CIV/A/15/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

MAFA LIJO
Appellant

LEVI
LEBUSETSA NKHASI Respondent

JUDGMENT

Delivered
by the Hon Mr.. Justice J L. Kheola on the 29th day of April, 1985

This is
an appeal against the judgment of the Judicial Commissioner's Court
dated the 25th November. 1983 The present Appellant
sued the present
Respondent before Tale Local Court claiming that the Respondent be
ordered to vacate the houses of the late Lijo.
The trial court upheld
the claim. The Respondent appealed to Tsifalimali Central Court and
his appeal was upheld. The Appellant
appealed to the Judicial
Commissioner's Court but his appeal was dismissed. The learned
Judicial Commissioner granted permission
to appeal to this Court on
the following points of law:

1. Is
   30 years a reasonable period within which a man can lie low and take
   no court action against one who tampers with his property

   
   

2. Has
   a man who left his original residential site and houses in one
   village and lived in another village but still in the area
   of
   jurisdiction of the same chief be taken to have removed or
   emigrated?

   
   

3. Can
   the family allocated the residential site as well as the houses to
   one of its members if the site and houses have been left
   as in (b)
   above?

   
   

2

I shall
first of all give a short summary of the evidence Lijo who is the
grandfather of the Appellant had two wives. The senior
wife was
Mamahao whose residence was at Mabuleng. The junior wife was
'Makhahliso whose residence was at Liphakoeng. Lebusetsa
is the
grandfather of the Respondent and brother of Lijo. It is common cause
that when 'Mamahao became ill and unable to live alone
at her
residence Lijo decided that she must leave her houses and go to
Liphakoeng where she would live with her son, Mahao. She
left her
houses unoccupied and went to Liphakoeng where she eventually died.
At about this time the wife of the Respondent,'Mapatric,
was staying
with her mother-in-law at the latter's place. According to the
Appellant 'Mapatric and her mother-in-law failed to
live harmoniously
together and as a result of that some members of the family
approached Lijo and asked him to allow 'Mapatric
to occupy 'Mamahao's
houses at Mabuleng. Lijo agreed to this request on the understanding
that 'Mapatric would build her own houses.
When this arrangement was
made the Respondent was at work in the mines in the Republic of South
Africa. The Appellant alleges that
after Lijo and his wives had died
the Respondent is now refusing to vacate the houses of his
grandfather Lijo and yet he (Respondent)
had been given temporary
accommodation, He says that the houses of 'Mamahao form part of the
estate of his late grandfather, Lijo,and
that he is the heir to that
estate.

The
Appellant told the trial court that on two occasions after the death
of Lijo he approached the Respondent and ordered him to
vacate the
houses. The Respondent agreed that he would vacate them but never did
so. In 1981 his younger brothers invaded the Respondent
and
demo­lished some of the houses built by him on the site. The
Appellant's story that the houses were loaned to Respondent's
wife
was confirmed by his three witnesses including his mother, 'Maleuta.
The old lady was 71 years old in 1981 when these proceedings
started.
She said it was

3

in 1951
when 'Mamahao left her houses and went to live at Liphakoeng with
her. It was two or three years later when the houses were
loaned to
'Mapatric.

The
Respondent's version is that Lijo removed from Mabuleng to
Liphakoeng. In 1950 the site was allocated to him by Chief Shoaphane

in the presence of one Masupha Rapitso, both of whom are late. He
says that when the site was allocated to him there were no longer
any
houses but only walls were still standing. But this cannot be true
because the Respondent earlier said, "I occupied the
place some
days after 'Mamahao had left". The sick old lady could not have
been living in walls which had no roofs. The houses
could have been
very old but not without any roofs.

