C. of A.
(CIV) No.9 of 1985

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

MENSEL
KHETHISA Appellant

and

JOANG
KHETHISA First Respondent

DINIZULU
KHETHISA Second Respondent

SHOAEPANE
MASUPHA Third Respondent

BOLOKOE
MOTS'OENE Fourth Respondent

SOLICITOR-GENERAL
Fifth Respondent

MINISTER
OF INTERIOR Sixth Respondent

HELD AT
MASERU

Coram:

W.P.
Schutz, P.

S.
Aaron, J.A.

B.P.
Cullinan, C.J.

JUDGMENT

Aaron,
J.A.

This
matter is a dispute about Chieftainship. The Applicant instituted
proceedings in the High Court on Notice of Motion and sought
an order
that he be declared to be the rightful successor to the Chieftainship
of the area known as Bokong Ha Kennen in the District
of Leribe. He
based his case on the allegation that he was the son of Kennen
Khethisa who had been the Chief until 1953, on the
grounds that the
person was his father. His father had been succeeded by his widow the
Chieftainess 'Mamothobi Khethisa, who held
office from 1954 to 1976.

The
respondents in the Court below were three persons who were the
immediate superior Chiefs of the Applicant, the officer
Solicitor-General
and the Minister of the Interior. On the affidavits
there is a dispute of fact as to whether Applicant is in fact the son
of the
late Chief Kennen Khethisa, or whether he was merely the issue
of the union in which Kennen Khethisa had acted as seed-raiser for

his late father with the eighth wife of his late father. If the
latter version is correct, then Applicant is regarded as the

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son of
his grand-father, in the grand-father's eighth house, not as the son
of his father, in the father's second house.

There is
a clear dispute on this crucial fact; Applicant claims that after his
grand-father's death, his father went through a form
of customary
marriage with the grand-father's eighth wife, and paid lobola for
her. First Respondent denies this; he says there
was no such
marriage, and points to the fact that there was no need for lobola to
be paid, as the wife was already a member of
the Khethisa family.
There are also disputes of fact on other matters which are relied
upon as evidence.

In view
of these disputes of fact, the Judge in the Court below held that the
matter could not be decided on affidavit, and he accordingly

dismissed the application with costs.

When the
matter came before us and these difficulties were put to Mr.
Monaphathi, who appeared for the Appellant, he realised that
these
difficulties existed, and correctly conceded that the appeal could
not be taken further. We are in agreement with what was
said by Judge
Molai in the Court below, and for the reasons set out in his judgment
the appeal is dismissed with costs.

It should
however be made clear that the dismissal of the Applicant's
application in the Court below amounted only to an absolution

judgment. It does not prevent the appellant, if he so wishes, from
instituting fresh proceedings by way of summons in a competent
court,
so that the disputed issues can be resolved after hearing oral
evidence.

S. AARON

Signed:.........................

S. AARON

JUDGE OF APPEAL

I agree
.........................

W.P. SCHUTZ

PRESIDENT OF THE COURT OF APPEAL

I agree
....................

B.P. CULLINAN

CHIEF JUSTICE

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Delivered
at MASERU on this day of October, 1987.

For the
Appellant : Mr. T. Monaphathi

For the
Respondents: Mr. W.C.M. Maqutu