Matela v Principal Chief of Makhoakhoa and Another (CIV/APN 319 of 2000) [2000] LSCA 107 (27 November 2000)

CIV/APN/319/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: B O A T I LE L E K U LA M A T E LA v P R I N C I P AL C H I EF OF M A K H O A K H OA T HE A T T O R N EY G E N E R AL J U D G M E NT Delivered by the Honourable Mr Justice W CM M a q u tu on the 27th day of N o v e m b e r, 2000 In this m a t t er applicant c l a i m s: (a) T h at applicant be declared as t he a r ea chief of M a k h u n o a ne in the B u t ha B u t he District. (b) T h at t he Principal C h i ef of M a k h o a k h oa (first r e s p o n d e n t) herein be o r d e r ed to h a n d o v er the k e ys a nd all p r o p e r ty to the office of the area chief of M a k h u n o a ne to applicant. (c) T h at first respondent (the Principal C h i ef of M a k h o a k h o a) p ay the costs herein. 1 F a c ts on w h i ch application is b a s ed T he applicant (hereinafter referred to as) Boatile a nd the first respondent (hereinafter called) T h a a be are brothers. T h ey are both the sons of the late T u m a ne M a t e la the Principal C h i ef of M a k h o a k h o a. T h a a be as the eldest s on h as succeeded to the office of Principal C h i ef of M a k h o a k h oa at M a k h u n o a n e. Boatile claims that his father (the late T u m a ne M a t e l a) " S o m e t i me on the 6th J u ne 1972...in his lifetime m a de a decision that he is shedding his responsibility as headchief of M a k h u n o a ne a nd that he is passing the said responsibility of the area of C h i ef of M a k h u n o a ne to m e. T he said decision w as addressed to the District Administrator B u t ha B u t h e ." A letter dated 6-6-72 is a n n e x ed a nd m a r k ed " B L M 1 ". T h is letter is in Sesotho a nd is untranslated contrary to the rules of court. Boatile says the D e p u ty District Administrative Secretary Mr L e t he called a national gathering a nd presented applicant as the C h i ef of M a k h u n o a ne in the presence of his father, the late T u m a ne M a t e l a. Boatile says he w as accepted as C h i ef of M a k h u n o a n e, although his father informed h im a nd verily believed h im that he is awaiting the gazettement of Boatile, "and that he will in the m e a n t i me run the office of the area of M a k h u n o a n e, as he did in 1 9 78 a nd 1 9 79 w h en he died". W h en T h a a be took o v er after their father's death a nd " b e c a me the principal chief of M a k h u n o a n e, since he w as the eldest s o n ", he overlooked the decision of his father. W h en Boatile protested, T h a a be told h im that he w o u ld place his o wn m i n or s on at M a k h u n o a ne w h en he reached majority. T h a a be could not be m o v e d, e v en w h en Boatile w e nt to Thaabe's attorney. Boatile appealed to the M a t e la family w h i ch supported h i m, but T h a a be ignored t h e m. Boatile says T h a a be has no right to ignore a decision taken in 1 9 72 a nd i m p l e m e n t ed in 1 9 7 7. T h a a be in a n s w er says decision about placing chiefs is g o v e r n ed by l aw not by wishes of the holder of that office. T h a a be says he s u c c e e d ed to the office in 1 9 77 as the first b om son. T h a a be denies that Boatile w as ever m a de chief of M a k h u n o a ne as he alleges. T he M a t e la family could never n o m i n a te Boatile C h i ef of M a k h u n o a ne while, he T h a a be w as still the i n c u m b e n t. N o b o dy has a right to d e m a nd to be placed as chief in his area, Boatile d o es not e v en qualify to be a successor as C h i ef of M a k h u n o a n e. 2. D i s p u te of fact E v e ry allegation m a de by Boatile is disputed. C o n s e q u e n t ly this matter is not a matter that should be b r o u g ht by w ay of application. It h as no u r g e n cy at all since T h a a be b e c a me the substantive holder of C h i ef of M a k h u n o a ne in 1 9 7 7. It transpires that w h en this h a p p e n e d, C h i ef T u m a ne w as still alive b e c a u s e, he died in 1 9 79 according to Boatile. P a r a g r a ph 7 of the founding affidavit of Boatile is completely unintelligible, I do not understand h ow C h i ef T