HIGH COURT OF LESOTHO
by the Hon Mr Justice J.L. Kheola on the 24th day of March, 1986.
Appellant sued the Respondent at Matala Local Court claiming R245-00
as compensation for cutting down his trees and damaging
court of first instance gave judgment in favour of the Appellant on
the ground that the Respondent's father had removed
(where the tree plantation is located) to Likotsi The Matsieng
Central Court President upheld the appeal on the ground
representative of the Appellant at the trial appointed in terms
of section 20 of Proclamation No 62 of 1938 committed
irregularity by giving evidence after he had been inside the
court-room and conducting the Appellant's case The Central
President misdirected himseif on a point of law. In all civil cases
the plaintiff and the defendant always remain in court
witnesses are giving evidence and yet it has never been said that
because the defendant was in court when plaintiff's
their evidence, he has no right to give his evidence. The
representation of the Appellant had a right to give evidence
same way as the Appellant would have had the right to give evidence.
appeal to the Judicial Commissioner's Court was unsuccessful on the
ground that the Respondent had never abondoned his right
to the trees
because he had been actively using them and the garden despite the
living in a different village under a different chief.
Appellant is now appealing to this Court on the following grounds –
learned Judicial Commissioner erred in law in not holding that
Respondent's father when he moved to Likotsi was a Remover
learned Judicial Commissioner erred in law in holding that the
father of the Respondent who had removed from one Headman to
could still have rights over treesplantation at the place of the
Headman from whom he had removed
the brother of the Respondent who is the subject of the Headman
where his father had removed could inherit property, tree
plantations, situated under the Headman where his father had removed
and therefore passed to his younger brother.
learned Judicial Commissioner erred in not holding that the tree
plantations in dispute belonged to Good-
man, the only member of the Chaka family who remained at Qoaling
where his brothers had removed, and therefore the Appellant
the heir of the property left by Goodman being his Grandson "
common cause that the parties in this case are the grandsons of Chaka
and that the tree plantation in question belongs to
Chaka had three sons, namely, Sepota, Moramang and Goodman Sepota's
son is 'Mota. 'Mota had two sons, namely, Chaka
'Mota and the
Respondent Moramang's son is Mpho. Goodman had two sons, namely, Mafa
and Mafanyane. Mafanyane is the father of the
Appellant. 'Maselina is
the wife of Mafa.
in this case is whether 'Mota and Moramang removed from Qoaling bo
Likotsi. It is common cause that when the chief of
Qoaling placed his
son at Likotsi to be the chief of that area, certain of his subjects
including 'Mota and Moramang went to Likotsi
with the new chief. They
became the subjects of the new chief and paid allegiance to him and
not to the chief of Qoaling The Respondent
was wrong to say that
'Mota and Moramang went to live at Likotsi on temporary basis
"motebontloana" means an entirely different thing. It
covers a situation whereby a man goes to the cattle post
his family with him. He lives with his entire family at the
cattlepost but continues to pay allegiance to his chief.
to plough his land and usually sees to it that his houses are
properly cared for by some members of his family At
the man does not pay allegiance to any new chief, he remains the
subject of his chief and pays his basic tax under
the name of his
overwhelming evidence that 'Mota and Moramang removed from Qoaling
and went to live at Likotsi which was to be the area
of a new chief.
In his evidence Respondent's witness Chaka 'Mota says (at page 8 line
10 of the record)
"Leponesa on going out to be placed went with Moramang and 'Mota
the son of Sepota".
own evidence the Respondent says at page 3 lines 29-31)
father 'Mota went to Likotsi whilst I was at Mokhotlong.
informed by my father that he went to Likotsi with Morena Lepolesa".
evidence of Chaka Maraka at page 11 lines 20-24 where he says
Morena Matsoso placed his son Lepolesa at Likotsi they removed to
Likotsi. They removed with their families and children.
Goodman remained at Qoaling"
Chaka also confirmed at page 14 line 17 that "'Mota Chaka died
at Likotsi where he had removed.'
face of this formidable evidence the Respondent cannot bo heard to
say that Moramang and 'Mota went to live at Likotsi on
basis. In my view they were removers in the true sense of that word.
