CIV/APN/38/80

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

TSEPO
MOLATO Applicant

v

SETENE
LEBOTSA 1st Respondent

SEBABATSO
MAKHATE 2nd Respondent

REASONS
FOR JUDGMENT

Filed by
the hen. Chief Justice, Mr. Justice T.S. Cotran on the 13th day of
August, 1982

On 10th
August 1982 I dismissed this application with costs and said reasons
will be filed later. These now follow :

The
applicant Tsepo Molato is the elder brother of Setene Lebotsa (1st
respondent) and heir to his father Molato Molato who died
either in
the year 1968 or in the year 1970. The applicant was out of the
country at the time and is said to have removed and gone
to the
Republic to live and work before the beginning of the 2nd World War
and returned to Lesotho in 1971. The 1st respondent
disputes that he
had left Lesotho for that long period and maintains he was away for
only a few years.

The
applicant is seeking an order from this Court to direct the headman
of the village Sebabatso Makhate (2nd respondent) to allocate
to him
three arable fields that had once belonged to his late father. He
avers he is entitled to such an order in terms of Part
I s. 7(5)(b)
of the Laws of Lerotholi. This provides :

2. In
   the re-allocation of lands which have reverted to the Chief or
   Headman on the death of the previous occupier and after the
   needs of
   any minor dependants have been satisfied as in the previous
   sub-paragraph (a) prescribed, the Chief or Headman shall
   give
   priority, as regards the allocation of the remaining lands should
   there be any, to the requirements of any adult son or
   sons of the
   deceased provided such son or sons reside in the village of the
   deceased."

   
   

2

The
applicants first approach was made to the superior chiefs in terms of
s. 7(5)(c). He was unsuccessful. He then sued his brother
the 1st
respondent in the Tsoloane Local Court. He was unsuccessful there. He
then appealed to the Likueneng Central Court whore
he was also
unsuccessful. both courts decided they had no jurisdiction to
entertain the 1st respondent's(and plaintiff there) suit.

The
applicant left the matter there. He had of course a right of appeal
to the Court of the Judicial Commissioner and from there
to the High
Court, either with leave of the Judicial Commissioner, or if this is
refused, with leave of the High Court. He did
not pursue these
remedies. He launched this application in 1980 long after the time
for appeal had alapsed.

In my
opinion this application must fail because :-

1. As
   the law then stood arable lands could not be bequeathed and reverted
   to the chieftainship. The heir does not have special advantages
   in
   this type of property under Sotho Law and Custom on the principle
   "tsimo hase lefa"(See Poulter Family Law and Litigation
   in
   Basotho Society pp 249-253). The repercussions, if any, of the Land
   Act 1980 on the above Rule has not yet been administratively
   or
   Judicially determined.

   
   

2. It
   is true that in the reallocation of arable land the chieftainship
   must take into consideration the rights of the widow or widows
   and
   minor children. The heir may of course make representations on their
   behalf and indeed on his own behalf and of his brothers,
   but as
   heir, he has no vested legal interest to the property or to any part
   of it.

   
   

3. The
   above principles are probably not sacrosanct. If the chief had acted
   capriciously and in bad, and had deprived the sons of
   their father's
   lands completely then it may be possible for the Court to intervene,
   but then it is incumbent on the aggrieved
   party to demonstrate that
   what the chief­tainship has done was so flagrantly against
   morality and fair play, that the High
   Court ought to redress an
   obvious wrong.

   
   

4. The
   onus of proving this is on the party who alleges it either on the
   papers if he proceeds by way of application, or on viva
   voce
   evidence if he proceeds by way of action.

   
   

5. Looking
   at the papers no case has been made out Justifying intervention
   because apart from the applicant's failure to appeal,
   on balance of
   probabilities :

   
   

1. Two
   of the fields had already passed one

   
   

3

to the
1st respondent and one to his younger brother during their father's
lifetime. (See Poulter,supra,p. 251 and cases cited).

2. The
   third field which fell to the chief­tainship after applicant's
   father's death was legitimately swapped by the applicant

   surrendering a field of arable land he had previously acquired in
   his own right which transaction is common place and it would
   not be
   equitable to disturbe it.

   
   

3. The
   applicant has now returned home for good but at the time these
   allocations were made he was not resident in the village.

   
   

It was my
view that the application was misconceived and, as I indicated
earlier in my Judgment, it was dismissed with costs. The
applicant of
course is still at liberty, now that he is resident in Lesotho,to
apply for an allocation in the normal way.

CHIEF
JUSTICE

13th
August, 1982

For
Applicant: Mohaleroe Sello & Co. (Att. Mr. Matsau)

For
Respondents: Webber, Newdigate & Co.(Att.Mr.Moiloa)

(with
copy of Judgment)