CIV/APN/48/88
IN THE HIGH COURT OF LESOTHO
In the matter of:
CHIEF NKHAHLE MOHALE Applicant
v
THE MINISTER OF INTERIOR & CHIEFTAINSHIP
AFFAIRS 1st Respondent
THE ATTORNEY-GENERAL 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 2nd day of November 1988
This is an application by Notice of Motion in a chieftainship dispute. The applicant has asked for an order as follows:
Directing the first respondent to desist forthwith from interfering in any manner with applicant's exercise of right of designating any person from among his subjects (to act as his bugle) through whom he administers the area of Pontseng.
Directing first respondent to recognise one Mopeli Nkhahle Mohale as applicant's representative through whom he administers the area of Pontseng and/or to accept applicant's
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nomination of the said Moreli Nkhahle Mohale as his representative through whom he administers the area of Pontseng.
The applicant is the Principal Chief of Tajane Pontseng and Ramoetsane. Pontseng is in Mohale's Hoek District, although Tajane, where the applicant is stationed, is in Mafeteng District. There is no gazetted headman in Pontseng and the applicant declared that he had been administering that area though ungazetted customary headmen or bugles nominated since he assumed office.
In 1974 he nominated one Jobo Mohale whom he referred to as Chief Jobo Mohale and who was paid a. monthly stipend. He died in December 1986 and the applicant wrote to the District Secretary on 5 February 1987 a letter which was not annexed. Apparently the applicant had indicated his belief that a committee or other chiefs or the public should appoint or nominate a successor. This was rejected by the Administrative Officer who wrote to him on 13 February 1987 (annexure 'A' of the Founding Affidavit) and referred him to section 11 of the Chieftainship Act 1968 which requires the chief himself to nominate his representative at Pontseng.
On 19 February 1987 the applicant wrote again to the District Secretary (Annexure 'A' of the Answering Affidavit) as follows:
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Acting in accordance with section 11(1) of the Chieftainship Act No.22 of 1968, I hereby declare that I have nominated my eldest son Chief Mopeli Nkhahle Mohale as Chief of Pontseng. I declare that I made the necessary announcement before the chiefs and subjects of Pontseng on the 31st January 1987.
I thank you for the step you will take in bringing this nomination to the attention of the Minister of Chieftainship Affairs.
Gazette No.22, Government Notice No.87 of 19 78, 19th day of May which declared Chief Sekake Mahanyapa as Chief of Pontseng must be accordingly cancelled.
On 4 June 1987 a savingram was sent from the Ministry (1st Respondent) to the District Secretary, Mohale's Hoek (annexure 'B' of the Founding Affidavit) to the effect that the above nomination was unacceptable and that the applicant was to be informed immediately to stop his son Mopeli Mohale from performing the duties of the Chief of Pontseng. The reason given was based on the earlier decision of this Court in 'Mamonica Mohale v Mopeli Mohale CIV/APN/109/81 (unreported) per Rooney J. in March 1982 in which the respondent was the same Mopeli Mohale who is named as the applicant's son in the present application. In the 1981 application among other matters that the Court was asked to decide was that the said Mopeli Mohale was not the legitimate son of the present applicant. Rooney J. declined to do
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so on the ground that some parties with an interest in the matter were not before the Court, nor even joined in the action. However the judge added: "Until he has established his legitimacy he can set up no rights of succession against the applicant" ('Mamonica Mohale). Since it appears from that judgment that the marriage of Mopeli's mother with the present applicant was bigamous, he would clearly have a very hard job to prove his legitimacy. That was apparently the reason why, in the present case, the applicant's nomination of his son Mopeli as chief of Pontseng was rejected by the first respondent according to the affidavit of Chief Qobete Letsie, the Chieftainship Officer in that Ministry.
In his letter nominating his son Mopeli as Chief of Pontseng (supra) the applicant clearly based it upon s.11 of the Chieftainship Act, 1968 which in fact deals with the nomination and presenting of a successor to the office of chief to take effect after the death of the chief. This apparently was not the applicant's intention at all. It now seems that he only wanted to appoint Mopeli to act on his behalf during the applicant's lifetime. If that was so then he should have nominated him under s.13 of the Act. Section 13(3) provides that:
Subject to the provisions of section 5, the holder of an office of chief may either generally or from time to time as occasion may arise, and subject to authorisation under the provisions of section 5 and to such conditions and
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limitations as he may impose, designate the person who is to exercise any of the powers and perform who is to exercise any of the powers and perform any of the duties of that office; and the person so designated may subject to the provisions of section 5, exercise those powers and perform those duties, subject to those conditions and limitations.