It is immaterial that the area of Likotsi falls under
jurisdiction of the chief of Qoaling What is important is that the
people of Likotsi pay allegiance to their own chief and
not to the
chief of Qoaling The mere fact that the chief of Likotsi is
subordinate to the chief of Qoaling does not mean that his
must pay allegiance to two chiefs
question is whether according to our law the dependants of a person
who has removed can inherit the treeplantations and
at the place from which their father has removed. The answer to this
question is to be found in section 7 (7)
of Part I of the Laws of
Lerotholi regarding the inheritability of residential sites, gardens
and tree plantations It reads as
"On the death of a person who has been allocated the use of land
for the growing of vegetables or tobacco, or for the purpose
planting fruit or other trees, or for residential purposes, the heir,
or in the absence of the heir dependants of such deceased
shall be entitled to the use of such land as long as he or they
continue to deal thereon."
learned Judicial Commissioner held that there was evidence that 'Mota
Chaka had been using the trees even though he lived at
that there was further evidence that Chaka 'Mota (his son) had been
using the fields as well and he eventually wrote
a letter Exhibit I
dated the 1st May, 1980 asking the chief of Qoaling to bless his
passing them to his younger brother (the Respondent).
He held that
Chaka 'Mota had not abondoned the use of the lands but had been
actively using them. With respect, this finding does
not seem to be
supported by the evidence in the record. The learned Judicial
Commissioner seems to have relied heavily on the letter
Chaka 'Mota in 1980 in which he asked the chief of Qoaling to
transfer the tree plantation in question and some fields
Respondent. This letter is not evidence that Chaka 'Mota had been
actively using the lands
quite probable that when he wrote that letter he was already
contemplating to institute these proceedings and was trying to
the impression that he had been using the lands in question. In any
case there is no evidence that the chief of Qoaling
attention to that letter which was written by a person who was not
directly his subject. The question one may ask is why
Respondent not called the chief of Qoaling as his witness to come and
confirm that he did comply with the request in Exhibit
transferred the rights in the tree plantation to him? Without the
evidence of the chief of Qoaling the Respondent completely
prove the re-allocation of the tree plantation to him.
evidence of Chaka 'Mota himself on page 9 of the record does not
support the finding that he had been actively using the trees.
says that at his age of discretion the yard was being used by Mafa
and that he (Mafa) used to cut firewood and plant young aloes
place of old ones He further states that after Mafa's death it was at
times ploughed by his widow 'Maselina. She used to
plant maize and
she cut firewood from it, and that the Respondent always asks for
firewood from 'Maselina This evidence is confirmed
by the Appellant's
witness Chaka Maraka - whose evidence was not even challenged - that
after the death of Mafa the yard has remained
in the use of
'Maselina. She uses it with the Appellant and there has been no
complaint from anybody. 'Maselina confirmed that
after the death of
Mafa she started using the yard and that the Respondent always asked
for permission from her whenever he wanted
to cut some trees. At page
9 of the record Chaka 'Mota says that "Respondent (Plaintiff)
always asks for firewood from 'Maselina
If the Respondent had been
the caretaker of the tree plantation on behalf of Chaka 'Mota, why
did he have to ask for permission
from 'Maselina whenever he wanted
some firewood? The answer to this question is that the Respondent
knew very well that the yard
belonged to 'Maselina who inherited it
after the death of her husband, Mafa.
the Appellant did not give coidence at the trial, it is clear from
the record that his defence was that he had been sent
by 'Maselina to
cut some firewood for her. In her evidence 'Maselina confirmed this.
The question which immediately arises is whether
the Respondent has
sued the right person. It has not been shown that the Appellant is
the heir to the estate of the late Mafa.
He is the son of Mafanyane.
been submitted on behalf of the Respondent by Mr. Monyako who
appeared for him in this Court that the Appellant failed to
he acquired the rights he is now claiming, whether it was through the
family resolution or the chief who had the right
of re-allocation or
confirmation of the resolution of the family. The first thing is that
the Appellant has never said that the
trees are his property. He uses
them only when instructed by 'Maselina Chaka. Secondly, it can be
safely assumed by this Court
that the chief of Qoaling did
re-allocate the yard by conduct because as soon as 'Mota and Moramang
removed to Likotsi, Goodman
their younger brother remained in the
yard and used the trees. The chief raised no objection. When Goodman
died his son Mafa inherited
the yard and the trees, still the chief
raised no objection. When Mafa died his widow 'Maselina used the yard
and the trees, the
chief still raised no objection.
appeal is allowed and the Respondent is ordered to pay costs.
Appellant - Mr. Pheko
Respondent - Mr. Monyako.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law