CIV/APN/158/82

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

CHIEF
SHOAEPANE MASUPHA Applicant

v

1.
MINISTER OF INTERIOR ) Respondents

2.
SOLICITOR GENERAL )

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 2nd day of
March, 1984

The
original Court file in this application has been lost or mislaid and
minutes of proceedings before various Judges who have been
seised of
the application at different stages are not available but there is no
dispute as to what had actually taken place.

On the
12th July 1982 the applicant, Chief Shoaepane Masupha, sought and was
granted a rule nisi, calling upon the respondents,
the Minister of
Interior and the Solicitor General, to show cause why:-

1. First
   Respondent shall not be restrained from enforcing his order dated
   the 18th March 1982 depriving the Tlhakoli people of lands
   allocated
   to them by

   
   

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Applicant in the Lits'iphong area.

2. First
   Respondent shall not be interdicted from compelling Applicant to
   deprive the Tlhakoli land allotess of their arable lands
   as that is
   ultra vires of Applicant.

   
   

3. First
   Respondent's order shall not be declared null and void as it is
   ultra vires of First Respondent.

   
   

4. First
   Respondent shall not be restrained iron exercising the judicial
   powers of the courts.

   
   

5. First
   Respondent shall not in future be compelled to observe the audi
   alteram partem rule in whatever he does which affects the
   rights of
   other people.

   
   

The
application was opposed and as the return date was extended from time
to time, twenty five persons whose names appeared in Annexure
C of
the applicant's founding affidavit moved the Court on the 19th
October 1983 for leave to intervene purportedly in terms of
Rule
12(1) of the High Court Rules citing the applicant in the original
application, together with the Minister of Interior and
Solicitor
General, the respondents in the original applications, as
respondents. The original applicant who

became
first respondent in the application to intervene, and the Minister of
Interior and Solicitor General, the two original respondents
in the
application, who were cited as second and third respondents, were
given until

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the 26th
October 1983 to file affidavits, the return date being set originally
for the 31st October 1983 and then to the 7th November
1983. As I
said I have no minutes of the Judges1 notes but it seems that
application for intervention was unopposed and was accordingly

granted. Subsequently to that, affidavits from twenty three out of
the twenty five applicants in the intervention were filed. These

persons called themselves applicants but the original applicant
treated and referred to them as respondents. On the 12th January
1984
the original applicant filed an affidavit in answer to the affidavit
of the "fourth respondent" in the application
for
intervention, also known as the second applicant in the intervention
proceedings, Matlamela Motsoene. On the 13th January 1984
a gentleman
called Potsane Thabo Letsie, the chairman of the "disciplinary
committee established in terms of the Chieftainship
Act 1968"
filed an affidavit saying that the original applicant has been
deprived of his "powers and duties for 7 years,
2 of which are
suspended for 2 years on condition that he behaves properly"
during that period, and implied that the applicant
has no locus
standi from the date of his suspension, i.e. 23rd July 1982.

With this
melee the application was argued before me on 17th January 1984, Mr.
Maqutu appearing for the

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original
applicant, Mr. Tampi for the original two respondents, and Mr, Sello.
for the twenty five applicants for intervention,
twenty three of whom
filed affidavits, but who were respondents as far as the original
applicant is concerned. Rule 12(1) of the
High Court Rules provides.-

"Any person entitled to join as a plaintiff or liable to be
joined as a defendant in any action, may on notice to all parties,
at
any stage in the proceedings before judgment, apply to court for
leave to intervene as a plaintiff or a defendant. The court
may, on
such application, make any order, including any order as to costs
which it thinks fit and may, if granting such order,
give such
directions as to further pleadings or other procedure in the action
as it thinks fit,"

As I read
it this rule permits of intervention only in actions and does not
apply to applications from which it follows either

1. that
   intervention should not have been permitted, or

   
   

2. if
   permitted, there should have been a simultaneous order that the
   application be converted to a trial in the normal way.