u m a ne M a t e la could r e m a in C h i ef of M a k h u n o a ne until he died in the circumstances. I am also puzzled by the statement in p a r a g r a ph 5 w h e re it is c l a i m ed the late C h i ef T u m a ne M a t e la " m a de a decision that he is shedding his responsibility as the headchief of M a k h u n o a n e. " H e a d c h i e f" translated into Sesotho m e a ns " M o r e na Oa S e h l o h o ". Principal C h i ef is translated into Sesotho as " M o r e na oa S e h l o h o ". " H e a d" is translated into Sesotho as " H l o o h o ". T h is "headchief" claim has increased the dispute of fact in this application. It is also significant that in 1 9 72 w h en C h i ef T u m a ne g a ve Boatile the chieftainship of M a k h u n o a n e, there is no allegation or e v en suggestion that T h a a be the heir w as there. No m e m b e rs of the M a t e la family are alleged to h a ve b e en there or (at least) i n f o r m ed of this interference with T h a a b e 's inheritance. It is therefore clear that not all c u s t o m a ry p r o c e d u r es on chieftainship w e re followed. I am puzzled that T h a a be succeeded to the position of Principal C h i ef of M a k h o a k h oa in 1 9 7 7, at the very time that Boatile claims to h a ve b e en m a de chief of M a k h u n o a n e. As if this is not e n o u gh Boatile at paragraph 5 of his replying affidavit says: " My father decided that I should be installed as C h i ef of M a k h u n o a ne a nd he retained the position of chief of M a k h o a k h o a ." H ow does a m an vacate office in 1 9 77 a nd yet give part of that office to s o m e o ne else. Boatile d o es not say w h en exactly in 1 9 77 he w as m a de chief of M a k h u n o a n e, a nd w h en in 1 9 77 T h a a be succeeded his father. To say that he Boatile w as already chief of M a k h u n o a ne is v a g u e. If Boatile really w as the chief of M a k h u n o a n e, w h at did he do w h en T h a a be took everything? W h e re w as Boatile all along — twenty three years h a ve passed? He should h a ve k n o wn that this application w o u ld be disputed a m o ng other reasons because of the delay of almost a quarter of a century. K ey witnesses should h a ve died or at a ny event their m e m o r i es h a ve b e c o me d im a nd substantially unreliable. A n o t h er factor that puzzles m e, a nd on w h i ch Boatile has c h o s en not to be frank, is that of the state of m i nd of his father - C h i ef T u m a ne Matela. W hy w as he relieved of the Principal Chieftainship, t wo years before he died. W as he still of s o u nd m i nd or h ad he b e c o me so infirm in both b o dy a nd m i nd that T h a a be h ad to be m a de chief in his place? It w o u ld h a ve helped, if Boatile the applicant h ad b e en m o re c o m m u n i c a t i ve on this issue. Boatile's silence about the reasons for r e m o v i ng his father t wo years before his death, a nd his inaction for o v er twenty-three years on this issue m a k es me d o u bt his bona fides. H is bare allegation that s o me D e p u ty District Administrator of B u t ha B u t he ( Mr L e t h e) m a de h im C h i ef of M a k h u n o a ne is not helpful at all. By w h at right did Mr L e t he do this? W h e re is this L e t h e? Is he still alive? W h at h as h a p p e n ed (all of a s u d d e n) that has m a de Boatile claim the right he h ad disregarded all along? T h e re are too m a ny u n a n s w e r ed questions. W h e re a matter is disputed, the court n e e ds s o me reasons on w h i ch to b a se its decision to exercise its discretion as to w h at the best w ay f o r w a rd should b e. Boatile h as not b e en helpful in this regard. Definition of issues in chieftainship d i s p u t es It is necessary in chieftainship disputes that issues be clearly defined f r om the outset. If w h at is to be adjudicated u p on is succession, this has to be specified. C o u r ts h a ve jurisdiction to adjudicate in matters of succession according to the c o m m on l a w, c u s t o m a ry l aw a nd the Chieftainship Act of 1 9 6 8. In other aspects of chieftainship the role of the courts is not a l w a ys straight-forward. A... They have the duty to protect chiefs