CIV/APN/124/84

CIV/A/5/80

JC/290/77

IN THE
HIGH COURT OF LESOTHO

In the
Application of : -

MOHLOUOA
PULE Applicant

v

SECHABA
MAKHAOLA Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 11th day of
September 1984

This is
an application for leave to appeal against the Judgment of the
Judicial Commissioner who had dismissed the applicant's/appellant's

appeal from the Judgment of the President of Matsieng Central Court,
who in turn had dismissed the applicant's/appellant's appeal
from the
Judgment of the President of Matsieng Local Court.

After the
usual vicissitudes the Judicial Commissioner (there is some
confusion) apparently refused to certify that the case was
fit for
appeal. It was agreed by Mr. Kolisang for the applicant/appellant,
and the respondent in person, that the case be finalised,
i.e. the
application for leave, and the appeal on the merits, be heard and
dealt with together. It was argued on this basis. I
will henceforth
call the applicant/ appellant Mohlouoa Pule and the respondent
Sechaba Makhaola.

The
papers revealed, in so far as anything can be revealed in papers from
Basotho Courts, that the dispute concerns two arable fields
at
Tlapaneng and Ha Ma-Willie both falling within

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the
overall administrative jurisdiction of the Principal Chief of
Matsieng even though the primary land allocating authority over
these
two fields was Chief Leutsoa S. Leutsoa who was subordinate to the
Principal Chief of Matsieng. It is clear that the arable
fields
subject matter of the dispute had originally been allocated to one
Mapolo who used them until her death apparently in 1972
or 1973. Pule
and Sechaba are relatives, i.e. they come from the same family, but
it is impossible on the papers to define this
relationship and even
more difficult to define who had a prior claim to be allocated the
fields after the death of Mapolo. In those
days (up to 1979) the law
was that after the death of the allottee of land, the land, in theory
at any rate, fell to the chieftainship
but the chieftainship, in the
great majority of cases, reallocated the land to the deceased's
family, if he had a family, usually
to his heir or one of the
deceased other sons.

Even
before the death of poor Mapolo there was a dispute between Pule and
his branch of the family on the one hand, and Sechaba
and his branch
of the family on the other, on who should "inherit"
Mapolo's fields when she dies. The names of the litigants
were
however different. It does not seem that Mapolo had an heir or very
close relatives.

The legal
position was governed by sections 6, 7, and 8 of the Land Act 1973
(Vol. XVIII Laws of Lesotho p.181). After Mapolo's
death Pule and
Sechaba, or for that matter any person, could have applied to Chief
Leutsoa and his development committee for allocation
of Mapolo's
fields in terms of s.6 of the Act.

Sechaba
Makhaola duly applied to Chief Leutsoa and his development committee
for the allocation of the two fields to him. There
was, it seems,
another applicant one Potiane Potiane. It is clear that Chief Leutsoa
and his development

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committee
refused to allocate the fields either to Sechaba or to Potiane.
Sechaba was thus an aggrieved person in terms of s.7 and
he had a
right of appeal to a superior chief who happened to be the Principal
Chief of Matsieng, and he did so successfully, as
is clear from a
copy {rather battered) of the proceedings Exhibit A. The Principal
Chief and his Ward Committee considered the
matter fully in the
presence of the junior chief Leutsoa. For some reason or the other
Sechaba was not given a form C by that appellate
tribunal but appears
to have utilised the two fields until at least 1975/1976 season when
he was challenged by Pule. Pule and Sechaba
went to Court and the
decision of that Court, Exhibit C, which was on 7th November 1975,
was that since neither Pule nor Sechaba
had a form C the fields were
never allocated to either of them and that the matter was fit for the
administration. That decision
was of course just nonsense. The fields
were allocated in accordance with the law whether or not a form C was
given. In accordance
with s.18 of the Land Act 1973 the decision of
the Principal Chief and his Ward Committee "shall be conclusive
for all purposes
and shall not be questioned in any Court",
unless the aggrieved party is able to bring himself within the ambit
of s.18(2)(a)
- (f). Neither Pule or Chief Leutsoa assuming they were
aggrieved, invoked the law. Instead Pule went to Chief Leutsoa who
gave
him a form C on the 11th November 1975, four days after the
Judgment. Pule then started interfering with the two fields and their

crops from 1976 onwards.

Sechaba
complained to the Principal Chief of Matsieng who issued him with a
form C on 6th May 1976 but with retrospective effect
from the date
that he and his Ward Committee overruled Chief Leutsoa, i.e. 13th
August 1973.

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The case
was then contested in the Courts.

1. The Matsieng Local Court gave Judgment in favour of Sechaba on the
basis

(a) of the Principal Chief's allocation and

(b) because Sechaba's blood relationship to Mapolo was closer than
Pule's.

2. On appeal to the Central Court, the Local Court's Judgment in
favour of Sechaba was confirmed on the ground that the Principal

Chief was more senior than Chief Leutsoa and his decision must
prevail.

3. On appeal to the Judicial Commissioner's Court, the Judicial
Commissioner confirmed the Judgment of the two Courts below in
favour
of Sechaba. His reasons were clear, viz, that Sechaba followed the
proper procedure, i.e. he applied for the allocation
of the fields to
the primary authority and when he failed there he appealed to the
proper appellate authority successfully. The
fact that the appellate
authority did not give him a form "C" over the two fields
until after Pule got a form "C"
from the primary authority
does not change the legal position, because the form "C" to
Pule

is null and void.

I
entirely agree with the learned Judicial Commissioner. The decision
of the Principal Chief on 13th August 1973 was final in terms
of the
Land Act 1973 unless challenged in terms of s.18 which it was not.

Pule with
Chief Leutsoa continue to flout the law to this day. S.8 of the
Chieftainship Act 1968 (Vol. XIII) was applicable by the
way since
the allocation to Sechaba was lawful.

For these
reasons there is no prospect of success and the application for leave
to appeal is dismissed with costs. Pule must leave
the lands
immediately. There will be no stay of execution even if an
application for leave to appeal to the Court of Appeal is

contemplated. He will also pay the costs in the Courts below.

CHIEF
JUSTICE

11th
September 1984

For
Applicant : Mr. Kolisang

For
Respondent : In Person