HIGH COURT OF LESOTHO
Appeal of :
by the Hon. Mr. Justice M.P. Mofokeng on the 10th day of September,
parties to the dispute were not present on the day of the trial, each
for a different reason. However, they each had a spokeman.
plaintiff it was Mr. Phillip Molantoa and for the Defendant it was
Mr. Malebanye Litsebe.
dispute centres around two fields at Nkokomohi.
defendant is alleged to have ploughed one of plaintiff's two fields
without the latter's consent. He further drove away Ntiki's
preparing to plough for the plaintiff. It is alleged, further that
the plaintiff inherited these fields from her parents
as she "was
never married. She is still at home." It is also alleged that
when plaintiff's mother died, plaintiff was
fields by chieftainess 'Mamphu who had the right at that time round
1960." One of the fields plaintiff
disputed with Mamoorosana and
plaintiff is alleged to have won the case in all the courts.
Defendant had been living in the village
for three (3) years without
a complaint against the plaintiff and suddenly he surprises
The plantiff, it is alleged, "has never been deprived of these
fields according to law governing land now."
It is finally
alleged that defendant has no "rights in the Litsebe family, who
died having no son."
cross-examination it was stated that the two fields were granted to
the plaintiff by chieftamess 'Mamphu as a "confirmation
inheritance." When questioned by the court it was revealed that
chief Koenaesele Masupha is in charge of the two fields.
He has not
said anything about the matter or given a decision.
Lekhopa, an old man of about 68 years says that the two
fields-belonged to the father of the plaintiff, chief Litsebe who
three families. Plaintiff's mother was allocated the two fields by
'Mampeneka Ralebilu Ntjane. The witness says he was deputy
Mpiti Mothebesoane, He did not know who gave the defendant the right
to plough those fields. He alleges that plaintiff
was never married.
She was illigitimate. As far as he knew plaintiff has always used the
fields and that the defendant was a recent
cross-examination he stated, inter alia, that defendant had not been
sued by a chief but the owner of the fields; that the chief
informed the defendant that he had ploughed a field belonging to
another person, but no decision had been made on that issue,
Litsebe's children are dependant on Lekhola; that after plaintiff's
mother Lekhola and others "confirmed that the fields
Makholu (plaintiff); that plaintiff Is not married to Sankatana
Tsekelo, does not represent Litsebe" to his knowledge.
the plaintiff's case.
defendant, through his spokesman Mr. Malebanye says :
has not taken the fields himself but rather that they have been
"given to him by Mothebesoane Litsebe" at a general
of the family that he should live on the lands which belonged to his
father and support all the orphans of chief Koenaesele
K. Masupha and
he accepted the family's request. He was given rights over the
fields. The matter was referred to chieftamess Matholoana
letter. She accepted it and encouraged the principal chief 'Mamathe.
It was not true that the plaintiff was unmarried.
She was married to
Sankatana Moorosana Masupha. She ngalaed to her maiden home and
stayed there until her mother died. She lived
with Litsebe's children
but was never allocated any fields. At this stage exhibit "B"
was handed into "court as
part of the evidence at the trial.
This was a document which was addressed to chief Mpiti Mothebesoane
to the effect that Litsebe's
family, at a meeting of the family held
on 20th January 1974 and in the presence of some twenty (20) members,
agreed to the transfer
of rights of ownership from Nko Litsebe to
Tsekelo Malebanye (Defendant), that the latter should succeed the
former as those whose
duty it was to revive the family had failed to
'C' is a letter confirming that the defendant succeeds the late chief
Litsebe and that he is alotted special earmarks. Exhibit
is a letter to chieftamess 'Mamathe before whom chief Koenaesele
Masupha placed "their son Tsekelo Litsebe to
come and revive
chief Litsebe's family." Exhibit "H" is a letter
addressed to the chief of Mamathe introducing before
him a new
"headman Tsekelo Daver Litsebe" and that he had succeeded
the "late Litsebe, you will guide him according
to the right
channels like others."
witness further stated that plaintiff knew when defendant was
allocated the disputed fields.
cross-examination the witness stated that apart from the documents
already handed into court as evidence he had no other evidence.
fields were allocated to the defendant by chief Koenaesele Masupha
Before then the fields were ploughed by the plaintiff.
