CIV/A/26/86

IN THE
HIGH COURT OF LESOTHO

In the
appeal of

QHIBIQHIBI
MONNANYANE Appellant

vs

PEREKO
MONNANYANE Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 7th day of December,
1987

This case
commenced on the 18th December, 1979 at Peka Local Court when the
present appellant was the defendant and the present
respondent was
the plaintiff. The dispute concerns a piece of arable land at
Mohlakeng ha MaKoae. The court of first instance found
that the land
in question had been lawfully allocated to the respondent. The
appellant appealed to Tsifalimali Central Court, but
lost. He
appealed to the Judicial Commissioner's Court and again lost the
appeal. He is now appealing to this Court on a certificate
issued by
the learned Judicial Commissioner. The certificate states that
permission is granted to lodge an appeal to the High Court
on all the
grounds advanced by the appellant.

Those
grounds are that,

2

1. The
   learned Judicial Commissioner has misdirected himself on a point of
   law in terms of section 7 (5) (b) of Part 1 of the Laws
   of Lerotholi
   which provides that the allocating authority "SHALL"give
   priority to any adult son or sons of the deceased.

   
   

2. The
   Learned Judicial Commissioner and both inferior courts erred in not
   taking into account that Chief Mathealira Makoae ignored
   the
   provisions of section 7 (5) (b) of Part 1 of the Laws of Lerotholi.

   
   

3. It
   is not disputed that the appellant had been using this field until
   it was allocated to the respondent without notification
   to the
   appellant.

   
   

The
material facts of the case do not seem to be in dispute. The land in
question originally belonged to one Japie. When he died
his son,
Tala, inherited this land and others together with the residential
sites. Because Tala did not have a son, he adopted
the present
appellant and placed him in the houses of the late Japie as his heir.
The appellant is the son of Tala's younger brother.
The status of the
respondent in the family of Monnanyana is not clear at all. However,
he also uses the surname of Monnanyana.
On page 11 of the record the
appellant states that the respondent is an iligitimate child. I do
not know what he means by that.
Be that as it may, the respondent is
not basing his claim on his status in the family of Monnanyana but on
a lawful allocation
of the land to him by the proper authority.

When Tala
died in 1979 the respondent formally applied to the chief that this
particular piece of land be allocated to him. He duly
filled an
application form (Form A) in terms of section 12 (1) (a, of the Land
Act No.20 of 1973 which was in force at the time.
After a

3

proper
consultation with the Development Committee and a proper
consideration of the application, the chief allocated the land to
the
respondent and issued a Form C in terms of section 15 (1) (a) of the
Land Act 1973. (See pages 8 and 9 of the record). It is
not clear
when Tala died but it is clear from the record that it must have been
in June or July 1979 The allocation to respondent
was on the 31st
July, !979 according to the Form C. At page 13 of the record the
appellant says that before he could wind up the
family estate and
before he could remove mourning (cloth), he found that the chief had
already allocated the land to the respondent.

The
removing of the mourning cloth is usually done after about one or two
months after the death of a member of the family. Sc Tala
must have
died in 1979 and not several months before the 31st July, 1978 The
appellant is not telling the truth that he had been
using the land in
his own right before it was allocated to the respondent without any
notice being given to. him. If he used the
land at all it was on
behalf of Tala as a son usually ploughs lands on behalf of his old
father.

In his
evidence the appellant stated that after the death of Tala the land
in question was used by his (Tala's) wife 'Ma-Bernard.
It could be
that it was the wife of Tala who died in 1979 when Chief Matheahra
Makoae allocated the land to the respondent.

Section
13 (j) of the Land Act of 1973 reads as follows

"A Chief acting after consultation with the Development
Committee established for the area of jurisdiction of that Chief
shall, before revoking or derogating from any allocation or grant or
termi­nating or restricting any interest or right in or
over
land, give at least thirty days written notice to the person affected
thereby of his intention to do so."

4

At the
time of the death of Tala or 'Ma-Bernard the appellant did not have
any interest or right on or over the land in question.
I,am fortified
in this opinion by section 7 (5) (a) of the Laws of Lerotholi, Part 1
(1959 edition) which provides that on the
death of the father or
mother who ever dies last, all arable land allocated to them shall be
regarded as land that has become vacant
and shall revert to the chief
or Headman for re-allocation. It seems to me that because land was
not a heritable asset and automatically
reverted to the chief for
re-allocation on the death of the father or mother, the appellant was
not entitled to a notice in terms
of section 13 (1) of the Land Act
1973. This piece of land had automatically became vacant and had
reverted to the-chief for re-allocation.

