CLV/APN/376/03

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOKHETHIMALACHAMELA
APPLICANT

AND

MASABELO
SEKHEO 1st RESPONDENT

CHIEF
NAPO MAJARA 2nd RESPONDENT

THE
PRINCIPAL SECRETARY

MINISTRY
OF HEALTH 3rd RESPONDENT

ATTORNEY
GENERAL 4th RESPONDENT

JUDGMENT

Delivered
by the Hon. Mr. Justice G. N. Mofolo On the 8th day of March. 2004

This
matter started by way of application but there were so many dispute
of fact the court decided to convert the application into
a trial.

P.W.1
Mokhethi Malachamela sworn stated he lived at Sekamaneng and worked
in the Republic of South Africa. He did not know the 1st
respondent
nor did he know the deceased. He knew the 2nd respondent who was his
chief. He was aware the court had gone on an inspection-in-loco
when
he claimed the field belonged to him. In 1991 while chieftainess
'Manapo was the chief he had spoken to Hialele Moleko who
borrowed
money from him to consult a doctor and not being able to pay me had
decided to give him an arable land instead. As he
was a fresh
resident at

Sekamaneng
he had wished to see the field to assess its size. After seeing the
field Hlalele Moleko had asked if he could top up
the money. He had
expressed the view this was not the agreement but they had
nevertheless gone to chieftainess 'Manapo in company
of two
independent witnesses when, then, chieftainess 'Manapo worked with
Motlatsi Matong who was the chieftainess's secretary.
He says he sees
the agreement and the amount of money he paid Hlalele. The agreement
is handed in and marked Exhibit "A"
collectively. He says
he paid in all M3,000.00 and was satisfied the field belonged to
Hlalele Moleko; the chieftainess had given
him a Form C annexure "MM"
which was handed in and marked Exh. "B" He says Motlatsi
was witness to Hlalele
Moleko and Moleko's family know about the
transaction.

Hlalele
Moleko is related to 'Mamorena Moleko for she is Hlalele Moleko's
daughter-in-law. Boy was 'Mamorena's husband and Hlalele
Moleka's
son; they had not participated in the transaction though Boy and
"Mamorena knew of the transaction for 'Mamorena
was present in
the original deliberations. He says he does not know if the Form C
was recorded in chieftainess's books nor does
he know if Hlalele was
deprived of the land. He was allocated a residential site in 1984 and
the procedure in allocating a residential
site and a field were
different. He says his residential site was allocated him by
chieftainess 'Manapo and measurements were taken;
in the case of the
field, it was an exchange of Form C's. The land had lain fallow for
sometime and in year 2000 the field was
waterlogged; in 2001 he was
absent, sick and unable to 1stough the land. In 2002 the land could
not be tilled because it was dry
but he has since been 1stoughing it.
He had 1stoughed it for the period 1992-2000. Sekamaneng people had
village

2

pumps and
a well below the field; the well was dry though there was still
water. There were cemeteries at Sekamaneng including one
claimed to
be full. In the burial ground of a cemetery claimed to be full there
was open space from the last grave.

Cross-examined
by Mr. Mokaloba he agrees he bought the land. Put to him the
procedure adopted in allocating land was wrong for it
is not the
chief of the area who allocated the land, further that the Form C is
improper in that it is not for allocation of land
but for residential
purposes, the witness says he is now aware. He says he does not know
whether, at the time, Hialele had a Form
C. He also says at the time
he was given the Form C he did not know whether the chieftainess was
lawfully in office. Put to him
chieftainess 'Manapo acted unlawfully
he says chieftainess 'Manapo was in office making decisions for she
was acting for her grandson
Bereng Majara and this happened during
the lifetime of Bereng's mother. He says since Bereng's mother was to
act for his son, he
does not know why chieftainess 'Manapo acted for
Bereng.

Re-examined
he says land committee started operating in Sekakaneng only in 1992
and would know if the committee set in his absence.

P.W.2
chieftainess 'Manapo Anna Majara sworn had stated she is a senator
and lived at Sekamaneng. She was once chieftainess of Sekamaneng
from
1973 to 1984 acting for his son Napo Majara who was then not of age
and she had relinquished her post in 1984 when from then
to 1987
chief Napo became chief but was removed by the Ministry of Interior
and chief of Majara's in 1987. Chief Napo's wife had
acted from
1987-1989. Chief

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Napo
Majara had been re-instated in 1989 but removed by the Military
Government in 1990 and the family had agreed that she act for
her
grandson Bereng Majara and she had acted for the period 1990-2000.
She says when she acted for Bereng she was then working
for Lesotho
Telecommunications (L.TC) and had left Motlatsi Matong to act for
her. Motlatsi was not gazetted. She had done Form
C at school. She
says she does not know if she was gazetted.

