CIV/A/10/81
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
CHIEF MASUPHA SEEISO Appellant
v.
CHIEF MOHLALEFI BERENG Respondent
JUDGMENT.
Delivered by the Hon. Mr. Justice I. Isaacs
on the 9th day of April. 1981.
This is an appeal from a judgment of the magistrate's
court of Maseru in terms of which an order of mandament van
spolie was granted against appellant on the application of
respondent.
In his founding affidavit the respondent (who I shall
refer to as applicant), stated that he was the chief of
Rothe ha Mohlalefi in the district of Maseru and that the
appellant (who I shall refer to as the respondent) was the
Principal chief of Matsieng in the district of Maseru),
The applicant alleged that on the 1st October 1980 he found
a servant of the respondent ploughing his land at Tenane
and that this was done without applicant's knowledge or
consent. (Paragraph 3 of the founding affidavit). The
applicant stated that he had been ploughing the land since
1950 and that it had come into his possession when his father
had died and that this land had been allocated to him as chief
and as an individual and that the respondent by ploughing
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that land had spoliated him of his possession (Paragraph 4).
The applicant further alleged that in 1979 the respondent
had made an application to the High Court claiming the
land and that this application had been dismissed
(Paragraph 5) the applicant further alleged that the
respondent had recently made an application to the Matsieng
Central Court claiming that judgment on a boundry dispute
which had taken place between applicant and respondents
predecessors be enforced and that application was dismissed
as it was not clear which area was referred to (Paragraph 7).
There were other allegations in the applicants founding
affidavit which it is not necessary for the purpose of
this judgment to refer to. Applicant later filed a
supplementary affidavit in which he alleged that on the
3rd October, 1980 the respondent was on applicant's land
with one Moheto a tractor driver who was ploughing
applicant's land and that the respondent said he had
authorised Moheto to plough the land. The respondent was
with another man armed with a revolver and applicant left
him still ploughing the land. It appears that a rule nisi
was sought without notice to the respondent which rule was
granted calling upon the respondent to show cause, inter alia,
why he should not restore possession of the land at
Tenane to the applicant and why he should not be restrained
from entering, ploughing or using the land.
The answering affidavit of the respondent was chiefly
to the effect that the land he was ploughing was his own
land and that he had harvested the crops or wheat on his
land at Tenane the previous harvest season. He alleged
that the applicant had ploughed the land in dispute after
the 1st April, 1952 under "Paballo rights' and that when such
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rights had been extinguished the applicant had been ordered
to cease ploughing as the land had been under the jurisdiction
of the Principal chief of Matsieng. The respondent alleged
(in paragraph 5 of his answering affidavit). "But the
applicant had in deliberate defiance and disregard of the
various judgments of the courts been ploughing the land at
Tenane". The respondent annexed to his affidavit copies of
a judgment of the Matsieng Central Court in CC. 43/66 and a
judgment of the Judicial Commissioner J.C. NO. 132/68/6/69.
The respondent further alleged (in paragraph 5) of his
answering affidavit) that "Sometime in November, 1979 the
respondent instituted contempt of Court proceedings in the
Lesotho High Court in CIV/APN/229/1979 for the Civil
imprisonment of the applicant and there upon the applicant
stopped setting his foot on the land in fields. The
respondent immediately resumed, full and interrupted possession
of the land at Tenane". The copy of the contempt proceedings
was annexed to the affidavit.
The respondent denied all the other allegations in
applicant's founding affidavit. He also submitted that
the application was out of time and that the dispute could
not be decided by application proceedings. I shall refer
later in this judgment to certain other portions of the
respondent's affidavit. He, in effect admitted the
allegations in applicant's supplementary affidavit that
respondent's driver was ploughing the land on respondent's
instructions but said he had no knowledge of the allegations
in the supplementary affidavit and did not admit them.
Applicant filed a replying affidavit in which he stated
inter alia :-
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(1)     That he had not acted in contempt of the judgment
in CC. 43/66 of the Matsieng Central Court and of
judgment in J.C. 132/68/6/69. He stated the land
at Tenane is not in the area mentioned in the said
judgment (Paragraph 2 (d) of the replying affidavit).
(2)     That on the 22nd August, 1980 the respondent applied
to the Matsieng Central Court for execution of the
judgment in CC. 43/66 but such application had been
dismissed.
(3)     That respondent's application in CIV/APN/229/79
had been dismissed with costs. (Paragraph 3 of the
replying affidavit). The applicant annexed a copy
of the order of Court.
(4)     That respondent's allegation as to possession was
false and applicant revered to an affidavit of
one Mophongoa Seliane which he annexed (Paragraph 4
(d) of the replying affidavit).
(5)     That on the face of the judgments none of them
award to respondent any available land at Tenane
nor do they award him any arable lend anywhere in
Lesotho. (Paragraph 5) (a)) of the replying affidavit.
The remainder of the replying affidavit in effect denies
all allegations in respondent's answering affidavit except
those which were not in dispute.
