1

CIV/A/8/93

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

'MAHOPOLANG
KOALI Plaintiff

and

MBONESOA
NKOSI Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice W.C.M. Maqutu. Acting Judge on the 14th day
of March. 1994.

Summons
were issued by Plaintiff on the 27th September, 1988 in which he
asked for the following order against Defendant:

1. An
   order that Dependant shall not, after vacating the premises and
   house, interfere with the Plaintiff's possession of the premises
   and
   house.

   
   

2. Costs
   of suit.

   
   

3. Further
   and/or alternative relief.

   
   

Defendant
entered appearance but did not plead

2

timeously.
Consequently a default judgment was entered against Defendant on 10th
January, 1989. This judgment was later rescinded
and Defendant duly
pleaded.

According
to particulars of claim to the Summons, Plaintiff is the son-in-law
of Defendant because he married Defendant's daughter
by customary
rites in 1972 and solemnised the marriage by civil rites on the 2nd
January, 1979. Defendant's daughter died on 20th
January, 1988. In
Defendant's plea, the marriage by civil rites is admitted while that
by Basotho Custom is denied. The fact that
Defendant's daughter died
in 1988 is not denied.

Plaintiff's
particulars of claim state that while Plaintiff and Defendant's wife
were in the Republic of South Africa they asked
Defendant to go and
live in Plaintiff's house at Phaphama Ha Sechele. Defendant moved
into that house of Plaintiff in or about
1987.

In her
plea, Defendant denied that he lived in Plaintiff's house. She says
the site in question is not Plaintiff's. She says the
site and the
house are hers. She built the house, Plaintiff and Defendant's

3

daughter
came to the said site when it was already Defendant's. She concludes
by saying the site is at Phaphama Ha Mopeli not at
Phaphama Ha
Sechele as Plaintiff alleges.

The
Defendant's plea adds that her Form C dated 4th August, 1971 which is
the letter of allocation justifies her refusal to vacate
the said
site.

The
Magistrate after hearing evidence delivered judgment in favour of
Plaintiff on the 29th September, 1992 and grounds of appeal
were
filed of record on the 16th October, 1992 on behalf of Defendant.

The
record of appeal must have been sent to this Court at the beginning
of 1993. The Notice of Set-Down dated 10th June, 1993 in
which this
matter was to be heard on the 14th May, 1994 was filed of record on
28th June, 1993. This Notice of Set-Down is signed
by Respondent's
attorney. On the 8th December, 1993 another notice of Set-Down
changing the date of trial to 18th February, 1994
was filed of
record.

On the
18th February, 1994, the matter was postponed because Mr. Mofolo had
withdrawn as

4

Appellant's
counsel. The court pointed out that the record was in an
unsatisfactory state and the incoming attorneys should attend
to the
record. This message was given to Mr. Sello's clerk because the Court
was informed that Mr. Sello was going to be the attorney
of record.
Costs of the day were awarded to Respondent after the matter had been
postponed to 28th February, 1994.

The
record on the date of hearing was tidily compiled but the original
manuscript of the record was not available although it had
been here
on the 18th February, 1994. The record as compiled by the new
attorney did not have the exhibits. On the 28th February,
1994 the
court was informed that the record was compiled and handed to the
Registrar but was misplaced. The court directed Mr.
Sello, attorney
for Appellant to reproduce his copy of the record to enable the
matter to proceed on 2nd March, 1994. The case
was, therefore, heard
without the original manuscript of the record and the original
magistrate court file. The Court directed
that it should be found.

Mr. Sello
for Appellant's first point was that

5

although
judgment in CIV/A/7/73 was not handed in, at the trial, because D.W.2
Sehalahala Joel Molapo had referred to its contents,
the court ought
to take Judicial notice of it. The reason why it has to do so is that
judgment is the law. A perusal of the record
showed that only a vague
general reference was made to it without giving its number. The point
that Mr, Sello was making was that
the judgment had ruled that
Phaphama fell under Chief Kuini Mopeli, the Principal Chief of
Butha-Buthe.

The Court
pointed out that whether Phaphama was at Mopeli's was a question of
fact not law. If this court had made such a decision
on the facts it
was bound by that decision as a question that had been decided. If
this fact was used a bar to further enquiry
(res judicata) the party
putting it forward had the onus of proof. That party had to show
that, the subject matter is the same,
the parties are the same or
their previous and a final judgment had been given.

