CIV/A/31/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOTSOARI
MOTSOARI APPELLANT

and

MOHLAOLI
MAHOMO RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo, Acting Judge, on the 15th
day of September, 1995.

This is a
case which commenced in 'Mamabaena Local Court where the plaintiff
Mohlaoli Mahomo sued the defendant Motsoari Motsoari
for ploughing
his land.

The Local
Court found for the defendant and ordered the plaintiff to vacate the
land. Plaintiff had appealed to Ramokoatsi Central
Court and the
Court had upheld the appeal. From the judgment of Ramokoatsi Central
Court the appellant who was defendant at "Mamaebana's
Local
Court had appealed to the Judicial Commissioner's Court and the
appeal had been dismissed. It was against the judgment of
the
Judicial Commissioner that the defendant at 'Mamaebana Local Court
had appealed to this court.

2

According
to the Record of Proceedings which are properly paginated, it is said
that reasons for appeal are on pages 34 -35 but
the last page is 33
being the last page of the Judicial Commissioner's judgment. I do
not, however, find this omission to be of
any import considering that
the appeal was in any event argued before the Judicial Commissioner
and have in the meantime availed
myself of the missing reasons for
appeal.

For the
sake of convenience, I will refer to the appellant before this court
as the defendant and the respondent as the plaintiff.

The
plaintiff had sued the defendant at 'Mamaebana Local Court claiming
the land already referred to on the ground that he had been
allocated
the land by the chief and the allocating committee in 1972. The
plaintiff had annexed a Form C which was signed purportedly
by two
chiefs namely: Ts'otleho Motlomelo and S.J. Moholobela.
Morena-oa-Sehloho (Principal Chief) Sebaka (Ward Chief) and Ramotse

(Headman) had been cancelled leaving Morena (Chief) and yet the date
stamp was that of 'Morena oa Matelile.' (Chief of Matelile)

In his
judgment the President of 'Mamaebana Local Court referred to the
anomaly of the two signatures on plaintiff's Form C but
except saying
that it was surprising there were two signatures left the matter
open. It appears that the trial

3

court
found for the defendant on the ground that 'this land was not
lawfully removed from Mots'oari's family by the time it was
awarded
to Plaintiff

On the
other hand, Ramokoatsi Central Court appears to have been influenced
in its decision to reverse the trial court's finding
by the fact that
'it is clear that Respondent ploughed the remaining portion by
force.' I am at a loss where the presiding officer
got 'by force'
from for in the proceedings before the Local Court there was no
reference to use of force at all nor did the President
of that court
refer to force at all. If the use of force came from addressee by the
plaintiff and defendant before the Central
Court the count was wrong
to take such addresses as evidence on which a court could base its
decision.

For
reasons that are not clear to this court, the Judicial Commissioner
confirmed the finding of the Central Court to the extend,
as it said,
'that it found the allocation to be lawful.'

Now, in
this context the lawfulness referred to appears to be the Form C
which was issued in favour of the plaintiff by two chiefs
namely:
Ts'otleho Motlomelo and S.J. Moholobela. Before 'Mamaebana Local
Court the defendant had asked questions to which the plaintiff
had
replied to as follows on page 3 of the Record of Proceedings:

4

"14. Chief Motseki allocated me the land being chief of
Motjatji."

"17. Chief Motseki has the right to allocate the land."

"18. Chief Motseki was not yet gazetted when he allocated land
to me."

"19. The ungazetted chiefs have right of allocating land."

"20. Chief Motseki allocated me the land lawfully though he was
not vet gazetted."

then on
p.5 appears the following answers:

"1. Plaintiff was allocated this land by Chief Ts'otleho
Motlomelo chief of Maholong."

"2. Ts'otleho took the land from Chief Motseki and allocated it
to Plaintiff."

I do not
understand what is meant by Ts'otleho took the land from chief
Motseki and allocated it to the plaintiff for neither Ts'otleho
nor
Motseki had the authority, in law. to allocate land. If this is what
the Judicial Commissioner meant by

'The allocation to respondent of the land as done is lawful'.

the
learned Judicial Commissioner was terribly mistaken for only gazetted
chief have the right, in consultation with their land
committees, to
allot land. As to what chief Moholobela's signature wanted on
plaintiff's Form C is difficult to say as neither
the plaintiff nor
his witnesses say chief Moholobela was the allocating authority then.

