Incomplete Judgement ((NA) No.) [1990] LSCA 16 (2 January 1990)

- 7- The Central Court dismissed t he c a se w i t h o ut m a k i ng any finding t h at the Principal Chief had already m a de a d e c i s i on on t he boundary. I h a ve carefully studied the judgment of t he Central Court and have c o me to t he c o n c l u s i on t h at t he third respondent or his p r e d e c e s s or n e v er m a de a d e c i s i on on t he boundary in q u e s t i o n. The allegation t h at he did has no basis at a l l. At best it can be said t h at t he c o m p l a i nt t h at was put b e f o re the third respondent or his p r e d e c e s s or was n e v er finalised until t he m a t t er was t a k en to t he Central C o u r t. There is nothing in Annexure "A" to show t h at the third respondent sat as a judge in the boundary d i s p u te in q u e s t i on and that he m a de a d e c i s i o n. The respondents have failed to show that t h e re was a decision and deliberately refrained from d i s c l o s i ng to this Court in whose favour t h at d e c i s i on w a s. The reason f or t h e ir failure to d i s c l o se this point is t h at t h e re was n e v er any d e c i s i o n. Section 5 (11) of the C h i e f t a i n s h ip A c t, 1968 provides t h at the c o m m i t t ee shall consist of not less than two m e m b e r s, one of whom shall be t he Principal or Ward C h i ef of the area of authority in which the boundary concerned is situated. There is a proviso t h at if the boundary d i s p u te is between two Principal or Ward Chiefs such Principal or Ward Chiefs shall not be appointed to t he c o m m i t t e e. The third respondent c a n n ot be d i s q u a l i f i ed t he p r o v i so b e c a u se he is not a party to the d i s p u t e. I c o me to t he c o n c l u s i on t h at the a p p o i n t m e nt of t he third respondent as a m e m b er of the ad hoc boundary c o m m i t t ee was proper /8 - 8- and in a c c o r d a n ce with t he p r o v i s i o ns of section 5 of t he C h i e f t a i n s h ip A c t, 1968. The respondents have failed to show t h at the third respondent had already m a de any d e c i s i on in t he m a t t e r. The decision of t he t h r e e - m e m b er boundary c o m m i t t ee a p p e a rs to have been u n a n i m o u s. The respondents have alleged t h at t h e re was i n t e r p l o u g h i ng between t he a p p l i c a nt and t he subjects of t he f i r s t, second and sixth r e s p o n d e n t s. They have not stated when and h ow t he inter- ploughing s t a r t e d, Interploughing is defined by Patrick Duncan in his b o o k, S e s o t ho Law and Custom on pages 72 - 73 in t he f o l l o w i ng t e r m s: "Interploughing is a word coined in Basutoland to d e s c r i be t he s t a te of a f f a i rs d e s c r i b ed in Sotho as m e k o pu e n a m e l a ne (the pumpkins have i n t e r t w i n e d ). When no boundary has been m a de between t wo c h i e fs t h e re is o f t en an area in which both c h i e fs allot lands, and in w h i ch t he subjects of both c h i e fs are mixed u p. This is not a f o rm of p a b a l l o, but is s i m i l ar enough to it to find a p l a ce in t h is c h a p t e r. With p a b a l lo t h e re is a b o u n d a r y, but a loan of rights h as been m a de a c r o ss i t; but with interploughing t h e re is no b o u n d a r y. S o me t i m es interploughing leads to t r o u b l e, and t he remedy is to d e f i ne a b o u n d a r y. When t he boundary has been defined all t he lands on o ne s i de a re under o ne c h i e f; and all on t he o t h er s i de to t he o t h e r. T he p e o p le a re t h en g i v en t he o p p o r t u n i ty of choosing. A land o c c u p i er w ho finds t h at t he boundary has b e en d r a wn between h i m s e lf and his lands may e i t h er (a) give up his lands and remain under his c h i ef in his d w e l l i n g - s i t e, or (b) g i ve up his s i te and his c h i e f, and f o l l ow h is l a n d s, becoming a person of t he c h i ef under w h om lie t he l a n d s ." If t he r e s p o n d e n ts claim that t h e re was n e v er any boundary between t he a p p l i c a nt and the second r e s p o n d e n t, they a re wrong b e c a u se according to t he e v i d e n ce of t he a p p l i c a nt b e f o re t he -9- ad hoc boundary c o m m i t t ee and t h is Court was t h at t he t r o u b le started only in 1966 when t he subjects of the sixth and t he first respondents suddenly seized the arable lands by f o r c e. It c a n n ot be said t h at before 1966 t h e re was no boundary between t he a p p l i c a nt and t he c h i