7

The
Central Court dismissed the case without making any finding that the
Principal Chief had already made a decision on the boundary.
I have
carefully studied the judgment of the Central Court and have come to
the conclusion that the third respondent or his predecessor
never
made a decision on the boundary in question. The allegation that he
did has no basis at all. At best it can be said that
the complaint
that was put before the third respondent or his predecessor was never
finalised until the matter was taken to the
Central Court. There is
nothing in Annexure "A" to show that the third respondent
sat as a judge in the boundary dispute
in question and that he made a
decision.

The
respondents have failed to show that there was a decision and
deliberately refrained from disclosing to this Court in whose
favour
that decision was. The reason for their failure to disclose this
point is that there was never any decision.

Section 5
(11) of the Chieftainship Act, 1968 provides that the committee shall
consist of not less than two members, one of whom
shall be the
Principal or Ward Chief of the area of authority in which the
boundary concerned is situated. There is a proviso that
if the
boundary dispute is between two Principal or Ward Chiefs such
Principal or Ward Chiefs shall not be appointed to the committee.
The
third respondent cannot be disqualified the proviso because he is not
a party to the dispute.

I come to
the conclusion that the appointment of the third respondent as a
member of the ad hoc boundary committee was proper

8

and in
accordance with the provisions of section 5 of the Chieftainship Act,
1968. The respondents have failed to show that the
third respondent
had already made any decision in the matter. The decision of the
three-member boundary committee appears to have
been unanimous.

The
respondents have alleged that there was interploughing between the
applicant and the subjects of the first, second and sixth

respondents. They have not stated when and how the inter-ploughing
started, Interploughing is defined by Patrick Duncan in his
book,
Sesotho Law and Custom on pages 72 - 73 in the following terms:

"Interploughing is a word coined in Basutoland to describe the
state of affairs described in Sotho as mekopu e namelane (the

pumpkins have intertwined). When no boundary has been made between
two chiefs there is often an area in which both chiefs allot
lands,
and in which the subjects of both chiefs are mixed up. This is not a
form of paballo, but is similar enough to it to find
a place in this
chapter. With paballo there is a boundary, but a loan of rights has
been made across it; but with interploughing
there is no boundary.
Some times interploughing leads to trouble, and the remedy is to
define a boundary. When the boundary has
been defined all the lands
on one side are under one chief; and all on the other side to the
other. The people are then given the
opportunity of choosing. A land
occupier who finds that the boundary has been drawn between himself
and his lands may either (a)
give up his lands and remain under his
chief in his dwelling-site, or (b) give up his site and his chief,
and follow his lands,
becoming a person of the chief under whom lie
the lands."

If the
respondents claim that there was never any boundary between the
applicant and the second respondent, they are wrong because
according
to the evidence of the applicant before the

9

ad hoc
boundary committee and this Court was that the trouble started only
in 1966 when the subjects of the sixth and the first
respondents
suddenly seized the arable lands by force. It cannot be said that
before 1966 there was no boundary between the applicant
and the
chiefs under the second respondent. The boundary had been there and
was violated by the sixth and the first respondent
only in 1966. The
ad hoc boundary committee found that the boundary between the
applicant and the second respondent was as defined
by the applicant
and made their recommendation accordingly. They did not say they were
determining a new boundary because they
impliedly found that the
arable lands in question were seized by force by the subjects of the
second respondent. I say impliedly
because the second respondent's
evidence was that when he was placed as a chief over the area, the
third respondent never showed
him the boundary. Even the sixth
respondent who was second respondent's witness before the ad hoc
boundary committee did not contradict
what the applicant said., He
never told the committee what he regarded as the boundary between
himself and the applicant.

I have
stated above that the suggestion that there had been no boundary
between the applicant and the second respondent is not supported
by
any evidence. It seems that prior to 1966 the subjects of the
applicant were in peaceful and undisturbed possession of the arable

lands in question and that means that the second respondent and the
sixth respondent accepted that the area was on the side of
the
applicant. I am of the opinion that there has never been any
interploughing between the applicant and the sixth respondent.

10

The
respondents, i.e. sixth to twelveth inclusive, complain that the ad
hoc boundary committee never gave them the chance to be
heard before
it deprived them of their arable lands. They depose that on this
ground alone the application should be dismissed
because the decision
of the committee is invalid as far as it concerns them. I do not find
any substance in this argument because
the respondents in question
have never applied to any court of law to have the decision set
aside.

Secondly,
the dispute was between chiefs and concerned a boundary between those
two chiefs. It follows that the allocations which
were made by the
chief who lost the case are invalid and have to fall away
automatically when the decision is against the chief
who made them.
Because the dispute was not between the subjects of the applicant and
the subjects of the sixth respondent, the
argument that they were not
given the chance to be heard cannot stand. They derive their titles
from the allocation by a person
who did not have the right to
allocate land over that area.

In a
recent case between the Minister of Interior and others v. Chief
Letsie Bereng, C. of A. (CIV) No. 17 of 1987 (unreported)
dated the
20th July, 1988 Plewman, J.A. said

"I will assume . for present purposes that if an appointment
were made (let us say) for an improper purpose the court could

intervene in an application to review the Minister's action. But
where no improper conduct can or had been shown, in my view, the

court has no jurisdiction to pro­nounce upon the Minister's acts.
Again if the Minister appointed a committee which did not
comply with
the requirements of subsection (11) the court could intervene. If
however, the Act is complied with no court can concern
itself in the
matter,, The committee acts administratively and for the same reason
(and subject to compliance with subsection 12)
the committee may come
to its own conclusion and the court may not substitute its findings,
on the evidence before the commission
for those of the commission."

11

In the
present case the respondents have failed to show that there was
non-compliance with the provisions of section 5 of the Chieftainship

Act, 1968 and this Court cannot concern itself in the matter.

In the
result the application is granted as prayed in terms of prayers (a).
(b) and (c) of the Notice of Motion.

J.L.
KHEOLA

JUDGE

10th
January, 1990.

For the
Applicant - Mr. W.C.M. Maqutu

For the
Respondents - Mr. Pheko