As I have
said, it appears that according to Exh. "A" (Form C) both
Ts'otleho Motlomelo and S.J. Mobolobela signed the
Form C and as to
designations Morena oa Sehlobo (Principal Chief),'

5

Sebaka
(Ward Chief) and Ramotse (Headman) seem erased leaving Morena (Chief)
apparently as an indication that Ts'otleho Motlomelo
was the
allocating authority - something which ties up with the evidence that
plaintiff was allocated the land by chief Ts'otleho
Motlomelo as
shown supra at p.4.

In his
evidence the plaintiff told the trial court that although Motseki was
not gazetted it's him who allocated him the land. It
was plaintiff's
witness Mojapela Ntebele who told the Local Court that it was
Ts'otleho Motlomelo who allocated the land to the
plaintiff. Ouite
apart from this conflict in the plaintiff's evidence, no two chiefs
can jointly and validly allocate land in the
same area for authority
is conferred upon an administrative organ to exercise its powers
within a given geographical area or in
a specific place.

According
to the Form C (Exh "A") chief S.J. Moholobela is chief of
Matelile and I am made to understand that his is the
Principal
Chieftainship Ward of Matelile so that in my view his signature on
the Form C referred to is superfluous and may have
been used to cover
Ts'otleho Motlomelo's inability in law to allocate land.

It has
been said if an organ 'exercises its powers outside the geographical
area or in a place which does not qualify in

6

terms of
the empowering statute, the organ will have exceeded its powers and
the act will be invalid.' see Mutardzie v. Schrader.
1966(4) S.A. 678
(SWA). It has also been held that:

'An administrative organ on whom a certain status has not been
conferred within a particular area has no authority to issue binding

decrees within that area.' - see S. v. Peter. 1976(2) S.A. 513(C);
Cape Divisional Council v. Parker. 1981(3) S.A. 817(C).

I find
that when S.J. Moholobela signed Exh "A" (Form C) he had
exceeded his powers and that when Ts'otleho Motlomelo
also signed Exh
"A" (Form C) he had no authority to do so and consequently
that their act was invalid and of no legal
force or effect.

It was
defendant's case that the land claimed is his by virtue of having
been allocated the same by Motsoari's family and in support
produced
Exh "B" which gave the defendant Toronyane Mots'oari's
rights and evidence showed some of the rights to be inherited
by the
defendant included the land in dispute. The question now arises
whether an heir can validly inherit arable lends. Mr. Sello
for the
defendant conceded that was not the law and as I agree with him it
would be worthless to pursue this aspect of the case.

At the
hearing of this appeal Mr. Sello had made certain submissions amongst
which was the fact that although the law is

7

to the
effect that on the death of a head of the family land automatically
reverts to the chieftainship for re-allocation such an
act could not
be said to be valid and was to be looked upon as technical in that in
reality the chief could not ignore interests
of dependents in
re-allocating the land so that, strictly, land ran in families with
the qualification that there had to be in
any event lawful allocation
which the defendant did not have. He further submitted that a widow
may not dispose of land without
consultation with the family the more
so because given the economic structure of the country land is a
resource which cannot be
disposed of without considering interests of
dependants.

Mr. Sello
concluded his argument by saving although defendant did not have a
valid title, he was nevertheless entitled historically
and
customarily to be given such title to the land.

Mr.
Khasipe in reply wondered how the appeal came on the roll of cases
for hearing for afterall it had lapsed as the set down was
irregular
and not according to the Rules of Court and cited Rule 52 of the High
Court. He went on to say the set down was not according
to the Rules
of the Subordinate Court either and as far as he was concerned a
Subordinate Court in law included the Judicial Commissioner's
Court.
As to the proposition that a Subordinate Court includes a Judicial

8

Commissioner's
Court, Mr. Khasipe had no authority to support the contention and as
in any event this court was not called upon
to decide this issue this
argument was not pursued.

Mr.
Khasipe's implications of Rule 52 of the High Court rules is so
important, though, that this cannot be left undecided.

I have
had the occasion to lav my hands on defendant's appeal to the
Judicial Commissioner's Court. The appeal was received by the

Judicial Commissioner's Court on 11th October, 1990 and the Judicial
Commissioner issued a certificate on the 21st November, 1991
though
he signed the certificate on 2nd December, 1991.