Mr. Nteso
for the applicant arrives at 3.20 p.m. saying the reason for delay
was that he had gone to Printing House where he was
told gazettes
were no longer printed and he had proceeded to Roma to search for
gazettes for the period 1989-1991 and had not found
the
chieftainess's (P.W.2) name.

The
witness had testified she sees Exh. "B" (Form C) in favour
of Mokhethi Malachamela on which her name and that of Mokone
Hlalele
appear. The field which was previously Hlalele Moleko's had been
given Mokhethi Malachamela. In 1991 there was a land committee
in
1stace of which she was chairman consisting of eight committee
members and one Motlatsi was one of the Committee members. Hlalele

Moleko had written a letter to the effect that in his illness he was
assisted by Mokhethi Malachamela with food, doctors and he
was
surrendering the land to Mokhethi Malachamela and had given the
letter to the committee to have Malachamela confirmed on the
field.
She says what happened is that the committee called Hlalele and told
him in view of the fact that he wished to transfer
the land to
Mokhethi he was being deprived of the land and the deliberations were
recorded in minute books. She was no longer chieftainess
at
Sekamaneng. After the committee had made its decision he

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had given
Mokhethi (applicant) the Form C. She says she signed the document as
Chairperson of the committee. The witness says at
the top right
corner of the Form she had written 'Halio" meaning there were no
Form C1's and she had used the form in lien
of Form C. The witness
says the form could not be found in the Ministry or Offices of the
Principal Chief.

The
witness has testified she knows where deceased is buried being on
Mokhethi's (applicant's) land. She says she knows four graveyards
at
Sekamaneng but not the one where Moleko is buried. The four
graveyards she knows are at Ikhetheleng, Joroses, Mamolopi's and
at
Lekhooeng and the graveyards to date were not full and buried people.
Ikhetheleng was on the eastern side, Jorose is East towards
the North
and Mamolopi's on the western side while Lekhooeng is on the western
side. The four cemeteries buried Sekamaneng people
depending on where
one resided. She says she has seen where Sekheo's grave is and in her
view it is isolated and outside the village.
She says Mojapela died
in the year 2000 and after his death many people died and were
buried.

Cross-examined
by Mr. Mokaloba for the 2nd respondent the witness agrees the period
she exercised chieftainship powers was 1990-2000.
She issued Exh. "B"
(Form C) because relevant Form C1's were not available for a long
time. When she vacated office in
2000 she had told the applicant he
was to return to be given proper Form C, but he had not returned. She
says she did notify Hlalele
on a particular day she was going to
deprive him of the land and that he was to report to the committee on
a particular day. She
says in the absence of her son she was property
appointed because he was at work in the Republic of South Africa. She
agrees things
being the same 2nd

respondent's
wife should have acted. She says members of the land committee in
1991 were Thabiso Buang, Mafonyoko Khoabane, Muso
Scnnane, Sekete
Ntjana, Mahlouoa Nthane, herself and the others she has forgotten;
she says they were elected in 1991. She says
it was either in 1993 or
1994 that a chairperson was required to be elected but before then
chiefs were chairpersons. Put to her
because she was ungazetted for
the period 1991-2000 her operations were illegal she disagrees.
Malachamela was allocated the land
by the committee the owner having
surrendered the land to him. This is applicant's case.

D.W.I
chief Napo Majara sworn has stated he is the 2nd respondent and has
heard the applicant's evidence. He had also heard the
evidence of P
W.2 chieftainess 'Manapo Majara. He says he decided to burry Sekheo
where he is buried because they converted the
1stace into a cemetery
in 1987. Me has set down with his committee concerning people who
wanted to be allocated land and the committee
was advised there was
no cemetery at Sekamaneng the others being full and a committee
member Moeletsi Chabaiakane had said there
was fallow land at
Phatlalla near Mafonyoko's yard which in the past belonged to Leketa
which chief Moramang Paulus had allocated
to Boy Moleko. Moramang had
acted for him while he was at school. Boy Moleko Hlalele's elder
brother's son had never used the land.
They had looked for Boy Moleko
and not finding him found his wife 'Mamorena Moleko who said the area
was unploughable for it was
arid. They had deprived 'Mamoleko on
behalf of her husband of the field in 1987. He had then asked the
committee to convert the
area into a cemetery and this was in 1987.
He had then gone to work at shell house in Johannesburg. In his
absence the family had
appointed his wife to act for his son Bereng

6

Majara
but because his wife was working at Maloti Brewery the decision was
not implemented and Motlatsi Matong had been gazetted
to act for the
Chief of Sekamaneng. When he left the office on 18 December, 1990
Motlatsi was already gazetted. He applied that
Motlatsi act for him
for the period December, 1990 to September, 1998 when Motlatsi died.
He says he has seen the Form C regarding
allocation of land and that
it was dated November, 1991; he says allocation is wrong because his
mother (P.W.2) was not a chieftainess
then but was working at L.T.C.

