed on
anurgent basis when it came to the notice of the applicant
thatthe main application is CIV/APN/169/97 had been finalised.
The applicant is a widow of the late Chief Seqobela
SalomoneMohale. The said Chief Seqobela Salomone was the
1strespondent in the main application, to wit
It is a matter of common
cause that according to annexure Aherein attached, the
parties were:-Salae Oropeng Letsie - Applicant
Seqobela Salomone Mohale - 1st Respondent
`Mapoho Lillane - 2nd Respondent
Marakabei Mapoki - 3rd RespondentMinistry
of Home Affairs and
Chieftainship Affairs - 4th Respondent
Attorney General - 5th Respondent
Also according to the court order dated the 4th
June, 1999Mrs. Kotelo represented the applicant while Mr.
Lesuthurepresented the 1st respondent. There is no
indication as towhether or not the 2nd up to the 5th
respondents wererepresented by any counsel herein.
It was subsequently ordered as follows by His Lordship
theHonourable Mr. Justice M. L. Lehohla (as he then was)
a) The fourth respondent is ordered to desist from
holdingsecond respondent as the Chief/Headman of HaRalillane.
b) First, third and fourth respondents are ordered to
from interfering with
applicants administration of HaRalillane by way of holding
second respondent as theheadman of Ha Ralillane.
c) First and third respondents are ordered to desist
interfering in any manner whatsoever, with
applicantsadministration of Tsoelike.
d) Second respondent is ordered to disist from reserving
grazing land and opening land for grazing, as well
asimpounding stock belonging to applicant and hispeople of Ha
Ralillane, Motalane, Tsoelike and Khohloea Ha Koaela, up to
Selomong se Sefubelu, which fallunder applicants jurisdiction
as per the findings ofthe 1984 Boundaries Committee.
e) First respondent is ordered to pay the costs of
It is clear from the above that actually the 1st
respondent whowas husband of the applicant herein had lost that
case to thenow 1st respondent (applicant in
CIV/APN/169/97). In otherwords the court order which was issued
against the latehusband of the present applicant was
issued/obtained infavour of the present 1st respondent
some seven years ago todate and or that this application
CIV/APN/115/2006 wasfiled before this court some seven years ago
since the matter
was laid to rest, and it
was filed on urgent basis.
Now the question is, what has been happening between the
4thJune 1999 and the 15th March 2006 in the
administration ofthe areas in question when the said annexure A
was issuedand when this present application was lodged by the
presentapplicant? Has there been a vacuum?
The importance of this question is that the court is
trying tohighlight the fact that it can not in all seriousness
andhonesty be argued that the present applicant was not aware
ofthe order of this court referred to above dated the 4th
June1999. What the applicant is saying vide paragraph 8 of
herfounding affidavit, is that she became aware of the existence
ofthe order of this court dated the 20th February 2006
i.e.some seven (7) years since this order was issued. Can
In explaining why it is that she is coming to court now
andasking this court to condone her delay; she says she is
elderly,very sickly and destitute. There is nothing explaining
how oldshe is; how sickly she is; neither has she annexed any
proof i.e. medical proof showing how sickly she is. Neither
does shesay that Mr. B. M. Khasipe who has previously been
handlingthis matter on behalf of her late husband has refused to
do sountil he has been paid his fees, which she can not afford
because of being
destitute. Neither does she say why she didnot brief the Legal
Aid which is empowered to representdestitute/indigent people.
Applicant does not say that her late husband died before
orafter the 4th June 1999. She only says that her late
husbandhad been blind for six years in 1999 and that she
wastherefore his eyes and that she kept documents for him. Sheis
not supported in this regard by anybody, not even by herhusbands
lawyer Mr. B. M. Khasipe.
In essence what the present applicant is seeking before
thiscourt is that the final order of this court which was issued
onthe 4th June 1999 per his Lordship, the Honourable
Mr.Justice M. L. Lehohla (as he then was) be rescinded.
Videparagraph 12 of her founding affidavit.
