CIV/A/18/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

SAMSON
NIKI SETOFOLO Appellant

vs

1
PRESIDENT LOCAL COURT & ANOTHER Respondent

2. Motiki
Tseloa Respondent

3.
'Mamotsekuoa Respondent

JUDGMENT

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

This is
an appeal against the judgment of the magistrate of Quthing in the
application for the setting aside of the judgment of
Dilli-DiHi Local
Court in CC 13/83 was refused.In CC 13/83 the Appellant sued the 2nd
Respondent claiming that she ploughed her
land near Sixondo River
without her permission and she asked the court to restrain her from
doing so. On the 17th May, 1983 the
1st Respondent dismissed the
claim on the grounds that the issue had been finally determined in
the case between 'Mamotsekuoa Tseloa
v Chief Teleko Nkoto in CC 64/80
of Dilli-Dilli Local Court-The application for review by the
magistrate was unsuccessful. The
learned magistrate held that the
trial court did not dismiss the claim on the ground that it was
resjucdicata but on the merits
The requisites of a plea of res
judicata are that the action in respect of which judgment has been
given must have been between
the same parties or their privies
concerning the same subject-matter, and

2

founded
on the same cause of complaint as the action in which the defence is
raised (South African Cases and Statutes on Evidence.
4th edition by
H.J. May, section 265). There is no doubt that the appellant was not
a party in C.C. 64/80 and no suggestion has
been made that she is
heiress or successor to the estate of chief Teleko Nkoto who was the
defendant in CC 64/80. There is also
a dispute as to whether the land
in dispute in the present proceedings in C.C. 13/83 is the same land
which was the subject-matter
in C.C. 64/80. The Court President of
Dilli-Dilli Local Court made a finding that it was the same land.
This finding is not entirely
supported by the evidence because there
is a foot-path on the southern side of the land in C.C 13/83, with
regard to the land in
C.C. 64/84, the foot-path is on the northern
side.

The
crucial question is whether the learned magistrate was correct in
saying that the trial court did not dismiss the claim on the
ground
that it was res judicata. At page 10 of the record the court
president says

"This is the statement and evidence of complainant. On defence
'Mamotsekuoa Tseloa by Motiki Tseloa on her behalf warned to
tell the
truth he says the land for which is sued on behalf of the Respondent
was alloted to him by the Dilli-Dilli Local Court
when chief Teleko
was being sued When being cross examined by complainant he says he
did not know about complainant's at the time
the court alloted
Respondent the land in dispute in 1980 during the month of December.
He also hands in a copy of judgment of the
10th December 1980 as
evidence in this case which is C.C. 64/80 R/N 13712. And the copy is
marked EX. "A"."

He
further states

"After inspecting the land for which Respondent has been sued
the court found that the land is the one which was alloted to

Respondent on the 10.12.80 even though Respondent had sued chief
Teleko following EX "A" of Respondent by one on her
behalf.
And there had been no appeal lodged her the charge against chief
Teleko if he had released the land wrongfully as he had
not refused
with it."

3

The court
president unequivocally held that the land was the same one which was
alloted or awarded to the respondent by judgment
in C.C. 64/80 in
which the appellant was not a party. He held that because there had
been no appeal against his judgment in C.C.
64/80 the judgment was
valid and it would be res judicata to hear the matter again. There is
no doubt in my mind that the court
president dismissed the claim on
the ground of res judicata and that he did not consider the merits of
the case. The learned magistrate
also misdirected herself as to what
res judicata means. In her reasons for judgment she entirely misses
the point when she says
she is not aware of any law which prohibits
the court or any party in a case from exhibiting a judgment only
because the other
party was not involved in it. I must point out that
there is a law which prohibits a party from exhibiting a copy of
judgment in
which his opponent was not a party, if the purpose of
exhibiting such a copy of judgment is to prove that the matter has
been finally
decided in the previous proceedings. That is exactly
what res judicata is all about, and it exactly what the present
respondent
did. She handed in a copy of judgment as evidence that she
had already won the case in CC. 64/80 in which the appellant was not

a party She led no evidence to show the court how and when the land
was allocated to her.

In her
evidence before Dilh-Dilli Local Court the respondent merely said,
"the land for which I am sued ..., was alloted to
me by the
judgment of Dilli-Dilli Local Court in the case against chief Teleko
" There is no doubt from the respondent's evidence
that he was
relying on res judicata. The learned magistrate was also of the view
that the case was one for appeal and not review,
apparently because
it was a mistake of law. In L. & B Holdings v. Mashonaland Rent
Appeal Board 1959 (3) S A 466 (S.R.) at
p 469 Murray, C.J. said

4

"In regard to the possible reply that the first respondent's
error, assuming it to be an error, was only an error of law and
not a
ground for review, it should be pointed out that the authorities
quoted in S.A. Broadcasting Corporation v. Transvaal Townships
Board
and Others, 1953 (4) S.A. 169 (T) at p. 177, lay down that a mistake
of law is still reviewable if it prevents the exercise
of the
discretionary powers entrusted to the body or person making that
mistake."

I agree
with this exposition of the law. The appeal is allowed with costs.

J.L.
KHEOLA

"JUDGE.

14th
November, 1985.

For
Appellant Mr Maqutu

For
Respondent Mr. Mphutlane.