   
   

It is too
late to do anything about it now. The intervention may have been in
order not in terms of Rule 12(1) but in

terms of
Rule 8(5) of the Rules which permits a person

having an
interest which may be affected by a decision in the application for
leave to oppose. I must treat the "intervention"
by the
twenty five persons on the basis of this latter Rule because they do
clearly have an interest.

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Mr.
Magutu argued in brief that the Minister acted ultra vires his powers
in s.8 of the Chieftainship Act 1968, that he had interfered
in the
judicial process, that if the applicant had wrongfully deprived the
applicants in intervention (or respondents) they were,
and still are,
free to take the matter up in the law Courts but the Minister cannot
take the matter up on their behalf administratively.
Mr, Tampi argued
in brief that the Minister acted within his powers under both s.8 of
the Chieftainship Act 1968 and s.12 of the
Land Act 1979. Mr. Sello
argued that the Minister acted within his powers under the
Chieftainship Act, and within the context of
Central Government
legislation to control both land and the chieftainship by laws and
that in any event, they are entitled, in
their own right, to a
declaration on whether the deprivation of their land by the applicant
was lawful or unlawful and if it was
unlawful in the first place, the
applicant, as far as they were concerned cannot seek equity when he
himself had not exercised
equity i.e. he who seeks equity must come
with clean hands and the applicant's hands were not clean.

The
history of the dispute goes back to many years ago but to understand
the situation a synopsis of Lesotho land tenure and chieftainship

institutions must be given.

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1. Until
   well after the annexation of Lesotho in 1868 by the British Crown
   all questions relating to land were dealt with by the
   chieftainship
   hierarchy the final arbiter being the Paramount Chief. No central
   government legislative intervention (except in
   the camps or
   reserves) worthy of note took place until the Basutoland
   (Constitution) Order in Council 1959 (Vol. I Laws of Lesotho
   p.23).

   
   

2. Two
   of the vexed problems relating to land use were the questions of
   "paballo" and "interploughing" rights.
   The
   meaning of these terras can be found in Duncan Sotho Laws and
   Customs who was writing about the situation as understood by
   him
   until the year 1960. These are found in chapter 36 page 70-73 but
   land problem are interwind with the chieftainship, and
   chapter 28
   page 47-58 throws light on the complications arising from the system
   especially that of "placings", and
   chapter 44 page 86-94
   which deals with the subject of arable land tenure.

   
   

3. The
   Paramount Chief, by order under s.8(1)(g) of the Native
   Administration Proclamation 61 of 1938, issued in 1958, a rule (Laws

   of Lerotholi 40) called "Elimination of Lipaballo".

   
   

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4. Quite
   apart from the problems of paballo and interploughing, allocation of
   land and deprivation of land already allotted, was
   in effect, until
   comparatively recent times, controlled by the chiefs as from time to
   time directed by the "Laws of Lerotholi"
   the first
   codified version of which appeared in 1905. There were of course
   certain "customary understandings" of what
   is fair or what
   is not, but abuse was unfortunately rampant. An individual aggrieved
   party, could in theory, reach the top, i.e.
   the Paramount Chief's
   Court but not many had either the resources or the time or the
   power. For the few who managed to reach
   the top "decisions"
   or "Judgments" were pronounced but these were in the form
   of admonitions or exhortations
   to obey. Some were obeyed,some not
   obeyed, and many were obeyed in theory but sabotaged in practice by
   the chief, if not personally,
   through surrogates, viz, lower ranked
   chiefs subordinate to him down the line and their phalas messengers
   and hangers on. Enforcement
   was difficult because execution could
   not be obtained effectively except with the aid of the District
   Commissioner or the District
   Officer, not always successfully; or
   through the offending chiefs themselves, and few of them accepted to
   be their own executioners.

   
   

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What
happened in this case gleaned from evidence in affidavit form and
annexures and not after viva voce evidence appear to be as
follows.-

1. In
   the year 1966 the applicant succeeded as chief of an area known as
   Tlhakoli and Thaba Phatsoa in the district of Leribe but
   subordinate
   to the Principal Chief of Leribe. He was gazetted as such.