whose rights are clear from invasion by other chiefs and persons. But in doing so, the courts have to bear in mind that chieftainship is an administrative institution. It is the administration that creates the offices of chief to meet the requirements of administration from time to time. This has been so since the Native Administration Proclamation of 1938. It was thought the Chieftainship Act of 1968 had changed the position, but as will be shown later, it has not. Chieftainship was expected to be governed by custom, but that did not materialise because the British colonial government and the paramount chief did not follow custom, they carried out their policy of strengthening the authority of the Paramount Chief through placement and recognition of chiefs and headmen. This created chaos and contradictions that have not been resolved to this day. See Duncan Sotho Laws at pages 47-60. This was inevitable because Principal Chiefs had a tendency to recommend their relatives to be placed over other chiefs and headmen and the Paramount Chief and the High Commissioner accepted those relatives and proclaimed them chiefs. Cases of chieftainship are for the aforegoing reasons no free from difficulties and contradictions. It becomes necessary to specify exactly what is in issue so that it can be clear whether a justiciable issue or an administrative matter is involved. As Schutz P in A... Ramakoro v Peete 1981(2) L LR 559 at 568 said about the need of clarity in pleadings "It is no good to say, as was argued, that he knows. He is entitled to be told by plaintiff what she complains of, before he puts his case." This problem of vagueness and generalisation in allegations has caused this court's time to be wasted unnecessarily. In above- mentioned case of Ramakoro v Peete because of failure to clarify issues the court heard full evidence and four years later found that it had no jurisdiction in the matter, see Peete v Ramakoro C of A (CIV) No.24 of 1986 (unreported). It was a case of placing of chiefs over the rights of others like this one that is before me. In this case I am not sure whether I am dealing with a case of succession or creation of a new office of chief with the accompanying problem of boundaries. The latter is an administrative matter. Where there is lack of clarity, courts should be reluctant to dimly perceive a cause of action where it is not perceivable - lest they be taken on a wild goose chase and only to find after several years that there never was a cause of action. An issue for the court's determination requires definition at the beginning of court proceedings. A... 4. Whether courts can make orders on appointment of chief? In the case of Slowley Molapo v Mateketsi Teketsi 1971-73 L LR 235 the vexed question of the power of courts in the creation of offices of chief and the appointment of chiefs came before this court. Tied to this was the issue of appointment of persons to hold offices of chief. Jacobs CJ at page 237A said: "It seems to me that what plaintiff in this case is trying to do is exactly what plaintiff in the case of Molapo v Molapo 1926-53 H C T LR 210 tried to do, namely ask the court to declare that he, the plaintiff has chieftainship rights over a portion of an area (the area of Kuenaneng) of which the defendant has already been proclaimed chief, a contention which was rejected by the court in that case." That seems to be what Boatile the applicant is asking this court to do in respect of Makhunoane - where Thaabe as Principal Chief was proclaimed in 1977 twenty three years ago. It is also clear that Boatile like Slowley Molapo, has never been in the "existing lists of holders of offices of chiefs and headmen" see Slowley Molapo v Mateketsi Teketsi at page 238A and Jacobs CJ at page 239B dealing with a similar delay said "But more than 20 years have elapsed since the decision in Molapo's case (supra) and plaintiff and his predecessors have had more than sufficient time to approach the proper authorities for recognition as a separate office of chief for the area which plaintiff claims". A... I do not find it mentioned a n y w h e re that Boatile ever approached the authorities in the last 23 