Paragraph 3 of the Certificate reads:

Applicant is required to have served upon the Respondent a copy of
his written grounds of appeal and a copy of set-down for the
next
session of the High Court.

and paragraphs 4 and 5 respectively read:

Applicant has also to lodge with the Clerk of this court at Maseru a
notice of set-down addressed to the Registrar of the High
Court.

and

All rules have to be complied with timeously failing which an
application for condonation of late lodgement of the appeal should
be
submitted to the High Court through the Registrar.

9

According
to the Judicial Commissioner's Certificate and hence the rules
therein contained, appellant should have simultaneously
as he served
a copy of grounds of appeal served a copy of set down on the High
Court in its ensuing session. In addition, appellant
was to have
lodged with the Clerk of the Judicial Commissioner's Court a notice
of set-down addressed to the Registrar of the High
Court. These
requirements are in terms of the decision in Letsie Mots'oene v.
Setsumi Molapo H.C.T.L.R. 1926 - 1953 and were to
have been complied
with within a period of 30 days from the date of issuance of
certificate of the Judicial Commissioner. As far
as this court is
concerned, these rules appear peremptory.

From a
perusal of the record, it appears that the appellant never complied
with the provisions of the certificate as issued by the
Judicial
Commissioner for the only time the matter was set down was in
February, 1993 and contrary to the requirements of provision
4 of the
Judicial Commissioner's Certificate. According to the decision in
Letsie Mots'oene v. Setsumi Molapo already referred
to, '30 days are
allowed to run from the date of issue of this certificate' so that
when the appellant set down the matter on 17
February, 1993 he was
out of time and the appeal had lapsed requiring the applicant to
file, according to provision five (5) of
the certificate,
'condonation of the late lodgment of the appeal' although, in my
view, this should read condonation of the late
filing of the Notice
of set-down and the reinstatement of the appeal.

10

Before me
when this appeal was argued, there was neither condonation of the
late lodgment of the appeal nor condonation of the late
filing of the
Notice of Set-down. It appears to me Mr. Sello for the appellant was
satisfied that once he had lodged an appeal
necessary rules had been
complied with, I don't think so. It will be seen that in retrospect,
this is exactly what Mr. Khasipe
for the respondent queried and in my
view he was on the right track for specifically referring to Rule 52
of the High Court Rules
which he said was not complied with despite
the fact that sub-rule 5(b) reads:

'subject to the provisions of paragraph (a) herein, the provisions of
this Rule shall mutatis mutandis apply to appeals from the
court of
the Judicial Commissioner.'

In the
course of this argument, Mr. Khasipe made several concessions giving
the impression that he had abandoned his main thrust
of this appeal
being out of time. Even if he did not do so, I do not think that this
court is denied its inherent discretion to
condone breaches of the
rules in appropriate cases. It will be seen that in this particular
case an appeal was lodged timeously
but had to go through the
labyrinths and maze of corridors of procedure where an appeal duly
lodged expired.

Tindall
J. in his landmark judgment concerning the procedure under review
remarked:

'The noting of an appeal is a simple step, and there is no reason
whatever why a party who wishes to note an appeal should not
be
compelled to note that appeal within a certain

11

time.
When it comes to the prosecution of the appeal, that is a more
elaborate procedure in regard to which delay may be expected
to
occur, and one can understand the legislature giving the court power
to give a dispensation where the appeal has not been prosecuted

within a certain period; but there is not the same reason for giving
a dispensation where the appellant has failed to take such
a simple
step as the noting of this appeal within twenty-one days.' see
Jackson v. Smith, 1928 T.P.D. 587.

I
reinstated this appeal and on argument before me after careful
consideration of the evidence in this case the view of this court
is
that the land in dispute belongs to neither the plaintiff nor the
defendant; accordingly, the appeal is upheld and -judgments
of
"Mamaebana Local Court, the Central Court and Judicial
Commissioner's Court are set aside with costs to the defendant.

The
-judgment of this court is that the land in dispute will revert to
the Chieftainship for fresh re-allocation.

Notwithstanding
Mr. Sello's submissions as to costs in this court, having regard to
the circumstances of this appeal in this court.
I do not think it
would be proper to award costs either way. Accordingly there will be
no order as to coats in this court.

ACTING
JUDGE

13th
September, 1995

12

For
Appellant: Mr. Sello

For
Respondent: Mr. Khasipe