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CIV/APN/401/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

CHIEFTAINESS
'MAQAJELA L. LEBONA Applicant

and

MAPHOHLOANE
LEBONA 1st Respondent

MINISTER
OF HOME AFFAIRS MASERU 2nd Respondent

ATTORNEY
GENERAL 3rd Respondent

JUDGMENT

Delivered
by the Honourable Chief Justice Mr. Justice J.L. Kheola on the 15th
day

of July,
1994

This is
an application for an order in the following terms:

1. That a Rule Nisi be issued and returnable on the date and time to
be determined by the above Honourable Court calling upon the

Respondents to show cause why -

1. Second
   Respondent's order appointing First Respondent acting Chief of
   Thaba-Tsoeu Ha Lebona shall not be set: aside as being contrary
   to
   law and as having been made contrary to the audi alteram partem
   rule.

   
   

2. First
   Respondent shall not be restrained from exercising the

   
   

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powers of acting Chief of Thaba- Tsoeu Ha Lebona without the
permission of applicant who is her minor son's regent.

3. Respondent
   shall not be directed to pay costs of this application.

   
   

2. That prayer 1 (b) operate as an interim interdict.

The facts
of this case which are not in dispute are as follows:

1. The
   applicant is the widow of the late Chief Lebona Lebona who was the
   chief of Thaba-Tsoeu.

   
   

2. After
   the death of her husband the applicant was appointed as the acting
   Chief of Thaba-Tsoeu during the age of minority of her
   son Qajela.

   
   

3. In
   May, 1993 the applicant was appointed to the Senate by His Majesty
   King Letsie III.

   
   

4. Following
   the applicant's appointment to the Senate the Lebona family convened
   a meeting at which they nominated the first respondent
   to act as
   chief of Thaba-Tsoeu in the absence of the applicant.

   
   

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5. A
   recommendation was made to the Minister of Home Affairs. He accepted
   it and duly appointed the first respondent as the Acting
   Chief of
   Thaba-Tsoeu (See Annexures "MLS" and "ML4" to
   the founding affidavit).

   
   

5. In
   the meantime the applicant had also made her own nomination of a
   certain Morena Mojalefa Ntepe. She was acting in terms of
   section 5
   (6) of the Chieftainship Act 1968 (the Act).

   
   

The
question which immediately arises is whether the applicant followed
the proper procedure when she appointed Morena Mojalefa
Ntepe to act
as chief of Thaba-Tsoeu, Section 5(6) of the Act reads as follows:

"It is the duty of every Chief intending to be absent from the
area of authority of his Principal or Ward Chief from whatever

purpose to notify the Chief immediately senior to him in writing of
his intended absence and the place to be visited by him, and
to
inform that Chief of the name of the person who is authorised in
accordance with the provisions of section 13 to exercise the
powers
and perform the duties of his office during his absence. For so long
as an authorisation is in force under this subsection,
the person so
authorised may exercise the powers and perform the functions of the
office of the Chief while he is absent."

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Section
13 (4) and (5) of the Act, as amended, provide that:

"(4) Subject to the provisions of section 5, the person who has
the first right to succeed to an office of Chief (or failing
him, one
of the persons, in order of prior right, who have the right to
succeed to that office) exercises the powers and performs
the duties
of that office in the following circumstances -

1. when
   the holder of that office is exercising the functions of the office
   of King as Regent or otherwise during the absence or
   illness of the
   King;
   

   
   

2. while
   the holder of -that office is deprived under the provisions of this
   Act of the right to exercise the powers and perform
   the duties of
   that office;
   

   
   

3. when
   the holder of that office (and any person who has been designated as
   having a prior right to succeed to that office) is unable
   by reason
   of absence from the place to which that office relates, or by reason
   of infirmity of body or of mental incapacity,
   [or by reason of his

   
   

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being detained in prison,] to exercise the powers and perform the
duties of that office;

4. when,
   for any reason not specified in the proceeding paragraphs, it is not
   possible for any person to succeed effectively to that
   office.

   
   

(5).
Subject to the provisions of section 5, the holder of an office of
Chief may either generally or from time to time as occasion
may
arise, and subject to authorisation under the provisions of section 5
and to such conditions and limitations as he may impose,
designate
the person who is to exercise any of the powers and perform any of
the duties of that office; and the person so designated
may subject
to the provisions of section 5, exercise those powers and perform
those duties, subject to those conditions and limitations."

