CIV/APN/319/2000
IN THE HIGH COURT OF LESOTHO

In the matter between:

BOATILE LEKULA MATELA
v

PRINCIPAL CHIEF OF MAKHOAKHOA THE ATTORNEY GENERAL

JUDGMENT

Delivered by the Honourable Mr Justice WCM Maqutu on the
27th day of November, 2000

In this matter applicant claims:

1. 
   That applicant be declared as the area chief
   of
   Makhunoane in the Butha Buthe District.

   
   

2. 
   That the Principal Chief of Makhoakhoa
   (first
   respondent) herein be ordered to handover the keys and
   all
   property to the office of the area chief of Makhunoane
   to
   applicant.

   
   

2

(c) That first respondent (the Principal Chief of
Makhoakhoa) pay the costs herein.

1
Facts on which application is based

The applicant (hereinafter referred to as) Boatile and
the first respondent (hereinafter called) Thaabe are brothers. They
are both
the sons of the late Tumane Matela the Principal Chief of
Makhoakhoa. Thaabe as the eldest son has succeeded to the office of
Principal
Chief of Makhoakhoa at Makhunoane.

Boatile claims that his father (the late Tumane Matela)
"Sometime on the 6th June 1972...in his lifetime made a decision
that
he is shedding his responsibility as headchief of Makhunoane and
that he is passing the said responsibility of the area of Chief
of
Makhunoane to me. The said decision was addressed to the District
Administrator Butha Buthe."

A letter dated 6-6-72 is annexed and marked "BLM1".
This letter is in Sesotho and is untranslated contrary to the rules
of court. Boatile says the Deputy District Administrative Secretary
Mr Lethe called a national gathering and presented applicant
as the
Chief of Makhunoane in the presence of his father, the late Tumane
Matela.

3

Boatile says he was accepted as Chief of Makhunoane,
although his father informed him and verily believed him that he is
awaiting
the gazettement of Boatile, "and that he will in the
meantime run the office of the area of Makhunoane, as he did in 1978
and
1979 when he died". When Thaabe took over after their
father's death and "became the principal chief of Makhunoane,
since
he was the eldest son", he overlooked the decision of his
father. When Boatile protested, Thaabe told him that he would place
his own minor son at Makhunoane when he reached majority. Thaabe
could not be moved, even when Boatile went to Thaabe's attorney.
Boatile appealed to the Matela family which supported him, but Thaabe
ignored them.

Boatile says Thaabe has no right to ignore a decision
taken in 1972 and implemented in 1977.

Thaabe in answer says decision about placing chiefs is
governed by law not by wishes of the holder of that office. Thaabe
says he
succeeded to the office in 1977 as the first bom son. Thaabe
denies that Boatile was ever made chief of Makhunoane as he alleges.
The Matela family could never nominate Boatile Chief of Makhunoane
while, he Thaabe was still the incumbent. Nobody has a right to
demand to be placed as chief in his area, Boatile does not even
qualify to be a successor as Chief of Makhunoane.

4

2.
Dispute of fact

Every allegation made by Boatile is disputed.
Consequently this matter is not a matter that should be brought by
way of application.
It has no urgency at all since Thaabe became the
substantive holder of Chief of Makhunoane in 1977. It transpires that
when this
happened, Chief Tumane was still alive because, he died in
1979 according to Boatile. Paragraph 7 of the founding affidavit of
Boatile
is completely unintelligible, I do not understand how Chief
Tumane Matela could remain Chief of Makhunoane until he died in the
circumstances.

I am also puzzled by the statement in paragraph 5 where
it is claimed the late Chief Tumane Matela "made a decision that
he is
shedding his responsibility as the headchief of Makhunoane.
"Headchief" translated into Sesotho means "Morena Oa
Sehloho".
Principal Chief is translated into Sesotho as "Morena
oa Sehloho". "Head" is translated into Sesotho as
"Hlooho".
This "headchief" claim has increased
the dispute of fact in this application.

It is also significant that in 1972 when Chief Tumane
gave Boatile the chieftainship of Makhunoane, there is no allegation
or even
suggestion that Thaabe the heir was there. No members of the
Matela family are alleged to have been there or (at least) informed
of this interference with Thaabe's inheritance. It is therefore clear
that not all customary procedures on chieftainship were followed.

5

I am puzzled that Thaabe succeeded to the position of
Principal Chief of Makhoakhoa in 1977, at the very time that Boatile
claims
to have been made chief of Makhunoane. As if this is not
enough Boatile at paragraph 5 of his replying affidavit says:

"My father decided that I should be installed as
Chief of Makhunoane and he retained the position of chief of
Makhoakhoa."

