C of A
(CIV) 9/2000

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between:

'MAPITSO
ELSINA SEMAHLA APPELLANT

and

RAMONATE
KOENAESELE JOSEPH LEPHOLE RESPONDENT

HELD AT:
MASERU

5, 14
April, 2000

CORAMR.N.
LEON, J.A.

L. VAN DEN HEEVER, J.A.

G. FRIEDMAN, J.A.

JUDGMENT

VAN DEN
HEEVER. JA

This is
an appeal against the judgment of the learned Chief Justice in which
he dismissed an application by the appellant for an
interdict against
the respondent, aimed at preventing him from dealing in any manner
with a residential property at

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Qoaling,
Ha Seoli in the Maseru urban area, "lately the property of
Mafereka Semahla, since deceased."

The
record on appeal is hardly perfect. I complain only because such
imperfections make it unnecessarily difficult for the members
of this
court to prepare for the hearing of a number of appeals in what is
usually a strenuous session.

There is
no return of service of the Notice of Motion (dated 25 June 1977) and
founding affidavit. Notice of intention to oppose
was given on 4 July
1997. Judgment was given in terms of the Notice of Motion on 8th
September 1997. An application for rescission
followed and must have
been successful though the relevant order is not incorporated in the
record. The application itself is.
The documents in the main
application were then prepared and filed, the matter argued, and on 4
January of this year the Chief
Justice dismissed the appellant's
application with costs.

The
appellant's founding affidavit is brief. She married Mafereka Semahla
(hereinafter "the deceased") by customary law
in 1939. They
lived at Levy's Nek in the Leribe district, where she still resides.

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During
about 1965 he came to work in Maseru, leaving her behind at Levy's
Nek. In Maseru he lived as husband and wife with "a
certain
woman" (to whom I shall refer as 'Mateboho) in a four roomed
house he built for them in Masem, the property identified
in her
Notice of Motion. She could not say when the relationship between the
deceased and 'Mateboho started. It came to an end
in about 1985 when
'Mateboho died. At that stage Eveline, a daughter of the appellant
and the deceased, was living with them at
Maseru along with her
children, her marriage having failed.

In 1986
the deceased died. Since then, the appellant herself had collected
and subsisted from the rental of three single and one
double roomed
structures that had also been erected on the property by the
deceased, and let out to tenants. During about 1996,
she says,

"the Respondent began interfering with my rights over the said
premises by expelling the tenants and generally harassing my
said
daughter and her children. At one stage he also sued my son Pitso who
did not live on the premises nor laid any claim thereto.
1 took the
matter up with the chief of the area and various other authorities
but to no avail even after the Respondent had expelled
all my tenants
from the said rented rooms and substituted his

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own from whom he collects rent for his own benefit."

He
effected building alteration to the main house where the appellant's
daughter lives with her children, during June 1997,

"Thus creating an explosive situation as my daughter's eldest
child is a young man of about 21 years and straining at the
leash to
protect his mother and siblings."

She
nowhere states expressly what is the source of her own alleged rights
"of ownership and occupation" which according
to her Notice
of Motion she seeks to protect; nor that the deceased had not been
married to 'Mateboho, merely that the latter had
said when allegedly
taunting the appellant, that she was married to one Tlhoriso Nchepe.
Nor does she expressly state that the
respondent's conduct is
unlawful. She does so indirectly:

"The Respondent is the husband to the sister of the woman who I
have averred used to live with the deceased. To the best of
my
knowledge and belief the Respondent's aforesaid conduct emates (sic)
from his claim of right based on this relationship. I respectfully

submit that this is untenable, insupportable and purely provocative.
I respectfully submit that the Respondent is

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taking advantage of the fact that I am single and an old woman aged
above 78 years and that my said daughter is also single. I
submit
that I have no other remedy but to approach this Honourable Court as
I am now doing."

The
Respondent's case may be summarised as follows: The deceased married
'Mateboho by Sesotho law and custom as his second wife
and lived with
her on the disputed site which had been allocated to the pair of them
while the appellant's own home was at Levy's
Nek at Leribe. A second
marriage ceremony was performed in church. After the death of his
sister-in-law, 'Mateboho, he himself
assisted his nephew, Teboho, who
was the heir, to bring up his younger brothers and sisters. Teboho
was not well and working far
from home, and both asked and authorised
the respondent in 1995 to handle his affairs here, after Teboho
himself had gone to the
Matala Local Court the previous year. This
was because Eveline had moved in after the death of the deceased, the
appellant's son
Pitso had laid claim to the site, and had ejected
Teboho's siblings. The appellant then started collecting the rental
from the
rooms. Evidence had been led in the Local Court to establish
that the deceased had married 'Mateboho, then a widow with children,

by bohali and again in church by Rev. Gilbert Sibolla. Teboho had
been bom (in 1967) from this marriage. The President of the court
had
upheld

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Teboho's
claim and ordered Pitso to vacate Teboho's parental home. His own was

at
Leribe. This judgment had been confirmed on review by the Chief
Magistrate on 13 September 1994.

The
respondent annexed to his own affidavit, ones by a number of
deponents who confirmed his own testimony that 'Mateboho and the

deceased had been married both by customary law and thereafter in
church. One had even contributed towards the bohali.