   
   

2. An
   area of land known as Litsiphong and Thaba was administered by the
   Chief of Matlakeng who was the Principal Chief of Leribe
   or his
   nominee.

   
   

3. The
   position on the grounds before the applicant's accession was that
   the area was occupied by the twenty five "interveners"

   who, or whose forebears, were allocated the plots in 1921. They owed
   allegiance to the Principal Chief of Leribe and Matlakeng
   who not
   only claimed Litsiphong and Thaba but which was in fact under his
   effective control. It may be that the applicant's predecessor
   in
   office was unhappy with the boundary.

   
   

4. When
   the applicant assumed the chieftainship of Tlhakoli and Thaba
   Phatsoa he claimed that the area of Litsiphong and Thaba fell
   within
   his jurisdiction and not that of the principal chief of Leribe.

   
   

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5. The
   respondents allege, and twenty three of the interveners swear, that
   in the year 1967 the applicant and his men invaded the
   area, reaped
   the crops thereon, and forcibly expelled them from the plots in the
   area in question. The applicant purported to
   allocate the area, in
   effect, mostly to himself, but placed some persons who owed
   allegiance to him, to utilise it, mostly, if
   perhaps not entirely,
   to his benefit by way of the custom of crop sharing.

   
   

6. On
   more than balance of probabilities the applicant did in fact invade
   the area but he says that he has lawfully deprived the
   twenty five
   interveners of their plots in terms of the law as it then stood.
   This is contradicted by affidavit evidence of his
   then second in
   command Makhobalo K, Molapo, What may have happened is that after he
   took the law into his own hands and ex-poste
   facto the invasion, he
   went through some motions, on balance shady and shadowy, to deprive
   the original owners and he purportedly
   allocated the land to others.

   
   

7. One
   (may be two) of the twenty five "interveners" took direct
   action at law in his individual capacity not against "the

   chief", i.e. the applicant but against the person who was
   allocated his plot by

   
   

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applicant, (See CIV/A/18/80 dated 17.3.82). This was a safer method
in rural areas because the aggrieved party can escape the wrath
of
the chief and has better chances of survival. However, twenty three
of the interveners did not take this lying down so to speak.
There is
no doubt that skirmishing took place although in what form no
evidence is forthcoming (and it can take several forms)
which
skirmishing resulted in the applicant lodging an action at law in the
Local Courts against the Principal Chief of Leribe.
The form of
action was in the nature of a dispute about boundaries. The twenty
five interveners were not cited as parties. The
applicant apparently
lost in the Local Court, won in the Central Court, the Judicial
Commissioner's Court and the High Court on
the 17th December 1973
(CIV/APN/12/70) - Annexure A to applicant's founding affidavit. That
action of course (see Duncan, supra,
p.93) resolved the boundaries,
not the legality of the forcible expulsion of the "interveners"
who had been on the land.
The applicant's argument, thought Mr.
Maqutu. was that the Minister's action in ordering the applicant to
restore the plots to
the original owners and "interveners"
runs counter to the Court's Judgment and is ultra vires the powers of
the Minister

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That order which was given in February or March 1982 after an
administrative enquiry held by the Minister himself, was not obeyed.

8. Until
   the decision of the Minister therefore the position was as follows:-

   
   

1. The
   "interveners" (or their forebears) were in physical
   occupation of their plots from the year 1921 to the year 1967,
   that
   is a period of 46 years,

   
   

2. These
   persons owed allegiance to the Principal Chief of Leribe and
   Matlakeng and his successors,

   
   

3. There
   is no clear evidence under what basis the interveners were
   originally allotted the land. If the boundaries were established

   and recognised or thought to be so there was neither paballo or
   interploughing. If it was paballo there is no evidence that
   the
   "interveners" (or their forebears) were called upon to
   elect in 1958 by the applicant's predecessor in accordance
   with the
   elimination of lipaballo rule. Indeed it may well be that they did
   not have to elect because no change of allegiance
   was involved and
   no one demanded it. The applicant's predecessor as chief did not
   manifest any claim to the area, or if he
   did, he did not pursue it,
   or there is no evidence that he did, or if he did, he was not
   successful.