Mathe Qesoane . He appointed the defendant to be heir to the late
chief. Mafa Litsebe is the late chief's son. Maja's son
who was born
in the Republic of South Africa refused to succeed his father as
chief and so did his brother, Sekhohola, who comes
after him also
refused and went to live in another village. A family meeting was
therefore called and confirmed defendant as the
chief to succeed the
late chief Litsebe as Sekhohola and the other son, in the presence of
the family, at the family meeting, refused
to become chiefs. Thus in
1974 defendant was presented to chief Koenaesele Masupha who was
represented by Phillip Moloantoa who
"accepted that the
defendant has succeeded to Maja's rights including his fields and
wrote a letter to chieftamess 'Matholoana
who affirmed that "Tsekelo
has succeeded to these rights." The principal chief as well as
the District Administrator
did not refuse but accepted the request.
cross-examination the witness stated that . the two fields have
always belonged to the late chief Mafa and were ploughed by
plaintiff before the defendant was given a right to use them.
Plaintiff had been authorised by the witness what to do while
still stayed with the family. Plaintiff used these fields for about
ten (10) years. When plaintiff had a dispute over the same
with 'Mamoorosane the witness was her spokesman. The rights of the
defendant's inheritance from the late Litsebe were confirmed
Phillip Moloantoa (cross-examiner). Even the rights to the fields was
confirmed by him personally. The cross-examiner had
Seboko Selai as his representative to confirm the defendant's rights
in the fields. The defendant was given a form "C"
fields. The fields belonged to Litsebe's family and not to Makholu's
family Litsebe had four fields. Two which are not
in dispute are
ploughed by the defendant. The witness denied that the other two
fields belonged to plaintiff. It was the cross-examiner
encouraged chief Koenaesele's office to present the defendant before
chieftamess 'Matholoana. The witness reiterated that he
was the chief
of Mothebesoane's village. He allocated land even though he was not
Mokhejane, a middle aged man, informed the court that : the fields in
issue belonged to the late chief Litsebe: They never
Makholu. Mafa succeeded Litsebe and at Mafa's death they were given
to his wife Mamoorosane Litsebe. After her death
the lands were given
to the defendant. He inherited them as rights of Litsebe.
He is the
chairman of chief Litsebe. According to him, plaintiff is married. He
did not know why she was sent to her maiden home.
She was not given
the right to live off the land.
cross-examination he states :
fields were given to the defendant by the chief and defendant's
family, the chief who did so was Mpiti Mothebesoane. Although
chief responsible for the allocation of fields is Koenaesele, chief
Mpiti Mothebesoane is only a headman. The fields were used
chieftainess 'Mamphu and on her death, by Malibeo who used them after
the death of her husband chief Litsebe. Maja used the
the death of Malibeo. Then Mamoorosane used the fields. Makholu,
being illigitimated, depended on the fiels. The spent
a long time in
dependant on the fields.
Mohale Masupha states that :
is the legal wife of Sankatana. She is the daughter-in-law to
that bohali was paid. The head at Masupha's in Moorosane's family is
Sankatana. On the death of Sankatana he gave plaintiff
mourning cloth but she did not wear it however when the children of
Sankatana cut their hair the plaintiff was present.
witness is related to Sankatana. The mother of Sankatana is the
second wife of his wife. The eldest son of Sankatana's family
Molomo. Eight (8) cattle were paid for plaintiff's bohali. Plaintiff
was now living in her maiden home. She went there in order
birth to Kholu. She has three children. All children are married. All
bohali cattle for these girls was paid to Sankatana.
supporting plaintiff at her home.
He had no
knowledge concerning the disputed fields.
witness then positively says that plaintiff wore Sankatana's mourning
cloth, but has no knowledge as to whether she has even
put it off.
