CIV/APN/51/81

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

JOEL
THEKO Applicant

v

1.
MINISTER OF INTERIOR ) Respondents

2. CHIEF
WILLIAM C.THEKO)

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 10th day of
September 1982

The
gazetted headman of Mohlakaoatuka Ha Tumahole in the Ratau area of
the Ward of Thaba-Bosiu was Tumahole Theko. He married Matsenolo

Theko. They had no sons. When Tumahole died he was succeeded by his
wife Matsenolo who is still alive. Section 10(5) of the Chieftainship

Act 1968 provides :

"If when an office of Chief becomes vacant there is no person
who succeeds under the three preceding subsections, the only

surviving wife of the Chief, or the surviving wife of the Chief whom
he married earliest, succeeds to that office of Chief, and
when that
officer thereafter again becomes vacant the eldest legitimate
surviving brother of the male Chief who held the office
last before
the woman, succeeds to that office, or failing such an eldest
brother, the eldest surviving uncle of that male Chief
in legitimate
ascent, and so in ascending order according to the customary law".

Matsenolo
succeeded her late husband under the "first leg" of the
above section and it is common cause that upon her death
the person
entitled to succeed to the headmanship would be the second respondent
William Cameron Theko who is the last surviving
brother of her late
husband Tumahole under the "second leg" of s.10(5) of the
Chieftainship Act supra. He is already
a headman in his own right
over another area known as Hlokoalemafi Ha Molengoane in the same
ward.

2

Now
Matsenolo is getting on in years and is anxious to give up her
duties. She requested the Theko family to have the applicant
Joel
Theko "adopted" by her (he has in fact been helping her in
the administration and is a close relative) and a family
meeting held
in October 1979 nominated the applicant Joel Theko to succeed her.
The family purported to act in terms of s.ll(l)
of the Chieftainship
Act. This provides :

"The person(or persons in order of prior right) entitled to
succeed to an office of Chief may at any time be nominated by
that
Chief during his lifetime (or by his family if he is deceased or if
he is unable, by reason of infirmity of body or mental
incapacity or
other grave cause, to make such a nomination) by means of a public
announcement of the nomination of that person
(or those persons, in
order of prior right) by that Chief or by a senior member of his
family if he is unable as aforesaid to make
that nomination. The
public announcement shall be made at a pitso representative of all
chiefs and other persons in respect of
whom the person (or any one of
the persons) nominated would, if he succeeded to the office of Chief,
exercise the powers and perform
the duties of that office".

The
family wrote to the Ministry of Interior accordingly. The second
respondent William Cameron was himself present at that meeting
and
allegedly raised no objection to the nomination at the time but there
is little doubt that a couple of months later he did
so and proceeded
to contest the nomination administratively by appealing to the
Minister of Interior who apparently declined to
accept the
applicant's nomination as successor to the headmanship. The Minister
is entitled to withhold his approval of the succession
or nomination
under s.10(7) of the Chieftainship Act which provides :

"No succession to an office of Chief in terms of this section or
section 11 shall have any effect unless and until the King
acting in
accordance with the advice of the Minister has approved thereof".

The
application was launched against the Minister as first respondent and
William Cameron Theko as second respondent. It was couched
in the
following terms:

1. Directing
   the first respondent to gazette applicant as the chief or acting
   chief Mohlakaoatuka in the Ratau area of the ward of
   Thaba-Bosiu in
   the district of Maseru.

   
   

3

2. Restraining
   the second respondent from interfering with the applicant's
   nomination except by due process of law".

   
   

I should
mention that under s.12 of the Act gazettment in a substantive
capacity could not be made except after Matsenolo's death.

At the
pleadings stage the Minister withdrew his opposition presumably
because he was prepared to abide by the Judgment of the Court.
The
respondent William Cameron opposed the application on the simple
ground that there is no room in the legislation for an "adopted"

son to succeed so long as there is a person who qualifies under
s,10(5) of the Chieftainship Act and that he is that person.

Mr.
Maqutu argued firstly that in sotho law and custom an adopted son is
a son in the full sense of the word and can both inherit
property as
heir and also succeed to the chieftainship in terms of s.10 and
secondly that the respondent William Cameron, having
originally
agreed to the nomination, is estopped from challenging the validity
of the family choice since he failed to take appropriate
action in a
court of law in terms of s.11(2) of the Act. This provides :

"If the nomination of a person has been duly announced in
pursuance of the provisions of subsection (1), and any other person

claims that the person nominated is incapable of succeeding, or that
some other person who is capable of succeeding should have
been so
nominated instead of the person who was nominated, the person so
claiming may apply to a court of competent jurisdiction
to have the
nomination set aside or varied accordingly".

Mr.
Matsau for the second respondent William Cameron contends firstly
that s.10 applies only to a legitimate natural born son not
to an
adopted son and secondly that the respondent William did not
acquiesce in the nomination and had applied to the Minister
to
withhold his consent. In. other words he had a right to approach the
Minister in the first instance and need not immediately
invoke the
law. With these propositions I agree.

I think
that the second respondent William Cameron's position is completely
unassailable. He may succeed to property but not to
the impending
vacancy. The only way applicant can succed to the headmanship is by
the respondent renouncing his right to the succession.
This he did
not do. There is thus no estoppel. (Lebona's case infra pp 11-12).

4

The
precedent that comes to my mind is Lebona v The Minister of Interior
and the Solicitor-General CIV/APN/371/77 dated 3rd April
1978
unreported - but in that case the adoption and nomination of the
applicant Lebona took place during the lifetime of the chief
and his
wife, and more importantly before the coming into force of the
Chieftainship Act 1968. Poulter in Family Law and Litigation
in
Basotho Society p 264 is of opinion that after the passing of the Act
the intention of the legislature was to outlaw any child
(from
succeeding the chieftainship) fathered by anyone other than the chief
himself. He cited for this proposition Molapo v Molapo
1971-1973 LLR
289 and 1974-1975 LLR 116. In Lebona'a case supra, I did leave the
matter of a son adopted after the Act somewhat
open but I did say
that the words used in s.10(2) and s,10(3) ,viz, "the first born
or only son of the marriage" do unmistakably
indicate the
exclusion of adopted children from succession.

It
follows that the application must be dismissed with costs.

CHIEF
JUSTICE

10th
September 1982

For
Applicant: Mr. Maqutu

For 1st
Respondent: No Appearance

For 2nd
Respondent: Mr, Matsau