The
witness has testified the chieftainship Act does not allow an acting
incumbent to have somebody act for him or her. The witness
says
chieftainess 'Manapo could act for him but not for his son for in law
it is his wife who could act for his son failing her
an uncle and
anything to the contrary was unlawful. He says to date and anything
to the contrary was unlawful. He says to date
his mother (P.W.2)
keeps on allocating land. That his mother acted for his son instead
of his wife was unlawful and in any event
P.W.2 had no acting
position.

Cross-examined
by Mr. Nteso the witness says there are five graveyards at Sekamaneng
excluding family graveyards. The graveyards
were not full though
getting to be except the one where Mojapela is buried. Put to him
since the other graveyards were not full
there was no need to put a
graveyard in 1stace where Mojapela is buried, the witness says it
depends on what the needs were.

He says
no law requires him to call a pitso to announce use of a particular
1stace by subjects. He says he had no time to make the

7

announcement
for he was fighting with 'Maseribana and his mother. Further, it is
encouraged that graveyards be out of the village
but not where
residential sites may be allocated. He says it is not true that his
wife was acting chieftainess. Put to him it was
not gainsaid that
between 1987 and 1989 his wife was chieftainess, he says he does not
know. He says he went to Johannesburg in
1991 and returned home in
1993 and it is not true he lived in South Africa in 1987. He says he
knows that Boy Moleko was given
Moleko by Paulosi who acted for him
while at school. He says Moleleki as caretaker of the committee made
a suggestion that there
was barren land given Boy by Moramang. The
witness has testified the reason he says the field is Boys's is
because as heir of the
Sekamaneng area he was shown properties of the
subjects: fields, 1stantations while his mother lived in Maseru and
recently came
to stay at Sekamaneng having acted for a brief period
when his father was ill in 1973. The witness has said in his life he
has
not heard his mother tell the truth. He denies that Boy Moleko is
the eldest son of Hlalele Moleko and also denies 'Mamorena Moleko
is
Hlalele Moleko's daughter-in-law for Hlalele had expelled 'Mamorena
saying the children were his brother's. That there was no
challenge
on this score he agrees saying it was cheap talk. Put to him the
evidence that land was Hlalele Moleko's was not challenged
he says
'Manapo's evidence in its entirely is not true and was no more than
idle talk. Put to him if the field belonged to the
son it was
impossible for it to belong to the father, he says Boy is related to
Hlalele and not Hlalele's son. He says he does
not know if the
applicant 1stoughed the land from 1991-2000. He agrees that on this
score the evidence was not challenged.

8

He says
Motlatsi acted for his son and Motlatsi Matong was gazetted as Acting
chief of Sekamaneng for the period 1996-98. He says
he knows Motlatsi
Matong's signature and says the signature he is shown is not
Motlatsi's and agrees that the fact that the signature
belonges to
Matong was not challenged though, in his view, the signature is not
'Matong's. He says it is Principal Chiefs and not
chiefs that have
secretaries. Motlatsi Matong was a member of the committee and then
chieftainess 'Manapo. (P.W.2) worked at L.T.C.

The
witness says in chieftainship affairs a surname is immaterial for
government pays whoever acts. He says Sekheo's family was
satisfied
with the burial 1stace as it's him who allots burial 1staces.

Put to
him Sekheo's family was not satisfied with the allotment, he says
there was no such dissatisfaction in his office. He says
his mother
is not related to the man buried on Mokhethi's so-called land and is
not aware P.W.2 is related to Sekheo's. There is
a well called
Liphatlalla below the land; he agrees those who go to wells do draw
water there as at Sekamaneng there are water
pipes; as for the well,
it dried up a long time ago. He says P.W.I is a new arrival at
Sekamaneng having arrived in 1984-85. P.W.I
has a site having removed
to Sekamaneng in 1988. He says in 1984 he was chief and he has a
register of migrants. The witness says
there are too many taps at
Sekamaneng and wells are not in use. He says deceased was shot and so
long as he is chief of Sekamaneng
where Mojalefa Sekheo is buried
will always be the burial 1stace.

