CIV/A/17/88

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

TEFO
MAKENETE Appellant

v

TAELO
MATHAPOLANE Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 25th day of September
1990

In this
case the dispute between the Plaintiff and the Defendant involves a
piece of land which the Plaintiff claims belonged to
his parents, and
it is common cause that before his parents died they used this land.

However,
the custom is that when the parents die, the land reverts to the
chief for re-allocation either to the members of the household
or
anybody else who might require use of the land. But in doing so, the
chief has to see to it that the needs of the particular
household are
taken care of.

The
defendant doesn't deny depriving the Plaintiff of this land. The
question that remains is whether in doing so he acted lawfully.
The
onus is on the defendant, in my view to prove that he did so
lawfully. The defendant laid his case on the fact that he had
caused
letters to be sent to the Plaintiff, warning him of the fact that he
had been deprived of this land. But from the very outset,
in the
statement that the Plaintiff supplied before the local court, he
denied that he received any such letters and his denial
persisted
even in the central court where he stated affirmatively that he had
never received any letters purportedly written by
the defendant.

2

There was
also the evidence of one Chalane who gave evidence in support of the
defendant and this is the witness who, at the close
of his evidence
stated before the local court that all that he had said in support of
the defendant's case was untrue. It should
be noted therefore that
Chalane did, in that regard parade himself as a self-confessed liar
who purveyed lies in favour of the
defendant. In his prayer to have
the court dismiss his evidence, he made no exception of the writing
of the letter of the 2nd June,
1970 purportedly inviting the
Plaintiff before the defendant, nor did he make an exception of the
testimony that Plaintiff was
to appear before the defendant on 11th
June, 1970. Chalane said all the evidence he gave was false.

This is
the evidence corroborating the defendant's evidence in its material
respects, thus when thrown out, no how can the defendant's
evidence
in those respects remain. I read at once the learned Judicial
Commissioner's Judgment which in my view summarised the
facts of this
case, fairly satisfactorily, contrary to what is contended in the
appeal that he didn't address his mind properly
to the evidence that
was before the courts below. His Judgment strikes me as one which was
well considered.

The
learned Judicial Commissioner at page 2 of his Judgment had this to
say:

"The onus was upon the defendant in this dispute to show to the
court on the balance of probabilities that, what he did was
lawful or
was done in accordance with the law relating to revocation of the
interest or rights over land. He could have sufficiently
done so by
calling the evidence of Kokoana Mathapolane and Thahathe to say they
did hand over their alleged letters to Plaintiff,
or left them with
someone as required by law then in force in regard to notifying the
person to be deprived on his right over land."

I endorse
entirely what the learned Judicial Commissioner had to cay there
because the defendant pointed out that he had sent his
messengers,
one of whom was Thahathe, to notify the Plaintiff of the fact that he
had been deprived

3

of this
land, but there wasn't any such letter and failing that letter, one
would have expected that Thahathe would come and give
evidence
showing that he supplied Plaintiff with the letter, but this was
never done.

The
evidence of Chief Lechesa Mathealira in a sense, supports the claim
by Plaintiff to this land, namely that, it had been allocated
to his
parents. And the chief goes further to say that he was not aware of
the manner in which this land was removed from the Plaintiff
who
remained after his parents died, even though there were some children
who needed support from farm produce from this land.

It is
significant that Chief Mathealira is the present incumbent of the
area of Tsikoane, and in his evidence has shown that the
defendant
has his own area where he has his subjects; and the chief pointed out
that the defendant had no right to deprive people
of the fields which
had been allocated to them, as these people are not subject to him,
but to Tsikoane. From this, one would tend
to think that since it is
common cause that the land which was allocated to Plaintiff's parents
was done by the Chief of Tsikoane,
who is the chief of the area that
is above a number of chiefdoms including the chiefdom of the
defendant, where Plaintiff's parents
had been placed by the direct
act of the chief of Tsikoane, then when they died this land should
have, by rights, reverted to the
Chief of Tsikoane and not to the
defendant so that when it remained vacant, then it was for the Chief
of Tsikoane to see what to
do about it, and regard being had to the
fact that of paramount importance in re­allocating land which has
been reverted to
the chief, the children of the household of the
deceased persons are to be supported from that land, then that land
should have
reverted to the chief who had in the first place,
allocated it to the deceased parents of the Plaintiff.

Having
said that much, I do make a finding in favour of the Plaintiff with
costs.

JUDGE

25th
September, 1990

For
Applicant : Mrs. Kotelo

For
Respondent: Miss Tau