Molefi simply states that it is true that her sister, the plaintiff,
is married at Moorosane's family. She has no rights in
family. She finds it surprising that she claims the fields from her
father, the defendant, who has succeeded to his father
when chief Sankatana died. Plaintiff wore his mourning cloth.
cross-examination she states :
the two fields being disputed. After Malibeo died the fields were
under the control of chief Mpiti. She is on good terms
She did not know when it was when plaintiff disputed the fields with
Mamoorosane. She knows plaintiff to be married.
She saw eight (8)
head of cattle paid for plaintiff's bohali. Plaintiff did wear
Sankatana's mourning cloth.
Judgment of the president of the Local Court is a little confused.
The defendant's defence is referred to as the plaintiff's
view. It is the plaintiff's evidence that she was never married but
defendant's evidence is that the plaintiff was married
and that eight bohali cattle were paid. The president has reversed
the order. Then the president introduces a totally
unknown name and
refers to that person (Makhanya Litsebe) as the defendant. Well, in
this present matter the defendant is Tsekelo
Litsebe, This totally
unknown defendant is, according to the president's judgment, supposed
to have given evidence. But according
to the record of the case there
is no such evidence and there was no complaint when the appeal was
heard that the record was faulty.
I am therefore bound by four
corners of the record since the matter before me is an appeal.
plaintiff is found according to the Local court president's Judgment,
to have supported her case by attaching the "decision
Judicial Commissioner" where the same fields were disputed
between Mamoorosana Masupha and the plaintiff and apparently
absolution from the instance was then granted. All that is reflected
is the names of the
and the result of the appeal why the court came to that decision the
president in present proceedings did not know. All
he could say about
the result of that appeal was that the dispute had not come to an
end. Nobody had won. So the inclusion of that
extract served no legal
purpose whatsoever except, perhaps, to confuse the issues before him
and appear as though the plaintiff
had in fact won the dispute as the
cross-examination tended to show.
learned president came to several conclusions
the dispute is about fields which cannot be inherited by anybody in
this country but one can have rights over them
if he has been given
them by the chief and the family members." (My underlining).
portion is quite correct and in accordance with the law. (See the
recent decision in Tsepo Molapo v. Lebotsa & Another,
CIV/APN/38/80 dated 13th August, 1982).
the ultimate decision is made by the chief of the area or his
representative. In this matter the greater part of the defence
evidence was devoted solely to establishing this very same principle
which the learned president says ought to have been established.
Through uncontradicted evidence the defendant was able to establish
how he came to believe that he had rightly been allocated the
and everything which rightly belonged to the late chief Litsebe. The
chief of the area, through his representative, allocated
fields which had been allocated to the late chief Litsebe. He was
given a form "C". This fact has not been denied.
of the late chief had met and agreed that the defendant would come
into the family of Litsebe and revive it because
responsibility it was to do so have, before the family congregation,
refused and elected to live away from their
the other hand, the plaintiff told a cold lie, through her
representative, and said she inherited the fields (disputed)
parents as she "was never married." She also claims that on
her mother's death the fields were allocated to
her by chieftainess
'Mamphu. But there was no evidence of this which she called. It was
said that one of the fields being disputed
she had previously
disputed with 'Mamoorosana and "won the case in all the courts."
This is not quite true at least of
the Judicial Commissioner's Court.
On this first conclusion of the president's judgment, the defendant
passes the test laid down
by the learned president himself.
learned president says that it is not clear that the plaintiff was
married. Defendant called evidence which clearly established
plaintiff was married to Sankatana Masupha. To have required more
would have been tantamount to placing the onus on the defendant
the onus was on him to discharge it beyond reasonable doubt and not
on a balance of probabilities. Whichever way, he more
the onus on him as required in civil procedure.
that the plaintiff may have been allowed to use the fields while his
mother was still alive and shortly thereafter while
the family was
still persuading the rightful heirs to take their places, did not
create rights for her by efflux of time. She is
according to custom particularly because she is married to the
Masupha family and according to custom she has no rights
affairs of Litsebe's family. If she was alloted the fields in her own
right and proved that to be so and also proved that
she had been
emancipated as a minor her argument would be understandable. But all
the evidence in the present case point to the
fact that she purported
to acquire the fields after the
her natural parents as inheritance.
