HIGH COURT OF LESOTHO
matter of :
MATHAPHOLANE 1st Defendant
MINISTER OF THE INTERIOR 2nd Defendant
SOLICITOR GENERAL 3rd Defendant,
by the Hon. Mr. Justice M.L. Lehohla
initial hearing of this matter before Sir Peter Allen J. the 2nd and
3rd defendants withdrew their defences. The dispute
the plaintiff and the 1st defendant.
learned Judge preferred to make no order for costs in respect of the
withdrawn defences, and further ruled that with regard
to the 1st
defendant costs should be costs in the cause. This was on 6th April
matter was deferred for hearing on a date to be arranged with the
days for hearing were fixed but for a variety of reasons the matter
was always postponed until partial progress in the
hearing of this
matter was achieved
June 1988. Mr Matlhare was conducting the case for the remaining
hearing was resumed on 20th September, 1989 Mr Sello, now appearing
for the defendant, sought to raise the point that it
necessary to have proceeded in this matter by way of leading
oral evidence and that; further leading of oral evidence
increase the costs in this matter as the only issues that will stand
to be determined at the end of the day are obviously
submission he relied on Rule 41(22) saying :-
"Notwithstanding anything in this Rule the court may, at any
time make any order with regard to the conduct of the trial as
seems fit and it may vary any procedure laid down in this Rule."
summons the plaintiff sought an order of this Court
him chief of the area known as Ha Suane in the Thaba Tseka district;
aside the judgment of the Minister of the Interior dated 12th August
argument that preceded today's proceedings the court was told that
the defendant had since died leaving his widow and a male
either of whom would in due course be substituted for the deceased.
to the charge: Mr Hphalane for the plaintiff referred me to Part V
section 14 of the 1968 Chieftainship Act 22 which deals
with duty of
the Minister concerned to give public notices of holders of office of
chief including under subsection (2) the Minister's
powers and duties
to amend, revoke and replace a notice specified under subsection (1);
or giving public notice of matters affecting
holders of the office of
chief including punishment.
pointed out that the 1970 Gazette No. 1 emanates
1968 Act. He further stated that the 1988 Gazette No. 33 emanates
from the provisions of section 10(7) of the 1968 Act.
contrast with the 1970 Gazette No. 1 in terms of which the plaintiff
was created chief in a virtually virgin and therefore newly
office section 10(7) of the 1968 Act deals with succession to the
office of Chief.
submitted that a gazette is an official document meant for the
information of the public. It should be presumed valid for what
purports to convey for at its bottom it reflects that it was
published by authority of His Majesty the King.
advised that caution should be exercised to avoid confusing these two
acts i.e. the 1970 and the 1988 Acts for they derive from
and 14 respectively of the 1968 Act.
challenged what he thought Mr Sello implied by saying the publication
of the plaintiff's name as chief was by order of one Mahlaha
signed the publication on behalf of the Permanent Secretary for the
Interior see page 14 and 15 of "Ex.1" the 1970
accordingly submitted that whatever position Mahlaha held he was
delegatd to sign that document. Thus this does not invalidate
gazette for in any case this gazette has not been set aside.
that as the defendant's counsel's argument takes the matter no
further it should be proceeded with notwithstanding submissions
behalf of the defendant.
reiterated that the plaintiff sought relief in thi Court following
the ministerial decision to oust him from chieftainship. He
out that the late Constable was aware of the fact that the plaintiff
had been gazette
same Constable sought to benefit from the Ministerial decision.
Mr Sello refuted the submission that he was not entitled to raise the
points referred to above by relying on the provisions
of Rule 41(22).
He stressed that if the court finds that it shouldn't have been asked
to hear oral evidence but instead should
have been addressed on law,
then the provision of this Rule is intended to meet just that
situation. I most heartily endorse this
disputed that he ever addressed the court on the validity of the 1970
gazette. My alert attention to the tempests which were
the arena lends support to his contention.
benefit of the other side he explained that it struck him as strange
that the plaintiff who was proclaimed chief should
come to this court
to be proclaimed chief.
accordingly submitted that it was incorrect to labour under an
illusion that he was asking the court to make a finding on the
validity of the said gazette.
without conceding that the plaintiff was entitled to a declaration
sought, he called in question the wisdom of or the need
oral evidence. I find that there is indeed substance in this
criticism because the question whether the plaintiff is
a chief or
not is a question of law.
explained that he only referred to the gazette bearing in mind that
the proclamation might be fatally flawed. He concedded
that a gazette
is a prima facie evidence of what it says. To substantiate his
misgivings about the proclamation he referred me
to gazette No. 33 of
1988 where it appears that the King acting in terms of section 10(7)
of the Chieftainship Act No. 22 of 1968
is the one who signed the
document and thus did not. assign this important task to Mahlaha
acting on behalf of
permanent secretary, for chieftainship is conferred by the King
himself and nobody else. See page 226 of Gazette No. 33 of 1988.
central issue is whether the plaintiff despite having been made chief
by the King is entitled to an order by this Court.
raised this deliberative question Mr sello submitted that he was not
saying that the matter should be disposed of on grounds
invalidity of the gazette but rather that it serves no purpose
wasting time over oral evidence instead of proceeding with
the legal arguments on which this case is anchored.
dictates that time spent whether accidentally or disignedly for the
purpose of increasing costs is time ill spent.
regard to prayer 2 in the summons seeking that the decision of the
Minister of the Interior be set aside it appears that aproaching
Court by way of action was ill-advised because Rule 50(1) provides
that the decisions of tribunals, boards Subordinate Courts
coming not on appeal) persons performing quasi-judicial or
administrative functions can be set aside only on review brought
way of notice of motion. In the instant matter this rule has been
breached. The provision says proceedings in question shall
by way of notice of motion supported by affidavit. In subsection
(1)(b) of the Rule it is provided as a sine qua non
that the party
seeking the review shall cause to be furnished to the Court and
persons affected the record of proceedings sought
to be reviewed.
Sello observed and brought to the attention of the court that at the
time that it was asked to deal with this matter the
court was not
possessed of the decision of the Minister. Causes are lost when forms
and rules are not observed. See C of A (CIV)
No. 16 of 1984 Kutloano
Building Construction vs Matsoso and 2 Others (unreported) at 7 para
that this matter be dealt with exclusively on the point of law and
without reference to oral evidence any more of which
is by operation
of this order terminateu-The plaintiff is ordered to pay the costs of
this application together with those incurred
in the leading of oral
evidence heard up to this point.
Plaintiff : Mr Mphalane
Defendant : Mr Sello.
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