1 C.Of
A.(CIV)NO.10 OF 1997

IN THE
LESOTHO COURT OF APPEAL

in the
Appeal of:

CHIEF
LECHESA MATHEALIRA Appellant

Vs

PEETE
MOLAPO Respondent

Held at:
MASERU

Coram :

BROWDE,

JA BECK, AJA

GAUNTLETT AJA

JUDGMENT

BECK,
AJA

The
appellant, who was the second respondent in the court a quo, is the
principal Chief of Tsikoane, Peka and Kolbere. The first
respondent
in the court a

2

quo is
the Chief of Linots'ing, Leribe, and he is subordinate to the
appellant. He did

not
oppose the application in the court a quo and he is not a party to
this appeal.

The
respondent in this appeal, who was the applicant in the court a quo,
was granted an order in the following terms:-

1. "1.
   Respondent are directed to consider and deal with Applicant's formal
   objection within fourteen(14) days after service
   of this order,
   which objection concerns the introduction and placement of the
   current holder of office of chief of LENYAKOANE,
   LINOTS'ING, LERIBE.

   
   

2. 2.
   Respondents must advise applicant in writing of their decision,
   after due consideration of his objection, within seven (7)
   days of
   such decision having been arrived at.

   
   

3. 2nd
   Respondent to pay the costs of this application".

   
   

In his
founding affidavit the present respondent averred that on 6 October
1995 one Ntholi Ramatekoa was formally introduced by
the Chief of
Linots'ing to the public of Lenyakoane as the Chief of Lenyakoane. He
went on to aver that on 16 October 1995 he wrote
to the Chief of
Linots'ing objecting to this introduction and that he sent a copy of
his letter to the appellant. He annexed to
his founding affidavit a
fair copy of the letter that he wrote, which reads as follows :-

3

Lenyakoane
Ha Setho

P.O.
Maputsoe October 16 1995

Chief
Mokokoana M Jonathan

Linots'ing

Leribe

Lesotho

Chief

Re:
Objection to the placement of Ntholi Ramatekoa to the Chieftainship
of Lenyakoane

It has
come to my knowledge that on Friday 6\10\95 you introduced Ntholi
Ramatekoa before the people of Lenyakoane whereupon you
placed him as
a successor to the Chieftainship of that village after the death of
his father Selebalo Ramatekoa.

By this
letter I raise an objection for the following reasons

1. I
   waited for a long time due to some confusion in the Ramatekoa family
   concerning nomination of a successor to the Chieftainship
   of the
   village. Other than the family problem, the people of Lenyakoane
   informed you by actions and in writing that they would
   not accept
   Ntholi Ramatekoa as their chief. They showed you clearly that they
   wanted to be ruled by the son of Chief Setho Mokokoana,
   being I
   Peete S. Molapo for the reasons stated in their letter. Instead of
   acting in accordance therewith, you placed Ntholi
   Ramatekoa
   regardless of the wish of the people and the magnitude of the
   possible administrative problems thereby caused in the
   area under
   your jurisdiction.

   
   

Since by
virtue of placing Ntholi Ramatekoa you have demonstrated that there
is a successor to the Chieftainship of Lenyakoane,
much as I am not
aware that the family agreed on this matter, I hereby object to that
placement on the ground that, chief, you
should take it that I ought
to be the chief of Lenyakoane on the basis that my father was placed
on the area by Chief Mokokoana
I.

4

I attach
herewith a letter addressed to me by the people of Lenyakoane, which
I believe its contents to be clearly self-explanatory,
especially on
my second point concerning the placement of my father in the area of
Lenyakoane.

I shall
be grateful for your co-operation in this matter.

Yours

PEETE S.
MOLAPO

C. C.
Chief Lechesa Mathealira Tsikoane Leribe"

The
present respondent then concluded his founding affidavit by stating
his grievance as follows :-

6

Respondents
have simply ignored my objection and have not even seen fit to accord
me a courtesy of an acknowledgement of receipt
thereof.

7

I am
prejudiced by the actions of Respondents as public authorities who
are failing to take the necessary measures to deal with
my objection
where I have resorted to correct procedures. I am of the view that I
ought to have assumed the office of chief of
Lenyakoane in place of
Ntholi Ramatekoa. My prejudice is further exacerbated by the fact
that no prior notice was issued of First
Respondent's actions to
enable me to act prior thereto or timeously.

8

WHEREFORE
I am making this affidavit in support of the prayers

5

contained
in the notice of motion".