years. I am therefore puzzled by his entire conduct. Courts are only e m p o w e r ed to intervene w h e re succession to chieftainship is involved. In administrative matters such as delineation of boundaries, creation of n ew offices of chief they cannot interfere. As Isaacs AJ said in Tefo Tope v Minister of Interior & Others 1 9 78 L LR 2 22 at p a ge 2 2 4: "It is the K i n g, w ho is to act on the advice of the Minister, w ho defines boundaries. This is entirely on administrative p o w er a nd the court will not interfere with an administrative act except on very limited grounds." This n ew chieftainship of M a k h u n o a ne is to be carved out of the existing Principal Chieftainship, therefore it has to h a ve a proper b o u n d a ry deliniation to distinguish it f r om the existing Principal Chieftainship's area of jurisdiction. T he creation of a n ew chieftainship of M a k h u n o a ne w h i ch is distinct f r om the Principal Chieftainship of M a k h o a k h oa is a purely administrative act; so is the appointment of a n ew chief of M a k h u n o a ne w ho shall be a d d ed to the list of chiefs and h e a d m e n. In the case of Leloko Jonathan v Lechesa Mathealira Jonathan 1 9 77 A... L LR 314 Leloko Jonathan was claiming the headmanship of Tsikoane. He had been placed by the late Jonathan Mathealira, the father of Lechesa the Ward Chief of Tsikoane, he had served as headman of Tsikoane for twenty years and was even paid a headman's stipend by the Government of Lesotho. W h en Lechesa succeeded his father as Ward Chief of Tsikoane, he dismissed Leloko from headmanship. This court dismissed his claim because he was ungazetted and his office of chieftainship was not recognised nor had it boundaries been deleniated from the Ward Chieftainship of Tsikoane. In Motsarapane v Motsarapane 1979 L LR 112 Mooki had been placed by the Chief of Hleoheng over the area of Hleoheng. Cotran CJ said such a placing has no legal validity. At pages 117 and 118 Cotran CJ concluded: "Since the Chieftainship Act 1968 'platings' in the old customary sense are dead and buried." Boatile has made a very skeletal case about his placing. In affidavit proceedings more has to be said because affidavits constitute both the pleadings and the evidence. See Saunders Valve Co. Ltd. v lnsamcor (Pty) Ltd 1985(1) SA 144 at 149. Boatile (in this case) does not even claim (like Leloko Jonathan who had been placed and acted as headman for 20 years) that he received a stipend from Government. We only have his word that he was ever placed as chief of M a k h u n o a ne by the D e p u ty District Secretary, Butha Buthe. E v en if he had been, T h a a be could r e m o ve h im from that position in the s a me w ay that Lechesa Mathealira r e m o v ed Leloko Jonathan, notwithstanding the fact that Leloko Jonathan h ad been h e a d m an for twenty years and received a G o v e r n m e nt stipend. Boatile has produced no evidence to prove that even in 1977 he ever operated as Chief of M a k h u n o a ne for a portion of that year, because that is the year T h a a be took over f r om their father as Principal Chief at M a k h u n o a n e. F r om w h at I have said above, it should be abundantly clear that applicant Boatile has not provided the court with any evidence, even if he had, he has formidable legal obstacles to o v e r c o m e. T he fact that he waited twenty-three years before bringing these proceedings while T h a a be w as in possession of a right he claims, does not help his case. He m u st have b e en a w a re that he had no enforceable right to the M a k h u n o a ne chieftainship. In other w o r d s, Boatile h ad no title to sue for the chieftainship of M a k h u n o a n e, because there is no separate office of Chief of M a k h u n o a ne nor has he b e en recognised as chief of M a k h u n o a ne by the K i ng (acting on the advice of the Minister) and proclaimed as such in a G o v e r n m e nt Gazette for general information. A... 5. O r d er of c o u rt F or the a b o v e - m e n t i o n ed reasons, I h a ve no choice but dismiss this application with costs. WOM M A Q U TU J U D GE F or applicant F or respondent : Mr Putsoane : Mr T Hlaoli