IN THE HIGH COURT OF
LESOTHO

HELD AT MASERU CIV/APN/115/06

CIV/APN/169/97

In the matter between:-
`MALIBAKISO
MOHALE APPLICANT
AND

SALAE OROPENG LETSIE 1^ST RESPONDENT

NKARABI LILLANE 2^ND RESPONDENT

MAAMA MAPOKI 3^RD RESPONDENT
MINISTER OF
HOME AFFAIRS &

CHIEFTAINSHIP AFFAIRS 4^TH RESPONDENT

ATTORNEY GENERAL 5^TH RESPONDENT

RULING

Delivered by the Honourable Acting Judge M. Mahase
On
the 23^rd February 2007

This is an application for rescission and other relief
including
the substitution of the applicant in the place of her
late
husband as the respondent. The application was filed on
an
urgent basis when it came to the notice of the applicant
that
the main application is CIV/APN/169/97 had been finalised.

The applicant is a widow of the late Chief Seqobela
Salomone
Mohale. The said Chief Seqobela Salomone was the
1^st
respondent in the main application, to wit
CIV/APN/169/97.

It is a matter of common
cause that according to annexure “A”
herein attached, the
parties were:-
Salae Oropeng Letsie - Applicant

Seqobela Salomone Mohale - 1^st Respondent

`Mapoho Lillane - 2^nd Respondent

Marakabei Mapoki - 3^rd Respondent
Ministry
of Home Affairs and

Chieftainship Affairs - 4^th Respondent

Attorney General - 5^th Respondent

Also according to the court order dated the 4^th
June, 1999
Mrs. Kotelo represented the applicant while Mr.
Lesuthu
represented the 1^st respondent. There is no
indication as to
whether or not the 2^nd up to the 5^th
respondents were
represented by any counsel herein.

It was subsequently ordered as follows by His Lordship
the
Honourable Mr. Justice M. L. Lehohla (as he then was)

a) The fourth respondent is ordered to desist from
holding
second respondent as the Chief/Headman of Ha
Ralillane.

b) First, third and fourth respondents are ordered to
desist

from interfering with
applicant’s administration of Ha
Ralillane by way of holding
second respondent as the
headman of Ha Ralillane.

c) First and third respondents are ordered to desist
from

interfering in any manner whatsoever, with
applicant’s
administration of Tsoelike.

d) Second respondent is ordered to disist from reserving

grazing land and opening land for grazing, as well
as
impounding stock belonging to applicant and his
people of Ha
Ralillane, Motalane, Tsoelike and Khohlo
ea Ha Koaela, up to
Selomong se Sefubelu, which fall
under applicant’s jurisdiction
as per the findings of
the 1984 Boundaries Committee.

e) First respondent is ordered to pay the costs of
suit.

It is clear from the above that actually the 1^st
respondent who
was husband of the applicant herein had lost that
case to the
now 1^st respondent (applicant in
CIV/APN/169/97). In other
words the court order which was issued
against the late
husband of the present applicant was
issued/obtained in
favour of the present 1^st respondent
some seven years ago to
date and or that this application
CIV/APN/115/2006 was
filed 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
4^th
June 1999 and the 15^th March 2006 in the
administration of
the areas in question when the said annexure “A”
was issued
and when this present application was lodged by the
present
applicant? Has there been a vacuum?

The importance of this question is that the court is
trying to
highlight the fact that it can not in all seriousness
and
honesty be argued that the present applicant was not aware
of
the order of this court referred to above dated the 4^th
June
1999. What the applicant is saying vide paragraph 8 of
her
founding affidavit, is that she became aware of the existence
of
the order of this court dated the 20^th February 2006
– i.e.
some seven (7) years since this order was issued. Can
that be
so?

In explaining why it is that she is coming to court now
and
asking this court to condone her delay; she says she is
elderly,
very sickly and destitute. There is nothing explaining
how old
she is; how sickly she is; neither has she annexed any
proof –
i.e. medical proof showing how sickly she is. Neither
does she
say that Mr. B. M. Khasipe who has previously been
handling
this matter on behalf of her late husband has refused to
do so
until he has been paid his fees, which she can not afford

because of being
destitute. Neither does she say why she did
not brief the Legal
Aid which is empowered to represent
destitute/indigent people.