How does a man vacate office in 1977 and yet give part
of that office to someone else. Boatile does not say when exactly in
1977 he
was made chief of Makhunoane, and when in 1977 Thaabe
succeeded his father. To say that he Boatile was already chief of
Makhunoane
is vague. If Boatile really was the chief of Makhunoane,
what did he do when Thaabe took everything? Where was Boatile all
along
— twenty three years have passed? He should have known that
this application would be disputed among other reasons because of the
delay of almost a quarter of a century. Key witnesses should have
died or at any event their memories have become dim and substantially
unreliable.

Another factor that puzzles me, and on which Boatile has
chosen not to be frank, is that of the state of mind of his father -
Chief
Tumane Matela. Why was he relieved of the Principal
Chieftainship,

6

two years before he died. Was he still of sound mind or
had he become so infirm in both body and mind that Thaabe had to be
made chief
in his place? It would have helped, if Boatile the
applicant had been more communicative on this issue.

Boatile's silence about the reasons for removing his
father two years before his death, and his inaction for over
twenty-three years
on this issue makes me doubt his bona fides. His
bare allegation that some Deputy District Administrator of Butha
Buthe (Mr Lethe)
made him Chief of Makhunoane is not helpful at all.
By what right did Mr Lethe do this? Where is this Lethe? Is he still
alive? What
has happened (all of a sudden) that has made Boatile
claim the right he had disregarded all along? There are too many
unanswered
questions. Where a matter is disputed, the court needs
some reasons on which to base its decision to exercise its discretion
as to
what the best way forward should be. Boatile has not been
helpful in this regard.

3 Definition of issues in chieftainship disputes

It is necessary in chieftainship disputes that issues be
clearly defined from the outset. If what is to be adjudicated upon is
succession,
this has to be specified. Courts have jurisdiction to
adjudicate in matters of succession according to the common law,
customary
law and the Chieftainship Act of 1968. In other aspects of
chieftainship the role of the courts is not always straight-forward.

A...

7

They have the duty to protect chiefs whose rights are
clear from invasion by other chiefs and persons. But in doing so, the
courts
have to bear in mind that chieftainship is an administrative
institution. It is the administration that creates the offices of
chief
to meet the requirements of administration from time to time.
This has been so since the Native Administration Proclamation of
1938.

It was thought the Chieftainship Act of 1968 had changed
the position, but as will be shown later, it has not. Chieftainship
was expected
to be governed by custom, but that did not materialise
because the British colonial government and the paramount chief did
not follow
custom, they carried out their policy of strengthening the
authority of the Paramount Chief through placement and recognition of
chiefs and headmen. This created chaos and contradictions that have
not been resolved to this day. See Duncan Sotho Laws at pages
47-60.
This was inevitable because Principal Chiefs had a tendency to
recommend their relatives to be placed over other chiefs and
headmen
and the Paramount Chief and the High Commissioner accepted those
relatives and proclaimed them chiefs.

Cases of chieftainship are for the aforegoing reasons no
free from difficulties and contradictions. It becomes necessary to
specify
exactly what is in issue so that it can be clear whether a
justiciable issue or an administrative matter is involved. As
Schutz
P in

A...

8

Ramakoro v Peete 1981(2) LLR 559 at 568 said about the
need of clarity in pleadings

"It is no good to say, as was argued, that he
knows. He is entitled to be told by plaintiff what she complains of,
before he
puts his case."

This problem of vagueness and generalisation in
allegations has caused this court's time to be wasted unnecessarily.
In above-mentioned
case of Ramakoro v Peete because of failure to
clarify issues the court heard full evidence and four years later
found that it had
no jurisdiction in the matter, see Peete v Ramakoro
C of A (CIV) No.24 of 1986 (unreported). It was a case of placing of
chiefs over
the rights of others like this one that is before me.

In this case I am not sure whether I am dealing with a
case of succession or creation of a new office of chief with the
accompanying
problem of boundaries. The latter is an administrative
matter. Where there is lack of clarity, courts should be reluctant to
dimly
perceive a cause of action where it is not perceivable - lest
they be taken on a wild goose chase and only to find after several
years that there never was a cause of action. An issue for the
court's determination requires definition at the beginning of court
proceedings.

A...

9

4. Whether courts can make orders on appointment of
chief?

In the case of Slowley Molapo v Mateketsi Teketsi
1971-73 LLR 235 the vexed question of the power of courts in the
creation of offices
of chief and the appointment of chiefs came
before this court. Tied to this was the issue of appointment of
persons to hold offices
of chief. Jacobs CJ at page 237A said:

"It seems to me that what plaintiff in this case is
trying to do is exactly what plaintiff in the case of Molapo v Molapo
1926-53
HCTLR 210 tried to do, namely ask the court to declare that
he, the plaintiff has chieftainship rights over a portion of an area
(the area of Kuenaneng) of which the defendant has already been
proclaimed chief, a contention which was rejected by the court in
that case."

