IN THE
COURT OF APPEAL OF LESOTHO

C OF A
(CIV) NO.1 OF 1993

In the
matter between :

CHIEFTAINESS
'MAMOTLOANG NKHABU Appellant

and

MINISTER
OF INTERIOR 1st Respondent

CHIEF
PETLANE MATSELETSELE PETLANE 2nd Respondent

ATTORNEY
GENERAL 3rd Respondent

HELD AT
MASERU

Coram :
Mahomed, J.P.

Kotze,
J.A.

Leon,.J.A.

JUDGMENT

Leon,
J.A.

The
appellant applied on Notice of Motion for the following order:-

1. Restraining
   the three respondents from alleging that the College of Chiefs ever
   made the boundary between applicants area of KOLO
   HA NKHABU and
   second respondent's area of KOLO HA PETLANE

   
   

2. Declaring
   that no agreement between the boundary committee of the College of
   Chiefs was ever reached and consequently no recommendation
   was made
   to His Majesty concerning the boundary.

   
   

3. For
   the time being the parties should remain occupying the areas they
   occupied before First Respondent on 6th

   
   

2

May 1988
purported to alter the boundary.

From the
terms of the order sought it is apparent to me that the basis of the
application was that the boundary committee of the
College of Chiefs
had never reached an agreement concerning the boundary in question
and that consequently no recommendation was
ever made to His Majesty
concerning the boundary. The other relief claimed really flows from
this.

It is
clear from the respondents' affidavits that the applicant's case is
very much disputed. It is their case, as I shall show
later, that the
College of Chiefs had indeed made a decision concerning the boundary,
had made a recommendation to the King who
had accepted it.

At the
hearing in the Court a quo Counsel for the second respondent raised a
point in limine that there was an irreconcilable dispute
of fact on
the papers which the applicant must have foreseen and that the
application accordingly fell to be dismissed. The first
and third
respondents abided the decision of the Court.

In
upholding the preliminary point the Court held that there was a real
or genuine dispute of fact on the papers which ought to
have been
foreseen by the applicant and that the application accordingly fell
to be dismissed.

3

The
unsuccessful applicant has appealed to this Court on a number of
grounds. One of the grounds of appeal is that if there was
a genuine
dispute of fact viva voce evidence should have been heard. That
argument was not advanced in the Court a quo or before
us. In the
lower court Counsel for the appellant sought to persuade the Court
that the application was brought in terms of sec.
7(a)(l) of the 1959
orders in Council and was therefore an application for review. As was
correctly pointed out by the lower Court
the application was for an
interdict and a declarator.

I turn
now to consider whether there was a real or genuine dispute of fact
on the papers.

The case
made by the appellant in her founding affidavit was that the First
Respondent, in the bona fide belief that there had been
a valid
boundary determination in 1962, gave a ruling on 6 June, 1988 that
the boundary dispute had been determined in 1962. In
fact there had
been no such determination and the first respondent who is the
Minister of the Interior had apparently relied upon
an unsigned
document which was Annexure "B". Her case was supported by
one MOKOLANE who stated that the boundary dispute
had never been
settled in 1962 and that the only document produced by officials of
the Ministry of the Interior was an unsigned
one.

4

Chief
Mitchell Bereng also supported the appellant's case. He alleged that
the unsigned boundary recommendation never came into
force. No
recommendation was ever forwarded to the College of Chiefs or the
King.

The
allegations made by the appellant and her witnesses were hotly
disputed by the respondents on the affidavits. The second respondent,

who is the Chief of Ha Petlane alleged that the appellant's
allegations are not only incorrect but that she had withheld a good

deal of information. Briefly stated the salient points in his
affidavit may be summarised as follows :-

1. The
   dispute over the boundary goes back to 1958. It was between the
   appellant's husband and predecessor and the second respondent.
   It
   was heard by Chieftainess Bereng and resolved in favour of the
   second respondent on 14 November 1958. In consequence boundary
   marks
   were placed.

   
   

2. The
   appellant's predecessor then failed in Court proceedings and on
   appeal in 1960 and 1961.

   
   

3. In
   1964 the Standing College of Chiefs recommended to His Majesty that
   the appellant's predecessor's case should be dismissed
   and His
   Majesty accepted the recommendation.

