CIV/APN/322/93

IN THE
HIGH COURT OF LESOTHO

In the
matter between :

NGAKA
MAKEPE Applicant

and

TSELE
MAKEPE 1st Respondent

PRINCIPAL
CHIEF OF HA MAAMA 2nd Respondent

MINISTER
OF HOME AFFAIRS AND CHIEFTAINSHIP 3rd Respondent

ATTORNEY
GENERAL 4th Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 11th day of August,
1995

There was
no replying affidavit to the 1st Respondent's answering affidavit.
The answering affidavit was filed as long ago as the
13th September
1993. The rule in PLASCON EVANS PAINTS LTD vs VAN RIEBECK PAINTS 1984
(3) SA 620 at page 63 as adopted and approved
in MAMATLAKALA MAPHISA
vs PULE LECHEKO AND 3 OTHERS C of A (CIV) 16 of 1993 of 28th July
1995 at pages 5-6 and in G. M. A. FLORIO
vs MINISTER & OTHER C of
A (CIV) No.2 of 1992 of 7th August 1992 at page 39 is of application
here. Consequently I do not see
why I should decide for the
Applicant's in the face of serious denials and challenges contained
in the Respondent's

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answering
affidavit. The Applicant applies for rescission of a default judgment
and stay of execution thereof in case number CIV/APN/406/92
(the
original application)

A very
strong assertion is made that the Applicant has been served with
papers of the application including the Court Order. Secondly
the
Applicant has not complied with rule 27 in that "the Applicant
did not make the application timeously in the light of
those two
returns and that he has not even paid security for my costs pursuant
to the said rule" as contended in paragraph
6.3 of the answering
affidavit. . It is clear that the Applicant has been in wilful
default. With regard to payment of security
in terms of Rule 27(6)(b)
Mr. Pheko did not want to insist for the reason that he felt the
matter was a serious one of status.
His insistence would have bore no
fruit since the application, appeared to be made under Rule 45.

Contained
in the Respondent's reply is what I consider to be a matter so
serious that it surely called for reply from the Applicant.
This is
more so in the context of the contention by Respondent in paragraph
7.2 of his answering affidavit where he states that
the Applicant is
illegitimate son of Chief Mpho Makepe. The late Chief Mpho Makepe
(deceased) was the Chief of Ngope-Tsoeu. In
that paragraph he goes on
to say;

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"In this regard the Honourable Court is referred to the letter
of Chief Makepe which is self explanatory. The letter and its

translations are attached hereto marked TM1 and TM2 respectively. The
letter clearly shows that even though Chief Mpho lived with
the
Applicant's mother for a long time, they never married."

There are
three (3) requirements for a successful application for rescission.
Firstly that the application should not be filed for
purpose of
delaying the Applicant or Plaintiff enjoying the fruits of his
judgment. Secondly that the Applicant should not have
been in wilful
default. And thirdly that there a bona fide defence to the claim.
These requirements must go together. The view
I will take will be
that the application was lacking in all of these, the last
requirement having been most abundantly demonstrated
to be lacking.
Different considerations would apply if the Applicant was able to
show that the judgment was entered into by error
or mistake.

The
Applicant says that he has not been served with the papers of the
application nor the Order that resulted after the judgment
by
default. I do not find any sufficient reasons for rejecting the
deputy sheriff's return of service which are prima facie evidence
of
service of the process. I believe that the

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attendance
of the Applicant at the Ministry of Interior for no other reason but
to remind the Applicant of the Court's decision.
It could not have
been to introduce the Applicant to the existence of the Court Order.
He already knew about the Court Order.

