CIV/A/15/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

SIIMANE
MALELU Appellant

V

KHAFO
RAMETSANE Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 4th day of November,
1982.

This is
an appeal from the decision of the Judicial Commissioner's court in
which he upset the decisions of the Local and the Central
Courts
which were in favour of the Respondent.

I am
afraid the previous lower courts viz. the Thabaneng Local Court and
Ramokoatsi Central Court saw the wood for the tree. There
was no
question that the Respondent was the right person to sue according to
the Sesotho custom. The heir inherits everything i.e.
assets and
liabilities. Indeed, the best description of his position is that he
steps into the shoes of his predecessor. The question
of bohali,
although raised by the Respondent (who was the plaintiff) was in my
view a ruse. The real basis of the action was as
stated by the
Appellant (who was the Defendant) and it is this

When
Respondent's father died there was still a balance of bohali
outstanding. It would appear from the record that the parties
had
been before the courts where Judgment was awarded to the Appellant.
Execution was levied and seven (7)

2

head of
cattle and two (2) horses were brought and one horse were equated to
a beast and payment on the balance was recorded as
nine (9) head of
cattle and one (1) horse as setsiba. A bewys was obtained covering
these animals. As Appellant drove them back
home, he was advised, by
the Respondent, that if he valued his life he should abandon the said
animals there and then. Appellant
heeded the advice. The outcome of
this episode is "that Respondent was charged and convicted by a
competent Court for contempt
of court. He was ordered to bring the
animals, he had forcefully removed from the possession of the
Appellant, back to him. There
is evidence of this fact on record.
Respondent brought five (5) head of cattle and two (2) horses and
left "three and setsiba
behind." Surely there should have
remained only two (2) head of cattle to make the initial number of
seven (7) head of cattle
and two (2) horses. However at a subsequent
trial Respondent was returned one beast, but at the same time the
court warned him
that he still owed Appellant four (4) head of cattle
and two (2) horses. For the purposes of this Judgment we shall
disregard these
irrelevant matters being introduced into this
different situation. As at the present, the court is concerned with
the recovery
of Appellant's animals, which were forcefully removed
from his possession by the Respondent.

Then
execution was levied and three (3) head of cattle and ten (10) small
stock equated to setsiba was effected. It is quite clear
that this
amount, if it relates to the recovery of the Appellant animals
forcefully removed from him, as described earlier, is
in access of
the number of the animals which were still outstanding from that
taken by two (2) head of cattle or one beast and
10 small stock. The
fact that Respondent still owed a balance of bohali Just simply did
not come into it. The question of the missing
animals had to be

3

solved
satisfactorily first. The order for recovery of the Appellant's
animals was akin to a spoliation against the Respondent.

In my
view the judgment of the court of first instance i.e. Thabaneng Local
Court ought to have found that one beast and ten small
stock were
paid in excess of the animals Appellant alleged were forcefully
removed from him and it is accordingly so ordered. They
should be
returned to the Appellant, if not, the animals themselves, their
equivalent in money which shall, in the event of the
parties'
disagreement, be referred to the courts as usual for their
determination. The Respondent is ordered to pay the costs in
all the
courts. He was responsible for much of the confusion in this case by
introducing new cases in between, that is, before
he had made
reparation for his spoliation of the Appellant in his quiet
possession.

JUDGE

4th
November, 1982.

For the
Appellant : Mr. Kolisang

For the
Respondent : In Person.