9

Re-examined
he says his mother P. W.2 has at all times been a thorn in his flesh.
He says the so-cailed Form C is illegal and even
after Motlatsi
Matong's death P.w.2 kept on signing Form C's. The witness says the
land Act does not say where there is no Form
C other Form C's can be
used.

By Court:
He says he has minutes of allocation of sites and nothing shows the
site in dispute is an old site. He became chief in
2001 and the four
burial sites were not full.

D.W.3
Mahleka Pekosela sworn has stated he is subject of the 2nd respondent
Chief Napo Majara whom he knows very well. He is a farmer
and was
once a member of the Development Committees. He served in 1987 under
the military council. He was in office from 1987-1994;
after the
expiry of their terms they were told to continue with their
functions. The order came from the military government. Members
of
the development committee were Jack Mopeli, 'Malineo Phakoa,
'Mamorena Moleko Maleleka Phakoa and chief Napo Majara. During
their
term of office they worked with Motlatsi Matong who acted towards the
end of 1987 until 1994. During their term of office
they did not work
with chieftainess 'Manapo Majara. He denies chieftainess Majara was
in office from 1991-2000.

Cross-examined
by Mr. Nteso the witness has testified Chief Napo was removed from
office by the military government and re-instated
by Paul Mabathoana
in 1988. Thereafter Motlatsi Matong held office for chief Napo's son
Bereng chief Napo having gone to Johannesburg
for work in 1988. Chief
Napo's wife was nominated, acted but said work called and Matong
acted in the office for a long time being
from 1987-'94. He says he

10

does not
remember whether chief Napo was removed in 1990 nor does he know
whether Matong acted from 1990-98 though in 1991 Matong
was chairman
of the land committee. He says Exh. "B" if it's the right
document Matong would have signed for in 1991
the chairman of the
land committee was Matong who has signed as member of the committee.
He knew Matong and Phamotse who were gazetted
on behalf of chief
Napo. He says he would be surprised if chief Napo said Phamotse was
not gazetted. Chief Napo became chief in
terms of Order No.9.

Re-examined
he says chief Napo was removed from office during the military
regime.

The 2nd
respondent has closed his case.

1st
respondent has not opposed the application, the application being
opposed by the 2nd respondent. Applicant's case is that the
land on
which Mojapela Sekheo is buried is his and asks for exhumation and
re-burial of the said Mojapela and 2nd respondent to
provide an
alternative burial 1stace for Mojapela Sekheo.

This case
proceeded by way of application but midway through the case there
were so many dispute of fact that the court converted
the application
into a trial and hence the evidence.

The court
had also conducted an inspection-in-loco attended by the parties and
their legal representatives. The chief 2nd respondent
not being
present the court had caused his presence. The chief has pointed at
the grave

11

situated
in the wilderness saying it is Mojapela Sekheo's grave buried on 23
August, 2003. He says he allocated the burial site
to 'Masekheo who
was satisfied with the site. His subjects were buried in the village
of Sekainaneng. He has said people in the
northern and southern
Sekamaneng were buried in the village. He says in 1987 he had decreed
that people on the southern side of
the village be buried where
Mojapela is buried. It was also his evidence that after he made the
allotment the chieftainess 'Manapo
(P.W.2) stopped people being
buried there. He says he buried Mojapela there because burial 1staces
were full. He returned from
the mines in 2001. He says since
returning from the mines nobody had died on the southern side of the
village. The chief denies
the field is applicant's for it belonged to
Boy Moleko and Boy Moleko had not been buried there. The chief has
said deprived Moleko
of the land and converted it into burial 1stace
and it is not odd that Mojapela is buried where he is buried.

The court
was taken to another burial 1stace in the village and the chief
points at it saying it is full. He says there is a dividing
line
between northern and southern part of the village. From where
Mojapela is buried to the graveyard inside the village is about
2
kilometres. The court inspected the graveyard inside the village and
found that from the last grave there was space available
of twelve
paces towards the north. The court had returned to court, read result
of the inspection-in-loco and counsel on either
side has had no
questions or added anything.