The application is being opposed by the 1st
respondent only,because he is the only one who has actually filed
an opposingaffidavit. This is so because the notice of intention
to opposedated the 21st March 2006 has been signed by
V.V.M. Kotelo& Co. Respondents Attorney.
It is not written respondents attorney. In any case
she cannot represent the 4th and 5th
respondents who by law are to berepresented by the Attorney
General. In opposing this
application, the 1st
respondent has raised some points inlimine; vide page 4 of his
opposing affidavit. They are asfollows:
1 That contrary to be Provisions of Rule 8(22) of the
HighCourt Rules, applicant has not filed a certificate
ofurgency. It is argued that, this being mandatory, itcan not
be derogated from and that all legalpractitioners are to adhere
to it; failing which seriousprejudice is suffered by the other
party. It wassubmitted that the applicant has no grounds
forrescission and she has merely lodged this applicationto
delay the course of justice.
1 That this application is irregular and is improperly
this court because all the annexures attached
hereinhave not been stamped (N.B. No Rule of this Court hasbeen
2 The Notice of Motion is not dated. (But I note that
one before the courts file is dated the 15th
3 That where applicant has failed to attach a
Urgency, the Rules require that an application movedon
urgency should afford the other party a three (3)days notice of
This, the applicant
failed to do and she has also dismallyfailed to motivate her
application with reasons that warrant ofurgency. It is on the
basis of the above points raised in liminethat the 1st
respondent has prayed that this application forrescission of the
order of court dated the 4th June 1999 bedismissed
It is apposite to mention that on the day of the hearing
of thismatter Mr. Mohau who represents the applicant moved
anapplication that he be allowed to clarify to this court
aboutwhat may have happened to the certificate of urgency
whichhe alleges was duly filed together with the Notice of
Motionherein or which was filed shortly thereafter.
He moved this application in terms of the provisions of
Rule 59of the Rules of this Court. This Rule provides that:- (I
Notwithstanding anything contained in theseRules
the court shall always have discretion, if itconsiders it to be
in the interests of justice, tocondone any proceedings in which
theprovisions of these Rules are not followed.
He argued that it was important that he be heard in
thisregard because the case affects public rights and the parties
rights to administer the
areas in question. Ms. Hoohlo whoappears on behalf of the 1st
respondent did not oppose theapplication in so far as the
Certificate of Urgency having notbeen filed.
She however prayed to argue fully all the other points
raisedin limine. She submitted that the issue/matter with regard
topublic interest which counsel for applicant has alluded to
inhis address to court, has never been raised in the
applicationfor condonation of the late filing of the application
Be that as it may, at the end of the day counsel for the
partiesherein agreed that the matter be argued fully even on
themerits. Consequently Mr. Mohau submitted that this
courtshould invoke the Provisions of Rule 45(1)(a) because, so
heargued, the said order dated the 4th June 1999
waserroneously granted. He argued that had the court
whichgranted that order referred to above, addressed the
pointsraised in limine in that CIV/APN/169/97, it would not
havegranted the order by default against the then 1st
respondent(the late husband of the present applicant).
It is his contention that there is no notice of set down
ofCIV/APN/169/97neither has the Deputy Sheriff whoallegedly
served it upon the 1st respondent or the applicant
herein been bold enough
to come to court to testify that hehas indeed served same either
upon the 1st respondent and orupon the applicant.
It is noted that there is no proof of service of such a
Notice ofSet Down of this CIV/APN/169/97 upon the 1st
respondentnor upon his wife now applicant herein. There is
noallegation nor a submission that such a notice of set down
forthe hearing of that application CIV/APN/169/97 was
evereffected. All that has been placed before this court
isannexure A i.e. the court order dated the 4th
The said Rule 45(1) cited herein and relied upon by Mr.
Mohauin support of this application provides as follows:- (I
1. The court may, in addition to any other powers it
mayhave mero motu or upon the application of any partyaffected
rescind or vary
a) An order or judgment erroneously sought
orerroneously granted in the absence of any otherparty
45(1) (b):- an order or judgment in which there is
anambiguity or a patent error or omission, but only tothe
extent of such ambiguity, error or omission.
