IN C OF
A. (CIV) NO. 32\94 CIV\APN\401\93

THE
LESOTHO COURT OF APPEAL

In the
matter between :

CHIEFTAINESS
MAQAJELA LEBONA Appellant

and

MAPHOHLOANE
LEBONA 1st Respondent

MINISTER
OF HOME AFFAIRS MASERU 2ndRespondent ATTORNEY GENERAL 3rd
Respondent

Coram :

Mahomed P

Browde JA

Kotze JA

JUDGMENT

Kotze JA
..."

The
appellant is the widow of the late Chief Lebona Lebona who was the
chief of the Thaba-Tsoeu {"the tribe"). Following
on the
death of her husband, the appellant was appointed as the Regent and
the acting chief of the tribe, because her son Qajela,
who was the
lawful successor to the chieftainship was and still is a minor.

In May of
1993 the appellant was appointed to the Senate in Lesotho, by the
King. Following that appointment, the

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appellant
purported to nominate the one Morena Mojalefa Ntena {"Ntena")
as acting chief of the tribe in her place.

The
Lebona family, however, decided to nominate the first respondent to
the position of acting chief of the tribe. That nomination
was
accepted by the second respondent.

The
appellant was dissatisfied with the purported appointment of the
first respondent as acting chief and therefore brought an application

in the court a quo for an order directing the respondents to show
cause why the purported appointment of the first respondent as
acting
chief of the tribe should not be set aside and why the first
respondent should not be restrained from exercising the powers
of an
acting chief without the permission of the appellant. A rule was
granted in those terms but discharged on the return day
by Kheola CJ
substantially on two grounds -

The first
ground was that the appellant's purported appointment of Ntena was
irregular because she had failed to inform the Chief
Officer of this
fact in terms of Section 5(6) of the Chieftainship Act of 1968 ("the
Act").

The
second ground was that on an interpretation of Section 13 of the Act,
the appellant was not free to nominate any person she
choose to the
position of acting chief in her place, that the person so nominated
had to be the person who was next in the line
of succession to the
chieftainship after her son

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Qajela
and that one Taele Nkhahle Phakiso Lebona ("Taele") and not
Ntene was the person so qualified to be appointed as
acting chief.
This reasoning is supported on behalf of the first respondent as
acting chief.

Even
assuming in favour of the first respondent that the interpretation of
the Act favoured by the Court a quo was correct, it does
not follow
that the rule nisi should have been discharged, because the issue
raised by the order prayed for by the appellant in
the Court a quo,
was not whether her nomination of Ntene as acting chief was regular
and lawful, but whether the purported appointment
of the first
respondent was. Even if the nomination of Ntene was irregular, this
would not assist the first respondent if his own
appointment was not
lawful.

The real
difficulty with the purported appointment of the first respondent as
acting chief, is that on his own admission he was
not the person next
in the line of succession to the chieftainship after the appellant's
minor son Qajela. The person who was next
in the line of succession
was Taele. On the first respondent's own argument, therefore Taele
and not the first respondent was entitled
to the appointment as
acting chief.

Counsel
for the first respondent sought to meet this difficulty by Taele's
affidavit to the effect that he was not in a position
to accept
appointment as acting chief, and for this reason he had consented to
the nomination of the first respondent as acting
chief by the Lebona
family on the 3rd of July 1993.

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Counsel
for the first respondent was understandably unable to contend that
"the Lebona family" had any authority to appoint
the first
respondent as acting chief of the tribe. He was therefore driven to
contend that Taele as the next person in the line
of succession had
nominated the first respondent as the acting chief. This however, is
not what Taele himself says or what the
evidence discloses as to what
transpired at the meeting of the Lebona tribe on the 3rd of July
1993. What appears clearly from
the evidence is that the Lebona
family made the decision to nominate the first respondent as the
acting chief. Taele was present
at the meeting but did not purport to
make the decision himself.

It
therefore follows that the purported appointment of the first
respondent was on the evidence irregular and that the appellant
was
entitled to the relief prayed for in the Court a quo.

I therefore make the following order :

1. The
order made by the Court a quo is set aside and substituted by the
following :

"The rule nisi is confirmed with costs"

2. The
first respondent is directed to pay the

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appellant's
coats on appeal.

Dated at
Maseru this 28th day of July, 1995

G.P.C.
KOTZE'

JUDGE OF
APPEAL

I concur
......................

I.
MAHOMED

PRESIDENT
OF COURT OF APPEAL

I concur

J. BROWDE

JUDGE OF
APPEAL