Section 7
(5) (b) of the Laws of Lerotholi reads

"In the re-allocation of lands which have reverted to the Chief
or Headman on the death of the previous occupier and after
the needs
of any minor dependants have been satisfied as in the previous
sub-paragraph (a) prescribed, the Chief or Headman shall
give
priority, as regards the allocation of the remaining lands should
there beany, to the requirements of any adult son or sons
of the
deceased provided such son or sons reside in the village of the
deceased."

I agree
that it is mandatory that in the re-allocation of the lands that have
reverted to him, the chief must give priority to the
requirements of
any adult son or sons of the deceased. In the present case there is
no evidence or a mere allegation that in re­allocating
the land
in question the chief did not give priority to the requirements of
the appellant. In his own evidence in the court of
first instance the
appellant deposed that the land in question is one of the three lands
that belonged to Tala or Japie. He is
apparently still using several
other lands which belonged to Japie. He has no children

5

The
respondent has children and the land in dispute is the only ore he
has (See page 13 of the record).

The
appellant is not claiming the land on the ground that the chief
failed to give priority to his requirements as the adult son
of the
late Tala, but he is claiming it on the ground that he is the heir to
the estate of the late Tala and that the chief was
under an
obligation to give him notice in terms of section 13 (1) of the Land
Act 1973. As I said earlier in this judgment the
appellant did not
have any interest or right in the land in question and therefore the
chief could not terminate or restrict non-existing
right or interest.

It was
submitted on behalf of the appellant that nowhere as it alleged or
suggested that the Chief or Headman ever took appellant's

requirements into consideration as an adult son of deceased when he
allocated the said land to respondent- In my view the Chief
need not
give notice to the adult son that he has given priority to his
requirements before he re-allocated the land to another
person. The
Chief knows how many arable lands each of his subjects has. When the
father or mother of his subject dies he knows
very well how many
arable lands the subject has.

In his
book "Family Law and Litigation in Basotho Society" at page
251 Sebastian Poulter has this to say

"The justification far such a provision lies in the recognition
that lands are a family asset which the sons will probably
have
worked on and perhsps improved. It is only fair therefore to give
them a right of first refusal. They are naturally subject
to the
general rule that the chief may deprive them of lands if they have
more than sufficient and this would commonly occur if
they were to
retain their own lands as well as inheriting their fathers , Thus
basically if they choose the latter they will have
to surrender all
or some of the former,"

6

With
respect 1 think here the learned author is confusing the provisions
of section 7 (2) of the Laws of Lerotholi (Part 1) with
the
provisions of 7 (5) (b). It is not the lew that when the father or
mother dies the adult son who already has his own arable
lands should
be given the right to choose whether he shall retain his own lands or
surrender them and take his deceased parents'
lands. The law is that
in the re-allocationi of the deceased's lands priority should be
given to the requirements of the adult
son or sons. In the present
case there is evidence that the appellant has other fields. When the
appellant cross-examined Chief
Mothealira Makoae he never suggested
that the fields he has are insufficient for his or his family's
subsistence. Throughout the
trial his argument was that his interest
and right in the lend in question were not terminated in accordance
with the provisions
of section 13 (1) of the Land Act 1973.

When Tala
or his wife died his arable lands became vacant and reverted to the
Chief for re-allocation. The question of inspection
in terms of
section 7 (2) of the Laws of Lerotho did not arise.

Mr.
Maqutu, for the appellant, argued that as the land had not been
formally brought before him by the family, the Chief was not
entitled
to re-allocate the sand land. I disagree with that submission. The
case seems to be clear that on the death of the occupier
the lands
shall be regarded as vacant and shall revert to the Chief for
re-allocation. Even in the case of minor dependents the
land or lands
of their deceased parents is or are not formally given back to the
chief to make provision for them, the head of
the family merely
reports the presence of the minor dependents and the. chief is bound
to make provision for them from their parents'
lands

7

during
their minority. When they attain the age of majority the chief must
allocate the lands to them.

The
appellant was not a minor when Tala died., He already had other
lands'and it must be assumed that the chief did give priority
to his
requirements and found that he had enough lands for his and his
family's subsistence.

In the
result the appeal is dismissed with costs.

J.L.
KHEOLA

JUDGE

7th
December, 1987.

For
Appellant - Mr. Maqutu

For
Respondent - Mr. Teele