CIV/A/3/83

IN THE HIGH COURT OF LESOTHO In the appeal of :

'MOTA
MATSOSO Appellant

v

BENEDICT KHASOANE Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
16th day of December, 1983.

On 8th December, 1977, the appellant sued the Respondent
for a certain arable land situated at Ha 'Mants'ebo in the district
of Maseru.
The trial was before the Local Court of Matsieng which
granted what amounted to an absolution from the instance.

The Appellant was dissatisfied with the decision and
appealed to the Central Court of Matsieng which gave judgment in his
favour.
The respondent was unhappy with the judgment and approached
the Maseru Magistrate to review it. On review, the magistrate set
aside
the decision of Matsieng Central Court and re-instated that of
the Local Court. It is against the decision of the magistrate that
the appellant has now appealed to the High Court on the following
grounds :-

"1. The learned magistrate erred in

setting aside the Central Court's judgment in CC 136/82
although it was clearly correct because"

(a) Appellant had been in possession
of the land in
question when

it
was allocated to respondent.

(b) Appellant had never been validly
deprived of the
said land when
it was allocated to respondent,

2/ 2. The learned

-2-

2. 
   The learned magistrate erred in
   faulting the Central
   Court in granting
   leave to appeal out of time when the
   appeal
   had merit and there were good
   grounds for the delay in appealing.

   
   

3. 
   In the absence of procedural irregularity
   that
   brought about a failure of justice,
   the learned magistrate had no
   grounds of
   power of review.

   
   

4. 
   The learned magistrate erred in reviewing
   proceedings
   on what he considered a
   technicality with dealing with the
   merits
   in order to determine whether or
   not there was a failure of
   justice.

   
   

5. 
   The magistrate further erred in telling
   appellant
   (even he had appellant) that
   he had varied the Central
   Court
   judgment, and thereafter telling
   appellant to address
   him."

   
   

In support of his case before the Local Court of
Matsieng, the appellant corroborated by one of his witnesses, Sello
Lesikara, testified
that the land, the subject matter of this
dispute, originally belonged to his parents after whose death he was
confirmed on it by
the then Chief of the area, the late Chief Ntai
Tholloane. Another of appellant's witnesses, Thabang Koleile,
however, told the court
that appellant was confirmed on the land not
by Ntai Tholloane but Suoane Koleile, a representative of
chieftainess 'Mants'ebo (presumably
the late Paramount Chieftainess
of Basutoland as Lesotho was formaly known).

The evidence for the appellant further disclosed that he
had been out of Lesotho for a long period and during his absence, the
land
was, on his authority, used by his paternal aunt 'Maliengoane
and Thabang Koleile. In CR. 208/75, Thabang Koleile was, on the
initiative
of the Chieftainship, criminally charged before the
Matsieng Local Court for unlawfully using the land. He testified on
behalf of
the accused and told the court that the land belonged to
him and it was on his permission that Thabang Koleile was using it.
On
that evidence, the court acquitted Thabang Koleile and directed
that the chieftainship should

3/ first resolve the

-3-

first resolve the question of ownership over the land as
between the appellant and 'Maliengoane. The Chieftainship never
complied
with the directive of the court and appellant's contention
was, therefore, that the land still belonged to him.

Appellant further testified that in 1976, while he was
out of the country, the Chieftainship and the Development Committee
deprived
him of the land and re-allocated it to the respondent. The
respondent had since been using it. The action of the chieftainship
and
the Development Committee was, however, illegal in as much as the
derogation was made without his knowledge and consent. Hence the
present action in which he prays for an order of the court to eject
the respondent from the land.

The respondent's case was that, in 1970 he moved to and
settled at Ha 'Mants'ebo. He subsequently applied for and was
allocated arable
land, the subject matter of the present dispute, on
3rd August, 1976 by Chieftainess 'Matikoe Griffith and her
Development Committee
in accordance with the provisions of the Land
Act No. 20 of 1973. It was a fallow land. By reason of its
being lawfully allocated to him, the land belonged to him and he had
since been lawfully
using it. Wherefor respondent prayed that
appellant's claim be dismissed.