to the evidence on record the plaintiff has failed hopelessly to
discharge the onus on her but the defendant presented
evidence which had a ring of truth in it.
view the proper judgment ought to have been in favour of the
matter went to Motjoka Central Court and the defendant's appeal was
dismissed in the following words :
"I cannot find where the respondent's (plaintiff) right to use
the fields was lessened according to the law governing allocation
view that issue did not arise because there was no proof that there
had been proper allocation. At first, plaintiff said she
inherited the fields from her parents. That could not be true as it
is contrary to the customary law. She is a woman, whether
illigitimate or not. By being illigitimate she does not become an
exception to the law. As stated by Duncan in his book : SOTHO
CUSTOMS, 1960 Ed. p. 11 "An illigitimate child cannot be an heir
in Sotho customary law." However, it has
been established beyond
doubt that she is married and belongs to the Masupha family and could
therefore not inherit anything in
the family of Litsebe. The
witnesses for the defendant speak of inheritance. What they mean is
that defendant had stepped into
the shoes of the late chief Litsebe.
He could not have inherited anything as he was from "outside"
so to speak. However,
there was evidence that the proper allocation
had been made in his case in connection with these fields.
appeal, in my view, ought to have been successful
a further appeal to the Judicial Commissioner's
The judgment of that court was very brief :
"I have said we cannot really say the respondent (plaintiff) was
confirmed on this land but she was definitely in control
of the land
or lands and she was left in control by the judgment of the Judicial
Commissioner while it may be that the respondent
is married to the
Masupha's and has no rights in the Litsebe's family. This Court
agrees with the Central Court that any decision
or intention to
remove the lands from the respondent should be brought by compliance
with the compliance with the provisions of
the Land Act 1973."
therefore ordered that the lands should remain with respondent
(plaintiff) until they are properly taken away from her in
with the provisions of section 13 of Land Act No. 20 of 1973.
the leanred Commissioner concedes that it has not been proved that
plaintiff had been confirmed by any chief. But I am of
the view he
overlooked to say that the defendant had successfully proved to have
been so. Secondly, it is not quite clear to me
whether the word
"control" is used instead of "possession." I
believe the learned Commissioner wished to use
the word "possession."
The control of the fields was in the hands of the chief through his
representative in the village.
The earlier judgment of the Judicial
Commissioner (Exh.A) did not put the plaintiff in control of the
lands or fields but put her
in possession of them. It must be made
clear that the Land Act applicable in this case is not the present
one but the one which
was in force at the time.
of the relevant provisions of the land mentioned in the learned
Commissioner's judgment is not necessary because the
not been allocated these fields in accordance with the procedure laid
down in the same law. The person who had been
allocated those fields
was the late chief Litsebe.
used the lands after him merely did so with the consent of the family
and the chief or his representative in the village
and this would
only continue when a successor to the late chief was found and the
necessary presentations were made to the senior
chief. These had been
done (Annexures speak for themselves). Then the fields were
specifically allocated to the successor to late
pricesely because in customary law, they are not inheritable.
Plaintiff tendered not such a strong evidence as the
conclude I wish to point out that there is a provision in the Laws of
Lerotholi akin to the pretrial conference Rule in
civil trials. This
is Part 1 :14(4) which simply states that any dispute amongst the
deceased's family over property shall be referred
for arbitration to
the brothers of the deceased and other persons whose right it is
under Basotho law and custom to be consulted.
This provision is of
considerable importance and it does not seem to me that it was
applied in this case. It must not be shouted
down. There must be
evidence in the future that it was complied with or at least an
attempt to do so. It should not be ignored
answer posed by the Judicial Commissioner when granting the appeal
certificate is answered in the affirmative.
view the defendant ought to have had judgment entered in his favour
at the Local Court. He ought to have won the appeals at
and Judicial Commissioner's Courts. It is so ordered. He is awarded
costs in all the courts.
Appellant Mr. Masoabi
Respondent : In person.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law