CIV\APN\174\92

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

CHIEFTAINESS
'MAMOTLOANG NKHABU Applicant

v

MINISTER
OF THE INTERIOR 1st Respondent

CHIEF
PETLANE MATSELETSELE PETLANE 2nd Respondent

THE
ATTORNEY GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 14th day of December,
1992

On 2nd
December, 1992 Mr. Nthethe appearing on behalf of the 2nd respondent
raised a point of law. Mr. Magutu in response to this
dwelt on the
merits. Faced with the predicament concerning how far to go in reply
thereto Mr. Nthethe took Counsel of prudence
from the Court to
confine himself to the material alluded to in response to the points
he had raised in limine. Mr. Letsie for
the 1st and 3rd respondents
undertook to abide the decision of the Court.

In
dealing with this matter it is appropriate for the Court to concern
itself only with material, arguments and counter- arguments
relevant
to the point of law raised.

The Court
observed that at pages 27 and 28 of the 2nd respondent's opposing
affidavit the deponent Chief Petlane said at 4.3 -

2

"I verily aver that when all these things were happening the
Deponent ('Mamotloang Nkhabu) was present as the wife of the
Chief.
She was well aware of same. And, I have disclosed all these facts so
that the Court may appreciate just how much of dispute
of fact there
is in this matter, and how much of the material facts the Deponent
has not disclosed. Indeed at the hearing of this
matter I shall
instruct my attorneys to take a point in limine".

It is
trite that matters brought by way of application proceedings are at
risk if there are material disputes of fact which the
applicant must
have foreseen. To avoid this risk the proper way to follow is by way
of action unless reasons of urgency make it
imprudent not to proceed
by way of motion.

In her
founding affidavit at page 5 of the paginated record paragraph 3.2
the applicant avers that the boundary constituting the
material
aspect of this application was established in 1962.

The 1st
respondent relying on records kept in the Ministry of the Interior
Chieftainship and Rural Affairs made a decision on 6-6-88
showing
that the boundary was established in 1958\59; thus denying the
applicant's averment in the above paragraph.

In fact
at page 38 the Minister's opposing affidavit at 3.2 avers

"I
strongly aver that a boundary was made on the 27th June 1959."

In
response to this positive statement by the Minister which negates the
averment that the boundary was established in 1962 the

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applicant
does not specifically deal with this point but makes a global
reference in paragraphs 5.1, 5.2 and 5.3 to paragraphs 5,6,7,8,9,10

and 11 of respondents' opposing affidavits. See page 58 of the
record.

In fact
the 1st respondent with whose averments the 2nd respondent aligns
himself says at page 38 :-

"I made no mistake in saying that the boundary dispute was
settled. In 1958, the Chief of Kolo gave a ruling attached hereto
and
marked annexure "A" which was endorsed by the College of
Chiefs in 1959. The annexure "B" which is unsigned
and
appended to the Notice of Motion is not the true copy of the 1964
decision. The true copy is annexed hereto and marked "B"

and it can readily be seen that it is signed".

Right
from the beginning the applicant in relying on the document which
obviously was not signed but nonetheless bringing it along
in motion
proceedings where the opposing parties indicate that the applicant's
document is not genuine and go a step further to
produce one which
because signed bears prima facie proof of genuineness, should have
foreseen that she was running a serious risk
as facts relied on by
respective parties to this matter were sharply in conflict.

The 1st
respondent is emphatic in paragraph 9 located at page 38 that

"I reiterate the fact that the boundary dispute

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has now been settled although the applicant and his(her) subjects do
not honour the decision reached by both myself and the Honourable

Courts of Law"

The reply
to this highly controversial averment is contained in the applicant's
replying affidavit page 58 paragraph 5. This reply
evokes further
impression that at least oral evidence would be necessary to
ventilate the conflict and challenge contained in the
applicant's
averment -

"It is significant that the alleged recommendation was never
accepted by His Majesty the King. Consequently first Respondent

cannot claim he is enforcing an existing boundary".

The
objective and essence of a further response by the applicant escape
me; for instance at paragraph 5.3 she avers

"Nowhere does first Respondent show that the King approved the
said recommendation in 1964 when it was purportedly made".

In my
view for purposes of bringing this matter before Court on application
papers the applicant should have realised that the other
side would
dispute her allegations, and that in the event of such dispute a
prolix reply that further compounds the dispute would
be frowned upon
by the Court. So she should have avoided this by adopting a more
appropriate method in approaching this Court in
the circumstances,

I am
satisfied that disputes of fact canvassed in the

5

preliminary
point raised are not just spurious or irrelevant but serious and
ought to have been foreseen by the applicant more especially
that
they had been brought to her attention and an appropriate reaction
intimated to her by the 2nd respondent in good time.

Faced
with these difficulties Mr. Magutu for the applicant sought to
persuade the Court that this application was brought in terms
of
section 79(1) of the 1959 Orders in Council and therefore is an
application for review.

But the
very first page of the Notice of Motion leaves the reader in no doubt
what form of proceeding is intended in these papers.
It reads

"In
the matter of application for interdict".

Clearly
if the matter was of review there would be no difficulty introducing
it as such.

Rule 50
of the High Court Rules appearing in Legal Notice No.9 of 1980 sets
out the procedure to be followed in bringing an application
for
review before this Court. One of the first steps is that the Court be
approached with a view to granting an order that the
tribunal whose
proceedings are sought to be reviewed, should produce the record
which must be despatched "to the

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Registrar
of this Court" within 14 'days of the receipt of the notice. I
am not aware that any of the above prerequisites has
been satisfied.
Thus it would seem there is merit in Mr. Nthethe's submission that
characterisation of this proceeding as an application
for review is
an afterthought. Furthermore the prayers themselves on the Notice of
Motion support the patent intention of the applicant
that her
application be perceived as an interdict for she asks that the
respondents be restrained.

I am
satisfied that factors involved in this matter are not such as would
be resolved on affidavits. The applicant ought to have
foreseen that
considerable amount of serious disputes of fact would arise in this
application regard being had to the long and
protracted history of
controversy resulting at some stages in lives being lost between the
subjects of the respective chiefs whose
boundary was in dispute.

The point
of law raised is upheld with costs.

JUDGE

14th
December, 1992

For
Applicant : Mr. Maqutu

For 2nd
Respondent : Mr. Nthethe

For 1st
and 3rd Respondents : Mr. Letsie