The
Applicant says that he is the only son of the late Chief Mpho Makepe
through 'Mabatho Mpho Makepe. This is denied by the First
Respondent.
The First Respondent's answering affidavit is supported by the
diposition of Mahleke Sekese, an elderly male of 84
years, on the
most important feature of this dispute namely: whether the
Applicant's mother was a lawful wife of the deceased Chief.
The
deceased Chief was Mahleke Sekese's cousin and had been also been his
subject. He knew that the late Chief and Applicant's
mother lived
together for some years but were never married to each other, either
by civil rites or by Sesotho law and custom.
He also knew when the
late chief took the Applicant's mother to live with her and brought
her first to his (Sekese's) place. Although
'Mabatho had used the
late chief's surname she was not actually married to the late chief .
And furthermore that the Applicant
is the illegitimate son of the
late chief. This strand goes through the whole yarn of the deposition
of the First Respondent including
his founding affidavit in the
original application.

5

In the
face of the serious contention of his illegitimacy, there was no
sound reply put up by the Applicant except a bare assertion
that: "I
am the son of the late chief Mpho Makepe who was chief of Ngope-Tsoeu
by his second wife, whilst the First Respondent
is the son of the
younger brother to Mpho." There was absolutely nothing put up by
way of proving the alleged marriage either
by custom or civil rites.
Nothing was put forward to suggest such circumstances that could lead
one to conclude on the existence
of the marriage.

It could
not have escaped the present Applicant that the issue of succession
and heirship to the Chieftainship of Ngope-Tsoeu has
always been a
problematic one. On 27th October 1990 the First Respondent was
introduced, pursuant to section 11(1) of the Chieftainship
Act 1968,
as the lawful successor to the gazetted Chief of Ha Ngaka Ngope-Tsoeu
to the senior chief of Popanyane and Thaba-li-mmele.

The Chief
of Popanyane and Thaba-li-mmele passed the decision of Makepe family
appointing the First Respondent as the lawful successor
with an
approval of Principal Chief of Maama Chieftainess M. S. Maama (the
Principal Chief) for onward transmission to the Minister
of Interior
and Chieftainship Affaire {the Minister). This was with the sole
purpose of facilitating gazettement of the First Respondent,
pursuant
to

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Chieftainship
Act 1968. When the matter was placed before the Principal Chief she
did not want to pass it to the Minister because
the Applicant who had
been appointed acting chief of Ngope-Tsoeu raised a query. The Maseru
District Secretary {District Secretary)
was approached to intervene.
The District Secretary advised the Principal Chief that the Applicant
be advised to challenge the
First Respondent herein in the Courts of
law as provided in the Chieftainship Act.

During
February the Principal Chief instructed the Chief of Popanyane and
Thaba-li-mmele to call a public pitso to introduce the
First
Respondent as lawful successor to the office of Chief of Ha Ngaka
Ngope-Tsoeu pursuant to section 11(1) of the Chieftainship
Act 1968.
The public pitso was held and First Respondent was introduced as the
successor. When the Principal Chief was to be informed
at the pitso
being held, the Applicant herein raised a query once more that he
(instead) should be successor. This time the Principal
Chief wrote a
letter to the family of Makepe with a copy to the District Secretary
and the Principal Secretary that the family
of Makepe should take the
aspect of succession to the Courts of law.

The First
Respondent contended that this Applicant should have complied with
Section 11(8) of the Chieftainship Act 1968 in that
he should have
challenged the First Respondent's

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nomination
as successor in the Court of law, He did not proffer such a
challenge. This is one of the aspects that the Applicant
do not
advert to in his application for rescission. In his contending that
he has a bona fide defence he cannot ignore making a
reference to
this aspect in the application. But this he did not do.

The
question of who his successor would seem to have excercised the mind
of the deceased chief for over a considerable time. This
is shown by
some two letters that he wrote. One is dated the 27th July 1968 and
has been marked Annexure "A" to Applicant's
founding
affidavit. The other (dated the 11th July 1988) has been marked
Annexure "TM2" to the First Respondent's answering

affidavit. Both letters suggest that the deceased Chief had lived
with three wives namely 'MAHABOFANOE, 'MANEO and 'MABATHO
{Applicant's
mother).

The First
two paragraphs of TM2 read as follows :

"Chief I hereby inform you that yesterday I had called the
family of Makepe to inform it about my family, that is that of

Mabatho.