It will be observed that in this short subsection the fact that it is subject to the provisions of section 5 is mentioned three times, so it is obviously regarded as being very important. Section 5 is a very long section with 13 sub-sections and I shall not set it out here. It deals with matters concerning the authority and duties of chiefs and disputes over areas of authority and so on. Perhaps the most relevant part is s.5(l) which provides that:
No person is a Chief unless he lawfully holds an office of Chief acknowledged
by Order 26 of 1970, or unless his succession to an office of Chief has been approved by the King acting in accordance with the advice of the Minister.
There are other provisions requiring that the Minister be informed of the name of anyone authorised to perform duties in the absence of the Chief. It seems to be clear from this that appointments and nominations are subject to approval.
However, this is contrary to the contention of the applicant. In his Founding Affidavit and in Mr. Mda's
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Heads of Argument there is no mention of the Chieftainship Act at all, let alone the relevant and important sections 5, 11 and 13 referred to above. Instead the applicant relied on various case decisions, the main one being Molapo Mothuntsane v Thoso Jakobo & 2 Others, CIV/APN/15/82 (unreported). This was also a chieftainship dispute and the third respondent was the Minister of the Interior. It also concerned the nomination and appointment of a bugle. The applicant in it claimed that he was free to appoint anyone as a bugle through whom he could administer any of his villages.
The case came before Mofokeng J. in March 1982 and in his eight-page judgment the learned Judge went into the background of the matter in some detail. But unfortunately at no time did he refer to the relevant sections of the Chieftainship Act 1960. In fact the only passing mention of the Act made was to suggest that it interfered with the position of traditional chiefs and so it should be amended. The judgment in fact appears to have been used to set out the learned Judge's views on the relevant customary law regarding chieftainship with references to some of his own earlier, unreported, decisions. Mr Mda relied particularly upon the following passage from it:
If the chief enlists the help of a few of his men to assist him in the better administration of his subjects, his hands must not be tied by (the courts)
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until he remains but a mere figurehead. If the law allows him a free hand in such matters artificial difficulties must not be placed in his way. It is such trite rule of law of the Basotho that bugle-ship is not hereditary. A chief is free to choose a bugle from among his subjects. This rule of law is so well-known. (He then referred to some of his own earlier decisions).
It appears that the applicant was misled by this passage into believing that his nominations or appointments in such matters were final, whereas they are always suject to the provisions of the Act as we have seen above.
Mrs Ntsonyana for the respondents submitted that while they accepted that the applicant has the right to appoint and nominate successors and acting positions in his chiefdom, such nominations and appointments should be made in accordance with the Chieftainship Act. In my opinion that is the correct position in Law. She added that Mopeli Mohale in any case had no right to be nominated because under s.13 he had no prior right of succession to the post of chief.
There is no doubt that the applicant in his letter of 19 February 1987 (annexure 'A' of the Answering Affidavit and quoted above) nominated his son to be Chief of Pontseng. There was no mention of his being merely a bugle or the equivalent as asserted in his Notice of Motion before this Court. But, in any
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case, even if the nomination was to be that of bugle, , it would still have to be in accordance with section 13(3) of the Act (set out above) which makes the appointment "subject to authorisation under the provisions of section 5."
That is the law on the matter and the applicant cannot get round it. Indeed Mr Mda conceded that point at the end of the hearing. The first respondent, the Minister, has a duty imposed on him to see to it that Chieftainship Affairs are managed and administered properly and in accordance with the law. It is not for the Court to tell him how to do this or to interfere with his administrative decisions unless he acts outside of the law. In this instance I cannot find that he has done so.
Accordingly this application is dismissed with costs.
P.A.P.J. ALLEN
JUDGE
2 November 1988
Mr Z. Mda for applicant
Mrs Ntsonyana for respondents