He submitted therefore
that the order of court dated the 4thJune 1999 was
granted by error for the reasons that:-4 Salae Oropeng Letsie
(1st respondent) is not a gazetted
chief or a headman and as such he lacks locus standi
to dispute boundaries;
5 In terms of the chieftainship laws matters of boundary
disputes are dealt with administratively through
aboundary disputes committee, and there is no waysuch
disputes could be referred for Judicial settlementbefore they
have been dealt with administratively;
(It is noted that no specific section of the
Chieftainship Act iscited).
6 The late Seqobela Mohales father, Salomone Mohale
by the decision of the Paramount Chief of 4th
July1944, confirmed to be the chief of Ha Ralillane.
I note however that although applicant has said thatshe
has attached annexure D to demonstrate theabove, there is,
no such annexure attached herein.The relevant/correct and
attached annexure isannexure B.
7 The late Seqobela
Mohale successfully sued Mapoki
Mapoki over the area of Ha Ralillane in CC38/68 andthat
judgment was never undone see annexure Chereto.
It is the applicants story that she learned that a
defaultjudgment had been granted against her late husband on
the20th February 2006. She then filed the present
application onthe 15th March 2006 i.e. about 18
days later since this factcame to her knowledge.
The applicant has further submitted that her late
husbandnever got to know about the 4th June 1999 as
the day inwhich the application in CIV/APN/169/97 was set down
forhearing. It is her story that her late husband was not
inwillful default because neither him nor her had ever
beeninformed by the then attorney of her late husband that
thesaid main application had been set down for hearing.
Shedenies that her late husbands attorney Mr. Khasipe
hadforsaken him (her husband).
It is her submission that neither her late husband,
herself norher late husbands attorney were served with a
notice of setdown of the main application. She has alluded to the
fact thathaving been her late husbands eyes vide paragraph
her founding affidavit)
whose duty was to keep documentsmeant for him, she would have
known about that notice of setdown and she would have forwarded
it to his attorneys.
This fact has not been gainsaid by the 1st
respondent. He hasindicated that the applicants story has a
discrepancy, but hedoes not address the averment alluded herein
by theapplicant. 1st respondent has not admitted nor
denied thatindeed the applicant was the eyes of her late husband.
This coupled with the fact that the 1st
respondent has notrefuted the allegation that no notice of set
down of the saidmain application in CIV/APN/169/97 for hearing on
the 4thJune 1999 has been annexed to this papers
somewhatweakens the 1st respondents case. 1st
respondent has alsonot pleaded issuably to the applicants
paragraphs 12, 13 and14 of her founding affidavit.
In brief, most of the points of law raised by the 1st
respondentin his heads of argument are of a technical nature. I
need notdeal with the issue of non compliance with the Provisions
ofRule 8(22) (c ) as this was abandoned.
8 The issue pertaining to non-entry of date to move
thisapplication:-While this court does not question the
the arguments advanced
herein, it realizes, howeverthat what is alleged thereat is not
supported or bornout on the papers filed with the Registrars
office onthe 15th March 2006.
It is clearly shown/indicated thereat that
Anapplication will be made to court on the 17th
March2006. The only thing that is not reflected therein isthe
exact time when the application will be movedbefore court.
9 Inadmissibility of hearsay evidence:- There is a
confusing scenario due to the fact that while
theapplicant says that her late husband was representedby Mr.
Khasipe, the order of court dated the 4th June1999
reflects that the said applicants late husbandwas represented
by Mr. Lesuthu. Not only that; Mr.Khasipe has filed an affidavit
in support of theapplicant that he was the applicants late
husbandsattorney page 32 of the record.