Tongoane
Nkhasi testified that as a result of 'Mapatric's failure to get along
with her mother-in-law it was agreed by the family
that "houses
should be built for 'Mapatric on the ruins of Lijo". Chief
Shoaphane was accompanied by Masupha Rapitso,
Letolo Rapitso and
Tsehlo Makateng when he allocated the site to the Respondent. Eliaba
Nkhasi contradicts the other witnesses
by saying that when the
Respondent's wife was placed on the ruins of Lijo the only people who
were present were Lebusetsa and Lijo.
In other words, the placing was
a family matter not sanctioned by the chief of the area.

Chief
Moramang Nkhasi is the chief of the area. He became chief of the area
in 1960 and since then nobody ever complained to him
about the site
and houses in dispute. He does not know under what circum­stances
the Respondent occupied the site that originally
belonged to 'Mamahao
Lijo; for the last 20 or 30 years the Respondent has been living on
the site and has built three houses.

Mr.
Mofolo for the Appellant has submitted the generally speaking in
Sesotho law and custom debts do not prescribe according to
the maxim
"Molato ha o bole". It is his contention that the mere fact
that for

4

about 30
years the Appellant took no action in a court of law to eject the
Respondent from the site does not bar him from suing
him after the
expiry of that period. I do not think that the maxim "Molato ha
o bole" has any application to land because
according to the old
law it was at the discretion of the chief or headman to take away a
land or lands which he had allocated to
any of his subjects who,
through continued absence or insufficient reason, failed for two
successive years properly to cultivate
or cause to be cultivated
(Section 7 (3) of the Laws of Lerotholi, 1959 edition). I am aware
that this provision relates to arable
land; however, it shows without
any doubt that if one does not properly use land allocated to one for
two successive years one
may lose the right to use the land if the
chief decides to apply the law strictly. Such land automatically
reverts to the chief
who may re-allocate it to another person. Once
the land has been re-allocated to another person the original owner
cannot be heard
to say "molato ha o bole" after the land
has been lawfully taken away from him.

In the
present case it is common cause that when 'Mamahao went to Liphakoeng
her houses remained unoccupied for about two or three
years and that
they became ruins (lefahla or lithako) (See page 5 line 21 of the
record and page 7 lines 1. 29 and 30 of the record).
It was during
this period that Nkhasi family were faced with the problem of finding
some accommodation for Respondent's wife who
could not live
harmoniously with her mother-in-law. According to the Appellant she
was given temporary accommodation in the houses
of 'Mamahao. On the
other hand the Respondent says that the site was allocated to him.
The trial court made a very surprising finding
that because Chief
Shoaphane and Masupha Rapitso had died the "Respondent's
argument has some difficulties." I see no
difficulties as long
as there are certain people who say that when the late chief
Shoaphane and his messenger allocated the site
to the Respondent they
were present. The important thing that the trial court had to decide

5

was
Whether those people who allege to have been present when the
allocation was made were reliable witnesses. The Court President
held
that the Respondent contradicts his witness Tongoane by saying he was
present when the site was allocated to him while Tongoane
says that
Respondent was at the mines. ! have found nothing in the evidence of
the Respondent suggesting that he was present in
person when the
allocation took place. The sentences he has used are:

"I
was placed on this site with a purpose by chief Shoaphane who has
since died. I occupied the place in 1950. I occupied the
place after
some days 'Mamahao had left. There were only walls and no houses when
I occupied the place."

In my
view the sentences I have quoted above do not clearly mean that the
Respondent was present personally when the allocation
took place. As
a result of the migratory labour system many Basotho men spend most
of their time in the mines in the Republic of
South Africa. It is not
unusual that when land has to be allocated to such men their wives
represent them, The allocation is done
to the husband and when later
a dispute arises the husband will naturally use the first person and
say "I was given this land
by the chief". The respondent
never said he was present in person when the allocation took piece.
The allocation of the site
and the occupation of the site are two
different things. The allocation could have been done some time
before the actual occupation
took place. Be that as it may, the
important thing is that for more than thirty years the Appellant took
no court action against
the Respondent who allegedly was occupying
the premises by force. The Appellant watched peacefully when the
Respondent built his
own houses and a stable on the site he
(Appellant) claims to be his. The rule of estoppel by acquiescence or
standing by is stated
by Spencer Bower in his book: Estoppel by
Representation (para. 386) in these words:

