CIV/A/6/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal :

MAKHOATHI
MAKEOANE Appellant

V

MOREMOHOLO
PHAKOANE Respondent

JUDGMENT

Delivered
by the Hon. Mr, Justice J.L. Kheola on the 25th February, 1985.

This is
an appeal against the judgment of the Judicial Commissioner's Court
dated the 12th May, 1980. The case had started at Rothe
Local Court
on the 31st August, 1976. The dispute was over a tree plantation at
the river bend and the present appellant was the
plaintiff. He was
successful. The present respondent appealed to Matsieng Central
Court. He lost. He appealed to the Judicial Commissioner's
Court and
he was successful. It is against that judgment that the appellant has
appealed to this Court,

The
dispute over these trees started on the 7th August, 1974 under CC.
47/74 of Rothe Local Court and several orders were made that
the case
should start de novo. The dispute has now taken about 11 years in the
courts and I think there must be finality in litigation.
The
appellant nominated his son, Motebang Makeoane, to represent him at
the trial and gave no evidence himself,

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It is
unfortunate that some litigants sometimes fail to understand the
provisions of section 20 of the Central and Local Courts
Proclamation
No, 62 of 1938 and nominate people who do not have any knowledge of
their own in the matter in dispute. Such people
often try to give
evidence on behalf of people they represent. Such evidence is hearsay
and inadmissible. It is always wise that
where the plaintiff has
knowledge of the matters in dispute, he must, before handing over to
a representative, give evidence and
be cross-examined. The work of
the representative should be to examine and cross-examine witnesses
(Mohapi v Maqelepo. 1976 LLR.
131). This does not mean that the
representative cannot give evidence on matters within his knowledge.
He is entitled to give evidence
on matters within his knowledge
before taking over as a representative whose work will thereafter be
similar to that of an attorney.

In the
present case the plaintiff did not give evidence and his
representative tried to give evidence on matters which were obviously

not within his knowledge. For instance he said 'Makeoane, never
disputed trees with anybody', (page 2 of the record) but immediately

after saying so he says he did not know Mokoqa and Makeoane in their
lifetime. He again says when plaintiff arrived here from Makhaleng
he
was shown the trees by his aunt, Matlakala. This is hearsay because
at that time he was not yet born because in her evidence
Matlakala
says that when appellant returned from Makhaleng where he had been
hired out by Mohale, he was with his wife whom he
had abducted. She
does not refer to any children. I

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find
extremely unsafe to rely on the evidence of Motebang because it is
difficult, if not impossible, to sift hearsay from actual
evidence
within his personal knowledge,

Pascalina
Matlakala Sefuthi is the aunt of the appellant. She testified that
when she got married into the family of the appellant
the tree
plantation which forms the subject matter of the present dispute was
being used by Mokoqa who is the grandfather of the
appellant. It
seems that Mokoqa predeceased his brother named Mohale. One day when
Mohale was already a very old man he called
her (the witness) and her
husband and told them that death might overtake him, so he wanted to
show them three tree plantations
which were the inheritance of the
appellant. Chief Tsiame Mahanyatsa (P.W.3) and one Lekhotla Phoka
(P.W.2) were invited. Mohale
took them to the river where he showed
them three tree plantations and one of them is the subject matter of
this dispute. When
the appellant eventually returned from Makhaleng
she showed him the three plantations. Before the appellant arrived
she used the
plantations as guardian of the appellant. She goes on to
say that the appellant has been using the plantations without any
hindrance
by anybody until 1974 when the present dispute started.
When Makeoane, the father of the appellant, became ill he went to
Makhaleng
for recuperation but died there.

Tsiame
Mahanyatsa and Lekhotla Phoka deposed that they were present when
Mohale pointed out the tree

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plantation
now in dispute as the inheritance of the plaintiff. Tsiame attempted
to say that he was still a small boy when he saw
Mokoqa plant the
trees now in dispute. He said that he was herding animals in the veld
when he saw Mokoqa plant the trees. As the
learned Judicial
Commissioner has pointed out chief Tsiame's evidence is unreliable.
In his first answer to the defendant he said
'I first knew when the'
trees were handed over to Ramaseli by Mohale that they belong to
Mokoqa, He was obviously lying when he
subsequently said he saw
Mokoqa plant the trees. In the previous proceedings it was common
cause that after the plaintiff was shown
the trees as his
inheritance, he never used them and the defendant continued to use
them till 1974 when the dispute started. But
in the present
proceedings Pascalina is now saying the plaintiff had been using them
ever since they were shown to him. This must
be untrue.