Three witnesses, namely, Chieftainess 'Matikoe Griffith,
Sekautu Lethe and Maine 'Mathe testified in support of Respondent's
case.
The evidence of Chieftainess 'Matikoe was that the land was
used by 'Maliengoane who later left the area of Ha 'Mants'ebo to join
her son, Mohanoe, in the Republic of South Africa where she
subsequently died. Following the death of his mother Mohanoe
requested
the Chieftainship that the land be reserved for him. Her
evidence was confirmed by Sekautu Lethe who said he had been living
at Ha
'Mants'ebo since 1940.

4/ According to

-4-According to Chieftainess
'Matikoe, the Chieftainship waited for Mohanoe to return home but he
never did. In the mean time one
Thabang Koleile started using the
land without the authority of the chieftainship. She (chieftainess
'Matikoe) had to take him to
court when he was criminally charged in
CR. 208/75 before the Matsieng Local Court. Appellant then testified
on behalf of the accused
and told the Court that the land belonged to
him and it was on his permission that the accused was using it.

On the evidence, the Court found that it was not clear
whether the land belonged to the appellant or 'Maliengoane. The
chieftainess
should, therefore, first resolve the issue of ownership
over the land as between 'Maliengoane and the appellant before she
could
initiate a charge against the accused for its unlawful use.
The accused was for that reason given the benefit of doubt and
acquitted.

Chieftainess 'Matikoe was, however, unable to confront
the appellant with either the late 'Maliengoane or Mohanoe who lived
in the
Republic of South Africa and never returned to Lesotho. The
question of ownership over the land was, therefore, never resolved as
directed by the Local Court of Matsieng and in 1976 she and her
Development Committee allocated the land to the Respondent in
accordance
with the Land Act 1973.

In as far as it was material, the evidence of 'Matikoe
was also corroborated by that of Maime Mathe who was at the time of
allocation,
a member of the Development Committee at Ha 'Mants'ebo.

The Court of first instance considered the evidence and
came to the conclusion that as chieftainess 'Matikoe had not been
able to
decide, pursuant to the directive of Matsieng Local Court in
C.R. 208/75, whether the land belonged to 'Maliengoane or the
appellant,
the question of its ownership remained unresolved.

5/ Whether or not she ...

-5-

Whether or not she had properly allocated the land to
the respondent was a matter for determination by Chieftainess
'Matikoe's senior
chiefs before it could be brought to a competent
court of law which was the Central Court and not the Local Court. The
courts of
law had, therefore, no jurisdiction on the matter before it
had first been exhausted by the chieftainship in accordance with the
Land Act 1973.

On appeal, the Central Court of Matsieng took the view
that as there was evidence that the land was an old mealy land, had
been used
by the appellant who had not been notified before he was
deprived of his rights and no record of the proceedings of the
meeting of
the Development Committee had been produced in evidence in
chief, the appeal ought to succeed. The appeal was accordingly
decided
in favour of the appellant.

I must say I have had the opportunity to read through
the original record of the proceedings which were recorded in the
Sesotho Language
before the Matsieng Local Court and was unable to
find the use of the term "Mealie land". What the respondent
said was
that when it was allocated to him, the land was "Mohola"
which according to Sesotho/English Dictionary by Mabile at p.
228 is
interpreted as meaning "field left unploughed for many years".
The view taken by the Central Court of Matsieng that
the land was a
mealy land had, therefore, no evidential support.

In his own testimony, the appellant told the court that
he had been out of the country for a long time and the land was used
by 'Maliengoane
and Thabang Koleile. Again, there was no evidential
basis for the Central Court's view that the land had been used by the
appellant.

Appellant's claim that 'Maliengoane was using the land
with his permission was equally unconvincing.

