HIGH COURT OF LESOTHO
Appeal of :
by the Hon. Mr. Justice M.L. Lehohla on the 24th day of June, 1991
appellant having been dissatisfied with the Judgment of the Judicial
Commissioner's Court granted on 26th April 1985 appeals
to this Court
for reasons set out: as follows :-
(a) The learned Judicial Commissioner erred in finding for the
Respondent and dismissing the appeal when there was no evidence
he was ever allocated the lands in question.
(b) The courts below erred in awarding the land in
question to the respondent on the sole basis that he is a Chief
although it is clear that even a Chief has to have the land allocated
(c) Chief Marakabei has no power to allocate lands in the Letuka Area
as Letuka had power to allocate land.
(d) The court erred in disregarding the fact that the respondent at
one time recognised appellant's rights to the land in as much
have ploughed half-shares.
Further that :
(e) The learned Judicial Commissioner misdirected himself on a point
of Law in terms of Section 7(5)(5) (sic) the authority shall"
give priority in the re-allocation to any adult son or sons of the
original pleadings the then plaintiff who is now the respondent
Stanley Lerotholi told the Local Court that he prayed that
order the then defendant who is now the appellant Kopano Makepe to
stop using three fields ploughed by the defendant without
reply,the defendant indicated that the fields below the Letuka
village on the left side of the path leading to Ha Makepe and
above the plots on the other side
stream are his. The third one being the one at Lithoteng he stated
still belongs to the plaintiff' thus implying the plaintiff
not have sued him for it.
plaintiff outlined his manner of acquisition of these fields as
1958 when he first came to Letuka's one old man Xhaile Kopung
surrendered two of his fields to the chieftainship. Consequent
this surrender .Khaile Kopung's fields were allocated by Chief
Marakabei and Chieftainess 'Mabatho to the plaintiff. These
chiefs were land allocating authorities.
Chieftainess 'Mabatho died and her lands fell due for re-allocation
the plaintiff reported this to Chief Marakabei and expressed
interest in acquiring one of the late Chieftainess's fields in
exchange for one of his. Chief Marakabei approved this as well
fact that the rest of the lake Chieftainess's lands could be
re-allocated by the plaintiff to the public at large. The plaintiff
accordingly picked the field below the village.
position of the plaintiff vis-a-vis the fields acquired by nim after
Chieftainess Mabatho's death remained undisturbed and enjoyed
confirmation of Chief Marakabei until 1974 when the defendant started
ploughing these fields without the plaintiff's consent.
this new form of disturbance was resolved
Chief Sekete in 1977 and the plaintiff enjoyed
respite from the defendant's trouble for the defendant
didn't,according to the plaintiff, challenge Sekete's ruling.
from the pleading referred to above it seemed the defendant did not
claim the field at Lithoteng as his it seems however,
page three of the
that he had obstructed the plaintiff's agents from ploughing it.
Sekete testified that because Chiettainess 'Mabatho had no child she
appealed to Chief Thabo Lerotholi to give him one. Accordingly,
Lerotholi was granted the Chieftainess in response to her request.
however after Chief Thabo Lerotholi's death Qaba frustrated
'Mabatho's hopes by resigning from the position he had been placed at
in relation to 'Mabatho. The Chieftainess appealed to Chief
who allocated some fields in the area of Chieftainess. 'Mabatho
because Qaba had refused the invitation to that place.
died her fields reverted to the Chieftainship and Chief Maraxabei
re-allocated them to the general public. It was
by this means that
the plaintiff was allocated the field below the village in exchange
for the one surrendered by the plaintiff
to Motupu at Ha Rammalo. The
plaintiff is corroborated in his evidence by Sekete who testified
that the other field allocated to
the plaintiff was one at Thoteng
while, the next other way the one lying along the path leading to ha
Molapo. The importance of
this witness's evidence consists in the
fact that he testified that the litigants appeared before his
administrative office. He
made a decision confirming the plaintiff on
these fields. The defendant did not appeal against this decision to
the Chief of Matsieng.
cross-examination Sekete expressed his knowledge that the plaintiff
was sent not as a new subject or resident to Ra Letuka but
ruler. This throws some
the question alluded to earlier that Qaba had refused to fill up the
position that was vacant due to
childlessness of 'Mabatho.
defence case as outlined by Chief Kopano Makepe was that the fields
in dispute belonged to Chief Letuka. The defendant came
to ha Letuka
in 1974 to take or assume the rights of his predecessor Letuka. The
defendant concedes that he came to ha Letuka after
the death of
Chieftainess 'Mabatho. The defendant was not able to produce
documentary evidence to show that the fields in dispute
Letuka. He had already compromised the stand he had initially taken
in respect of the field at Lithoteng by subsequently
saying he had
not placed any claim to it. Significantly he never denied that he
obstructed the plaintiff's use of that field at
one stage or another.
significant that it was only when giving his evidence in chief that
the defendant informed the Court that the plaintiff went
to Ra Letuka
as a new resident. Impliedly by this he sought to gainsay the
evidence which indicated that the plaintiff was allocated
belonging to Mabatho the wife of her predeceased husband Letuka
because Qaba had made little of the arrangement Chief
had wade in response to 'Mabatho's plea that she had no child.
Significantly this arrangement was not challenged
by the defendant
during the life time either of Chief Thabo Lerotholi or of
Chieftainess 'Mabatho herself.
defendant makes a merit of the fact that he and the plaintiff went
half-snares regarding the field which he found the plaintiff
ploughed part of the way when the defendant came to assume rights at
ria Letuka after 'Mabatho's death.
this field he makes an explanation why he did not answer Sekete's
questions regarding the
use of that field. Of significance is the fact that it does not seem
that in cross-examining Sekete he put the story
that he wished the
Court of first instance subsequently to believe namely that
I was summoned by Chief Sekete and on arrival I found the subject was
again on the same field and I told the chief that I would
the case if he presided over it because he had been the chief witness
of the plaintiff-
can an agreement to go half-shares with a man in respect of the field
he is found ploughing be regarded as proof that the
field belongs to
the proposer who finds the other ploughing that field.
view the judgment of the Court of first instance ought not to be
disturbed. Consequently the appeal is dismissed.
J U D G E
24th June, 1991
Appellant : Mr. Maqutu
Respondent: Mr. Moorosi
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