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CIV/APN/238/99

IN THE HIGH COURT OF LESOTHO

In the matter between :

CHIEF SELEBELI TEFONYANE APPLICANT

VS

CHIEF BATHO BATHO & 3 OTHERS RESPONDENTS

JUDGEMENT

Delivered by the Honourable Mrs Justice Guni on the 9th
day of August 2001

The applicant herein is Chief SELEBELI TEFONYANE. He is
the chief of NOKONG. The office of the chief of NOKONG is directly
responsible
under KUENENG and MAPOTENG. -[SEE ANNEXTURE "ST1"
GOVERNMENT NOTICE NO 26 OF 1964]

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The applicant inherited the title or right to succeed to
the office of the chief of Nokong from his father chief SELLO who
also succeeded
his own father chief TEFONYANE. The applicant was
confirmed as the successor to the office of the chief of NOKONG
before the Principal
Chief of the area in 1962. The applicant was a
miner in the Republic of South Africa. After his succession to the
office of the Chief
of NOKONG, he acted in that office through his
uncles while he was away in the Republic of South Africa. Although he
is now present
in LESOTHO, due to his ill health, his wife is the
acting chieftainess in that office of the chief of NOKONG. He does
not specify
the exact period during which he personally occupied that
office of the chief of NOKONG. It is not clear if at all he is
familiar
with the functions and status of his office.

He claims that he has been treated as and paid for his
services as the headman under the chief of NTSIRELE. His
observations, which
he made when he perused the official document
which has the list of chiefs and their offices, are that his office
of the chief of
NOKONG is of equal status as that of the chief of
NTSIRELE.(REFER TO ANNEXTURE "ST 1")

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The discovery that the applicant's office of the chief
of Nokong is of equal status as that of the chief of Ntsirele, was
made by
the acting chieftainess 'M'ANTSEKE TEFONYANE. [See Annexture
'TM1' and her supporting affidavit]. The publication for general
information,
of the names of headman and chiefs of Berea and their
areas of Jurisdiction, was made on 11^th February 1964. In
this Government Notice, although the name of the office of the chief
of NOKONG appears, the name of the chief has
bee omitted.

It might be because of this omission of the name of the
chief who occupied the office of the chief of NOKONG, which caused
the applicant
to continue labouring under the false impression that
his office is that of a headman under the chief of NTS'IRELE.
Certainly, those
who oppose this application rely on this omission.
There is no evidence that show this court that this applicant is in
fact a headman
and not a chief. The respondents apart from relying on
their ignorance as to the facts stated by this applicant have
produced no
evidence to contradict this applicant's assertions
regarding his position as the chief of NOKONG.

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The case of the two respondents who oppose this
application(i.e. 1^st respondent and 2^nd
respondent) seems to be an attempt to take advantage of the omission
of the publication of the name of the applicant in that Government
Notice. It is their argument that the office of the chief of NOKONG
is vacant.

The name of the occupier of the said office has not been
published. In 1964 when the said list of names of headmen and chiefs
of BEREA
and their areas of Jurisdiction was published, the applicant
herein was already the successor in title and the holder of the
position
of the chief of NOKONG. Although he may have been acting
through one of his uncles, the office of the chief of NOKONG was in
fact
occupied by him. There was no vacancy which the Area Chief, the
Principal Chief of Kueneng and Mapoteng - 2^nd respondent
herein or the Chief of NTS'IRELE - the 1^st respondent
herein, could fill in whichever way she or he pleases.

How and why the applicant's name, despite the inclusion
in the said publication of his area of jurisdiction and his office,
came to
be omitted, is a mystery. There seems to be a general view
that the omission to publish the

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name of the chief of the area while the area was
mentioned as distinct and independent chieftainship, was a mistake.
The error of
omission was made in advertently. There is no one who
has expressed any view to the contrary. More particularly, when the
averments
by the applicant that he was in fact, the occupant of that
position since 1962 when he succeeded his late father chief Sello
Tefonyane.

After the error of the omission of the name of the
applicant was discovered, efforts were made administratively to try
to rectify
it. The cooperation of the Principal Chief of the area was
needed for the rectification to be effected. It appears the Principal
Chief, who is the 2^nd respondent herein, was
uncooperative. In terms of the law, the Principal Chief is required
to forward the name of the successor to
the office of the chief for
the publication for general information. She has given no good
explanation for her failure to forward
the applicant's name for the
publication. Her failure to comply or reply to the letter written to
her by the District Secretary forced
this applicant to approach this
court to intervene. The applicant is seeking the order in the
following terms:-

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(a) Directing the first respondent to stop forthwith
from administering the area of Nokong and treating Applicant as his
headman

(b) Directing the second respondent to forward
Applicant's name to the third respondent for necessary publication in
the gazette as
the Chief of Nokong,

3. 
   Directing the third respondent to regularise
   Applicant's emoluments with arrears from date of assumption of
   office to date of regularisation.

   
   

4. 
   Directing the respondents to pay costs of this
   application.

   
   

5. 
   Granting Applicant any further and/or alternative
   relief

   
   

The Applicant has sued the four respondents to perform
their legal duties in accordance with the legal requirements, in his
case.
All the four respondents have the specific functions to perform
under the direction or the supervision of the Department of Home
Affairs. Normally in cases of this nature the Department of Home
Affairs, through the office of the Attorney General, represents
the
parties in litigation, particularly the department of the
Chieftainship Affairs. The Department of Chieftainship Affairs is the
interested party in this matter or it should be such interested party
as the office that administer the legislation that governs
the
Chieftainship Affairs. Strangely enough the Department of
Chieftainship Affairs and the Attorney General have not filed any
opposing
papers. It therefore follows that they have no interest
which might be adversely affected by the decision of this court
granting
or

7 dismissing this application.