"Where
A has a right or title which B is in fact infringing under a mistaken
belife that his acts are not infringements at
all, and A is aware of
his own title or right, and also aware of B's invasion of that title
or right, and of his erroneous belief
that he is not encroaching

5

thereon
but is lawfully exercising rights of his own, and yet, with that
knowledge, A so conducts himself, or so abstains from objection,

protest, warning or action as to foster and maintain the delusion
under which he knows that B is labouring, and induce B to act
to his
prejudice on the faith of the acknowledgment to be implied by such
conduct or inaction, A is not permitted afterwards to
assert his own
rights against B". (See Meyer v., Retief and CO., 1932 O.P.D. 3
at p. 7).

The
appellant must have seen clearly that the Respondent was treating the
site as his property when he built additional houses and
a stable on
it. Surely, if the Appellant knew that the site had been loaned to
the Respondent he should not have abstained from
objection, protest,
warning or action as to foster and maintain the delusion under which
he knew the Respondent was labouring.
It seems to me that this
belated assertion of a right by the Appellant is nothing but an
afterthought and an attempt to enrich
himself unjustly because the
Respondent has made a lot of improvements on the site. I think the
courts of law will not allow him
to get away with it.

It is
true that the evidence of Eliaba Nkhasi contradicts that of the
Respondent and Tongoane Nkhasi on the point whether the alloca­tion

was done by the family (Lebusetsa and Lijo) in the absence of the
chief. I entirely agree with the learned Judicial Commissioner
that
in a case like this where the premises ware occupied by the
Respondent over some 30 years ago people's memories are likely
to
falter and become inaccurate and that some discrepancies were bound
to occur in the evidence given by the witnesses. The question
is
whether the discrepancy is material to the issue before Court. I do
not think that the discrepancy is of any great importance
in the
light of the fact that the Respondent's allegations that he was
lawfully allocated the site is reinforced by the rule of
estoppel by
acquiescence or standing by. It is also probable that Eliaba is
mistaken because the events to which he testified took
place a very
time long ago. He is now an old man of 73 years of age whose memory

6

cannot be
as good as that of a younger man. The trial court upheld the claim on
the ground that the Appellant had failed to prove
that the site was
allocated to him. It failed to take into account other probabilities
and circumstances which make the Appellant's
allegations more
probable. The Central Court and the Judicial Commissioner's court
took these probabilities into account and reversed
the finding of the
trial court.

The first
question of law raised by the learned Judicial Commi- ssioner whether
30 years is a reasonable period within which a person
can lie low and
take no court action against one who tampers with his property, is
not an easy one to answer because each case
will depend on its own
facts and circumstances and the nature of the property. In cases of
movable property the time within which
one may be expected to act may
be shorter than in the case of land. In Pathescope (Union) of South
Africa Ltd. v. Mallinick, 1927
A.D. 292 at page 306 Stratford, A.J.A.
said:

"Thus the Court is left free in the circumstances of each case
to judge of the equity of granting the relief in face of the
delay in
asking for it. And the doctrine (called in English law "laches")
can only be stated in somewhat vague and general
terms. Where there
has been undue delay in seeking the relief the Court will not grant
it when in its opinion it would be inequitable
to do so after the
lapse of time constituting the delay. And in forming an opinion as to
the justice of granting the relief in
face of the delay, the Court
can rest its refusal upon potential prejudice, and that prejudice
need not be to the defendant in
the action but to third parties".

I
intirely agree with the remarks made by the learned judge. In the
present case the delay to seek the relief is more than thirty
years
During that period the Respondent made very substantial improvements
to the site; he built three houses and a stable- He
made all these
improvements openly in the presence of the Appellant who made no
objection. It is not clear when the Appellant started
asking the
Respondent to vacate the premises, but the evidence seems to show
that it was not long before the institution of these
proceedings. I
get this impression from the

7

evidence
of 'Maleuta Nkhasi who said the Respondent was given two years within
which to vacate the premises and from the fact that
it was in 1981
when Appellant's brothers invaded the Respondent and demolished his
houses. I think there has been delay in seeking
this relief and there
will be great prejudice to the Respondent if the relief is granted.