The
judgment in this case was never produced whether properly (through
the Clerk of Court or the Registrar) or improperly by just
handing it
in. The

6

Appellant's
grounds of appeal at No. 7 complain that the judgment was seen and
perused in Court and Appellant alleges that the judgment
must have
formed part of the proceedings. Mr. Mofolo who acted for Appellant is
an advocate of twenty four years experience. We
can only assume he
forgot to hand over the judgment. The Court accepted the judgment for
perusal over the objections of Mr. Ramodibeli
Counsel for Respondent
who stated hat on appeal the Court is bound to work within the four
corners of the record.

It is the
court's view that if Defendant sought to prove that the site was at
Mopeli's not lipelaneng where Sechele is the gazetted
headman. He
ought to show the court where the boundary is and then bring the
judgment to show that in terms of that judgment, the
boundary
disputed was finalised. In that case, the dispute was whether a place
called Phaphama falls within Lipelaneng (Sechele's
area) or in Chief
Kuini Mopeli's area where Sechele was only a hand and eye. Apparently
evidence on the issue was heard on 10th
November, 1969. In that
judgment CIV/A/7.73 the boundary is not disclosed. It is only said it
was . pointed out. To say in general
terms Phaphama falls under
Mopeli would not have carried Appellant's case

7

any where
because it had to be shown that this particular site was at Mopeli's
not at Sechele's

Respondent's
witnesses have shown that the area is named after business premises
called Phaphama. They have no hesitation in saying
the site is at
Lipelaneng. Both Sechele and Mopeli allocate land. They both on the
face of the record have issued letters of allocation
Form "C".
The dispute between chief is not important for purposes of this case.
The real issue is who was allocated this
site and who of the two
parties caused a house to be built. One of the parties is using the
dispute between chief to gain an advantage
over the other. The Court
has to determine this issue. The reason disputes among chiefs are not
important is that in Lesotho it
is very common for chief to use
allocation of sites as a means to assert or maintain territorial
claims.

The Land
Act of 1979 came into force on 16th June, 1980 and Section 82 thereof
states:

"Where at the commencement of this Act any land or part thereof
has, whether by error or otherwise, been the subject of two
or more
allocations, the allottee who has used the land and has made
improvements thereon shall hold title to the land in preference

8

to any allottee who left the land unused and undeveloped."

The
legislature has solved this problem in this particular case (for all
it is worth). I say so because the land by common consent
was
allocated before June, 1980. Therefore, it does not matter which of
the two chief had the right to allocate that particular
land. This
should lay the Phaphama controversy to rest.

Coming to
the merits. In so doing, I will use both the record as compiled by
Appellant and the record of the Court below in manuscript,
I will
also refer to the exhibits which Appellant omitted accidentally. The
magistrate court's file has been found and I now have
the benefit of
it.

At Page
38 of the record as compiled by appellant in seeking a default
judgment plaintiff said he bought the site in dispute from
the chief
and he was given a Form C dated 15.3.78. He built a house and then
asked Defendant to live on it. His first wife the
daughter of
Defendant died. Defendant refuses to vacate the house so that his
Second wife can live there. Judgment was later rescinded
and evidence
was

9

heard
de-novo.

On page
40 giving evidence afresh, Plaintiff has given details of his
allocation. Plaintiff further states that he built a five
roomed
house in 1978. He then says he never kept receipts. Defendant kept
the receipts. At page 41 says the Form C Defendant is
holding is not
legal. The site was on a field previously allocated to one Chalali
Matsaba. Under cross-examination, Plaintiff denies
that the
particular receipts that Defendant holds are in respect of the
building in dispute. Plaintiff denies the field was occupied
by
Chalali in 1971. Plaintiff denies Defendant got a Form "C"
(letter of allocation) before Plaintiff could get his.
Plaintiff
denies he ever gave evidence before this occasion and that he ever
said he bought that site. Later he admits having given
evidence
before when he is re-examined. He also admits the land once belonged
to Chalali. at the beginning of his evidence Plaintiff
had handed bis
letter of allocation Form "C" dated 15.3.1978 which was
given to him by Mampe Matela Sechele.