6/ It was clear from

-6-

It was clear from the evidence that 'Maliengoane had
lived in the area of Ha 'Mants'ebo for a long period. If it were
borne in mind
that in the olden times arable land was plentiful and
sufficient for everybody, the salient question is why 'Maliengoane
could not
be allocated arable land in her own right and had had to
use appellant's land.

I think it is significant to note that in his grounds of
appeal to the Central Court of Matsieng, the appellant stated, inter
alia :

"2. 'Maliengoane is the daughter-in-law of Matsoso.
I am the heir in his

family.

3. There is no reason or reasons why this field, even if
it belonged to the deceased could have been allocated to other people
without
the conclusion made by the family of Matsoso or could have
been informed that it is going to be deprived of."

It is clear from the above cited portion of the grounds
of

appeal that it is appellant's reasoning that after her
death, 'Maliengoane's land revolved to the heir of the family in
which she
was married. The appellant is the heir of the family in
which 'Maliengoane was married. He is, therefore, entitled to the
land by
virtue of his being the heir in the family in which
'Maliengoane was married. That, in my view, is a total misconception
of the custom
that governs land allocation in this country. The true
customary position of what happens to arable land after the death of
the allottee
is stated in S, 7(5) (a) of Part II of the Laws of
Lerotholi which, in part, reads as follows :

"(a) On the death of the father or mother,
whoever
dies last, all arable land
allocated to them shall be regarded
as
land that has become vacant and
shall revert to the chief or
headman
for re-allocation .."

If on the evidence, it was not clear that the land
belonged to him or 'Maliengoane, Appellant could not, in my view, be
heard to say
he had rights over the land and should, therefore, have
been notified in terms of the Land Act 1973 before allocation
was made to

7/the respondent

-7-

respondent. It follows, therefore, that I find no
support for the decision of the Central Court of Matsieng allowing
the appeal on
the basis that appellant had not been notified before
he was deprived of his rights (over the land).

The contention of the Central Court that became no
record of the proceedings of the meeting of the Development Committee
had been
produced in evidence in chief,the appeal should, therefore,
succeed was equally void of substance. The evidence clearly pointed
out
that the land was allocated to respondent by the chieftainship
and the Development Committee in accordance with the provisions of
the Land Act 1973. If the allocation was made in terms of the
Act, it must be deemed that the provisions of Sections 6 and 12(4)
and (5) thereof were
observed. That granted, there can be no
justification in the Central Court allowing the appeal on the ground
that no record of proceedings
of the Development Committee was
produced in evidence in chief.

In Thaisi v. Latane 1981(1) L.L.R. 219. this
Court has had the occasion to deal with the position where a person
is agrieved by the decision of the chieftainship and the
Development
Committee in allocating land and indicated that the remedies of the
aggrieved person lied primarily in the appeal to
the senior chiefs in
terms of the provisions of sections 7 and 8 of the Land Act 1973.
That is,the remedies provided by sections 7 and 8 of the Act should
first be exhausted before the courts of law are approached.

In the present case, it is clear that the appellant felt
aggrieved by the decision of Chieftainess 'Matikoe and her
Development Committee
allocating the land, the subject matter of this
dispute, to the respondent. In terms of sections 7 and 8 of the Land
Act 1973. he should have appealed to the senior chiefs.
Instead he had approached the courts of law. There is nothing to
pursuate me that
I should now deviate from

8/ the view

-8-

the view I took in Thaisi v Latene, supra,
namely, that the appellant should have first exhausted the remedies
provided under the provisions of sections 7 and 8 of the Land Act
1973 before approaching the Courts of law and his failure to do
so rendered his case pre­mature. That alone should be enough to
dispose
of this appeal.

In the light of all that has been said above, it is
clear that I find nothing unreasonable in the decision of the
magistrate setting
aside, on review, the judgment of the Central
Court and re-instating that of the Local Court of Matsieng.

The appeal is dismissed with costs.

B.K. MOLAI JUDGE

16th December, 1983.

For the Appellant :Mr. Maqutu, For the Respondent
:Mr. Matsau