It seems
to me that section 5(6) of the Act deals with the procedure which has
to be followed when the holder of the office of chief
intends to be
absent from his office for only a short time for the purpose of
visiting a place which he must name in his letter
to his chief. It is
his duty to inform his chief of his temporary absence from his office
of Chief. This subsection does not deal
with the manner in which that
person who is to act

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as chief
during the absence of the holder of that office, should be appointed.
The procedure of how such a person should be appointed
is described
in section 13 of the Act. Section 5(6) actually refers to section 13
for the procedure to be followed.

It is
common cause that the applicant did not notify her senior chief in
terms of section 5(6) of the Act. Instead she notified
The District
Secretary as per Annexure "ML3" to her founding affidavit.
This was the first irregularity which she committed.

Section
13(5) of the Act, as amended, gives the holder of the office of Chief
the authority to appoint on ad hoc basis or generally,
a person to
exercise any of the powers and perform any of the duties of that
office whenever the occasion arises. I suppose that
the applicant's
going to attend the Senate is one of such occasions. Annexure "ML3"
is not clear whether it was a general
designation or an ad hoc one.
In any case it is clear from the evidence of the applicant in her
affidavit that she regarded her
going to the Senate as a temporary
absence from her office of chief. On the other hand the first
respondent regarded her absence
from her office as a permanent one
because she will be a Senator for a period of five years.

The
applicant is the holder of the office of chief or exercises the
powers and performs the duties of that office in terms of section

13(1) of the Act, as amended, because she is the senior surviving or
only wife of the previous holder of the

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office of
chief in her area. She is the acting Chief because her son is still a
minor.

Section
13(4) (c) of the Act provides that the person who has the first right
to succeed to an office of Chief (or failing him,
is one of the
persons, in order of prior right, who have the right to succeed to
that office) exercises the powers and performs
the duties of that
office in the following circumstance: when the holder of that office
(and any person who has been designated
as having a prior right to
succeed to that office) is unable by reason of absence from the place
to which that office relates,
or by reason of infirmity of body or
mental incapacity or by reason of his being detained in prison, to
exercise the powers and
perform the duties of that office.

The
applicant is unable to exercise her powers and to perform duties of
the office of Chief at Thaba-Tsoeu because she has been
appointed a
Senator. She is absent from that office either temporarily or
permanently in order to attend the meetings of the Senate.
I do not
propose to decide whether her absence from her office is permanent or
temporary because it seems to me that the main and
decisive issue
here is whether the applicant has a right to choose any person she
pleases when she leaves her office.

It is
very clear that in terms of section 13(4) of the Act the person or
persons who are entitled to act as chief when the applicant
is absent
must be nominated or appointed in the order of their prior rights to
succeed to that office. In terms of section 13(2)
of the Act the
oldest of the surviving legitimate

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brothers
of the late husband of the applicant have a prior right to be
appointed to act as chief when the applicant is absent. I
do not know
who Morena Mojalefa Ntepe is, but what is clear from the papers in
this case is that he is certainly not a brother
of the applicant's
late husband. It is also clear that the first respondent is not the
oldest legitimate brother of the applicant's
husband. However in
order of prior right he ranks much higher than Morena Mojalefa Ntepe.

In
paragraph 8.2 of her founding affidavit the applicant refers to the
provisions of section 5(6) and section 13(3) of the Act,
as amended.
I think that the last section ought to be 13(5) because when the Act
was amended in 1974 the numbering of the subsections
was changed.
What is clear is that the applicant overlooked the provisions"
of section 13(4) which specifically mentions the
people who are
eligible for appointment to act as chief in the absence of the holder
of that office. The brothers of the applicant's
late husband cannot
be bypassed without sound reasons such as infirmity of the body or
mental incapacity. The applicant has not
given any reasons why she
did not follow the order of prior right of the people who have the
right to succeed to that office. Although
this was not a case of
succession as such, but even in acting positions the order of prior
right to succeed to that office must
be followed.

In the
result the rule is discharged with costs.

(J.L.
KHEOLA)

CHIEF
JUSTICE

15th
July, 1994.

For
Applicant - Mrs Kotelo

For
Respondent - Mr. Malebanye.