Defendant
states in her evidence in rebuttal that she resides at Phaphama. What
follows in her evidence

10

obliged
the Court to check the handwritten record of the original record
compiled by the Magistrate. The Court found it corresponded
with the
typed record. The particular portion reads:-

"The land in dispute was allocated to me in 1971. A Form "C"
was issued to me I lived in this land in 1978 I erected
a house in
1972. The land was allocated to me by Chief Joel Mafa Molapo occupied
in 1978. I hired one Linko who erected the building.
I bought the
building materials for which I possess receipts."

Defendant
states she works at Butha-Buthe Hospital and she handed the following
receipts in evidence:-

Ex "a" dated 27/8/78 50.00

Ex "B" dated 1/6/82 316.70

Ex "C" dated 9/12/82 88.56

Ex "D" dated 29/12/82 198.67

Ex "E" dated 11/5/82 17.00

All these
receipts are for building materials such as cement, timber, iron but
not all that is written on them is legible Defendant
handed an
acknowledgement of receipt of money that is written as if it is a
letter. In it is stated that "money I gave to
Mr. J. Matsaba
Chalali is R40.00 The balance is R80 in respect of her arable land
(tsimo) Defendant" has signed her name and
below it the name
Julia Chalali is written. A date 21.7.71 is written towards the top
of the document in

11

the
middle just opposite the address. This document is marked Ex "F".

Defendant
also handed Ex "G" the top of which has been torn off. It
is a receipt for the amount of R18.25 for building
a wall Gilbert
Nkone Baholo has written his name and so has Defendant. This document
is undated. There is Ex "H" dated
5/4/78 which reflects an
agreement between Defendant and Linko to complete three rows of a
wall of a five roomed house for R100.00
At the bottom are
acknowledgments that M45.00, M.30.00 has been received by Linko M,
Koali.

Defendant
handed in her Force C issued in respect of the land which was marked
Exh 1. the Court examined Ex I in the original file
and record and
found it was a photo-copy. Defendant told the court that there was no
legal marriage between her late daughter and
Plaintiff. As proof that
her daughter was married to one Mahoko, Defendant handed a South
African passport in the names of Magaret
Mahoko of 78 Motsamai Street
Katlehong. This passport dated 4/4/1979 was marked Ex "J".
An examination of this passport
reveals it was used between 1979 and
1983. Defendant denies she ever kept receipts for Plaintiff

12

and says
she has on the site 5 roomed house, a rondavel, a mud "heisi"
and 2 flat-roomed houses.

Before
dealing with the merits, it is necessary briefly to see what evidence
each of the two litigants brought.

Plaintiff
witnesses are two in number. The first one was Botha Nchee who states
that site was allocated to Plaintiff by Chieftainess
'Mampe Sechele
aided by his land allocation committee of seven members who he named.
He claimed Defendant appeared on that occasion
as mother-in-law of
the Plaintiff. He does not accept the Form C of Defendant. Replying
to questions he says only the law tells
if Plaintiff's allocation is
invalid. He does not know of the dispute between chiefs over the
area. P.W.3 Thafeng Linakane is the
other member of the land
allocating committee to give evidence in favour of Plaintiff. He
lives 300 metres from the disputed site.

Defendants
witnesses are D.W.2 Chief Sehalahala Molapo. He says he was told by
Chieftainess Majobo Molapo that Plaintiff was Defendant's
son-in-law.
D.W.2 says Defendant "resides in the estate of her

13

daughter
the late Hopolang". D.W.2 says there was dispute over Phaphama.
The courts of law held it was under the Principal
Chief of
Butha-Buthe, only he could allocate land there; D.W.2 then says and I
quote.

"The land committee of Chief Mopeli allocated the site in
question to Plaintiff."

I checked
both the type written record and the hand­written original
record. They are the same on this point. I can only infer
this was a
slip of the tongue on the part of D.W.2, he must have meant the land
was allocated to Defendant. The difficulty I have,
however, is how
D.W.2 can say Defendant resides in the estate of her daughter, the
late Hopolang, if indeed the site was allocated
to Defendant. His
evidence on this point would not be of any help because he was not
there when the allocation was made. If D.W.
2 had brought the land
register which the chief of Butha-Buthe or Mopeli had recorded the
allocation in terms of Section 8(4) of
the Land Procedure Act of
1967. referred to it and exhibited it in court, his evidence would be
of value on the question of allocation.