Mr. Lesuthu has not filed any affidavit explaining his
role ormandate with regard to the main application
inCIV/APN/169/97 and in particular how it came about thathe
suddenly appeared on behalf of the applicants late
husband on the 4th
It is further noted that if indeed Mr. Lesuthu had
appeared onbehalf of the applicants late husband on the 4th
June 1999when the alleged default judgment was entered against
theapplicants late husband; then the judgment was not
enteredby default due to none appearance by an attorney on behalf
ofthe applicants late husband.
Regrettably, the file in CIV/APN/169/97 has not been
availedto this court, as such it is not clear from the papers
nowbefore court, how Mr. Lesuthu came to appear on behalf
ofSeqobela Salomone Mohale. Neither has Mr. Lesuthu filedany
affidavit explaining how he came to appear for the 1strespondent
in the said main application.
This court is aware that nowhere does applicant in
theinstant case allude to Mr. Lesuthu as ever having beencounsel
for her late husband at any stage of the proceedingsin the main
application. Be that as it may, it is clear that theapplicant has
been exercising the administrative functionswhich were previously
exercised by her late husband on theareas in question until on
the 20th February 2006 when shelearned for the first
time in a meeting that was held at theoffice of the Thaba Tseka
district administrator about thedefault judgment in
This she has set out in
paragraph 8 of her founding affidavit.Following that revelation,
she took steps to apply as she hasdone within 17 days from the
20th February 2006. The 1strespondent has
told this court that he has already executedjudgment in the said
main application, when it came to theknowledge of the applicant
that her late husband had lost thecase in the main application.
The 1st respondent does not say how he has
executed thatjudgment nor does he say when he did so. It is clear
from thereading of the applicants paragraph 8 of her founding
affidavitthat until on the 20th February 2006 she was
administeringthe areas in question without any hindrance from the
Now, the question is if indeed the 1st
respondent had obtaineddefault judgment against the applicants
late husband as farback as the 4th June 1999, what has
he been doing untilFebruary 2006? The gist of the applicants
case is that sincethe (1st respondent) is not a chief
or headman according to therelevant chieftainship laws, he had no
right to have filedCIV/APN/169/97. Also that even then, the
procedure which1st respondent has adopted in matters
involving boundarydisputes is wrong.
respondent has not addressed the said two issueswhich are very
important regard being had to annexure Band C herein.
While 1st respondent has a right to raisepoints in
limine, which are of a technical nature, he hascompletely ignored
what this court considers to be veryessence or the gravamen of
the whole application.
There is no indication on papers filed herein that
theapplicants late husband was ever served with a Notice of
SetDown in CIV/APN/169/97, neither is there any indicationthat
the then applicants husbands lawyer was also everserved
with such a notice and was therefore aware that thesaid main
application would be prosecuted on the 4th June1999.
Also and most importantly, there is more than ample
evidencethat the disputed areas, subject-matters in
CIV/APN/169/97and CIV/APN/115/2006 have long been the cause of
conflictbetween the applicants late husband- (1st
respondent inCIV/APN/169/97) and applicant therein but that in
all thevarious courts and tribunals referred to in annexures B
andC the applicants late husband prevailed as the courts
foundin his favour. There is evidence that no appeals were
everlodged by the other respondents and that indeed the area(s)
inquestion fall to be administered by and or fall under
thejurisdiction of the applicants late husband.
Judgments and or
decisions in the said annexures date backbetween 1944 and 1969
and indeed the averments ascontained in paragraph 12 of the
applicants founding affidavithave not been gainsaid by the 1st
For the foregoing reasons, this court has come to
theconclusion that it is in the best interests of justice,
regardbeing hand to the nature of the disputes herein and also
tothe Provisions of Rule 45(1) (a), that the application
mustsucceed and it is granted as prayed with costs to the
applicantonly as against those respondents who have filed
noticesopposing this application.
It is also ordered specifically that the people referred
to inprayers 2 (c ) should be served with this order so that they
canbe aware of the ruling herein. This will not only inform
themof this ruling but it will give them an opportunity to defend
thematter should they wish to do so.
For Applicant : Mr. Mohau
For 1st Respondent : Ms. Hoohlo
For 2nd to 4th Respondent :
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