C. of A
(CIV) No.17 of 1987

IN THE
LESOTHO COURT APPEAL

In the
matter between :

MINISTRY
OF INTERIOR 1st Appellant

CHIEF
MASUPHA DAVID SEEISO 2nd Appellant

ATTORNEY-GENERAL
3rd Appellant

CHIEF
SENTLE MAKHAOLA

THABO
MOJELA 4th Appellant

CHIEF
MOTLOANG PHATELA 5th Appellant

CHIEF
SETLOKOANE MATETE 6th Appellant

and

CHIEF
LETSIE BERENG Respondent

HELD AT
MASERU

Coram:

SCHUTZ P.

PLEWMAN
J.A.

TRENGOVE
J.A.

JUDGMENT

Plewman
J.A.

The
Respondent in this appeal is the Principal Chief of Phamong in the
district of Mohale's Hoek. In the Court below the Respondent
applied
on motion or an order restraining the First, Second and Third
Appellants being the Honourable the Minister of Interior,
the
Principal Actinq Chief of Matsieng and the Attorney General (as
representing the Government in terms of the Government Proceedings

and Government Act 1985) from :-

2

"Implementing the decision on the boundary between (the
territorie.8 administered by) the Respondent and the 2nd Appellant

dated the 10th March, 1987."

This
relief was sought on the ground of certain (alleged) irregularities
to which I will presently refer. It seems clear that differences
with
regard to the proper deli­mitation of this boundary go back at
least sixty years. Some of the debate in this Court centered
on a
deter­mination made in this regard in 1924 and, so it seems,
varied in 1948. There are indications in correspondence forming
part
of the record that guestions have arisen in relation to this boundary
on other occassions. The Respondent and Second Appellant
are
Principal or Ward Chiefs in their respective areas. The decision of
the 10th March, 1987 is thus the latest event in what appears
to be
an ongoing saga. The First Appellant exercised his powers under
Section 8(10) of the Chieftainship Act of 1968 to appoint
an Ad Hoc
Committee to investigate the boundary in January 1987. The Fourth,
Fifth and Sixth Appellants are respectively the Chairman
and the
members of the Committee. The Report of the Committee, which
recommended changes to the boundary, is Annexure A (at page
30) to
the record and this was submitted for His Majesty's approval by the
First Appellant in terms of Annexure C (at page 34)
to the record.

In both
the Court a quo and in this Court the argument on behalf of the
Respondent has been presented on the grounds (in summary)
that the
boundary had been finally determined by a decision of the High
Commissioner

3

and the
Paramount Chief on the 24th March, 1948 in terms of Annexure D (at
page 35) to record and that, for this reason, the appointment
of the
Ad Hoc Committee was made irregularly and was "ultra vires and
misconceived". The report was also attacked on
the basis that
Commis­sioners were wrong in their findings as to certain facts
and that they gave undue weight to certain of
the evidence presented
to them. The learned Judge, Kheola J. also dealt with the matter on
the basis that it was appropriate for
him to consider whether the
Commissioners had dealt with the evidence presented to them
correctly. He differed from their views
and granted the relief sought
in the main prayers of the Notice of Motion.

There can
be no doubt that the whole question of the boundaries between these
two important wards has been a matter of contention
over a long
period of time and that the issue is a sensitive and difficult one.
The question which arises in the present case in
my view must be
decided upon a proper analysis of the relevant legislation and in
particular on the proper in­terpretation
of the Chieftainship Act
of 1968. Since the events have been played out over a far longer
period than the period over which this
Act has stood on the Statute
Book one must trace the legislation further back.

It is, I
believe, unncessary to examine the position prior to the annexation
in 1868 in terms of the Annexation Proclamation No.
14 of 1868 or,
indeed, the legislative and administrative provisions made from time

4

to time
thereafter and prior to the enactment of the Basutoland Native
Administration Proclamation No.61 of 1938. This proclamation
and
subsequent amendments thereof were incidents of a system known as
"indirect rule". This system was based on the principle
of
adapting for the purpose of local government the insti­tutions
which the Peoples of this country (then the Basutoland Protectorate)

had evolved for themselves to allow the development thereof in a
constitutional manner from the people's own past guided and
restrained
by the sanctions which they had inherited. See Explanatory
Memorandum by the Resident Commissioner July 1939. Under this system

Chiefs were not appointed but were declared in recognition of their
hereditary posts as recognized by their people. The present

Chieftainship Act is but the most recent legislation governing the
institution of Chieftainship. The history of this legis­lation

was reviewed by this Court in the case of Mikhane Magetoane vs
Minister of Interior and Others (unreported) in a judgment delivered

on the 29th January 1985 case C. of A. (CIV) No. 3 of 1984, This
judgment renders it necessary to review the legislation in less

detail than may otherwise have been necessary.

