CIV/A/14/85

IN THE
HIGH COURT OF LESOTHO

In the
appeal of

RALEKHOKO
RALEKHOKHOTHI Appellant

v

KHOARI
MOHANOE Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 5th day of November,
1987

This is a
dispute over a piece of land on which the appellant has his home. The
present respondent was the original plaintiff who
claimed the land
and the appellant was the defendant who occupied the home. Because
this matter has now reached its third appeal
(and fourth court) I
shall refer to the parties as plaintiff (Khoari) and defendant
(Ralekhoko) so as to avoid confusion.

As usual
in these appeals this is a very old case having started in the
Ts'ifalimali Local Court in 1979 (CC.108/79) where judgment
was
delivered in favour of the plaintiff on 4 September 1979. The
defendant then appealed to the Ts'ifalimali Central Court (CC.100/80)

where the appeal was allowed and judgment was delivered in favour of
the defendant exactly one year later, on 4 September 1980.

2

The
plaintiff then appealed to the Judicial Commissioner (J.C 365/80) who
delayed for over four years and, on 9 January 1985, allowed
the
second appeal, giving judgment to the plaintiff, thus restoring the
trial court judgment.

Now the
third appeal has come before this Court on a point of law which is
poorly drafted and confusing in the certificate of the
Judicial
Commissioner It reads

" Whether Appellant who owns his residential site and or whose
parents were borrowed some shelter could therefore have the
right to
inherit the inheritable estate in the presence of deceased's heirs,"

whatever
that is supposed to mean.

As usual
the record of the trial court is very unhelpful. The witnesses seem
to have been allowed to speak of irrelevancies while
important facts,
such as dates, were not mentioned nor even obtained by the court
asking the necessary questions. The confusion
is not helped by the
extraordinary system and procedure of allowing the parties to stay
away from court and to send representatives
to testify on their
behalf. Just how or' why this peculiar system was ever allowed to
come about is not apparently known. Obviously
the parties themselves
should go to court to prove their cases. Nobody can properly do so on
their behalf. The system is highly
in­efficient and ineffective.
It also allows the reception of hearsay evidence, which cannot be
good. In the present case the
plaintiff, a grown man, sent his old
mother to court to represent him. I find this both incredible and
unacceptable.

3

In Mohapi
v Maqelepo 1976 L.L.R 131 and Kane v Mokitimi 1977 L.L R. 102, and in
various similar appeal cases, Mofokeng J. seemed
to take the view
that this system, including apparently the admission of hearsay, was
acceptable so as to make the proceedings
"simple and
uncomplicated" and to avoid burdening "Basotho courts with
these highly sophisticated principles."

With
respect I cannot agree. If, as the Judge said, the representatives
know about the facts of the case, then they should only
be allowed to
testify as witnesses to those facts and nothing else. Also, if
allowing such procedure in our Central Judicial system
is already
re­garded as unacceptable and unjust, as it is, then I cannot see
how it can be regarded differently in the local
courts. The obvious
answer, in my opinion, is to have one system for everyone by
amalgamating the courts into one judicial system
as has already been
done in a number of other African countries By absorbing the local
courts into the main system the whole population
would then all
become subject to the same laws, the same legal procedures and the
same courts, with properly trained personnel,
through­out the
country without any discrimination. I know from first hand experience
that it can be done and that it works
to the benefit of all.

Returning
to the present case, the plaintiff, Khoari, claimed that the
residential site belonged to his grand­mother 'Mamohopolo
since
1928 and that it had been loaned to 'Mammuso, the grandmother of the
defendant in or before 1936. The defendant in 1980 was
aged about 42
years so

4

apparently
he was born at their home on the site in around 1938. He had
apparently lived there all his life, with his parents when
they were
alive.

During
that time his father, Maqabe, built huts there and planted fruit
trees and fenced it with wire fencing. This was not disputed
and
apparently nobody objected during all that time until this case was
brought in 1979. The defendant and his parents thus lived
on it for
many years in undisturbed peace.

It was
for the plaintiff, Khoari to disprove all this (which he did not) and
show that he had a better title to the land and that
continued
occupation by the defendant and his family was and had been resisted
over the years. He failed to do this.

Both the
trial court and the Judicial Commissioner lost sight of these facts
and especially of the fact that the defendant had lived
on the land
all his life. Both of those courts seemed to be more concerned with
how the defendant's grandparents had come to occupy
the land and
whether it was a gift or on some sort of loan which was not meant to
be of a permanent nature. But in fact the original
reason or
arrangement was of little significance due to the very long period of
occupation.

They seem
to have overlooked the matter of prescripti In Wilie's "Principles
of South African Law" it is made clear that
the law of
prescription applies when there has been peaceful and undisturbed
occupation for a third of a century (about 33 years).
Moreover, the
writer Duncan, who was a former Judicial Commissioner here, in his
"Sotho Laws and Customs," stated that
the South African Law
of

5

prescription
applies in Lesotho local courts. The defen­dant had certainly
lived on the land for well over the pres cribed period.

As the
Central Court said in its judgment, "should the court be led to
accept that Maqabe (the defendant's father) was making
all these
improvemehts (to the land) on the understanding that he was doing so
for someone else and hot for himself and his children?"
There
was certainly no evidence at all that it was done for anyone other
than himself and his family. Furthermore, the defendant's
family were
buried on the land which was another significant indication that the
land was regarded as theirs.

I agree
with the Central Court that the plaintiff completely failed to prove
his claim and I am satisfied that, on the balance of
probabilities,
the defendant showed that he had a much better title to the land.

Accordingly
this appeal is allowed and the judg­ment of the Judicial
Commissioner is set aside and that of the Central Court
is restored
in favour of the appellant, defendant who is also to receive his
costs here and below.

P. A. P.
J. ALLEN

JUDGE

5th
November, 1987

Mr.
Maqutu for the appellant

Mr.
Matlhare for the respondent