C. of A.
(CIV) No. 11 of 1983

IN THE
LESOTHO COURT OF APPEAL

In the
Application of :

MAMPOI
LETSOELA 1st Applicant

RALIPOLI
LETSOELA 2nd Applicant

and
PAULOSI LETSOELA Respondent

HELD AT
MASERU

Coram:

MAISELS,
P

VAN
WINSEN, J.A.

SCHREINER, A.J.A.

JUDGMENT

Van
Winsen, J.A.

Applicants
apply in terms of Section 17 of the Appeal Court Act 1978 for leave
to appeal against the judgment of the Magistrate,
Mr. G. Sennane, in
the Subordinate Court for the District of Berea granting in
respondent's favour the following prayers, with
costs, viz.:

1. a
   declaration that a certain plantation situate at Khomokhoana river
   in the area of his headmanship belongs to him (respondent)

   
   

2. an
   interdict restraining applicants from cutting and removing any trees
   from the said plantation

   
   

3. damages
   in the sum of M1,000.00

   
   

An appeal
to the High Court against the judgment failed.

2

The
salient facts in the dispute are succinctly set out in the trial
Magistrate's judgment and do not require full restatement.
Suffice to
say that the dispute between the parties related to a single
plantation which respondent (to whom I shall refer in the
judgment as
plaintiff) testified had been planted with trees by his late mother
and which he had inherited from her after the death
of his father in
1945.

Applicants
(to whom I shall refer in the judgment as defendants) made the case
that plaintiff's late mother had never been allocated
the plantation
in dispute by her husband, Chief Potfol Letsoela. First defendant
claimed that the planatation belonged to her.
In this claim she was
supported by the evidence of second defendant and by that of the
witness Mamoifo Letsoela.

There are
a number of other factual disputes between the parties. The first of
these relate to the question of whether plaintiff,
as he testifies,
was in complete control of the disputed plantation from 1948 to 1971
during which time he claims to have sold
or made gifts of trees from
the plantation to different people without let or hindrance: from
defendants who never during that
period questioned his right to act
as he did. Defendants claim, on the contrary, that the control which
plaintiff exercised over
the plantation was as agent for first
defendant. Subsequently the latter withdrew the authority because she
claimed it was being
abused by plaintiff who, she said, exploited the
plantation in his own interests.

While it
is common cause that a large number of trees in the

3

disputed
area were cut down in 1971, the circumstances under which this took
place and the participants in the cutting are in dispute
as well as
the question on whether the plantation in which the cutting took
place is in fact the area claimed by plaintiff. The
quantum of
damages claimed for the cutting down is also in issue.

In the
penultimate paragraph of the judgment the trial Magistrate remarked
as follows:

"I have seen all the witnesses in this case and was able to
study their demeanour at the time they were giving their evidence.
On
a balance of probabilities I was able to form the opinion that the
evidence given by the witnesses in favour of the plaintiff
was much
stronger than that given in favour of the defendants".

In a
statement made by him in terms of Rule 3(1) of Order No. XXIX the
Magistrate dealt in greater detail with specific witnesses
called by
plaintiff and the credence to be attached to their evidence. They
apparently impressed him as being truthful witnesses
and he comments
favourably on their demeanour.

It is
apparent from this brief summary of the issues that they constitute
disputes as to facts, the resolution of which turn principally
upon
the credibility of the witnesses as assessed by the trial Court and
on the probabilities of the case.

Section M
of the Court of Appeal Act 1978 provides that:

"Any person aggrieved by any judgment of the High Court in its
civil appellate jurisdiction may appeal to this Court (i.e.
the Court
of Appeal) with the leave of the Court ......... on any ground of
appeal which involves a question of law but not a question
of fact".

It is not
in dispute that the effect of this section is to limit appeal in the
circumstances of the present matter in issues to

4

law only.
It is clear that all the issues outlined above are issues of fact.
Mr. Maqutu, who appears for the applicant, contended
that the ground
of appeal on which he proposed to base his appeal, if he is accorded
leave by this Court to proceed, is that no
reasonable Court could, on
the evidence before the trial Court have come to the conclusion which
it did and that this constitutes
an issue of law and not of fact.
This contention has the support of such cases as Commissioner for
Inland Revenue v Paul 1956(3)
SA 335(A) at p.340 and Goodrich v
Commissioner for Inland Revnue 1959(3) SA 523(A) at p.527.

The
application for leave to appeal can only succeed if this Court were
satisfied that the applicant has a reasonable chance of
persuading a
Court of Appeal that no reasonable Court could have come to the
conclusion arrived at by the trial Court. In my view
there is no
reasonable chance of applicant being able to persuade a Court of
Appeal to that effect. The decision of the trial Court
rested upon
its findings on the credibility of the various witnesses and upon a
consideration of the relevant probabilities.

No ground
has been made out for the contention that no reasonable Court could
have accepted the evidence of the witnesses called
on behalf of the
plaintiff in respect of the various contested issues set out earlier
in this judgment or that no reasonable Court
could have been swayed
by the probabilities in coming to the conclusion arrived at by the
trial Court. The presiding Magistrate
followed the recognized methods
in determining the credibility of the witnesses. He had ample
opportunity, thanks to Mr. Maqutu's
extended cross-examination

5

of
plaintiff's witnesses, to observe their demeanour in the witness-box
and to draw conclusions as to their credibility. Of course,
there
were contradictions between the evidence of some of plaintiff's
witnesses and in some cases these witnesses contradicted
themselves
but the trial Magistrate was not unaware of this fact. Nor did he
overlook the necessity of exercising caution when
weighing the
evidence of members of the plaintiff's family. It is inherent in a
case of this nature that close family ties could
exist between
witnesses testifying on behalf of the respective parties but the
trial Court correctly concluded that such ties did
not per se deprive
the witnesses' evidence of credence.

The
probabilities were correctly accepted as playing a part in the
decision of the case. The undisturbed control which plaintiff
for
many long years exercised over the plantation in question and the
unlikelihood that first defendant would,-,, had it been her
ground,
have permitted the plantation to be ravished by the cutting down of
over 7,000 trees during a rampage by a large number
of people invited
to assist in this work over a period of three days,are probabilities
which strongly support the findings of the
trial Court. If there
could before this raid have been any doubt about the geographical
position or other identity features related
to this land - there was
in any event adequate evidence on these issues - it was clearly set
at rest by the raid on the plantation
and the circumstances attendant
thereon.

In the
light of the above considerations I have no doubt that applicant's
chances of persuading an Appeal Court that the trial Court

6

acted in
a way in which no Court could reasonably have done are so slender as
to be practically non-existent.

Leave to
appeal must accordingly be and is refused with costs.

L. DE V. VAN WINSEN

Judge of Appeal

I agree

I.A. MAISELS

President

I agree

W.H.R. SCHREINER

Acting Judge of Appeal

Delivered
on this 27 day of April 1984 at MASERU

For
Applicants : Mr. Matsau

For
Respondent : Mr. Maqutu