I informed the said family that although I have been living with that
wife for a long time, and have

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children with her, she is not my lawful wife I just stayed with her
out of love not legally,"

From the
fourth line of the last paragraph it further reads as follows :

" ......... I continue to explain that all my rights will remain
mine together with my legal wife Mahabofanoe If I die my
property and
debts should be inherited by Mahabofanoe as she is my legal wife.
After my death the Makepe family should appoint
my heir from the
families in terms of who of our fathers come first in the succession
line. The family should consult Mahabofanoe."
(My underlining)

Annexure
A reads:

"This is a letter to confirm that he who is my heir/successor. I
as chief Mpho Maplanka Makepe is my son who is called NGAKA_MPHO

MAKEPE I have informed MASA MAKEPE/ those who were witnesses MIKHANE
MAKEPE, SEIPATI MAKEPE, RATJOMOSE MAKEPE, MAKOPANO on behalf
of
MOKOATSI MAKEPE, MABONANG on behalf of RATSEPO MAKEPE and MANGAKA
MIKHANE MAKEPE and MASAKANA R MAKEPE who I had called for
this matter
because those

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of MANEO' s family were alleging that I have not married MANEO
........" (my underlining)

It has
been submitted by Mr. Pheko for the First Respondent that this letter
has a two-fold effect. Firstly that the Applicant was
appointed by
the late chief in anger after having been insulted by the relatives
of MANEO in suggesting that he had not lawfully
married MANEO.
Secondly that the deceased chief regarded MANEO as his lawful wife.
The suggestion is being made that the deceased
chief only regarded
MAHABOFANOE and MANEO as his two wives but certainly not MABATHO. It
was submitted that in the circumstances
the late chief would not
validly appoint the Applicant. He was illegitimate.

The above
treatment of the three questions of appointment in section ll(l) of
the Chieftainship Act 1968 and the absence of a challenge
in the
Courts of law on the one hand; and the absence of a lawful marriage
between the deceased chief and the Applicant's mother
and the
allegation of the illegitimate birth of the Applicant and the absence
of a reply on the other hand has been done for the
following purpose.
First to indicate that the Applicant would have no defence. Secondly
although the matter of the dispute is an
important one of status
(which Mr. Pheko for First Respondent accepts) it would be a futile
exercise to give the Applicant an opportunity
to defend. I did
observe with

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interest
a suggestion by Mr. Mathafeng that the practitioners who previously
handled the matter on behalf of the Applicant did not
go about the
matter in a proper way as evidenced by their failure to file a
replying affidavit. That may be so. But I did not see
how better the
important question of the legitimacy of the Applicant would have been
handled in order to bring about a different
conclusion. That is why I
was not prepared to accept that the matter ought to be stood down to
motivate an application for condonation
for late filing of a replying
affidavit.

The
conclusion is. irresistible that by hand' of the late chief in the
letters left by him he did not regard MABATHO as his lawful
wife. In
this country only legitimate sons can inherit. The chief's direction
that his successor be appointed from the sons of
the other MAKEPE
family was realistic in the circumstances. He regarded himself as
having no legitimate male successor in his own
family.

I remain
persuaded that if a defence is fanciful and cannot stand in law it is
not bona fide. This is the approach I adopted in
LESOTHO AGRICULTURAL
DEVELOPMENT BANK vs LEABUA THAABE CIV/APN/27/85. At all times the
business of our Courts should be seen for
what it is. A serious
business. It would be most unhelpful and wasteful to give the
Applicant an opportunity to defend. Default
judgment have an
important place in our

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procedure
namely to avoid delays and to put pressure on litigants to speed up
the finalization of cases. For other considerations
see GEORGE NTSEKE
MOLAPO vs MAKHUTUMANE MPHUTHING & TWO OTHERS CIV/APN/188/94,
W.C.M. Maqutu J, 17 March 1995 (Unreported)

The
result is that I dismissed the application with costs.

'T.
MONAPATHI

JUDGE

11th
August, 1995

For the
Applicant: : Mr . Mathafeng

For the
1st Respondent : Mr. Pheko