In terms
of the Native Administration Proclamation 61 of 1938, the recognition
of Chiefs and the boundaries of their wards was a
matter for the High
Commissioner in consultation with the Paramount Chief. Section 3(1)
of the Proclamation empowered the High
Commissioner to declare any
Chief for any specified area or areas. Section

3(2)

5

provided
that "the High Commissioner may after consul­tation with the
Paramount Chief at any time revoke or vary any declaration
made under
subsection (1) of this section". This appears to have governed
the position until the Basutoland (Constitution)
Order in Council of
1959. This established a College of Chiefs. In terms of Section 74(d)
a function of the College of Chiefs was
to deal with:

"The definition and adjustment of territorial boundaries of
areas within which Chiefs and Headmen exercise their powers and

perform their duties: Provided that the definition or adjustment of
boundaries or areas of jurisdiction of a Principal or Ward
Chief
shall be subject to the approval of the High Commissioner".

The
Basutoland Order of 1965 enacted the Basutoland Constitution of 1965.
The position of chiefs was governed by Section 83. Section
83(1)
afforded recognition to Principal and Hard Chiefs and other Chiefs
listed in a Schedule. Section 83(2) provided;

"Nothing in subsection (1) of this section shall prevent the
alteration from time to time, by or under any laws in that behalf,
of
the number of officers of Chief or Chiefs of anykind (other than
Principal or Ward Chiefs) or the area of jurisdiction of any
Chief
(other than a Principal Chief or Ward Chief.)".

This was
superseded almost immediately by the Lesotho Independence Order,
1966. Section 89(2) provided that the College of Chiefs
established
thereunder con­tinue to exercise the functions and duties of the
College of Chiefs under the earlier law. (This
Constitution was
suspended in 1970.) Then came 1968. Sections 5(8) (9) and(10) of the
Chieftainship Act (as it reads at present)

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are in
the following terms :

8. In
   the event of a dispute or uncertainty concerning the boundaries of
   the area of a chief the King may mero motu or upon the application

   of the Chief con­cerned determine and define such boun­daries.

   
   

9. In
   the exercise of his powers so to determine and define such
   boundaries the King shall act in accordance with the advice of the

   Minister.

   
   

10. Before
    advising the King as provided in subsection (9) the Minister shall
    consider the report of a Committee appoin­ted by
    him on an ad
    hoc basis to investigate each case."

    
    

Section
(8) above was added by Order 29/1970 section 3(b) - but the other
subsections, and subsections (11), (12) and (13) which
I have not
quoted are all as originally framed.

The
question then is what meaning is to be given to the words "dispute"
and "uncertainty" in subsection(3) and
in what capacity the
Minister acts when appointing an ad hoc committee in terms of
subsection (10). It will, from the history of
the legislation, bo
seen that bounda­ries have with the possible exception of the
1965 and 1966 provisions (if I have correctly
traced the legislation
and then only in respect of certain gazetted Principal or Ward
Chiefs) been subject to amendment and redefinition.
Even if there was
a brief period when no provision was made for the alteration of the
areas of a Principal or Ward Chief the general
pattern of the
legislation has been to allow of alterations and amendments and the
redetermination of such boundaries.

7

There can
in the circumstances be little reason not to interpret the 1968 Act
in any way other than to give the subsections quoted
above their
literal meaning. The reasons for so redefining boundaries are
governed by the words "dispute" and "uncertainty",

These words are separated by the word "or" and are thus
used to convey different notions. If (to take only one case)
a
dispute arises on the application of a Chief the Minister must, if it
is a genuine dispute, appoint an ad hoc committee. In doing
so he
acts in an administrative capacity and his discretion is limited to
determining whether or not there is a dispute. I will
assume for
present purposes that if an appointment were made (let us say) for an
improper purpose the Court could intervene in
an applica­tion to
review the Minister's action. But where no im­proper conduct can
or had been shown, in my view, the
Court has no jurisdiction to
pronounce upon the Minister's acts. Again if the Minister appointed a
committee which did not comply
with the requirements of Subsection
(11) the Court could intervene. If however, the Act is complied with
no Court can concern itself
in the matter. The committee acts
administratively and for the same reason (and subject to compliance
with subsection 12)) the
Committee may come to its own conclusion and
the Court may not substitute its findings, on the evidence before the
Commission for
those of the Commission. This in esence is what Kheola
J. did. I quote (by way of example) from page 132 of the record where
Kheola
J. states in his judgment "Although the High
Commissioner's