In the
case of Mzimande v. Smuts, 1960 (3) S.A. 264 (o) it was held that
where a person knew of the attachment of his property and
did nothing
for a year and allowed a purchaser to improve the property, a plea of
estoppel had to be upheld. I am of the opinion
that that principle
must apply to the present case where the delay is more than 30 years,
For the reasons I have attempted to give
above the first question
posed by the learned Judicial Commissioner must be answered in the
negative.

The
second question was whether a man who has left his original
residential site and houses in one village and lived in another

village but still in the area of jurisdiction of the same chief can
be taken to have removed or emigrated. I think the answer is,

definitely, no. Generally speaking removal (phallo) involves the
change of allegiance from one chief to another and if a polygamist

decides to build houses of his wives in different villages under the
same chief, that act does not involve any removal. In the
present
case Lijo had his senior wife's houses at Mabuleng and those of the
junior wife at Liphakoeng. When the senior wife,'Mamahao,
went to
Liphakoeng because of ill health that was not removal. She did not
even abandon her houses in the sense that the chief
could claim that
they had reverted to him. It was just unfortunate that 'Mamahao died;
if she had recovered she was still entitled
to return to her houses
and no one would be heard to say that she had removed from Mabuleng
to Liphakoeng.

According
to the evidence of the Respondent and his witnesses

8

Lebusetsa
and Lijo came together and decided that the site and houses of the
late 'Mamahao should be given to the Respondent because
his wife
could not get along with her mother-in-law and needed accommodation
urgently. They invited chief Shophane; and Lijo formally
surrendered
the site and houses of 'Mamahao to the chief who re-allocated them to
the Respondent. This brings me to the last question
of law posed by
the learned Judicial Commissioner; can the family allocate
residential site as well as the houses to one of its
members if the
site and houses have been left as in (b) above? The law of this
country has always been that every chief and headman
is responsible,
within his area of jurisdiction, for the allocation of land to his
subjects (Section 7 (1) of The Laws of Lerotholi,
1959 edition). It
is absolutely clear from this section that the family has no right
whatsoever to allocate land to some of its
members. In the past land
was not even inheritable, so that even the heir did not automatically
inherit the land of his father.
He had to be confirmed by the chief.
The confirmation was in fact a re -alloca­tion because the chief
had the right to allocate
the land to a different person other than
the heir. However, this applied mainly to arable land.

With
regard to residential sites gardens and tree plantations, the law is
that these assets are inheritable (Section 7(7) of the
Laws of
Lerotholi), provided that the heir or the dependants continue to
dwell thereon. If a person removes from the area of one
chief and
goes to the area of another chief he automatically loses the right to
his residential site and gardens but he is entitled
to remove all the
build­ing materials which he bought with his money. The remover
has to get a letter of removal from his present
chief which
introduces him to his new chief. In his judgment the learned Judicial
Commissioner refers to a practice whereby after
one member of the
family has removed and left his residential site and houses, the
remaining members of the family allocate the
site and houses to one
of them and that the chief cannot

9

interfere
with the allocation. In my view that practice is not supported by law
because the law entitles the heir or the dependants
on the death of
the father or gurdian to inherit the residential sites, gardens and
three plantations. Removal is not comparable
to death and the
consequences that flow from each of these concepts must differ
substantially. As I have already stated, Lijo did
not remove from
Mabuleng to Liphakoeng, so it will not be necessary for purposes of
this judgment to answer the third question
posed by the learned
Judicial Commissioner.

For the
reasons I have stated above, the appeal is dismissed with costs.

J.L.
KHECLA

JUDGE.

29th
April, 1985.

For
Appellant : Mr. Mofolo

For
Respondent : Mr. Makhene