CIV/A/18/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

BETA
SETLABA Applicant

v

MOTLATSI
MOTINYANE Respondent

JUDGMENT

Delivered
by Hon. Mr. Justice F.X. Rooney on the 26th day of April. 1982.

Mr.Matsau
for the Appellant Respondent did not appear.

In 1979
the appellant sued the respondent in the Maja Local Court claiming
that the respondent had built a kraal in his yard. He
asked for an
order that the defendant should take away from his garden the kraal,
livestock and aloes which the defendant had planted.
In his reply the
respondent asserted that he had been allocated the site in question
and was not infringing upon the plaintiff's
rights.

On the
29th March, 1979, the Maja Local Court found in favour of the
appellant and directed the respondent to vacate. The court
gave
specific directions as to the boundary between the land of the
parties. The respondent was ordered to pay costs.

The
respondent appealed to the Matsieng Central Court.That court decided
in its judgment of the 3rd April, 1981:

"The court finds that this matter of boundaries between the two
sites can be well settled by the chief concerned together
with his
land allocation committee the people who know how much land they had
given to each party. On the strength of the foregoing
reasons this
court forms up a decision

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that the disputants go back to the person who was acting for chief of
Qhomane, to settle the argument of boundaries between these
two
sites.And any one of the parties who was not satisfied with the
decision from the chief and his land allocating committee could
take
the case to a Judicial Court."

The
appellant applied to the Subordinate Court at Maseru for a review of
the proceedings in the Matsieng Central Court. He was disatisfied

that the Matsieng Central Court had directed that the case should be
referred back to the Chief and the allocating committee. The

appellant expressed surprise at this decision and felt that the
Central Court should not have disposed of the case in that manner
as
he had produced in the Local Court witnesses and documents in proof
of his claim. The reviewing magistrate made the following
decision

" But, having perused the record of Proceedings, I have not
found any irregularities or miscarriage of Justice that warrant
any
variation of the Central Court Judgement, because the matter is to be
decided on the merits. So, the applicant should not have
asked the
Subordinate Court to review the matter. If the applicant is not
satisfied with the Central Court's decision she should
appeal against
such decision to the Judicial Commissioner's Court, in terms of
Section 28(3) of Proclamation No.62 of 1938 as amended
by the The Law
Revision (Reprinting and Correction) Law No.4) of 1964.

But that is not a bar to the applicant, in case she is aggrieved or
feel prejudiced by this order, to resort, as for recourse,
to Section
26(a) of the said Proclamation (Supra). This allows the lodging of
appeal from this Court to the High Court within 30
days from the date
of the order."

His order
was dated 20th May, 1981. The appellant now appeals to this Court
against the refusal of the magistrate to make an order
on review
which would have the effect of correcting the decision of the
Matsieng Central Court. The respondent has not appeared
or opposed
the appeal.

Section
26 of the Central and Local Courts

Proclamation
empowers a magistrate in his capacity as holder of a subordinate
court to revise any of the proceedings of a central
or local court,
and make such order therein as the

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central
or local courts could have made. In particular under Sec. 26(b) a
magistrate may order any case to be retried either before
the same
central or local court or before any other central or local court of
competent jurisdiction.

The
powers of a central court on the hearing of an appeal from a local
court are not defined in the Proclamation. However, it is
the normal
practice for a central court to hear the parties and having
considered the record of the proceedings in the local court
decide
whether or not it should uphold or reverse the decision of the
inferior court. In this case the Matsieng Central Court took
neither
course but instead it referred the dispute to the chief. It is the
appellant's contention that the Matsieng Central Court
acted
irregularly by failing to decide the matter before it on its merits
or indeed at all. It was further contended that there
is nothing in
the Central and Local Court Proclamation which authorises a Court,
either at first instance or on appeal, to refer
a matter before it to
anyone else for settlement. I consider that the Matsieng Central
Court acted irregularly in declining to
exercise its proper function
of adjudication and that the present appellant was prejudised by that
decision.

The
magistrate was wrong in refusing to interfere and correct the
irregularity committed by the Matsieng Central Court on the
application
of the appellant. I propose to allow this appeal and to
make in this Court the order which should have been made in the
subordinate
court.

I set
aside the order of the Matsieng Central Court dated 3rd April, 1981
and remit the case back to it with the direction that
the Court must
reach a decision either in favour or against the appellant in this
matter having regard to the evidence recorded
in the Maja Local Court
and the submissions made by the parties. As the respondent has not
opposed these proceedings, I shall not
order costs against him.
However, the appellant was entitled to apply for review of the
decision of the Matsieng Central Court
and to make an appeal to this
Court. The appellant has thereby incurred considerable legal costs. I
direct that

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these
costs both here and in the subordinate court shall be costs in the
cause and shall follow the event in the lower courts.

F.X.
ROONEY.

JUDGE

26th
April, 1982.

Attorney
for the Applicant : Mohaleroe, Sello & Co.