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Notice
No. 171 of 1939, High Commissioner's Notice No. 173 of 1950 and
Government Notice No. 22 of 1964 did not make boundaries,
they are
very strong evidence that the areas over which the Chiefs whose names
appear on page 33 of Annexure "A" exercise
jurisdiction,
are areas under the jurisdiction of the Applicant because the
gazettes show that the Chiefs are subordinate to the
Chief of
Phamong. The 1987 Committee misdirected themselves as to the
probative weight to be attached to the gazette-ment of those
Chiefs",
In my view the learned judge fell into error here in substituting his
view of the evidence for that of the Committee.
Provided that the
Committe formed an honest view it is not for the Court to direct what
is finding should have been.

There is
another reason for disagreeing with the judgment of Kheola J. It is
this. Underlying the judgment is the Notion (and indeed
the matter
was so argued both before Kheola J. and before this Court) that the
decision in 1948 (assuming it for the moment to
have been properly
proved though there is some argument as to this) was final and
binding - that is that it was immutable. At page
132 the learned
judge stated, in enquiring into the status of the 1948 decision:-

"It seems to me that the High Commissioner who was the Highest
Authority in Lesotho and whose word was final and binding in
all
administrative matters in Lesotho never recognized or approved the
.1924 recommendations regarding the boundary between Phamong
and
Matsieng."

9

This led
to an argument on the appellants behalf to show that the 1924
decision was the true and binding decision. Given the legislative

history I have set out and given the provisions of the Chieftainship
Act neither proposition can be correct. Certainly the 1948

determination (subject to what I have said above in relation to the
1959/60 period) was always open to redetermination.

The
boundaries could thus always, on good cause and in a proper case, be
reviewed and redefined. The immutability of the boundaries
was
further argued on the basis of a contention that once a boundary had
been defined it could not be redefined because the defining
authority
was (so it was said) funtus officio. This is also reasoning adopted
by the learned judge at page 133 of the record. One
merely has to
consider the wording of Section 3(2) of Proclamation 61 of 1939 and
the words of the present Section 5(8) - (12)
to re­cognize that
even with the identical authority this was not the position. Where
different ad hoc committees are called
upon to consider the question
(as they can be under Section 5(8) of the Chieftainship Act), the
concept of the defining authority
being at anytime functus officio
cannot bear examination.

For the
reasons given I have come to the conclusion that the learned judge
erred and that his decision cannot stand. What seems
to have happened
over the years is that there have been changes in the person or
persons and bodies

10

which
were to investigate and recommend the redefinition of boundaries and
as to who was to place upon any determination the stamp
of authority.
Under the 1968 legislation the minister is given duties (and a
substan­tial role) in relation to the determination
or
redeter-mination of boundaries. Herein lies another reason why the
application must fail. No case was mads out in the founding
papers,
that the minister's decision that a dispute had arisen or his
appointment of the ad hoc Committee were open to criticism
or could
be interfered with. I should perhaps record that a somewhat limited
but certainly belated attempt was made to raise these
questions in
the Replyinq affidavits. No contentions were (or in the circumstance
could have been) based on these statements in
the Heads of Arguments
filed. Furthermore on enquiry by the court or Couneil the matter was
not (as it could not have been) pressed.
Had there been evidence to
justify such an attack very different considerations may have arisen.
But with the attack based as it
was on the contentions I have
discussed the application should in my view have failed and I so
hold.

In
addition to argument on the main appeal I must deal with an
application to admit documents which the Respondent wished to add
to
the record. As the Respondent has succeeded in the appeal even
without regard being had to the further documents it is un­necessary

to deal with the application as such but in as much as the Respondent
was seeking an indulgence the

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Respondent,
on any basis, would have to bear the costs of this application. I
therefore order that the Respondent pay those costs.

The
appeal is accordingly upheld with costs and the order of the Court a
quo is altered to read "application dismissed with
casts".
The costs of the application to admit additional documents the
successful Respondent must bear.

Signed by J.TRENGOVE

C. PLEWMAN

for

JUDGE OF APPEAL

I agree :
Signed by . J. TRENGOVE

for P.W. SCHUTZ PRESIDENT

I agree
Signed by J. TRENGOVE

for J. TRENGOVE

JUDGE OF APPEAL

Delivered
at Maseru on 28th day of July, 1988.

For
Appellant : Mr. Lenon. For Respondent : Mr. Maqutu.