   
   

4. The
   second respondent also alleges that while all these disputes were
   raging the appellant as the wife of the Chief was present
   and was
   well aware of them. As I read the appellant's replying affidavit she
   does not deny this. It follows that when she launched
   the
   application she must have been aware that a serious dispute of fact
   would arise on the papers.

   
   

In his
affidavit the first respondent by way of background refers to the
ongoing dispute over the boundary since 1968. This

5

led to
disturbances, a number of deaths and cases of arson in 1987 causing
the Minister to make a further ruling in favour of the
Chief of
Petlane. The Minister alleges that :-

1. the
   boundary dispute was indeed settled. In particular he points out
   that the unsigned Annexure "B" relied upon by the

   appellant is not the true copy of the 1964 decision. He puts up the
   true copy which is signed and which was a decision of the
   Standing
   College of Chiefs on 2 November 1964.

   
   

2. On 6
   June 1988 the Minister made a further ruling in favour of the second
   respondent. A translation of that ruling appears as
   Annexure "0"
   to the affidavit at pages 52,and 53 of the papers. In the second
   paragraph on-page"53 it is stated
   that the College of Chiefs
   did indeed decide upon and determine the boundary and that that
   decision was confirmed by His Majesty
   the King.

   
   

To sum up
the respondents' case :-

1. The
   boundary was determined by the College of Chiefs and confirmed by
   the King.

   
   

2. The
   determination was never accepted by the appellant and her
   predecessor and the dispute raged on.

   
   

3. There
   is clearly a dispute of fact which cannot be resolved on the papers
   on the very foundation of the appellant's cause of action.

   
   

4. The
   appellant must have been aware of this when she launched her
   application.

   
   

Faced
with a most formidable task on appeal Mr. Maqutu on behalf of the
appellant delivered an able argument. While readily conceding
that
there was clearly a dispute of fact on the papers which could not be
resolved he urged that the dispute was apparent rather
than real. He
claimed that there was no real or

6

genuine
dispute of fact.

He relied
upon section 80 of the Basuto Constitution. He submitted that in
terns of that section the king could only approve of
a recommendation
by publication in the Gazette and that there had been no such
publication. I may say at once that this argument
was not advanced in
the Court below nor is anything said in the affidavits about non
publication. However I shall nevertheless
assume in favour of the
appellant that this point is available to her.

The
relevant part of section 80 reads :

"after the expiration of thirty days from the date on which any
finding, decision or recommendation shall have been communicated
to
the parties in pursuance of sub-section 2 of section seventy-eight of
this order, or if there is a review of such proceedings,
after the
High Court has determined the matter, the Paramount Chief shall give
his final decision in accordance with the finding,
decision or
recommendation of the College or the Standing
Committee.......................

Any such decision shall be made public in such manner as may be
prescribed and thereupon shall be conclusive and binding upon all

persons affected thereby........."

The
section does not assist the appellant for it is clear from its terms
that the decision of the Paramount Chief must be arrived
at before
publication and the object of the publication is purely to make the
decision binding upon all persons affected thereby.
There is no
question of publication being part of the making of the decision. The
point must fail.

7

Then Mr.
Maqutu subjected the respondents' affidavits to the most critical
analysis attacking the quality and cogency thereof. While
that
argument may well prove productive at a trial it does not bear upon
the question as to whether or not there is a real or genuine
dispute
of fact on the papers.

In my
opinion the dispute of fact in this case goes to the very heart of
the appellant's case. It is a real and genuine dispute
as is apparent
from an examination of the affidavits which is referred to earlier
herein.

The final
question is whether the learned Judge a quo was correct in dismissing
the application. Where a genuine dispute of fact
cannot be resolved
on the papers the Court has a discretion as to what course to follow.
This will depend inter alia on the attitude
of the parties and what
the applicant should have foreseen.

In this
case the applicant must have appreciated when she launched her
application, that a serious dispute of fact would arise.
She elected
to take that risk. Moreover at no time was it suggested to the Court
a quo that the matter he referred for the hearing
of oral evidence or
referred to trial. In these circumstances the learned Judge properly
exercised his discretion in dismissing
the application.

8

In my
judgment the appeal must be dismissed with costs.

Delivered
at Maseru on the 16th day of July, 1993

(Signed)

R.N. LEON

JUDGE OF
APPEAL

I agree

I.
MAHOMED

JUDGE
PRESIDENT

I agree

G.P.KOTZE

JUDGE OF
APPEAL