The
respondent denied that he himself laid any claim to the disputed site
or any proceeds from it. He had acted solely in the interests
first
of Teboho, as requested, and after his death during 1986, of Teboho's
son Thabo and (named) siblings. He annexed a document
dated-stamped 8
July 1997 by the Chief of Ha Seoli, in which those siblings confirm
that they accept and welcome his conduct.

The
appellant's replying affidavit is again brief. She denied that the
disputed site had been allocated to the deceased and 'Mateboho

jointly. She denied emphatically that Teboho and his alleged siblings
were children of the deceased: he and his sister Matseliso
were
fathered by Tlhoriso Nchepe who was 'Mateboho's

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husband,
and Mpho is Matseliso's daughter, not her sibling. Even if these were
the children of the deceased, "the Respondent
would have no
business interfering in matters which concern the Semahla family."

In the
fourth and final paragraph of her affidavit she says:

"I am unable to deny that my late husband paid bohali for
'Mateboho. What I do submit is that such purported bohali could
not
result in any marriage whatsoever in as much as when it was allegedly
paid 'Mateboho was still lawfully married to the said
Tlhoriso
Nchepe."

On these
papers I can find no fault with the approach of the court a quo in
dismissing the appellant's application. There was not
an iota of
evidence produced in support of her allegation, originally illogical:
that 'Mateboho had taunted appellant by making
a statement adverse to
'Mateboho's own interests; which grew to the bald allegation in reply
just quoted. The learned Chief Justice
accepted that 'Mateboho had
been a second wife of the deceased. The appellant's son and heir,
Pitso, had lost the case in which
the validity of 'Mateboho's
marriage had been well canvassed and found to be in order, In terms
of sec.11 (1) of the Laws of Lerotholi
the appellant had no locus
standi in the matter - that is, so as to enable her to bring the same
issue to be determined once more
in a different forum.

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Before us
Mr. Sello argued that the court a quo had erred in taking no
cognisance of what he said was the appellant's challenge
to the locus
standi of the respondent. It bears repeating that the application was
brought on the basis that the respondent was
enriching himself at the
expense of the appellant and her children. Only in her answering
affidavit is a negative postulated, (that
the respondent was
interfering in matters which did not concern him) with no positive
suggestion as to who should in fact or in
law represent the minor
children and grandchild of 'Mateboho. Mr. Sello could, in argument,
give no suggestion as to what member
of the deceased's family should
have shouldered such responsibility. Certainly not the appellant
and/or her son Pitso, who had
tried to take for themselves what prima
facie was due to 'Mateboho's descendants. Nor could he refer us to
any authority that under
circumstances such as revealed in these
papers, a good Samaritan, negotiorum gestor. call him what you will,
would not be permitted
to represent orphans and advance their
interests in the courts of this country.

He then
nailed his colours solely to the mast of Section 5 of Order 6 of 1992
which amends the 1979 Land Act. He annexed a copy
of this 1992 Order
to his heads of argument. The relevant section reads:

"5. Section 8 of the Principal Act is amended,

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Amendment (a) in subsection (!) by inserting after the word 'occupy'
of section 8 the following words: 'or to allow another person
to
ofA17of use'. 1979

2. by
   deleting subsection (2) and substituting the follow­ing
   subsection:

   
   

'(2) Notwithstanding subsection (1), where an allottee of land dies,
the interest of that allottee passes to,

1. where
   there is a widow - the widow is given the same rights in relation to
   the land as her deceased husband but in the case of
   re-marriage the
   land shall not form part of any community property and, where a
   widow re-marries, on the widow's death, title
   shall pass to the
   person referred to in paragraph (c);

   
   

2. where
   there is no widow- a person designated by the deceased allottee;

   
   

3. where
   paragraphs (a) and (b) do not apply - a person nominated as the heir
   of the deceased allottee by the surviving members of
   the deceased
   allottee's family; or (d) in any other case - the State, and the
   Chairman of the relevant Allocating Authority shall
   record in his
   register the passing of that title.' (c) in subsection (3) by
   deleting 'a surviving spouse or';

   
   

4. in
   subsection (3) by adding the following words after the word
   'decease' 'whether such title is registrable or not'."

   
   

He argued
that since 'Mateboho had predeceased the deceased, and there was no
suggestion that the deceased had designated a person
to whom his
interest in the Maseru property was to pass, at best subsection (2)
(c) applied. The family of the

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deceased
had however not nominated those whom the respondent purported to be
protecting who consequently in fact had no rights to
protect; the
statute overriding customary law and/or the Laws of Lerotholi.

This
contention was not one that had been mooted in the application.
Obviously if it were a good law point, that would not matter.
What
Mr. Sello omitted to mention was that in the 1979 Land Act itself,
the section which was amended in 1992 (long after rights
had or had
not vested on the death of the deceased in 1986) falls in Part II.
That commences with section 7 which expressly provides
that "This
Part applies only to land in rural areas." It is unnecessary to
set out the entire Section 8 and particularly
8(2) in its unamended
form. The appellant herself makes it clear that the stand in question
is a residential one in the Maseru
urban area. Cadit quaestio.

In my
view there is no merit in the appeal, which is dismissed with costs.
Delivered at Maseru this 13th day of April 2000.

L. VAN
DEN HEEVER

JUDGE OF
APPEAL

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I agree

R. N.
LEON

JUDGE OF
APPEAL

I agree

G.
FRIEDMAN

JUDGE OF
APPEAL