Applicant does not say that her late husband died before
or
after the 4^th June 1999. She only says that her late
husband
had been blind for six years in 1999 and that she
was
therefore his eyes and that she kept documents for him. She
is
not supported in this regard by anybody, not even by her
husband’s
lawyer Mr. B. M. Khasipe.

In essence what the present applicant is seeking before
this
court is that the final order of this court which was issued
on
the 4^th June 1999 per his Lordship, the Honourable
Mr.
Justice M. L. Lehohla (as he then was) be rescinded.
Vide
paragraph 12 of her founding affidavit.

The application is being opposed by the 1^st
respondent only,
because he is the only one who has actually filed
an opposing
affidavit. This is so because the notice of intention
to oppose
dated the 21^st March 2006 has been signed by
V.V.M. Kotelo
& Co. Respondent’s Attorney.

It is not written respondents’ attorney. In any case
she can
not represent the 4^th and 5^th
respondents who by law are to be
represented by the Attorney
General. In opposing this

application, the 1^st
respondent has raised some points in
limine; vide page 4 of his
opposing affidavit. They are as
follows:

1 That contrary to be Provisions of Rule 8(22) of the
High
Court Rules, applicant has not filed a certificate
of
urgency. It is argued that, this being mandatory, it
can not
be derogated from and that all legal
practitioners are to adhere
to it; failing which serious
prejudice is suffered by the other
party. It was
submitted that the applicant has no grounds
for
rescission and she has merely lodged this application
to
delay the course of justice.

1 That this application is irregular and is improperly
before

this court because all the annexures attached
herein
have not been stamped (N.B. No Rule of this Court has
been
cited herein).

2 The Notice of Motion is not dated. (But I note that
the

one before the court’s file is dated the 15^th
March
2006)

3 That where applicant has failed to attach a
Certificate of

Urgency, the Rules require that an application moved
on
urgency should afford the other party a three (3)
days notice of
same.

This, the applicant
failed to do and she has also dismally
failed to motivate her
application with reasons that warrant of
urgency. It is on the
basis of the above points raised in limine
that the 1^st
respondent has prayed that this application for
rescission of the
order of court dated the 4^th June 1999 be
dismissed
with costs.

It is apposite to mention that on the day of the hearing
of this
matter Mr. Mohau who represents the applicant moved
an
application that he be allowed to clarify to this court
about
what may have happened to the certificate of urgency
which
he alleges was duly filed together with the Notice of
Motion
herein or which was filed shortly thereafter.

He moved this application in terms of the provisions of
Rule 59
of the Rules of this Court. This Rule provides that:- (I
quote)

“Notwithstanding anything contained in these
Rules
the court shall always have discretion, if it
considers it to be
in the interests of justice, to
condone any proceedings in which
the
provisions of these Rules are not followed”.

He argued that it was important that he be heard in
this
regard because the case affects public rights and the parties

rights to administer the
areas in question. Ms. Hoohlo who
appears on behalf of the 1^st
respondent did not oppose the
application in so far as the
Certificate of Urgency having not
been filed.

She however prayed to argue fully all the other points
raised
in limine. She submitted that the issue/matter with regard
to
public interest which counsel for applicant has alluded to
in
his address to court, has never been raised in the
application
for condonation of the late filing of the application
for
rescission.

Be that as it may, at the end of the day counsel for the
parties
herein agreed that the matter be argued fully even on
the
merits. Consequently Mr. Mohau submitted that this
court
should invoke the Provisions of Rule 45(1)(a) because, so
he
argued, the said order dated the 4^th June 1999
was
erroneously granted. He argued that had the court
which
granted that order referred to above, addressed the
points
raised in limine in that CIV/APN/169/97, it would not
have
granted the order by default against the then 1^st
respondent
(the late husband of the present applicant).

It is his contention that there is no notice of set down
of
CIV/APN/169/97neither has the Deputy Sheriff who
allegedly
served it upon the 1^st respondent or the applicant

herein been bold enough
to come to court to testify that he
has indeed served same either
upon the 1^st respondent and or
upon the applicant.

It is noted that there is no proof of service of such a
Notice of
Set Down of this CIV/APN/169/97 upon the 1^st
respondent
nor upon his wife – now applicant herein. There is
no
allegation nor a submission that such a notice of set down
for
the hearing of that application CIV/APN/169/97 was
ever
effected. All that has been placed before this court
is
annexure “A” i.e. the court order dated the 4^th
June 1999.