The respondent filed a supplementary opposing affidavit
which seems to have been admitted without opposition although
it is unusual in application proceedings to have a fourth
set of affidavits. (of. Cohen N.O. v. Mel and Another 1975
(3) 5A 963 (W).
In this supplementary affidavit the respondent alleged
that the applicant was now cultivating the disputed land
after he had brought the matter to Court and that by doing
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the applicant was taking the low into his own hands as the
land belonged to the respondent.
In this supplementary affidavit the respondent made no
reference to the affidavit of Mophongoa Seliane which was
attached to applicant's replying affidavit.
The affidavit of Seliane (who stated that he was a
technical officer in the Ministry of Agriculture stationed
in the Maseru district) was to the effect:-
(1)     That in April, 1977 the Ministry of Agriculture
had decided on share-croping with arable land-
owners in the Morija area and that ho had
approached Chief Bereng (The Applicant) and his
subjects in connection with their lands in the
Tenane area end the Chalamakaota arae which are
adjacent to each other.
(2)     That he had got the authority of the Applicant and
his subjects to plant wheat in the whole Tenane
area on a share-croping basis for the year 1977 and
proceeded to plant wheat there. No wheat was
planted in 1978 because of unfavourable weather
conditions.
(3)     That in 1979 with the permission of the respondent
and his subjects, the Ministry of Agriculture
planted wheat at Chalamakaota where respondent
had another big arable land.
(4)      That around May 1979 Chief Masupha Seeiso (The
Respondent) wrote to the Ministry informing them
that he was claiming the area in which the land
at Chalamakaota is situated. The Ministry ignored
such letter.
(5)      The respondent told the Ministry to withdraw from
such land but dispite his protests the Ministry
harvested the wheat at the Chalamakaota and gave the
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applicant his share
(6)     That applicant's land at Tenane did not have a
wheat crop in the Agricultural year of 1979/80
but it had a maize crop.
(7)     That in the Agricultural year 1979/80 he (Seliane)
knew that the land at Tenane was in the applicant's
possession and use and that to the best of his
knowledge the respondent never used the land at
Tenane in that season. The Magistrate confirmed
the rule on the return day without hearing further
evidence.
The papers before me contains a record of the arguments
used by both counsel in the proceedings before the magistrate.
Inter alia Mr. Maqutu is recorded to have said "the only
issue on which the Court might have to have evidence is whether
respondent occupied the land in November, 1979 as he claims.
Mr. Masoabi is recorded to have replied as follows:-
"If the Court wanted to have heard evidence it would have
done so in the beginning of the case, it would be unprocedural
to do it now."
In this Court Mr. Masoabi said he had been wrongly recorded,
and he contended that there was no evidence in the affidavits
from which it could be decided that the land was properly
identified. As I have stated above respondent in his
answering affidavit had said that the dispute could not be
decided in application proceedings. It is clear, however,
that neither in the affidavits of respondent nor in the
record of Mr, Masoabi's argument was there any request by
respondent for oral evidence to be heard.
In his judgment the magistrate has stated: "As to whether
the land in dispute is the one at Tenane and as to whether
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to whet it was planted to the Court accepts Mr. Mophongoa's
evidence.
The defence to the application as appears from the
affidavit of respondent is to a great extent relied upon the
judgments referred to in those affidavits.
The judgment CC. 43/66 attached to the affidavit
refers to a request for a postponement on account of illness
made by the Chief of Rothe. This postponement was refused and
the judgment states inter alia, that the case was heard in his
absence. The judgment refers to a judgment of 1915 (which is
not before the Court). There is nothing in the judgment
attached to respondent's affidavits which shows what land, if
any, was awarded to respondent or his predecessors. The only
order appearing in the judgment is an order that "the chief
of Rothe is ordered to the respondent costs of R7.50 before
this Court".
The judgment of the Judicial Commissioner NO. 132/68/6/79
was evidently on a petition brought by the Chief of Rothe
as appellant against the Chief of Matsieng as respondent and
the judgment states: This is a petition arising out of a
refusal by Matsieng Central Court to re-open the case which
was concluded in the absence of the present petitioner".
The judgment ends. "The petitioner must therefore fail
No costs are awarded."
It is difficult to understand how the above two
judgments con support the allegation in respondent's
affidavit that the applicant had been ploughing the lend
in dispute in disregard of those judgments
Respondent did bring an application to this Court to
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commit the applicant for contempt of the judgment J.C. NO. 132/
68/6/66. From the copy of the proceedings annexed to respondent's
affidavit respondent is recorded as alleging. "In terms of
the aforesaid judgment the respondent was to cease cultivating
the petitioner's fields". (The respondent referred to in the
contempt proceedings is the applicant referred to in this
judgment).
The application for contempt proceedings was dismissed
by this Court as appears from a copy of the order of the High
Court annexed to applicant's replying affidavit.