On the
question of where the site in question was

14

situated,
it was not (as already stated earlier) enough for D.W.2 to say it was
situated at Phaphama without showing that in accordance
with the
boundary it falls within the area of the Principal Chief of
Butha-Buthe or Mopeli. This is all the more so because the
site used
to be an arable land which means in 1971 it was not part of the
village. In Lesotho arable lands are outside the village
and form one
mass of land which is parcelled out to villagers. Nobody builds in
that area. To say the land is at Phaphama was not
being helpful. It
is also a notorious fact that there are expansions of villages that
always lead to disputes. Under cross-examination
except for saying he
read the judgment, D.W.2 admitted that he did not know what was in
issue.

D.W.3
Chieftainess Majobo was the sister-in-law to of Defendant . The
record states:

"My father-in-law asked me to apply for land to the defendant."

This is
unintelligible. D.W.3 says Defendant was nevertheless issued a Form C
by Chief Joel Mafa on behalf of Chief Kuini Mopeli
Principal Chief of
Butha-Buthe. That Form "C" was issued in 1973, she only

15

came Co
know Plaintiff in 1982-83. D.W.3 lived in Sekubu. D.W.3 does not know
when Plaintiff's wife died. D.W.3 says he told D.W.2
that Plaintiff
was the boy friend of the daughter of Defendant. D.W.3 says there
were no certificates of allocation in 1971 that
is why the Form "C"
was issued in 1973 and had to be back-dated. D.W.3 claims Chief Mafa
Joel Molapo had power to allocate
land. She does not know what
happened to the date stamp.

The trial
court saw and heard the witnesses. D.W.2 Chief Sehalahala Molapo was
found by the trial court to be giving hearsay evidence.
He did not
have much evidence to give except saying the place Phaphama was at
some time awarded to Chief Kuini Mopeli in his dispute
with Chief
Matela Sechele. The judgment was not handed in nor was any serious
attempted made to prove that in terms of a known
boundary fell under
Butha-Buthe or Mopeli. Indeed, neither the judgment nor the evidence
of D.W.2 describe the boundary. For the
judgment to be of use D.W.2
would not only have to relate the site to the boundary but there had
to be a description of the boundary
in the judgment. The Court chose
to peruse the judgment after indicating that it could not be made
part of the record on

16

appeal.
The Court has also shown that Section 82 of the Land Act 1979 makes
the question of which chief allocated the property unimportant

because the site is a developed one. The only issue that is of
importance is who had been allocated the site at the time it was

developed.

The trial
court was not impressed with Defendant's back-dated Form "C".
It was also not impressed with D.W.3, Majobo Molapo.
The trial court
says "I have not been impressed by the evidence of this witness"
This is not surprising because D.W.2
says D.W.3 told her that
Plaintiff was the Defendant's son-in-law. D.W.3 says she only said
Plaintiff was the boy-friend of Defendant's
daughter. The trial court
found D.W.2 's evidence that of a researcher who did not even hand in
the High Court judgment.

In this
Court's view, Chief Sehalahala D.W.2 would only have been of
assistance as a researcher if he had handed in the 1971 record
of
proceedings of the allocation of Defendant which Chief Kuini Mopeli
or Chief Joel Molapo was obliged to keep in terms of Section
8(4) of
the Land Procedure Act of 1967. D.W.2 Chief Sehalahala. Such
proceedings could have

17

advanced
Defendant's case if he had produced the Register of Allocations for
1971 which Chief Kuini Mopeli was obliged to keep in
terms of Section
11(3) of the Land Procedure Act of 1967. That register is meant to
prove allocations when memories have faded
and those who allocated
the land have died.

The trial
court criticised Defendant for not bringing a single member of the
land allocation committee. The trial Court dealing
with Defendant's
Form "C" says.

"Surely this Court cannot accept such an unreliable certificate
of allocation. ..."

It is to
be noted that the Defendant's Form was issued in terms of the 1973
Land Act. This Act came into force on the 1st March,
1974. It was
assented to by the King on the 28th February, 1974. See the Land Act
1973. That being the case, it is difficult to
believe D.W.3's story
that the Form C was issued in 1973. This seems to have been a lie
that was concocted when it became clear
during cross-examination that
the Defendant's Form "C" was flawed.