The said Rule 45(1) cited herein and relied upon by Mr.
Mohau
in support of this application provides as follows:- (I
quote)

1. “The court may, in addition to any other powers it
may
have mero motu or upon the application of any party
affected
rescind or vary –

a) An order or judgment erroneously sought
or
erroneously granted in the absence of any other
party
thereby;

45(1) (b):- an order or judgment in which there is
an
ambiguity or a patent error or omission, but only to
the
extent of such ambiguity, error or omission”.

He submitted therefore
that the order of court dated the 4^th
June 1999 was
granted by error for the reasons that:-
4 Salae Oropeng Letsie
(1^st 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
a
boundary disputes committee, and there is no way
such
disputes could be referred for Judicial settlement
before they
have been dealt with administratively;

(It is noted that no specific section of the
Chieftainship Act is
cited).

6 The late Seqobela Mohale’s father, Salomone Mohale
was

by the decision of the Paramount Chief of 4^th
July
1944, confirmed to be the chief of Ha Ralillane.

I note however that although applicant has said that
she
has attached annexure “D” to demonstrate the
above, there is,
no such annexure attached herein.
The relevant/correct and
attached annexure is
annexure “B”.

7 The late Seqobela
Mohale successfully sued Mapoki

Mapoki over the area of Ha Ralillane in CC38/68 and
that
judgment was never undone see annexure “C”
hereto.

It is the applicant’s story that she learned that a
default
judgment had been granted against her late husband on
the
20^th February 2006. She then filed the present
application on
the 15^th March 2006 – i.e. about 18
days later since this fact
came to her knowledge.

The applicant has further submitted that her late
husband
never got to know about the 4^th June 1999 as
the day in
which the application in CIV/APN/169/97 was set down
for
hearing. It is her story that her late husband was not
in
willful default because neither him nor her had ever
been
informed by the then attorney of her late husband that
the
said main application had been set down for hearing.
She
denies that her late husband’s attorney Mr. Khasipe
had
forsaken him (her husband).

It is her submission that neither her late husband,
herself nor
her late husband’s attorney were served with a
notice of set
down of the main application. She has alluded to the
fact that
having been her late husband’s eyes – vide paragraph
11 of

her founding affidavit)
whose duty was to keep documents
meant for him, she would have
known about that notice of set
down and she would have forwarded
it to his attorneys.

This fact has not been gainsaid by the 1^st
respondent. He has
indicated that the applicant’s story has a
discrepancy, but he
does not address the averment alluded herein
by the
applicant. 1^st respondent has not admitted nor
denied that
indeed the applicant was the eyes of her late husband.

This coupled with the fact that the 1^st
respondent has not
refuted the allegation that no notice of set
down of the said
main application in CIV/APN/169/97 for hearing on
the 4^th
June 1999 has been annexed to this papers
somewhat
weakens the 1^st respondent’s case. 1^st
respondent has also
not pleaded issuably to the applicant’s
paragraphs 12, 13 and
14 of her founding affidavit.

In brief, most of the points of law raised by the 1^st
respondent
in his heads of argument are of a technical nature. I
need not
deal with the issue of non compliance with the Provisions
of
Rule 8(22) (c ) as this was abandoned.

8 The issue pertaining to non-entry of date to move
this
application:-
While this court does not question the
correctness of

the arguments advanced
herein, it realizes, however
that what is alleged thereat is not
supported or born
out on the papers filed with the Registrar’s
office on
the 15^th March 2006.

It is clearly shown/indicated thereat that ………….
An
application will be made to court on the 17^th
March
2006. The only thing that is not reflected therein is
the
exact time when the application will be moved
before court.

9 Inadmissibility of hearsay evidence:- There is a

confusing scenario due to the fact that while
the
applicant says that her late husband was represented
by Mr.
Khasipe, the order of court dated the 4^th June
1999
reflects that the said applicant’s late husband
was represented
by Mr. Lesuthu. Not only that; Mr.
Khasipe has filed an affidavit
in support of the
applicant that he was the applicant’s late
husband’s
attorney – page 32 of the record.

Mr. Lesuthu has not filed any affidavit explaining his
role or
mandate with regard to the main application
in
CIV/APN/169/97 and in particular how it came about that
he
suddenly appeared on behalf of the applicant’s late

husband on the 4^th
June 1999.