e fs u n d er t he second r e s p o n d e n t. The boundary had been there and was violated by the sixth and t he first respondent only in 1966. The ad hoc boundary c o m m i t t ee found t h at t he boundary between the applicant and the second respondent w as as defined by t he applicant and m a de t h e ir recommendation a c c o r d i n g l y. They did not say they w e re determining a new boundary because they impliedly found t h at the a r a b le lands in question w e re seized by f o r ce by the subjects of the second r e s p o n d e n t. I say impliedly b e c a u se t he second r e s p o n d e n t 's e v i d e n ce was t h at when he was placed as a chief o v er the a r e a, the third r e s p o n d e nt n e v er showed him the b o u n d a r y. Even the sixth respondent who was second respondent's witness b e f o re the ad hoc boundary c o m m i t t ee did n ot c o n t r a d i ct w h at the a p p l i c a nt said., He n e v er told t he c o m m i t t ee w h at he regarded as the boundary between himself and the a p p l i c a n t. I h a ve stated a b o ve t h at t he suggestion t h at t h e re had been no boundary between the applicant and t he second respondent is not supported by any e v i d e n c e. It seems t h at p r i or to 1966 the subjects of the applicant were in peaceful and undisturbed possession of the arable lands in question and t h at m e a ns t h at t he second r e s p o n d e nt and t he sixth respondent accepted t h at t he area was on t he side of t he a p p l i c a n t. I am of t he opinion that there has n e v er been any interploughing between the a p p l i c a nt and t he sixth respondent. - 0- The r e s p o n d e n t s, i.e. sixth to twelveth i n c l u s i v e, complain t h at t he ad hoc boundary c o m m i t t ee n e v er g a ve them t he chance to be heard before it deprived them of t h e ir a r a b le lands. They d e p o se t h at on this ground a l o ne t he application should be dismissed b e c a u se t he d e c i s i on of t he committee is invalid as f ar as it c o n c e r ns t h e m. I do not find any substance in t h is a r g u m e nt b e c a u se t he r e s p o n d e n ts in q u e s t i on h a ve never applied to any c o u rt of law to h a ve the decision set a s i d e. S e c o n d l y, the d i s p u te w as b e t w e en chiefs and concerned a boundary between t h o se t wo c h i e f s. It follows t h at the allocations which w e re m a de by t he c h i ef w ho lost t he c a se a re invalid and h a ve to fall away automatically when the d e c i s i on is against the chief who m a de t h e m. Because t he d i s p u te was not between the subjects of t he applicant and t he subjects of the sixth r e s p o n d e n t, the argument that they w e re not given the chance to be heard cannot stand. They d e r i ve t h e ir titles from the allocation by a person who did not h a ve t he right to a l l o c a te land over t h at a r e a. In a recent c a se b e t w e en t he M i n i s t er of Interior and others v. C h i ef Letsie B e r e n g, C. of A. (CIV) N o. 17 of 1987 (unreported) dated the 20th J u l y, 1988 P l e w m a n, J. A. said "I will a s s u me . f or p r e s e nt purposes t h at if an appointment were m a de (let us s a y) f or an improper p u r p o se the court could intervene in an a p p l i c a t i on to review the Minister's a c t i o n. B ut w h e re no improper c o n d u ct can or had been s h o w n, in my v i e w, the court has no j u r i s d i c t i on to p r o- nounce upon the Minister's a c t s. Again if the M i n i s t er appointed a c o m m i t t ee w h i ch did not comply with the requirements of subsection (11) the court could intervene. If h o w e v e r, the Act is complied with no c o u rt can concern itself in t he matter,, The committee acts a d m i n i s t r a t i v e ly and for t he same reason (and subject to c o m p l i a n ce with subsection 12) the committee m ay c o me to its own conclusion and t he court may not s u b s t i t u te its f i n d i n g s, on the evidence before t he commission f or t h o se of t he c o m m i s s i o n ." /11 - 1- In the present case the respondents h a ve failed to show t h at there w as n o n - c o m p l i a n ce with t he provisions of section 5 of t he Chieftainship A c t, 1968 and this C o u rt c a n n ot concern itself in t he m a t t e r. In t he result t he application is granted as prayed in t e r ms of p r a y e rs ( a ). (b) and (c) of t he Notice of M o t i o n. J. L. K H E O LA JUDGE 10th January, 1990. For the Applicant For t he R e s p o n d e n ts - M r. Pheko - M r. W. C. M. M a q u tu