There are not many issues in this matter. It is in the
common cause that there are two Chief Offices which seems to merge
contrary
to the law governing such offices. 1st respondent is chief
Batho-Batho Chief of Ntsirele. The chiefs office which is separate
and
different from that of the Chief of Nokong. [See Annexture ST 1 -
Lesotho Government Notice of 11^th February 1964.]

1st Respondent does not claim to be entitled to hold the
position of the Chief of Nokong. He does not say when and how he
became the
Chief of Nokong. 1^st and 2^nd
respondents appear to be pleading ignorance as their defence to the
claims made against them by the applicant. They do not know that
the
applicant is the chief of Nokong. They also do not suggest who the
chief of Nokong is. They have therefore, in their ignorance,
no leg
to stand on, in order to support their denial that the applicant is
not the chief of Nokong. The law, with regard, to who
is the "Chief
was succinctly interpreted by MAHOMED JA, as he then was, in the case
of LEHLOLA MOFOKA v. LINEO LIHANELA, C of
A (CIV) no 6 of 1988.

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"A person who is a "Chief" as defined in
section 2(1) of Chieftainship

(Amendment) Act, 1984, does not cease to be a chief
merely because his name has not been gazetted. This is evident from
section 14(3)
and there is nothing in the definition of a "Chief"
in section 2(1) which makes publication in the gazette a legal
requirement
for the status of the Chief." (My underlining)

In short, the above quotation, shows that the status of
a chief is a question of fact which must be established with
evidence. The
publication of the office and the name of the Chief
is purely for general information. It does not under any
circumstances create
a chief. JONATHANE v. MATHEALIRA.

The omission of the applicant's name in that Notice
which gives the respondents the impression that the said chiefs
office is vacant,
has but been just a handicap to the applicant for
proper renumeration if the chiefs are paid more that headmen as the
applicant had
been paid as the headman. The respondent seemed to have
been engaged in making surreptitious moves with the purpose of
carving a
portion or taking over the whole area of jurisdiction of
the chief of Nokong - (See Annexture "BB1", "BB2"
issued
out under the hand

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of the 2^nd respondent for the benefit of the
1st respondent.) These moves are being resisted by the applicant
herein. The Chieftainship Act
provides for proper, lawful and open
succession to the office of the Chief. There is no provision for
surreptitious take over. The
respondent cannot as they please merge
or take over any portion of any Chieftainship area which is under the
jurisdiction of another
chief. MIKHANE MAQETOANE and MINISTER OF
INTERIOR and three others C of A (CIV) No 3 of 1984. In Maqetoane's
case the restructuring
of the ward, its hieracy and areas caused the
error of leaving out both the area and the name of Chief Maqetoane.
The omission of
the name and area of chief Maqetoane may have been
deliberate or inadvertent. There was controversy as to the reasons
for the omission.
Even assuming, without accepting, that the omission
was deliberate, in terms of the law, the party whose name has been
omitted was
entitled to be informed and to make representations to
resist the intended removal of his or her name. The applicant was not
informed
of the removal of his name in Maqetoane's case. That failure
to inform him entitled him to the restoration of the name of his
office
and the area of his jurisdiction. In our present case the name
of the area of Nokong has been published. That fact, of the inclusion
of the name of the area of his

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chieftainship of NOKONG, as a distinct and independent
chieftainship from that of NTSIRELE, supports the general view that
the omission
was an error. The area of NTSIRELE and the name of the
chief of the area are included in the Notice as separate and
different. There
are no boundary disputes. Clearly the 1st
respondent must be the successor to the office of the chief of
NTSIRELE because the
occupant of the office of the chief at the time
of the publication [Notice No 26 of 1964] was MAHLOMOLA PEETE, no the
2^nd respondent.

The respondents have not raised a question of delay. In
his head of argument, the late advocate Mafantiri(Bless his soul),
who represented
this applicant felt it appropriate to deal with that
question even though the respondent do not feel that any of them
would be prejudiced
on that ground in anyway by the granting of this
application.

The grounds upon which the court can excuse delay are
numerous. WOLGROLERS AFSLAERS(EDMS)BPK v. MUNISIPALITEIT VAN KAAPSTAD
1978 (1)
SA 13. The ground of greater significance, is whether there
is a party who will be prejudiced by the granting of the application
as it

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stands. MAQETOANE v. MINISTER OF INTERIOR(SUPRA). There
is no evidence that anyone is going to suffer actual or potential
prejudice
by the granting of this application.

The fact that the applicant was at all material time the
occupier of that office of Chief of Nokong but was treated and paid
as a
headman was a prejudice he suffered all along. The granting of
the application will rectify the position. The respondent are not
losing anything either. The 2^nd respondent's
procrastinations to forward the applicant's name for gazettement was
not benefiting her in any way.

Furthermore, since the applicant acted through his
uncles and now through his wife his absence may have also contributed
to the delay
to discover the error.

For these reasons the application must succeed. It is
granted with costs.

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K.J. GUNI
JUDGE

FOR
APPLICANT - MR MAFANTIRI

FOR
RESPONDENTS - MR MONYAKO