It is further noted that if indeed Mr. Lesuthu had
appeared on
behalf of the applicant’s late husband on the 4^th
June 1999
when the alleged default judgment was entered against
the
applicant’s late husband; then the judgment was not
entered
by default due to none appearance by an attorney on behalf
of
the applicant’s late husband.

Regrettably, the file in CIV/APN/169/97 has not been
availed
to this court, as such it is not clear from the papers
now
before court, how Mr. Lesuthu came to appear on behalf
of
Seqobela Salomone Mohale. Neither has Mr. Lesuthu filed
any
affidavit explaining how he came to appear for the 1^st
respondent
in the said main application.

This court is aware that nowhere does applicant in
the
instant case allude to Mr. Lesuthu as ever having been
counsel
for her late husband at any stage of the proceedings
in the main
application. Be that as it may, it is clear that the
applicant has
been exercising the administrative functions
which were previously
exercised by her late husband on the
areas in question until on
the 20^th February 2006 when she
learned for the first
time in a meeting that was held at the
office of the Thaba Tseka
district administrator about the
default judgment in
CIV/APN/169/97.

This she has set out in
paragraph 8 of her founding affidavit.
Following that revelation,
she took steps to apply as she has
done within 17 days from the
20^th February 2006. The 1^st
respondent has
told this court that he has already executed
judgment in the said
main application, when it came to the
knowledge of the applicant
that her late husband had lost the
case in the main application.

The 1^st respondent does not say how he has
executed that
judgment nor does he say when he did so. It is clear
from the
reading of the applicant’s paragraph 8 of her founding
affidavit
that until on the 20^th February 2006 she was
administering
the areas in question without any hindrance from the
1^st
respondent.

Now, the question is if indeed the 1^st
respondent had obtained
default judgment against the applicant’s
late husband as far
back as the 4^th June 1999, what has
he been doing until
February 2006? The gist of the applicant’s
case is that since
the (1^st respondent) is not a chief
or headman according to the
relevant chieftainship laws, he had no
right to have filed
CIV/APN/169/97. Also that even then, the
procedure which
1^st respondent has adopted in matters
involving boundary
disputes is wrong.

The 1^st
respondent has not addressed the said two issues
which are very
important regard being had to annexure “B”
and “C” herein.
While 1^st respondent has a right to raise
points in
limine, which are of a technical nature, he has
completely ignored
what this court considers to be very
essence or the gravamen of
the whole application.

There is no indication on papers filed herein that
the
applicant’s late husband was ever served with a Notice of
Set
Down in CIV/APN/169/97, neither is there any indication
that
the then applicant’s husband’s lawyer was also ever
served
with such a notice and was therefore aware that the
said main
application would be prosecuted on the 4^th June
1999.

Also and most importantly, there is more than ample
evidence
that the disputed areas, subject-matters in
CIV/APN/169/97
and CIV/APN/115/2006 have long been the cause of
conflict
between the applicant’s late husband- (1^st
respondent in
CIV/APN/169/97) and applicant therein but that in
all the
various courts and tribunals referred to in annexures “B”
and
“C” the applicant’s late husband prevailed as the courts
found
in his favour. There is evidence that no appeals were
ever
lodged by the other respondents and that indeed the area(s)
in
question fall to be administered by and or fall under
the
jurisdiction of the applicant’s late husband.

Judgments and or
decisions in the said annexures date back
between 1944 and 1969
and indeed the averments as
contained in paragraph 12 of the
applicant’s founding affidavit
have not been gainsaid by the 1^st
respondent herein.

For the foregoing reasons, this court has come to
the
conclusion that it is in the best interests of justice,
regard
being hand to the nature of the disputes herein and also
to
the Provisions of Rule 45(1) (a), that the application
must
succeed and it is granted as prayed with costs to the
applicant
only as against those respondents who have filed
notices
opposing this application.

It is also ordered specifically that the people referred
to in
prayers 2 (c ) should be served with this order so that they
can
be aware of the ruling herein. This will not only inform
them
of this ruling but it will give them an opportunity to defend
the
matter should they wish to do so.

M. MAHASE

ACTING JUDGE

For Applicant : Mr. Mohau

For 1^st Respondent : Ms. Hoohlo

For 2^nd to 4^th Respondent :
No appearance