CIV/APN/2/85

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

CHIEFTAINESS
'MAMAHALA MAJARA Applicant

V

MINISTER
OF INTERIOR 1st Respondent

SOLICITOR
GENERAL 2nd Respondent

CHIEF
BOLOKOE MOTSOENE 3rd Respondent

CHIEF
NKUEBE MOTSOENE 4th Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr, Justice D.S. Levy on the 22nd October, 1985.

This is
an application brought by Chieftainess Majara against chiefs Bolokoe
Motsoene and Nkuebe Motsoene in which the Minister
of the Interior
and the Solicitor General as representatives of the Crown were
joined, but which latter parties withdrew their
appearance shortly
before the hearing and presumably abide by the judgment of the Court.

The
Applicant seeks an order setting aside the decision of the Minister
of the Interior declaring the 4th Respondent as Chief of
Kota and
Kotanyane, and for certain ancillary relief.

The
Applicant is the widow of the late Chief Khojane Majara, who, until
his death in 1971, was the gazetted Chief of Pela Tsoeu,
which area,
she alleges, included Kota, Kotanyane and Tsehlanyane in the district
of Leribe.

2

The 4th
Respondent was gazetted as Chief of Kota and Kotanyane in 1969, but
as far back as 1966, says Applicant, Chief Khojane Majara
had already
protested his appointment as chief over Kota and Kotanyane, which
areas she says, being part and parcel of Pela Tsoeu,
were areas under
Chief Khojane's Chieftainship. This allegation is supported by the
evidence of one Seisa, a headman of Ha Sepenya
in Kota, who says that
he and his late father whom he succeeded, to owed allegiance
originally to Chief Majara Jonathan the father
of the Applicant's
late husband and subsequently to the latter Chief on the death of his
father. He says that he now owes allegiance
to the 4th Respondent
presumably because of the latter's alleged usurpation of the
Chieftainship of Kota.

The
assumption of office of 4th Respondent as chief of Kota and Kotanyane
was published in 1969 under Government Notice 33 of 1969.
According
to that notice the 4th Respondent was appointed as Chief of Kota and
Kotanyane and was subordinate to the 3rd Respondent
as Principal
Chief of Leribe. This notice was preceded by a Royal Proclamation
given on 19th July 1968 which recognised the appointment
of 4th
Respondent on the recommendation of 3rd Respondent.

It is
asserted by Applicant that this Royal Proclamation is
unconstitutional since at that date, according to the Laws of
Lesotho,
Chiefs were to be proclaimed by the College of Chiefs, and
not by the King.

Under
Basutoland (Constitution) Order in Council of 1959 the College of
Chiefs would make any recommendation for an appointment
of Chiefs.
But, as was pointed out by

3

Cotran
C.J. in Molapo v Motsoene & Others in Civil Appeal 44 of 1978 the
College of Chiefs was deprived of this power by the
1965 constitution
nor was it restored by the new constitution in 1966. The
Chieftainship Act was assented to on 9th May 1968 and
it came into
force only on 22nd July 1968 that is 3 days after the Royal
Proclamation on 19th July 1968. But section 26 of the
Interpretation
Act 19 of 1977 provides that where an Act is not to come into
operation on publication and confers powers to make
appointments then
such powers may be exercised at any time after publication of the Act
but the appointment so made shall not be
effective until the
commencement of the Act since the Chieftainship Act was published in
the Gazette on 2nd December 1977 the power
to make the appointment
could be exercised at any time after that date even though it would
have become effective only on 22nd
July 1978.

The 3rd
Respondent also denies that the Applicant's late husband was gazetted
as chief of Kota and Kotanyane or that these areas
fall within Pela
Tsoeu but since he admits that the late chief was gazetted as Chief
of Pela Tsoeu, the question still remains
whether Kota and Kotanyane
fall within that area. It is also common cause that they are all
contiguous areas, but which 3rd Respondent
and 4th Respondent say are
areas historically administered by the Chief of Leribe through his
headmen and they deny that Pela Tsoeu
ever included Kota and
Kotanyane. The 3rd and 4th Respondents have raised the special
defence that this issue is res iudicata between
the parties and I
have been referred in this connection to a number of judgments of
various Courts between various

4

parties
concerning the chieftainship of the two areas in question.

This
dispute appears to have begun as far back as 1908 and the decisions
of the various customary tribunals which dealt with the
matter of
various times are now little more than folk-bore handed down orally
from generation to generation. The recorded judgments
commence in
1944 when in a dispute between Chief Letsie Motsoene and Chief
Majara, the son of Chief Jonathan, was brought before
the Paramount
Chief it being Chief Motsoene's complaint that Chief Majara had
usurped the areas of Tsehlanyane, Pela Tsoeu, Kota
and Kotanyane and
in which judgment the Paramount Chief attempted in a Solomonic
judgment to define new boundaries for the areas
of jurisdiction of
the disputants. On appeal the Judicial Commissioner in J.C. No.
60/1966 awarded Tsehlanyane to Chief Letsie
but left open the
question of Chieftainship of the other areas.

