CIV/A/19/80

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

MATEBOHO
KHIBA Appellant

V

MATAU-EA-KHALE
MAIMANE Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 29th day of October.
1982

The
appellant sued the Respondent in Mapholaneng Local Court (on 3.11.77)
for ploughing a piece of land without her permission.
In this
judgment the appellant will simply be referred to as the plaintiff
end the Respondent as the Defendant.

The
plaintiff through corroborative evidence was able to show that after
the death of her husband all his lands, in accordance with
the law,
were handed over to the chieftainship. It was this authority which
allocated the disputed land to the plaintiff.

In 1977
the present defendant instituted an action. Judgment was given in
favour of the plaintiff. It confirmed that the previous
allocation
had been in order. The defendant appealed to Salang Central Court and
in that court the matter was referred back to
the Mapholaneng Local
Court and the order was that defendant was to proceed with the matter
within a period of thirty (30) days.
Apparently that court had wished
to have the views of the present witness, chief Semai Sekonyela.
However, the said period expired
the defendant having done nothing.
Then the present case before Court, was launched and it is not
without

2

significance
to note what the defendant said in his statement (in part) :

"The reason that this case (the present) is being renewed was
............." (My underlining).

In my
view this is the first mistake which the learned President of
Mapholaneng Local Court allowed to happen. The defendant had
failed
to carry out an order of Court. The result of this failure is that
the judgment of the trial Court was revived. The whole
case,
therefore, at the start of the present case was now res judicata.
That ought to have been the initial finding of the Mapholaneng
Local
Court. This seems to be aluded to in the judgment of the learned
President but it is far from being clear, bold and explicit.

There is
yet another way of approaching this case. It is clear that both the
Mapholaneng Local Court and Salang Central Court found
in favour of
the plaintiff viz, that her allocation had been in accordance with
the law. It had been authorised by the rightful
authority. The
administrative action taken by chief Semai Sekonyela who gave
evidence at the trial, merely set aside what Mosamelo
Sekonyela
purported to do namely, to deprive unlawfully the plaintiff of her
lands. He did not allocate any land to anybody at
that stage. If,
therefore, any procedure pertaining to deprivation of land was
necessary to be applied but was not so followed,
it was at the stage
when Mosamelo Sekonyela, (a mere self-confessed Court messenger) took
the plaintiff's lands away. The whole
attitude of the defendant shows
clearly that she has no respect for chief Semai Sekonyela. She does
not accept his decisions as
authoritative and hence the attitude of
Mosamelo Sekonyela. Indeed, when questioned, revealing answers are
given

3

2. I
   appealed in 1976 when the decision was made in 1972.

   
   

2. P.W.1
   is (Morena Semai Sekonyela) decision was that the two terraced
   portion belonged to Mateboho Khiba (the plaintiff).

   
   

2. Land
   is allocated by the chief who has legal authority to do.

   
   

3. Chief
   Semai Sekonyela has no final say in the land allocation in his area.
   The final decision lies with Judicial courts.

   
   

2. The
   land is in area of the chief and not in the area of the Court.

   
   

2. The
   land is allocated by the chief and not by the courts."

   
   

Answers
six (6) and seven (7) disposes of the nonsense stated in answer five
(5).

Mosamelo
Sekonyela, in his evidence for the defence, states inter alia when
being questioned by the Court :

"3. I have no power to reverse chief Semai's decision in regard
to land allocation."

Well,
what did he purport to do then if not just that? When he purported to
award the land in dispute to the defendant, previously
chief Semai
Sekonyela had allocated it to the plaintiff and he had not undone
that deed yet. So his answer is an unashamed confession
that what he
purported to do was utterly shameful; disgraceful and deceiptful in
harassing the plaintiff in the manner he and others
did.

I have no
doubt in my mind, whatsoever, that this appeal must succeed with
costs. The judgment of Mapholaneng Local Court is hereby
confirmed
and the plaintiff must start ploughing forthwith, without any
hindrance from the defendant.

JUDGE.

29th
October, 1982.

For the
Appellant : Mr. K. Sello

For the
Respondent : Mr. C. Maqutu