In the grounds of appeal filed on behalf of respondent
it is stated inter alia that the learned magistrate misdirected
himself in finding that the land that the appellant Chief
Masupha Seeiso is presently ploughing is the very land that
the respondent Mohlalefi Bareng alleged was his regard being
had to the fact that the respondent had launched a highly
vague application and no evidence was ever led to clarify the
issue in dispute."
It is also stated, "the learned magistrate also erred
that in on application of the respondent's nature he (magistrate)
could identify the piece of land or lands in dispute before
the parties yet an inspection in loco was never carried out
either before or doing the hearing of the application    "
"It is also stated that "the respondent's prayers in
his founding papers or application essentially sought or
asked for a permanent interdict and the learned magistrate has
with respect regretfully misconstructed the law on the subjects
of interdicts and spoliation by granting the judgment in
favour of the respondent on the papers before the Court in a
matter of dispute which could not be decided on an application
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except a trial."
As appears from the above grounds of appeal the main
contention of the respondent (appellant) was that the
ground in respect of which the applicant (respondent on
appeal) had obtained a spoliation order was not identified.
This, in fact, was the main contention of Mr. Masoabi,
appellant's counsel, before this Court As I have stated
there had been no request made on behalf of respondent for
oral evidence to be heard. It seems to me that the ground
had boon sufficiently identified on the papers before the
magistrate. The appellant in his affidavits before the
magistrate contended that the ground, which was the subject
'of dispute, was his Thus in paragraph 3 of the answering
affidavit it is stated "I harvested the previous crops or
wheat on my land at Tenane the previous harvest season and
I quite frankly understand (sic) why the applicant can complain
when he knows fully well that the land is mine," In paragraph 4
it is stated inter alia. "The applicant is telling a blantant
lie when he says that he has been ploughing this land since
1950 up to the present day and that ho has been spoliated.
The applicant ploughed the land in dispute after the 1st
April, 1952 under "Paballo rights" and when "Lipaballo" were
extinguished or stopped the applicant was ordered to stop
or cease ploughing the land in dispute as the land had been
under the jurisdiction of the Principal Chief of Matsieng."
In Paragraph 5 of the appellant's answering affidavit in
reply to paragraph 5 of the applicant's affidavit it is said
"the applicant's avernments in this paragraph are with respect
false. The land is mine  In any event if the
applicant feels that he has been spoliated he could have
launched this application the previous time when I took
possession of the land, ploughed and when I harvested "
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In paragraph 6 of the answering affidavit it is stated
inter alia. "I say that any previous dispute was on this
very same lend or area."
It seems to me that from the above statements it is clear
that the applicant's claim for a spoliation order is in
respect of the Iana which the respondent is claiming as his
own and on which ho is in now in occupation.
I think therefore that the magistrate was correct in
deciding this question on the affidavits without hearing oral
evidence even if there had been a request for such.
(cf Soffietina v. Mould 1956(4) B.A. 150 (E) at page 154 on
the question of decoding disputes on affidavits).
Mr. Masoabi has referred me to the Iana. (Paballo Rights)
Act 36 of 1969. This has been repealed by Act No. 20 of 1973.
It regulated the allocation or ground of Paballo Rights as
defined in the Act.
It was evidently a custom whereby certain rights to
land were squired. If I understood Mr. Mesoabi correctly
he referred me to this Act to support the contention that the
applicant had no rights of possession of the land in dispute
but I cannot see anything in the affidavit which support
this contention Mr. Masoabi's main contention was that there
was nothing in the affidavits of applicant to show in respect
of which land he was claiming a spoliation order but I am of
the view that the land has been sufficiently identified as the
land referred to in paragraph 4 or applicant's supplementary
affidavits on which the applicant respondent was on with Lira
Moketo and on which he insisted on ploughing Mr. Mesoabi has
suggested that the matter De remitted to the magistrate for
evidence to be heard but in my view this would not be on

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appropriate order for me to make.
The appellant has claimed he was owner of this land by
reason of judgments of Courts. But if he has such judgments
in his favour there is nothing to show that he is on the land
by due process of execution in terms of the law. He may be
able to prove such ownership by an action. His attempt to
prove it by an application to have the applicant committed
for contempt of Court failed. A spoliation order does not
affect the Question of ownership. The principle is Spoliatus
Ante Omnia Restituendus Est (of Greyling v. Estate Pretorius
1947 (3) S.A. 514(w) In my view the applicant has proved that
he was in peaceful possession of such land end that he was
wrongfully deprived of such possession by the respondent
appellant and he was entitled to the order given by the
magistrate.
The appeal against the magistrate's order is dismissed.
And the order of the magistrate is confirmed. The appellant
must pay the respondent's costs of appeal It seems that
the appellant has planted crops on the land but by consent
of both counsel I am making no order in regard thereto.
ACTING JUDGE
9th day of April, 1981.
For Appellant . Mr Masoabi
For Respondent . Mr. Magutu