C OF A (CIV) NO. 13/2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between :
MINISTRY OF HOME AFFAIRS AND
LOCAL GOVERNMENT 1st APPELLANT
THE ATTORNEY-GENERAL 2nd APPELLANT
WARD CHIEF OF LEKOKOANENG 3rd APPELLANT
PRINCIPAL CHIEF OF MAMATHE,
THUPA-KUBU AND TEYATEYANENG 4th APPELLANT
MATEKA SAKOANE RESPONDENT
HELD AT MASERU
Coram: Steyn, P
The broad issue we are called upon to decide in this appeal is whether a recognized customary headman is not entitled to have his name published as such in the gazette for public information simply because he is ungazetted.
Guni J in the court a quo decided the issue in favour of the customary headman in question, namely the Respondent, hence the appeal by the Appellants before us.
The Respondent's prayers before Guni J were set out in the following terms:-
"(a) Directing first respondent to cause the name of applicant to be published in the gazette for public information that applicant is the headman of HA SAKOANE in the Lekokoaneng Ward subordinate to the chief of Lekokoaneng.
Directing first, third and fourth respondents to take such necessary administrative action to facilitate the gazettment (sic) of the applicant.
Alternative to (a), declaring Section 3(1) of the Development Councils Order, 18 of 1991 as unconstitutional, in so far as it violates applicant's rights, and the rights of his subjects, relating to freedom from discrimination, and equality before the law enshrined in Article 4(1) (n) and (o), read with articles 18 and 19 of the Lesotho Constitution 1993.
Directing respondents to pay costs if they oppose this application.
Granting applicant further and or alternative relief."
At the outset it must be said that the Appellants (who were Respondents in the court a quo) admitted almost all the material averments contained in the Respondent's (then Applicant) founding affidavit. In particular the Appellants admitted that the Respondent was a customary headman of the village of Ha Sakoane. More importantly, it was not denied and it must accordingly be accepted, that the village in question together with its customary headmanship ''were established well before 1945" Indeed it need hardly be stressed that following the rule in Plascon-Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634-635 it is now settled law in this country that in motion proceedings where an applicant applies for final relief as in casu, the court is entitled to assume the correctness of his averments which are admitted or not challenged by the respondent. Decisions of this court in that regard are legion. See for example Bernard Moselane and Others v The Manager Bonhomme High School and Others LLR & LB (1991-92)
132 at 135; Hyperama (Pty) Ltd v OK Bazaars Limited LLR & LB (1991- 92) 183 at 184; David Theko Khoabane Moteane v Mohlalefi Moteane & Others LLR & LB (1997-98) 43 at 46.
It was further common cause between the parties that the Respondent is "recognized" as headman by the 1st Appellant's office. It is significant in this regard that the Respondent's name admittedly appears in the register of names (MS1) of customary headmen kept and recognized by 1st Appellant. He is also recognised by the Respondent's own neighbouring chiefs and headmen as well as his own Ward Chief and Principal Chief. It is admitted for that matter that he exercises chieftainship rights and duties over a clearly demarcated territory of Ha Sakoane, with its own distinct boundary, and over subjects in excess of two hundred and fifty individuals "by far." The parties are, for that matter, on common ground that the number of two hundred and fifty individuals was formally the number required by Government for purposes of gazettement of chiefs.
Indeed to put the hereditary status of the Chieftainship of Ha
Sakoane beyond any doubt the Appellants made a telling admission in the affidavit of Makalo Theko. He says that in 1945 the Respondent's grandfather Sakoane Sakoane granted part of his land to one Mosiuoa Masupha to exercise jurisdiction over it. This was apparently such a big official event (transacted before the Principal Chief of the area in question) that the said Mosiuoa Masupha is recorded in Annexture "MS2" to have pulled off his overcoat in excitement "despite the rainfall" at the time.
As further proof that the Respondent enjoys chieftainship rights it was common cause between the parties that he has his own office stamp, he keeps a register of births and deaths, he mediates between his subjects, he maintains law and order and refers persons suspected of crimes to the police for action and more importantly and "in recognition" of his "office and duties as headman"', he receives "a monthly stipend, commensurate to the duties" of his office from the Government. Significantly it is further agreed that all the rights and duties fully set out above were exercised by the Respondent's predecessors, namely his grandfather and the Respondent's own parents before 1945. The only denial that the
Appellants made was that the Respondent had no power to allocate land, but even then this was no more than a bare denial without more. In any event while it is admitted that the Respondent is chairman of the land allocating committee in his area, the denial is merely directed at showing that he does not allocate land "alone", yet that was never his case in the first place. Moreover it is quite clear that the Appellants deponent Makalo Theko has no personal knowledge of the facts he avers to in his attempt to portray the Respondent as merely the "eye and the ear" of the Principal Chief. He admittedly relies on "information gleaned from the official records of the Ministry' and "reports" made to him by other officials of the Ministry without proving and attaching such records as well as affidavits from the said officials of the Ministry. It follows in my view therefore that the deponent relies on hearsay and therefore inadmissible evidence to the extent that his averments are tendered as the truth of what they contain. I should add for completeness that this conclusion applies to all the deponent's averments in this matter. This was also conceded by Crown Counsel. (See Nqojane v National University of Lesotho - LAC (1985-1989) 369 at 383-384.
