CIV/T/381/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of

KAFORE
MOHALE Plaintiff

v

TSEPO
NKUEBE 1st Defendant

MORERO
MOHALE 2nd

HAREENG
TSEPO 3rd

MINISTER
OF INTERIOR 4th

SOLICITOR-GENERAL
5th

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 10th day of October
1988

This is a
suit brought by the plaintiff for a declaration that he is entitled
to the headmanship of ha Motjoli, Mapholi in Outhing
District and
that he should be so gazetted. The second defendant contended that he
had been duly nominated as the lawful successor.
The remaining
defendants appear to be nominal defendants only and they took no part
in this matter. The parties have agreed to
a special case being
adjudicated by the Court under the provisions of rule 32 of the High
Court Rules.

It is
apparently common ground that the late Motjole Mohale was the headman
of Mapholi until he died in May 1970. His eldest son
was Molisana
Mohale and his fourth son was Kafore Mohale, the present plaintiff.
The eldest

2

son, the
late Molisana Mohale did not take up the chief­tainship and he
chose to live somewhere else. During part of that period
the
plaintiff acted as headman.

When
Molisana Mohale died, his eldest son, the present second defendant,
was the rightful successor. However, the plaintiff's contention
is
that the second defendant's father abandoned the headmanship by
becoming an ungazetted headman in another place called ha Makoae.

However, it is clear from section 5(1) of the Chieftain­ship Act
1968 that a person is not recognised in law as a chief until
he has
been gazetted as such.

The
question to be decided is whether the second defendant is
disqualified from succession if his father lived under another chief

and possibly acted as an un­gazetted headman. Was this an
abandonment of this right to succeed and, if so, would it disqualify

his son, the second defendant?

First it
is clear from section 10(5) that in law the only disqualification
from suceeding to the office of chief is if the person
concerned is
not a citizen of Lesotho (see also Malefetsane Matala v D. Peete
CIV/A/18/77 per Mofokeng J, unreported). There is
no provision made
in the statute for disqualification for any other reason. Thus, it
would appear that merely by going to live
in another area, a person
would not necessarily be disqualified from succeeding to a
headmanship, regardless of whether he takes
up some form of
employment or occupation in that

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new area.
I am satisfied that this is the case and that neither the second
defendant nor his father was or is so disqualified.

The
plaintiff asserted that he had been nominated to the headmanship by
the family to be acting headman of ha Motjoli and that he
had so
acted since the death of Motjoli Mphale. However, reference was made
to the decision of Jacobs CJ in Kaizer Johannes Pita
v Moorosi Pita
(19 71-73) LLR 280, in which it was held that in nominating a
successor to the headmanship, the family gathering
had no discretion
to go outside the order of succession laid down by section 10 of the
Chieftainship Act, 1968.

I agree
with that finding. It is provided in s.10 (2) that succession goes to
the first born son and from him to his first born
son. It is only
when the first born son is dead or incapacitated that any other
person would be considered for succession. Clearly
that does not
apply here. The second defendant's father, Molisana Mohale, was alive
and eligible to succeed. His own first born
son, the second
defendant, was equally eligible to succeed on the death of Molisana.
In my opinion the fact that Molisana did not
take up the office of
headman did not affect either his eligibility or that of his first
born son, the second defendant. Whoever
acted as chief in the interim
period was merely a temporary occupant of the post.

Consequently,
in law as well as on the balance of probabilities, I find that the
second defendant has a

4

better
claim to the office of headman of ha Motjoli, Mapholi than does the
plaintiff.

Accordingly,
I am not prepared to grant the decla­ration prayed for and this
claim is dismissed with costs to the second defendant.

P.A.P.J.
ALLEN

JUDGE

10
October 1988

Mr Matsau
for plaintiff

Mr Maqutu
for second defendant