CIV/APN/356/2002

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

OSHENE
RAMOTJOKA MONARE Applicant

and

BOHLOKO
DIPHOKO (alia Moeketsi Monare) 1st Respondent

MINISTER
OF LOCAL GOVERNMENT 2nd Respondent

ATTORNEY
GENERAL 3rd Respondent

For
Applicant: Mr. K. Mohau

For First
Respondent: Mr. Z. Mda

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 30th day of March
2004

The
background to this case is that succession to the headmanship of
Siloe, Ntilane in the district of Mohale's Hoek is being contested.

The case
concerns a number of prayers seeking declarations against the First
Respondent who I will call Bohloko and who is also
known as Moeketsi
Monare.

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Applicant
wants that Bohloko be declared not to be the son of Solomon Tiheli
Monare. It is because as he contends he is not the
legitimate son of
the latter who was the chief of Siloe, Ntilane (the area) in the
district of Mohale's Hoek. He also wants Bohloko's
nomination as
headman to be declared null and void. Applicant seeks in turn to be
declared as lawful successor to the headmanship
of the area. The
Minister of Local Government and the Attorney General are herein
asked to recognize the Applicant as the lawful
successor to the said
headmanship by order of Court. Applicant says all in all his is the
rightful successor to the said late headman
Solomon Tiheli Monare. An
order for costs is also sought.

This
application is opposed by Bohloko. There are things that go into the
application including what is the central factual issue
being whether
Bohloko has been fathered by Solomon Tiheli Monare or someone else.
It is because it is revealed or rather contended
(which still has to
be decided) that Bohloko has been fathered as alleged by one John
Basha two years before his mother, 'Mamoeketsi
Monare's (Bohloko's
biological mother) marriage to Solomon Tiheli Monare and that he was
born in 1946 and not later.

When the
matter was argued it was conceded that this issue or aspect of the
disputed birth or pedigree of Bohloko would not be resolved
on the
papers before

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Court as
they stood. This had been followed by request by Applicant's Counsel
Mr. Mohau that there must accordingly be oral evidence
from people
who know or would vouch for the pedigree of Bohloko including
surrounding circumstances and those who would contest
the issue
whatever the case may be. I took it that this (leading of evidence)
as it seemed to be agreed, would be the end of the
matter. It was not
to be.

Few other
things however arose during argument which were in the nature of
objections or point-in-limine, which were made by the
Respondents.
This concerned primarily the submission that the matter ought not to
be heard by the High Court because the Court
had no jurisdiction in
the matter, in the present circumstances.

Firstly,
they said the matter of chieftainship disputes cannot be heard by the
High Court following certain decision of the Court
of Appeal wherein
a similar objection was successfully taken. It said the Subordinate
Courts not the High Court were the proper
Courts which ought to deal
with Chieftainship issues such as one of succession. See Fiorina
Mantai Papali Nko v Lijane Nko 1991-92
LLR 5(CA) at 8-9. It
pronounced that a matter such as the present would have been
irregularly brought to the High Court ".....
contrary to the
provisions of

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section 6
of the High Court Act......". I agreed with respect.

Respondents
submitted furthermore that for the High Court to be enabled to deal
with a similar Chieftainship matter the person approaching
the High
Court must first make an application in terms of section 6 of the
High Court Act 1978, which craves for leave to have
the matter heard
in this Court.

Respondents
argued furthermore that the application by the Applicant is not such
an application where he can make when the case
is already being heard
or argued or about to be entertained at hearing. It must be made
before the case is heard leave having been
granted. And that
application is the kind of application envisaged by the said section
6. In my view that requirement is germane
to this proceedings and it
should have been followed.

I have
been asked by the Applicant to exercise my discretion so as to allow
the hearing of the case to be proceeded with. In exercising
my
discretion I am also being asked to look at the fact that the case is
a serious one concerning Chieftainship rights.

Secondly,
that likely or potential witnesses in this case are old people, gone

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on in
years who do not have a lot of time to live and since others have
already died

due to
old age and other causes. If there is more or undue delay these
witnesses are likely to disappear and become unavailable
due to death
or ill-health. Indeed I looked at for example the deposition of Letia
Monare who said she was 91 years old and other
deponents who
professed knowledge of the events in this case. Their stories
indicated people who have gone on in years. Consequently
as Applicant
submitted that he or the other parties will have no support due to
unavailability of evidence.

Indeed I
agreed that these were important issues raised by the Applicant. I
nearly forgot one other aspect. It was that, as shown
in one of the
papers, there would even be a concession (by his mother) that Bohloko
was not fathered by the late chief Monare (the
right person). So that
if this was meant to show the prospects of success of the application
such were abundant in favour of the
Applicant. Then the Applicant
says that that is the reason why this Court must exercise its
discretion. The discretion sought was
for application to be dismissed
or alternative that it be remitted to a Subordinate Court for hearing
as he contended. This was
opposed by Mr. Mda. The decision or ruling
that I had been asked to make is therefor to reject or to accept the
Respondent's said
objection.

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On my
part I have an initial problem however. In the first place there was
no good or formal application for leave to hear the application.
In
my view, where there are good reasons such as those put forward by
the Applicant even if I may associate or sympathize with
this
submission by the Applicant it ought not to be a basis for hearing or
allowing ventilation of a matter where the Court does
not normally
have jurisdiction or have its inherent jurisdiction circumscribed.
Principally this Court in this matter is being
asked to hear a case
which is a Subordinate Court matter. If not this should have been
clearly stated. See Fiorina Mantia Mapapali
Nko's case (supra), at
page 9 in referring to section 12(3) of the Chieftainship Act No
22/1968 Court, for support.

This
Court cannot bend the rules where there would or there is a
requirement that certain procedures be complied with first. Even
if
an award of costs would be welcomed by the Respondents for failure by
the Applicant to comply with procedure for leave, in my
considered
opinion, that would not be a good or sufficient reason for the Court
to hear the matter without a formal application
for leave. This would
amount to subverting well-known procedures.

I feel
however there will be costs to neither party but this case stands
dismissed either for proper leave to be made to this High
Court for
its hearing or

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that it
be heard in a Subordinate Court. Not that I am unsympathethic to
legitimate sentiments experienced as said before but it
ought not to
be a basis for exercising my discretion in the present circumstances.

That is
my decision.

T
Monapathi

Judge

30th
March 2004