On 30th
June 1978 these same areas came up for decision in this Court in a
dispute as to their Chieftainship raised by certain Chief
Malahlisa
Molapo against the same Respondent in casu. I am uncertain of the
identity of Chief Molapo. There is no evidence before
me of any
identification of him with the present Applicant. Nonetheless Cotran
C.J. in the course of a closely reasoned judgment
said this :

"The question of the constitutionality of (Bolokoe Motsoene)
placing and gazettement of Kota however is now, in my opinion
and for
all practical purposes superannuated and the legality of his

5

Of position cannot be attacked for it is derived from the Lesotho
Order 1970 (which cannot be questioned in a Court of Law) and
Order
26 of 1970 which recognised him."

I am
unable to agree with the learned Chief Justice that a proclamation
such as that of the gazettement of the 3rd and 4th Respondents
is
such a proclamation as was preserved as part of the existing law of
Lesotho in terms of the definition of'existing law' in section
2(1)
of Order 1 of 1970 nor is there any substantial difference in the
definition of existing law in Lesotho Order 13 of 1973 which
repealed
Order 1 of 1970. Here also a proclamation is defined as being part of
the existing law when it has effect as part of the
Law of Lesotho. I
do not regard an administrative act such as the gazettement of a
chief as being part of the existing law of Lesotho.
However, the
Offices Of Chief Order 26 of 1970 provides as follows :

2(2) Every person who, on the 29th day of January, 1970 held any
office referred to in subsection (1) shall be deemed, as from
the
commencement of Lesotho Order, 1970, to have held and to hold the
corresponding office acknowledged by that section.

Subsection (1) acknowledges the office of chief other than the
offices of the 22 Principal chiefs and

Ward
chiefs recognised under the law in force immediately before the
commencement of the Lesotho Order 1970.

This
Order would therefore appear to have entrenched in office all these
chiefs recognised before the Lesotho Order 1970 and which
would
therefore include the 4th

Respondent
as chief of Kota and Kotanyane in terms of

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the
gazettement. This Order would amount to a validation of any
appointment as chief made prior to 5th June 1970 when the 1970 Order

commenced and as Cotran C.J. said it is now too late to attack the
validity of that gazettement.

If I am
incorrect in this view then I turn to the judgment of the Judicial
Commissioner dated 27th May 1970 which concerns the same
claim made
by applicant that the areas of Kota and Kotanyane fall within the
area of Pela Tsoeu. This judgment was delivered on
an appeal from an
action brought by chief Khojane Majera Molapo against chief Bolokoe
L. Motsoene the former being the late husband
of the applicant and
from whom she derives her present chieftainship and the latter being
the 3rd Respondent in casu. That judgment
decided that the areas of
Kota and Kotanyane fell under the jurisdiction of the principal chief
of Leribe, Bolokoe L. Motsoene,
that is, the 3rd Respondent and that
chief Majara had no claim to their chieftainship and that those areas
did not fall within
Pela Tsoeu. The identity of the parties or their
predecessors in title and the nature of the dispute are identical
with those in
the present application. The Court which heard that
dispute was a Court of competent jurisdiction and which pronounced a
final
judgment in the matter. All the elements of res iudicata being
present the judgment of the Judicial Commissioner an appeal will
be
decisive of the present issue. See African Farms and Townships Ltd. v
Cape Town Municipality 1963(2) SA 555 (A) Le Roux en 'N
Ander v Le
Roux 1967(1) SA 446 (A).

It may
also be that the determination of the status of a chief is a matter
which would lead to a judgment in rem which would be
enforceable
against all persons whether

7

or not
they were parties to or privies to the parties in that matter. If
that is so then the decision of Molapo v Motsoene would
be binding
upon the present applicant. See Hoffman SA Law of Evidence 2nd
Edition p. 237. However this matter has finally been
put to rest by
the judgment of the Judicial Commissioner in the case referred as
being definitive of the resolution of the dispute
between these
parties or their privies, and it is irrelevant to the question of res
ludicata that the 4th Respondent was added
as a party to these
proceedings since he holds his chieftainship under the 3rd Respondent
and indeed as Thompson J.C. pointed out
the gazettement of 4th
Respondent had already been published by the time the Judicial
Commissioner delivered his judgment. The
application is dismissed
with costs.

D.S. LEVY

ACTING
JUDGE.

22nd
October, 1985.

For the
Applicant : Dr. W.M. Tsotsi

For
Respondents : Law Office & Mr. C.D. Molapo