The
defendant gave evidence that he took up administration of the area
where the trees in dispute grow in 1932. Prior to 1932 the
trees were
being used freely by his father and no one

ever
disputed the ownership of these trees with his father. He (defendant)
used the trees without any hindrance from anybody from
1932 till 1974
when the plaintiff sued him. The defendant called three witnesses,
Viz.: Sekubutu Mosoaboli, Elia Kolisang and Mantsili
Mohloli. They
testified that they do not know anything about the planting of the
trees, all they know is that the trees were used
by the father of the
defendant and when he died the defendant inherited them and has been
using them without hindrance from /anybody

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anybody.
I must point out that in the previous proceedings Elia Kolisang lied
that he knew when the trees were planted but later
said he had been
taught by the defendant what to say in his evidence. (See p. 12 of
the record lines 25 to 29).

The trial
Court held that the Court was unable to find that Respondent acquired
these trees as inheritance legally or not because
he did not show how
they became his family's. I find this finding to be rather unfair on
the Respondent because the burden of proof
was on the plaintiff to
show that the trees were his. The Matsieng Central Court held that
the Respondent's evidence comes nearer
home in regard to the planting
of the trees and the explanation given by the witnesses for
Respondent is clearer than that by the
Appellant because it gives
some detailed events. It confirmed the Judgment of the trial Court.
The learned Judicial Commissioner
was of the opinion that the present
appellant had failed to show on which side of the border between
Chief Tsiame and the Respondent
the trees were growing. He said it
was difficult to decide on the ownership of the trees unless the
Court was satisfied on which
side they fall. He ordered absolution
from the instance.

Mr. Pitso
for the appellant referred to the principles enunciated in the case
of R. v. Dhlumayo. 1948 (2) S.A. 677 at p. 706 especially
principles
12, 15, 3 and 6. It is trite law that in a civil

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case the
party bearing the burden of proof must prove its case on a balance of
probabilities. In West Rand Estates Ltd. v. New Zealand
Insurance
Co., Ltd., 1925 A.D. 245 at p. 263 Kotze, J.A., said:

"It is not a mere conjecture or slight probability that will
suffice. The probability must be of sufficient force raise a

reasonable presumption in favour of the party who relies on it. It
must be of sufficient weight to throw the onus on the other
side to
rebut it."

It seems to me that in the present case there are two stories
mutually destructive. The appellant's story is that the trees are
an
inheritance to him and that his family had been using them for a long
time. The Respondent's story is that he also inherited
the trees and
his father had been using them for a long time. The trial Court and
Matsieng Central Court believed the witnesses
of the appellant but
gave no reasons why they rejected the version of the respondent. In
National Employers Mutual General Insurance
Association v. Gary, 1931
A.D. 187 at p. 199 Wessels, J.A. said:

"Where there are two stories mutually destructive, before the
onus is discharged, the court must be satisfied upon adequate
grouds
that the story of the litigant upon whom the onus rests is true and
the other side false."

I
entirely agree with these remarks. In the present case there is no
outside evidence to show that the story of the appellant is
more
probable than that of the respondent. In other words, the

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appellant
has failed to discharge the onus that rested on him. The respondent
started using these trees from 1932 but the appellant
did not sue him
till 1974 when these proceedings started. One may ask why the
appellant allowed the respondent to use these trees
for such a long
time without any interruption by him (Appellant). It was common cause
that ever since he was shown the trees the
appellant never made any
attempt to stop the respondent from using them. The learned Judicial
Commissioner was of the view that
a proper Judgment was one of
absolution from the instance. With respect, I do not agree with him.
It seems to me that this is a
case where the appellant has failed to
discharge the overall onus which rests upon him.

The
judgments of all the lower courts are set aside and the appeal is
dismissed. There will be no order as to costs because the
respondent
did not oppose the appeal.

JUDGE.

25th
February, 1985.

For the
Appellant : Mr. Pitso

For the
Respondent: In Person.