In his opposing affidavit the appellant confirmed that he received a
copy of the above-mentioned letter of complaint. He further
stated
that in March 1995 he was advised by the Chief of Linots'ing that
Ntholi Ramatekoa had been nominated by the Ramatekoa family
as the
successor to the headmanship of Lenyakoane following the death of his
father, headman Selebalo Ramatekoa, and that he had
duly approved of
the nomination and had "placed" Ntholi Ramatekoa as the
headman of Lenyakoane with effect from 26 January
1995. He raised
three preliminary arguments against the application brought by the
present respondent, one of which was that "The
application is
irregular in that it does not comply with the provisions of Section
11(2) of the Chieftainship Act 22 of 1968 as
regards the prayers it
seeks".

Section
11 of the Chieftainship Act falls in Part III of the Act which deals
with succession to the office of Chief. Sub-sections
(1) and (2) of
section 11 are in the following terms :-

"(1) The person (or persons, in order of prior right) entitled
to succeed to an office of Chief may at any time be nominated
by that
Chief during his lifetime (or by his family if he is deceased or if
he is unable, by reason of infirmity of body or mental
incapacity or
other grave cause, to make such a nomination) by means of a public
announcement

6

of the nomination of that person (or those persons, in order of prior
right) by that chief or by a senior member of his family
if he is
unable as aforesaid to make that nomination. The public announcement
shall be made at a pitso representative of all Chiefs
and other
persons in respect of whom the person (or any one of the persons)
nominated would, if he succeeded to the office of Chief,
exercise the
powers and perform the duties of that office.

(2) If the nomination of a person has been duly announced in
pursuance of the provisions of subsection (1), and any other person

claims that the person nominated is incapable of succeeding, or that
some other person who is capable of succeeding should have
been so
nominated instead of the person who was nominated, the person so
claiming may apply to a court of competent jurisdiction
to have the
nomination set aside or varied accordingly."

It is
apparent from the letter that the respondent sent to the appellant
and from paragraph 7 of his founding affidavit that the
respondent
claims that he is capable of succeeding to the headmanship of
Lenyakoane and that he should have been so nominated instead
of
Ntholi Ramatekoa. The matter is therefore one that falls squarely
within the provisions of section 11(2) of the Chieftainship
Act. That
being so, the forum appointed by the Act to deal with the
respondent's claim is a court of competent jurisdiction, and
not the
Chiefs to whom he addressed his claim. It seems obvious that section
11(2) of the Act is conceived as much in the interest
of the person
nominated as in the interest of a dissatisfied claimant by
stipulating that claims of this nature are to be brought
before a
court of competent jurisdiction for adjudication.

7

Mr
Ntlhoki, who appears for the respondent, accepts that his client's
claim is one that falls within the provisions of section 11(2)
but he
has submitted that before such a claim may be brought before a court
of competent jurisdiction it must first be raised before
the
Principal Chief of the area and that the latter has a duty in law to
decide whether or not to uphold the claim. That duty,
he submits, is
created by implication by section 6 of the Chieftainship Act. Section
6 falls in Part II of the Act, which Part
deals with the office of
Chief, the functions of that office and the power to regulate those
functions. The section reads as follows
:-

"6(1) It is the duty of every Chief to support, aid and maintain
the King in His Government of Lesotho according to the laws
of
Lesotho, and subject to their authority and direction, to serve the
people in the area of his authority, to promote their welfare
and
lawful interests, to maintain public safety and public order among
them, and to exercise all lawful powers and perform all
lawful duties
of his office impartially, efficiently and quickly according to law.

(2) A Principal or Ward Chief has the power and the duty to order any
other Chief in his area of authority who is immediately subordinate

to him to do or omit to do anything that it is lawful and necessary
to do or omit to do, in the interests of the matters mentioned
in the
preceding subsection, and it is the duty of that Chief to comply with
that order."

Section
6, as is apparent, is a general section and it is in a part of the
Act that is not concerned with matters that are germane
to succession
to the office of Chief, which are separately governed by Part III of
the Act and with regard to which, in a

8

situation
such as the present, section 11(2) spells out what must be done. The
implication that Mr Ntlhoki contends should be read
into section 6
would conflict with the procedure that is enjoined by section 11(2)
and his submission is untenable.

In effect
therefore, after Ntholi Ramatekoa had been formally nominated, the
appellant and his co-respondent in the Court a quo
were functus
officio, and in addressing his claim to them instead of applying to a
court of competent jurisdiction for its adjudication,
the respondent
chose the wrong forum. His application for a mandamus upon them to
deal with his claim and to give a decision on
it was thus
misconceived. Not only was there no duty in law cast upon them to do
what he required them to do, but they were actually
precluded from
doing so by the provisions of section 11(2) of the Chieftainship Act.

Accordingly
the appeal must be allowed with costs and the order of the Court a
quo is set aside and is substituted by an order dismissing
the
application with

9

costs.

C.E.L. BECK

Acting Judge of Appeal

I agree:

J. BROWDE

Judge of Appeal

I agree :

J.J. GAUNTLETT

Acting Judge of Appeal

Delivered
this.20th day of June, 1997