HIGH COURT OF LESOTHO
'MASENTLE LETSIE 1st Respondent
'MAMABINE TSOAELI 2nd Respondent
Points in Limine
by the Hon. Mrs Justice A. M. Hlajoane on 28th May, 2007.
Application, the Applicant is asking this Court to direct the
Respondents or their agents to stop interfering with the
administrative area under the Applicant's jurisdiction save by due
process of law. Applicant is specifically asking that the Second
Respondent be directed to desist from purporting to exercise chiefly
power over the administrative area and subjects under Applicant's
jurisdiction save through the established administrative channels.
There is also a date stamp which Second Respondent is being
desist from using.
been the Applicant's case that he is the gazetted chief and or
Headman of Makhalaneng Ha Sematle, an area which falls within
jurisdiction of the First Respondent. That Second Respondent is the
customary headman and or bugle under the direct authority
on the other hand are saying that it is not true that Applicant is a
gazetted chief of Ha Sematle but mere headman in
the area. They
further content that the villages of Ha Sematle and Ha Lefeko are two
separate villages governed by two different
chiefs and Second
Respondent being one of them.
Second Respondent in her answering affidavit has raised some points
in limine, which are as follows:
application is fatally defective in as much as the Applicant has
failed to allege and prove the elements of interdict.
application is fatally defective in as much as the Applicant has
instituted action by way of motion despite the fact that
there is a
dispute of fact which cannot be resolved on papers.
is a very material non-disclosure of the material facts and as such
this application is bound to fail.
response to the points in limine raised by the Second Respondent,
Applicant in his replying affidavit had this to say:-
is saying that the point in limine is misconceived as Second
Respondent has not indicated which requisites of an interdict
not been alleged and proved. Applicant was thus expected to have
predicted as to what Second Respondent had in mind on this
rightly advised by his Counsel, Applicant indeed predicted the
cardinal elements in applications of this nature.
showed that he had a clear right to the remedy sought and that as a
lawfully gazetted chief of the area in dispute, he
had every right to
protect any unlawful encroachment upon that area.
Respondent sought to substantiate this point in her heads of
argument. She pointed out the three elements of an interdict
injury actually committed
other remedy open to the applicant to afford him any adequate
protection from the mischief and cited the case of Setlogelo
Setlogelo 1914 AD 221.
Respondent had contended that Applicant has not indicated as to when
he was appointed as a chief of Ha Lefeko and by whom
he was so
appointed as has not even attached any affidavit of somebody who
could have witnessed that appointment. She even referred
the Court to
paragraphs 1 and 5 of Applicant's founding affidavit.
1: Tsiame Machakela
"I am a Mosotho male adult and the gazetted chief of Makhalaneng
Ha Sematle in the district of Maseru and the Applicant herein."
"Second Respondent herein is Chieftainess 'Mamabine Tsoaeli, a
Mosotho female adult and widow of Makhalaneng Ha Lefeko in
district of Maseru."
herself on the two paragraphs from Applicant's founding affidavit it
has been the Second Respondent's argument that Applicant
that Second Respondent is the chieftainess of Makhalaneng Ha Lefeko
when Applicant himself is the chief of Makhalaneng
Ha Sematle. But
looking further at paragraph 6 of the founding affidavit Applicant
"At all material times herein I have been still in the gazetted
chief of Makhalaneng Ha Sematle and under the authority of
the First Respondent herein whilst the Second Respondent herein is a
"customary head" and/or bugle under my authority."
has even attached Annexure "TM7" to his replying affidavit
to indicate that he was gazetted as chief and /or
headman. He has
also attached a copy of pay slip showing that he is even being paid
by Government though it is a very faint copy.
Applicant has attached to his founding papers "TM1" and
"TM2" with their fair translations which
according to the
Applicant were judgments from Ramabanta Local Court. "TM1"
was a criminal charge against the Second
Respondent for unlawfully
exercising chiefly powers. "TM2" was contempt of Court
proceedings against Second Respondent.
She was in contempt of
judgment in "TM1" as was alleged she continued exercising
chiefly powers in violation of that
judgment in "TM1".
Second Respondent contended that "TM1" was about
adjudicating without authority, but my reading of that judgment
its fair translation clearly gives the meaning as interpreted by the
Applicant. The witnesses were the Applicant and another
evidence was based on exercising chiefly powers without authority.
Applicant was the Complainant. If the charge had been
without authority Second Respondent could have been charged under
section 21 of the Central and Local Courts Proclamation
62 of 1938.
The witnesses should have been Court Personnel and people who so
appeared before such accused.
gazettement of Applicant has to be taken as proof enough that he had
a right that had to be protected. The injury committed
by annexures "TM1" and "TM2" which judgments were
never appealed against.
other claims where if one alleges injury to himself or his right,
Applicant claiming to be a gazetted chief could not
by an award for damages. Annexures "TM1" and "TM2"
supported the Applicant in his claims.
