CIV/APN/560/02

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEKOALA
PHIRI APPLICANT

And

KAMOHO
PHIRI RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr Justice T. Nomngcongo on the 23rd February 2005

The
Applicant seeks an order in the following terms:

1. Directing
   Respondent and or his agents to desist forthwith from using or
   interfering in any manner whatsoever with Applicant's
   field at
   PhulengHa Monyane in the district of Mafeteng.

   
   

2. Directing
   Respondent to pay costs of this application only in the event of
   opposing hereof.

   
   

2

The
Respondent objects to the jurisdiction of this court. He further
state that even if this court did have jurisdiction the Applicant
has
failed to meet the requirements of the interdict that he seeks
against the Respondent.

In a
prolix affidavit the Applicant makes a simple point that the field in
question has been a subject matter of litigation since
1996 where his
defence of res judicata consistently failed to carry the day. The
final decision - that of the Judicial Commissioner's
Court confirming
that of the Central Court was that the matter be referred to the
family for proper allocation of the field. He
has been frustrated in
his attempts to convene the family for this purpose, hence apparently
his approach to this court.

In terms
of section 6 of the High Court Act no civil cause of action within
the jurisdiction of a Subordinate Court which expression
includes a
Local or Central Court shall be instituted in or removed into the
High Court except by a Judge acting on his own motion
or with leave
of a

3

Judge
upon application to him in Chambers and after notice to the other
party.

Section
18 (1) of the Subordinate Court Order 1988 provides as follows:
"Subject to the limits prescribed by this Order, the
court may
grant against persons and things, orders for arrest tanguam suspectus
de fuga, attachments, interdicts and mandamenten
van spolie" (My
underlining)

Court
means the Subordinate Court (see Section 2.) What the Applicant seeks
here is to interdict the Respondent from in any way
interfering with
the disputed field. There is no indication whatsoever that, that is a
matter that is beyond any limits prescribed
under the Subordinate
Courts Order such as for instance section 28 which proscribes certain
matters from being dealt with in the
Subordinate Court. The Applicant
ought not therefore without the leave of a Judge, have

4

these
proceedings before this court.

This
application was a hopeless one anyway for the simple reason that
according to his own version this matter has been a subject
of
litigation from 1996, the result of which has been inconclusive as it
is pending a family decision. He cannot therefore claim
to have a
clear right to the field in question. (See SETLOGELO V SETLOGELO 1914
A.D 221 -227)

The
application is dismissed with costs.

T.
NOMNGCONGO

JUDGE

23
FEBRUARY 2005

For
Applicant : Mr Mathaba

For
Respondent : MrMosae