CIV/APN/171/2006
IN THE HIGH COURT OF LESOTHO
In the matter between:
TSIAME MACHAKELA Applicant
and
CHIEFTAINESS 'MASENTLE LETSIE 1st Respondent
CHIEFTAINESS 'MAMABINE TSOAELI 2nd Respondent
Ruling on Points in Limine
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 28th May, 2007.
In this 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 asked to desist from using.
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It has been the Applicant's case that he is the gazetted chief and or Headman of Makhalaneng Ha Sematle, an area which falls within the jurisdiction of the First Respondent. That Second Respondent is the customary headman and or bugle under the direct authority of the Applicant.
Respondents 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.
The Second Respondent in her answering affidavit has raised some points in limine, which are as follows:
This application is fatally defective in as much as the Applicant has failed to allege and prove the elements of interdict.
The 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.
There is a very material non-disclosure of the material facts and as such this application is bound to fail.
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In response to the points in limine raised by the Second Respondent, Applicant in his replying affidavit had this to say:-
On Interdict
Applicant is saying that the point in limine is misconceived as Second Respondent has not indicated which requisites of an interdict have not been alleged and proved. Applicant was thus expected to have predicted as to what Second Respondent had in mind on this point. As rightly advised by his Counsel, Applicant indeed predicted the cardinal elements in applications of this nature.
Applicant 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.
Second Respondent sought to substantiate this point in her heads of argument. She pointed out the three elements of an interdict being:-
clear right
an injury actually committed
no other remedy open to the applicant to afford him any adequate protection from the mischief and cited the case of Setlogelo v Setlogelo 1914 AD 221.
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Second 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.
Paragraph 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."
Paragraph 5:
"Second Respondent herein is Chieftainess 'Mamabine Tsoaeli, a Mosotho female adult and widow of Makhalaneng Ha Lefeko in the district of Maseru."
Basing herself on the two paragraphs from Applicant's founding affidavit it has been the Second Respondent's argument that Applicant acknowledges 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 stated thus:
"At all material times herein I have been still in the gazetted chief of Makhalaneng Ha Sematle and under the authority of
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the First Respondent herein whilst the Second Respondent herein is a "customary head" and/or bugle under my authority."
Applicant 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.
Furthermore, 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".
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Though Second Respondent contended that "TM1" was about adjudicating without authority, but my reading of that judgment and its fair translation clearly gives the meaning as interpreted by the Applicant. The witnesses were the Applicant and another whose evidence was based on exercising chiefly powers without authority. Applicant was the Complainant. If the charge had been adjudicating 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.
The gazettement of Applicant has to be taken as proof enough that he had a right that had to be protected. The injury committed as evidenced by annexures "TM1" and "TM2" which judgments were never appealed against.
Unlike in other claims where if one alleges injury to himself or his right, Applicant claiming to be a gazetted chief could not be
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remedied by an award for damages. Annexures "TM1" and "TM2" supported the Applicant in his claims.
The Second Respondent also showed that Applicant failed to exhaust local remedies by either complaining to the First Respondent as his superior chief or approaching the College of Chiefs for intervention. But that has been overtaken by events as there were already judgments given by the Courts of Law and if violated the Courts have to be approached for relief.
Applicant has thus satisfied the requirements of an interdict as stated above and this point in limine fails. Dispute of fact
Second Respondent also contended that the application was fatally defective by reason of the fact that it contained material dispute of facts which could not be resolved on papers. Even here the Court was invited to speculate as to the alleged dispute of facts.
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Applicant has invited the Court to consider Second Respondent's answering affidavit as nothing but a bare denial of the material averments by the Applicant that he is a gazetted chief. Applicant supplied authorities for the proposition that a bare denial would not give rise to a genuine dispute of fact. See Mahanetsa v Mahanetsa 1995 - 96 LLR & LB 159 at 162.
On having attached "TM7" to his replying affidavit Applicant submitted that though as a general rule, as Applicant was not 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 by the Respondent.
Second Respondent further indicated that Applicant was aware that it was evident from the beginning that his averments would
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be denied but instead opted to go by way of motion proceedings.
Applicant 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 a chief....
The Court has already found that here it could not be a dispute of fact as Applicant has supplied relevant judgments against Second Respondent which had only been given the incorrect interpretation by the Second Respondent. The judgments as already shown were never appealed against so that their decisions still stand.
The other material dispute raised by the Second Respondent related to the date stamp. Second Respondent was said to be using a date stamp which First Respondent has supplied to her. According to the Applicant, the Second Respondent has no such
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powers in law to be using that date stamp on form Cs and issuing bewys for animals.
The First Respondent has supported the Second Respondent in her allegations. She has shown that in fact Second Respondent and Applicant are her subjects and each a chief at his and her area respectively and both directly answerable to her. Second Respondent has attached to her answering papers Annexure "A" which was a decision by the Principal Chief of Matsieng.
Without 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 by a sworn translator before being admitted as evidence before the Court."
The rule 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
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that the translation so certified should be the one to be deemed as prima facie correct translation. Since there has been no explanation for non compliance with Rule 58 the Court could not in the exercise of its discretion condone such noncompliance.
Non-Disclosure
Second Respondent argued that the application was bound to fail by reason of material non-disclosure. The material nondisclosure were also 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.
The non-disclosure on the issue of date stamp was not material as it was not denied by the Applicant. Again the annexure, Annexure "A" did not advance Second Respondent's case any further for non compliance with the provisions of Rule 58 (1) of the High Court Rules.
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There was one last point which though was never raised in the papers by the Respondents was argued during arguments on points in limine. Second Respondent contended that there has been a material non-joiner by the Applicant in that he has not joined the offices of the Attorney-General and the Ministry of Local Government.
In answer to this the Applicant showed that a plea of nonjoinder as in plea in abatement is a special plea which has to be specifically 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,
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there was no point in making any decision on the question of non-joinder.
The Court therefore dismisses all the points raised in limine, and finds that there is merit in the present application. Costs in the cause.
M. HLATOANE
JUDGE
For Applicant: Mr Nathane
For Respondents: Mr Habasisa