   
   

4. The
   twenty five "interveners" were forcibly expelled in 1967
   by the applicant. This was 15 years before the Minister
   finally
   resolved the problem in their favour.

   
   

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9. The
   lav between 1958 and 1982 had undergone a drastic change and the
   Central Government acquired, by legislation, administrative
   powers
   to control both the chiefs and the land (urban as well as rural) so
   that chiefs are no longer mandarins they formerly
   were and became
   subject to laws, to decisions pronounced whether by the
   administrative and executive organs, if intra vires their
   power, or
   by Courts of law, i.e. they are by and large civil servants of a
   special class.

   
   

10. 10.
    The first legislative step towards achieving a semblance of order in
    individual land allocation and deprivation was taken
    under s.13 of
    the Basutoland Order 1965 in the Land (Advisory Board Procedure)
    Regulations1965 (Vol. X Laws of Lesotho p.536),
    followed by the Land
    Procedure Act 1967 (Vol.XII Laws of Lesotho p.155), followed by the
    Chieftainship Act 1968 (Vol.XIII p.181)
    followed by the Land Act
    1973 (Vol. XVIII Laws of Lesotho p.182), followed by the Lend Act
    1979 (Vol. XXIV p.96).

    
    

The
evidence on affidavit shows on balance of probabilities that the
applicant did oust the twenty five interveners in 1967 by force

without recourse to the provision of the Land (Procedure) Act 1967
which the parties agree was applicable at the time. I say this

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because
the applicant did not take legal steps to establish that the area of
Litsiphong and Thaba was within his Jurisdiction or
boundary until he
sued in February 1968 and he did not succeed until the High Court
pronounced Judgment on boundaries in December
1973 after his physical
occupation of the area. What he did was to use strong arm methods for
expelling allotees established since
1921 protected to some extent by
the written law of 1965 (the Land (Advisory Boards Procedure)
Regulations) and more so by the
Land (Procedure) Act 1967. The legal
way of proceeding was for the applicant to go to the law first
against the chief and after
his claim to the boundaries was
established in 1973 to give the twenty five interveners if they
really held by way of paballo,
notice in terms of the Land (Paballo
Rights) Act 1969 - (which repealed Rule 40 Part II of Laws of
Lerotholi already referred)
- to declare their allegiance. If they
refused to accept he was still not allowed to help himself. He had to
proceed to derogate
the grant strictly in accordance with s.9 of the
Land (Procedure) Act 1967 or the Land Act 1973 which came into force
on the 1st
March 1974 which provided for paballo and inter-ploughing
(ss.16 and 17).

Legislative
powers to control the chieftainship since Independence is found in
the Chieftainship Act 1968 which has given the Minister
vast powers.

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It is not
disputed that the Minister does posses-executive powers of control in
s.8(1), 8(2), and 8(3x. The applicant can succeed
only if he is able
to disend the onus placed on him that the ministerial decistion
either

1. contrary
   to s.8(4) because it revoked the High Court's Judgment of 1973, or

   
   

2. it
   was arrived at mala fide, or capriciour-or without him following the
   tenets of natural Justice,

   
   

On (a) it
is clear that he did not disturb the 'I Court Judgment which
pronounced in applicant's favour-

on
boundaries not on the individual rights of those persons already on
the land who were not affected " either under the customary
law
(Duncan, supra p.93-94) x under the written law starting from 1959 -
as explained supra.

On (b) a
scrutiny of the proceedings he held in situ (Annexure B of the
founding affidavit) demons;, that the Minister was scrupulously
fair,
listened to a points of view, weighed and took into account the Hig
Court Judgment, and the position of one aggrieved part
who took
direct legal action against the new allotteg

and
desisted from pronouncing on his case, and then

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a
direction which was not of a nature that warrants any interference.

The
application must accordingly be dismissed with costs,

Sgd. T.S.
Cotran

CHIEF
JUSTICE

2nd
March, 1984

For
Applicant Mr. Maqutu

For
Respondents Mr, Tampi

Mr. Sello