CIV/APN/138/83

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

LEROTHOLI
THESE MASUPHA - Applicant

V

SEKHONYANA
LETLATSA MASUPHA – Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice M.P. Mofokeng on the 20th day of January,
1984.

This is
an application to this Court for an Order :

1. "
   Restraining SEKHONYANA LETLATSA MASUPHA

   
   

from exercising, either personally or through the agency of his wife
'Maletlatsa Masupha or anyone else, any chiefly powers, rights
or
functions in and over the area of Ha 'Malehi in the Berea district.

2. Directing
   the Respondent to pay the costs of this Application."

   
   

The
applicant avers that he is the chief of Thuathe and he exercises
jurisdiction over an area known as Ha 'Malehi (hereinafter
referred
to as Khaohano). The respondent, through the agency of his wife and
Khaohano has exercised chiefly powers over Ha 'Malehi

2

including
allocating land. He refuses to desist from doing so despite demand.

Respondent
denies that applicant is the pro­claimed chief of Thuathe. He
avers that he is the gazetted chief of Ntloana-tsoana
and not a
reputed headman of the same area. He denies that the applicant is the
chief of Thuathe because the latter is lawfully
suspended and has
since not been reinstated and therefore he has no right, in law, to
exercise jurisdiction over the area known
as Ha 'Malehi. If the
applicant has been reinstated, it is denied that he has been lawfully
exercising jurisdiction over Ha 'Malehi
in as much as the said area
has been lawfully placed under the respondent's juristiction by the
Principal Chief of Ha 'Mamathe
on the 25th November 1976. This
decision, it is averred, was confirmed by the Motjoka Central

Court in
CC 45/80. The said case was instituted during the suspension of the
applicant by the person who was exercising the powers
of his office.
In his replying affidavit the applicant admitted that the respondent
was a gazetted chief and that both the applicant
and respondent fell
under the jurisdiction of Mahlomola Masupha. The applicant admits
that he had been suspended but had been reinstated
in November 1981
and has been exercising the powers of that office ever since.
However, even if he were still suspended, that would
not preclude him
from the relief he was seeking.

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He
further averred that the Principal Chief of Ha 'Mamathe has no power,
in law, to deprive a proclaimed chief of his land and to
give it to
some­one else or even to deliniate boundaries of areas of
jurisdiction of proclaimed chiefs.

It is
further denied that the decision of the Motjoka Central Court
confirmed the decision of the Principal Chief of Ha 'Mamathe.

Chief
Mahlomola Masupha, in his affidavit attached to the replying
affidavit, confirms that the applicant has been re-instated.
He
confirms also that both parties, to this application, are gazetted
chiefs directly under him. He further confirms that the area
of Ha
'Malehi falls directly under the applicant. He says that he has no
knowledge that the said area has been given to the respondent
by the
Principal Chief of Ha 'Mamathe and that he desputes the right of the
latter to do so as the said area falls directly under
him, chief
Mahlomola Masupha and that the respondent is under his jurisdiction.

It is now
common cause that the area in dispute did fall under the jurisdiction
of the applicant. This is also confirmed by the
judgment referred to
as CC 45/80 which was handed into the Court by consent.

The
thrust of Mr. Pheko's argument was that since the applicant was
suspended he, therefore, lacked the capacity (as he preferred
to call
it) or Locus Standi because he had not been re-instated. Since it was

4

the
respondent who raised the issue the onus shifted to him to show on
balance of probabilities that that was so. He failed to do
so
However, the applicant not only denied that he lacked such capacity
but annexed the affidavit of the senior chief to both of
them who
confirmed what the applicant had averred in his affidavit, that is
that he had been re-instated. The respondent had failed
by evidence
to show the contrary.

In the
alternative it was argued that if the deprivation of the said area
was effected during the period when the applicant was
suspended that
situation, by itself, did not render him incapable of entitling him
to protect his area. He still had a vested interest
in it. His
children who have a right to succeed him are entitled to find the
area intact. The suspension is merely in connection
with performing
chiefly functions. The Court is inclined to agree with this argument.
Moreover, the suspension is of a certain
duration and once the period
of suspension is over, the Chief ought automatically to assume the
status of a Chief. That is why
during the period of suspension he has
to be vigilant about the protection of his rights and also those of
his children.

Reading
the judgment in CC 45/80 the Court does not get the impression that
it confirms the fact that the area under dispute has
been given or
awarded to the respondent as the latter avers in his affidavit.

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The case
was dismissed solely because the same matter where the same
subject-matter

is raised
was still pending before the Ministry of Interior (Administrative
action).

It is
strange that the Principal Chief of Ha 'Mamathe placed the area in
dispute under the juris­diction of the respondent and
thereby
increasing his area without the latter's immediate chief (Mahlomola
Masupha) being informed. The senior chief, as mentioned
earlier, has
denied any knowledge of this. In the ordinary course of events of
good administration Chief Mahlomola Masupha would
not only have known
but would have been informed by the Principal Chief of Ha 'Mamathe.
The Court is inclined to agree with him
therefore, when he avers that
legally the Principal Chief of Ha 'Mamathe could not have done what
it is purported he did. This
is, in fact, borne out by the judgment
in CC 45/80 (which both Counsel so kindly allowed the Court to read
and refer to) in which
it is stated the dispute concerning the very
area has been referred to the Ministry of Interior, almost certainly
pursuant to the
provisions of Section 5(8) of the Chieftainship Act
22 of 1968. It is not clear at whose instance it had been so referred
This
tends to show that there is much to be said for Mr. Sello's
argument that what the Principal Chief of Ha 'Mamathe had purported

to have done was illegal. He could not execise a portion of an area
from one chief and give it to another nor change its boundaries.
He
is precluded from so doing by Sec. 5(8) (supra).

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The
respondent has not revealed any defence except to say that the
applicant lacked capacity without more, and that the Central
Court
(Motjoka) confirmed that the Principal Chief of Ha 'Mamathe had given
the disputed area to the respondent, which it did not.

In the
Court's view, on a balance of probabilities and the balance of
convenience the order ought to be granted as prayed in the

application and it is so ordered.

JUDGE

For the
Applicant : Mr. K. Sello

For the
Respondent : Mr. Pheko