That seems to be what Boatile the applicant is asking
this court to do in respect of Makhunoane - where Thaabe as Principal
Chief
was proclaimed in 1977 twenty three years ago. It is also clear
that Boatile like Slowley Molapo, has never been in the "existing
lists of holders of offices of chiefs and headmen" see Slowley
Molapo v Mateketsi Teketsi at page 238A and Jacobs CJ at page
239B
dealing with a similar delay said "But more than 20 years have
elapsed since the decision in Molapo's case (supra) and
plaintiff and
his predecessors have had more than sufficient time to approach the
proper authorities for recognition as a separate
office of chief for
the area which plaintiff claims".

A...

10

I do not find it mentioned anywhere that Boatile ever
approached the authorities in the last 23 years. I am therefore
puzzled by his
entire conduct.

Courts are only empowered to intervene where succession
to chieftainship is involved. In administrative matters such as
delineation
of boundaries, creation of new offices of chief they
cannot interfere. As Isaacs AJ said in Tefo Tope v Minister of
Interior &
Others 1978 LLR 222 at page 224:

"It is the King, who is to act on the advice of the
Minister, who defines boundaries. This is entirely on administrative
power
and the court will not interfere with an administrative act
except on very limited grounds."

This new chieftainship of Makhunoane is to be carved out
of the existing Principal Chieftainship, therefore it has to have a
proper
boundary deliniation to distinguish it from the existing
Principal Chieftainship's area of jurisdiction.

The creation of a new chieftainship of Makhunoane which
is distinct from the Principal Chieftainship of Makhoakhoa is a
purely administrative
act; so is the appointment of a new chief of
Makhunoane who shall be added to the list of chiefs and headmen. In
the case of Leloko
Jonathan v Lechesa Mathealira Jonathan 1977

A...

11

LLR 314 Leloko Jonathan was claiming the headmanship of
Tsikoane. He had been placed by the late Jonathan Mathealira, the
father of
Lechesa the Ward Chief of Tsikoane, he had served as
headman of Tsikoane for twenty years and was even paid a headman's
stipend by
the Government of Lesotho. When Lechesa succeeded his
father as Ward Chief of Tsikoane, he dismissed Leloko from
headmanship. This
court dismissed his claim because he was ungazetted
and his office of chieftainship was not recognised nor had it
boundaries been
deleniated from the Ward Chieftainship of Tsikoane.

In Motsarapane v Motsarapane 1979 LLR 112 Mooki had been
placed by the Chief of Hleoheng over the area of Hleoheng. Cotran CJ
said
such a placing has no legal validity. At pages 117 and 118
Cotran CJ concluded:

"Since the Chieftainship Act 1968 'platings' in the
old customary sense are dead and buried."

Boatile has made a very skeletal case about his placing.
In affidavit proceedings more has to be said because affidavits
constitute
both the pleadings and the evidence. See Saunders Valve
Co. Ltd. v lnsamcor (Pty) Ltd 1985(1) SA 144 at 149. Boatile (in this
case)
does not even claim (like Leloko Jonathan who had been placed
and acted as headman for 20 years) that he received a stipend from
Government. We only have his word that he was ever placed as chief of

12

Makhunoane by the Deputy District Secretary, Butha
Buthe. Even if he had been, Thaabe could remove him from that
position in the same
way that Lechesa Mathealira removed Leloko
Jonathan, notwithstanding the fact that Leloko Jonathan had been
headman for twenty years
and received a Government stipend. Boatile
has produced no evidence to prove that even in 1977 he ever operated
as Chief of Makhunoane
for a portion of that year, because that is
the year Thaabe took over from their father as Principal Chief at
Makhunoane.

From what I have said above, it should be abundantly
clear that applicant Boatile has not provided the court with any
evidence, even
if he had, he has formidable legal obstacles to
overcome. The fact that he waited twenty-three years before bringing
these proceedings
while Thaabe was in possession of a right he
claims, does not help his case. He must have been aware that he had
no enforceable right
to the Makhunoane chieftainship.

In other words, Boatile had no title to sue for the
chieftainship of Makhunoane, because there is no separate office of
Chief of Makhunoane
nor has he been recognised as chief of Makhunoane
by the King (acting on the advice of the Minister) and proclaimed as
such in a
Government Gazette for general information.

A...

13 5. Order of court

For the above-mentioned reasons, I have no choice but
dismiss this application with costs.

WOM MAQUTU

JUDGE

For applicant : Mr Putsoane
For respondent : Mr T
Hlaoli