Defendant
did not challenge the authenticity of

18

Plaintiff's
letter of allocation. She only challenged the power of Chief Sechele
to allocate the said land. If he had joined the
issue on the
reliability of the Plaintiff's Form "C" more would have
been required out of Plaintiff. Plaintiff proved
his Chief Sechele
was a gazetted Chief who had power to allocate land. This was not
disputed. What Defendant disputed was that
he had no power to
allocate land at Phaphama. Plaintiff claimed the site was at
Lipelaneng, that portion is called Phaphama after
a shop of that name
at or near the area where the site is situated. The trial court held
what Plaintiff alleged was more probable
than what Defendant said.
The Defendant has failed to discharge the evidenciary burden that
Plaintiff threw on Defendant's shoulders.
Among the trial court's
reasons were that Plaintiff's evidence was supported by members of
the land allocation committee.

I need
only add that if the house was erected in 1972 none of the
Defendant's exhibits from "A" to "E" support
this
allegation. Exhibit "A" for the sum of M50.00 is the only
one that was issued in 1978. All the other receipts were
issued in
1982. Exhibit F allegedly issued by Majulia Chalali has the date
21/7/71 that seems to have been added on the document

19

later or
a time that may have been when it was issued or some other time.
Julia and Majulia do not seem to be the person. 'Majulia
means the
mother of Julia. A married woman in Lesotho is normally named the
mother of her first child. For Defendant to come and
dispute the
civil marriage of her daughter which she knew of and to suggest it
was invalid does not create a good impression. In
cross-examination,
it emerged Defendant's daughter used two passports one with the
surname of Mahoko which was South African and
a Lesotho one which
bore Plaintiff surname. Defendant admitted that this particular
Lesotho passport was issued 1978.

Defendant
did at one stage not deny under cross-examination that the site in
dispute was at Lipelaneng. Plaintiff's counsel in the
court below did
not find the fact that Defendant's Form "C" Exhibit I was a
photocopy important. The trial court also
did not find that
important, I shall also not comment upon this,

The
evidence of Defendant indirectly supports that of Plaintiff in that
Defendant says the disputed site was first occupied in 1978.
This is
the time

20

Plaintiff
claims he was allocated this site which he built up and lived on
before he asked Defendant his mother-in-law to live there
as they
went to the Republic of South Africa. D.W.2 Sehalahala Molapo says
Defendant lives at Phaphama in the estate of her daughter,
the late
Hopolang. That supports Plaintiff's case.

It must
never be forgotten that here this court is dealing with an appeal.
The Principles that govern appeals are set out in Rex
v. Dhlumayo &
Ano. 1948(2) S.A. 677. At page 690 Schreiner J.A. says the appellate
court cannot interfere unless it is shown
the court below is wrong
and adds:

"Where, however, the judgment appealed from is shown to be
seriously unsatisfactory the appellate court may consider that
proper
advantage has not been taken of favourable opportunities presented by
seeing and hearing the witnesses, and may then, without
being
actually satisfied that the verdict was wrong, be convinced that
appeal ought to be allowed."

I was not
persuaded that the trial court was wrong from the printed and
hand-written words or that its reasons for judgment were
on their
face unsatisfactory. The printed or written word seems to show the
trial court's decision was correct.

Therefore,
I am satisfied the trial court used its opportunity of seeing and
hearing witnesses correctly.

The trial
court was not impressed that Defendant built the house on the site.
From the amount of M494.06, the court could not infer
that Defendant
built the house. It was for that and other reasons that the trial
court accepted Plaintiff's evidence and rejected
Defendant's
testimony. This court virtually retried the case without the
advantages of a trial court. Defendant's counsel did not
point at any
real misdirection although he vigorously argued for a retrial. Even
so, although this court was urged to seek anxiously
to discover
reasons adverse to the conclusions of the trial judge. The court
noted what Davis A.J. A. said in R. v. Dhlumayo (supra)
at 706, that
is

"No judgment can be ever be perfect and all embracing."

Aaron
J.A. in Seetsa Tsotako v. Matsaisa Matabola in C. of A (CIV) No.10 of
1986 (unreported) dealing with a case that was substantially
similar
to this one said:-

22

"Plaintiff had produced prima facie evidence in the shape of her
Form C, and supporting evidence by two members of the Land
Allocation
Committee. The Magistrate accepted this evidence, and it was clearly
a finding which a reasonable court could have made
on the evidence,
there is no basis upon which we can disturb it."

That
being the case, the order of this Court is that the appeal is
dismissed with costs.

W.C.M.
MAQUTU

ACTING
JUDGE.

14th
March, 1994,

For
Plaintiff : Mr. Sello

For
Defendant : Mr. Ramolibeli.