Second Respondent also showed that Applicant failed to exhaust local
remedies by either complaining to the First Respondent
superior chief or approaching the College of Chiefs for intervention.
But that has been overtaken by events as there were
given by the Courts of Law and if violated the Courts have to be
approached for relief.
has thus satisfied the requirements of an interdict as stated above
and this point in limine fails. Dispute of fact
Respondent also contended that the application was fatally defective
by reason of the fact that it contained material dispute
which could not be resolved on papers. Even here the Court was
invited to speculate as to the alleged dispute of facts.
has invited the Court to consider Second Respondent's answering
affidavit as nothing but a bare denial of the material
the Applicant that he is a gazetted chief. Applicant supplied
authorities for the proposition that a bare denial would
rise to a genuine dispute of fact. See Mahanetsa v Mahanetsa 1995 -
96 LLR & LB 159 at 162.
attached "TM7" to his replying affidavit Applicant
submitted that though as a general rule, as Applicant was
entitled to make out its case at the replying stage, it was
permissible to offer a genuine and requisite reply to issues raised
in the answering affidavit, so long as he did not raise some new
issues not alluded to in the founding papers. He showed he only
attached "TM7" as simply providing proof of his gazettement
already alluded to in his founding affidavit but being denied
Respondent further indicated that Applicant was aware that it was
evident from the beginning that his averments would
but instead opted to go by way of motion proceedings.
was quoted in his founding papers where he had said:
"Ever since I took over the chieftainship of Makhalaneng Ha
Sematle Second Respondent has given me constant problems in governing
the area in dispute."
"In fact as far back as February 1979, Second Respondent herein
was criminally charged and convicted for offence of impersonating
has already found that here it could not be a dispute of fact as
Applicant has supplied relevant judgments against Second
which had only been given the incorrect interpretation by the Second
Respondent. The judgments as already shown were
against so that their decisions still stand.
material dispute raised by the Second Respondent related to the date
stamp. Second Respondent was said to be using a date
First Respondent has supplied to her. According to the Applicant, the
Second Respondent has no such
law to be using that date stamp on form Cs and issuing bewys for
Respondent has supported the Second Respondent in her allegations.
She has shown that in fact Second Respondent and Applicant
subjects and each a chief at his and her area respectively and both
directly answerable to her. Second Respondent has attached
answering papers Annexure "A" which was a decision by the
Principal Chief of Matsieng.
going into the contents of Annexure "A", Applicant
challenged the admissibility of that annexure relying on the
provisions of Rule 58 (1) which reads:-
"If any document is in a language other English it shall (my
emphasis) be accompanied by a translation certified to be correct
a sworn translator before being admitted as evidence before the
is couched in mandatory terms as the word shall has been used.
Annexure "A" was in Sesotho and no explanation
as to why no
fair translation was made. Subsection (2) demands
translation so certified should be the one to be deemed as prima
facie correct translation. Since there has been no explanation
non compliance with Rule 58 the Court could not in the exercise of
its discretion condone such noncompliance.
Respondent argued that the application was bound to fail by reason of
material non-disclosure. The material nondisclosure
not disclosed. It is trite law that in application proceedings each
party is obliged to disclose as much of its case
and for defence in
order to enable the other party to know with precision what case it
has to meet. Applicant cited the case of
Moletsane v Moletsane
CIV/APN/475/96 (unreported) on this point.
non-disclosure on the issue of date stamp was not material as it was
not denied by the Applicant. Again the annexure, Annexure
did not advance Second Respondent's case any further for non
compliance with the provisions of Rule 58 (1) of the
one last point which though was never raised in the papers by the
Respondents was argued during arguments on points in
Respondent contended that there has been a material non-joiner by the
Applicant in that he has not joined the offices
Attorney-General and the Ministry of Local Government.
to this the Applicant showed that a plea of nonjoinder as in
plea in abatement is a special plea which has to be
pleaded and not just take each other by surprise. The Court was in
agreement with the Applicant and went further to
say that this being
a dilatory plea which would not go into the merits of the case even
if successful even where not pleaded the
Court would still be at
liberty to raise it mero motu, even on appeal, Koen v Goosen 1968 (4)
S.A 207. Where there has been non-joinder
the Court would stay the
proceedings until the necessary party would have been joined. This
plea has to be raised timeously. In
our case since the Court became
aware that all the points in limine raised were without merit,
no point in making any decision on the question of non-joinder.
therefore dismisses all the points raised in limine, and finds that
there is merit in the present application. Costs in
Applicant: Mr Nathane
Respondents: Mr Habasisa
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