In so far
as D.W.1's is evidence in concerned, I have found the chief's
evidence to be in sixes-and-sevens. 2nd respondent, it would
appear,
throughout his terms of office, has had a run of bad luck. His
chieftainship

12

did not
stabilize until 2001 when he returned home from South Africa. He says
that in 1987 he earmarked the 1stace where Mojapela
is buried as a
graveyard and yet, to date, only Mojapela is buried there. He
attributes this to his (P.W.2) mother's sabotage.
And yet it was not
put to P.W.2 that she sabotaged or frustrated the chiefs (D.W.l's)
plans. Not only this, 2nd respondent gives
the impression that where
Mojapela is buried is an overflow of graveyards. I examined the
village graveyard and found that there
was still sufficient space for
burial. Question is: why was Mojapela singled out for burial in such
a remote and outlying area
of the village? Death is existence beyond
mortality. Mortal men congregate and live in villages. Dead people
also congregate and
live in their villages. It is not right to
isolate people in their existence; by the same token, it is not right
to isolate people
in their death unless there are compelling reasons.
I have found no compelling reasons to bury Mojapela where he is
buried. Besides,
that P.W.2 sabotaged or frustrated D.W.l's 1stans
was not put to P.W.2 and P.W.2 not having been given an opportunity
to deny this
I cannot believe D.W.I on this score.

I have
found no compelling reason to bury Mojapela where he was buried given
the fact that not only were other village graveyards
not full, but
from 1987 nobody was buried where Mojapela came to be buried. It is
nobody's fault that 2nd respondent underwent
vicissitudes attributed
to him nor is it anybody's fault that there was such bad blood
between the 2nd respondent and his mother
P.W.2.

As for
the land on which Mojapela is buried claimed to belong to the
applicant, there can be no doubt that the chieftainess 'Manapo

(P.W.2) had

13

no
chiefly powers to act as she did by reason of the fact that I am not
satisfied that in exercising power as she did she was proclaimed
or a
gazetted chieftainess.

However,
land law in this country is mature. Mature in that there are
procedures for investing and divesting land. Power to allocate
land
is vested in the King in trust for the Basotho nation (sec. 4(1) of
the Land Act, 1973). What this means is that the King
holds the land
for distribution to subjects though his agencies namely: chief,
sub-chief and headmen. Originally chiefs, sub-chiefs
and headmen
allotted land but the law has changed entrusting this duty to chiefs
of the area in consultation with Development Committees
in rural
areas (sections 6(1) and (2) of the Land Act, 1973. By subsequent
amendments to the Land Act while chiefs and headmen
were chairpersons
of the Land Committees they no longer are and the title to grant or
revoke land is vested in the Allocating Authority
(vide section 7 and
respectively of the Land (Amendment) Order, 1992.

It
sometimes happens that land is allotted a subject but that the
allocation mechanisms are wrong. Even if they are wrong, it would

seem the allottee is entitled to hold land until he has been lawfully
deprived of title. Thus in The Qhoqha v. Mahlomola Fokothi,
1971-73
LLR p. 275 a chief who had no authority in the area of another chief
allocated the appellant land. There can no doubt that
that the
allocation was wrong. When, however, the matter came before the High
Court on appeal, while acknowledging that the allocation
to the
appellant was faulty, it appeared that the appellant had occupied the
land for quite some time. Delivering judgment and
upholding the
appeal Jabocs, CJ as he then was, had found the

14

fact of
the matter was that the 1staintiff had been using the land for over
15 years and chief Lerotholi's action:

'in just
telling the 1staintiff to quit and allocating the land to someone
else, without giving the 1staintiff any opportunity to
be heard, was
high-handed to say the least.' (p.275).

Chief
Napo if he intends or it is intended to deprive the applicant of the
land he occupies, right procedures as laid down by land
statute must
be followed to deprive the applicant of the land he occupies for my
view is that the applicant has occupied the land
for over 10 years
and it has not been shown that the occupation is mala fide.

I am also
satisfied with applicant's reasons of why the land was not tilled
afterall, it is another reason to deprive subjects of
land when it
lies fallow for a long time without good reason.

I do not
think it is necessary to go into the merits of the case including the
altercations, arguments and conflicts between the
2nd respondent and
his mother chieftainess 'Manapo since this case hinges on whether,
even if applicant's allocation of land is
unlawful, applicant was
deprived of the land he occupies in terms of the prevailing statute.

As to
deprivation of land at Sekamaneng, I find the land allocating
authority at Sekamaneng in the area of the 2nd respondent to
be the
proper authority vested with the authority of terminating land rights
where these rights were acquired unlawfully but have
been exercised
for a long time. Since the applicant has to date not been deprived of
occupation of land where Mojapela is buried,
it follows that land
where Mojapela is buried is

15

the right
of the applicant until his occupation has been terminated in terms of
prevailing land statute.

Consequently
this court has had no hesitation in granting this application as
prayed and it is granted with costs by the 2nd respondent
to the
applicant.

G. N.
MOFOLO

JUDGE

For the
Applicant: Mr. Nteso

For the
Respondent: Mr. Mokaloba

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