The main contention on behalf of the Appellants both in the court a quo and before us is that because Respondent has not been previously gazetted then this alone makes him non-suited to apply for such gazettement. Put differently the real issue is whether gazettement is a sine qua mm of the existence of the office of chief. In this regard Makalo Theko averred in paragraph 14 of his Answering Affidavit: "Respondents do not find in law where applicant is entitled for gazettement. Part V of the Chieftainship Act provides for those entitled for gazettement. Applicant is entitled to stipend for all that he does which was done by his predecessors."
It proves convenient then to reproduce Part V of the Chieftainship Act No. 22 of 1968 on which the Appellants rely. It is entitled "Lists of Holders of Office of chief' and provides as follows:-
"14. (1) Until such time as the Minster has, by Notice in the Gazette under subsection (2), amended or replaced them, the following Notices have effect as giving public notice for general information of the names of each person who holds an office of Chief or who is authorised
to exercise the powers and perform the duties of an office of Chief, that is to say. each High Commissioner's Notice and Government Notice in force immediately before the commencement of this Act relating to offices of Chief, to the extent that each such Notice is not inconsistent with the provisions and principles of this Act. and to the extent that a person to whom any such Notice applies had not been deprived according to law of the right to exercise the powers and perform the duties of an office of Chief.
The Minister may from time to time, by Notice in the Gazette give public notice for general information of the names of persons who hold the office of Chief, or who are authorised to exercise the powers and perform the duties of the office of Chief, and may amend, revoke and replace a notice specified in subsection (!) or a notice made under this subsection, for the purpose of giving public notice of anything affecting those offices or the holders thereof, including any punishment under the provisions of part VI relating to discipline and anything done under the provisions of Part VII relating to the emoluments of an office of Chief.
The provisions of this section are in addition to, and not in derogation from, the other provisions of this Act. and do not affect any remedy that may exist, or may
have existed at the material time, in respect of holding or succeeding to, or exercising the powers and performing the duties of, an office of Chief, and accordingly a Notice referred to in subsection (I) or made under subsection (2) does not affect any such remedy.
The Minister shall, in publishing a Notice under this section, give effect to the provisions of this Act and to those provisions of the customary law that have effect under section 3, and to the orders of courts relating to offices of Chief."
For the avoidance of doubt it must be noted here that in terms of the Chieftainship Act 1968 as amended by Section 2 of the Chieftainship (Amendment) Act No. 12 of 1984, the word "chief" includes a headman. The full text thereof reads as follows:
"2. Section 2(1) of the Principal Act is amended by deleting the definition of "Chief and substituting therefor, the following:
"'Chief does not include the King but includes a Principal Chief, a Ward Chief, a Headman and any Chief whose -
Office is acknowledged by the Offices of Chief Order 1970;
Succession to an office of Chief has been approved by the King acting in accordance with the advice of the Minister: or
hereditary right to the office of a Chief is recognised under customary law, and his succession to the office of Chief has been approved by the King acting in accordance with the advice of the Minister."
It requires to be further noted that the position of headmen before 1945, when the headmanship of Ha Sakoane was admittedly created or established, was governed by Section 3 (1) of Proclamation No. 61 of 1938 in terms of which the High Commissioner was empowered, after consultation with the then Paramount Chief (now the King), to declare any Chief. Sub-Chief or Headman to be Chief, Sub-Chief or Headman for any specified area or areas by notice in the Gazette.
In Maqetoane v Minister of Interior and Others LAC (1985-1989) 71 at 79 this Court held that Section 14 (3) of the Chieftainship Act 1968 "expressly preserves any remedy that may exist in respect of holding an office of Chief (here including a Headman) and s 14( 1) refers generally to Notices published and in force immediately before the commencement of that Act relating to the offices of Chief." This Court then concluded that under the Chieftainship Act 1968 the rights of a Headman depend upon whether he was "recognized under the law in force" immediately before the Act. More importantly this Court recognized the fact that a person's omission in the Government Gazette publishing his status as chief or headman is not the end of the enquiry whether such a person is in fact chief or headman.
Indeed Patrick Duncan in his book: Sotho Laws and Customs at pages 50-51 pertinently draws attention to the fact that the lists of Chiefs and Headmen first published in the Government Gazette under Proclamation No. 61 of 1938 contained numerous errors and omissions of names of persons who were entitled to be recognised as Chiefs or Headmen. Thus therein lies the danger of placing too much reliance on
whether a person's name appears in the Gazette or not as the sole criterion for determining the validity of his claim to the chieftainship or headmanship in question. This court in Maqetoane v Minister of Interior and Others (supra) recognised the danger and accordingly observed that any attempt to declare legislatively the position of chiefs and to avoid any uncertainty by introducing the Offices of Chief Order 26 of 1970 did not succeed, save in regard to the 22 offices of Principal Chiefs and Ward Chiefs. Section 2 of that order reads as follows:
2. (1) The twenty-two offices of Principal Chief and Ward Chief set out in the Schedule to this Order and the other offices of Chief recognised under the law in force immediately before the commencement of the Lesotho Order 1970 are hereby acknowledged with effect from the commencement of that Order.
Every person who, on the 29th day of January, 1970 held any office referred to in subsection (I) shall be deemed, as from the commencement of the Lesotho Order, 1970. to have held and to hold the corresponding office acknowledged by that subsection."
The word "deemed" used in the section is in my view a clear
indication that it was never the intention of the legislature to close the door on legitimate claimants to the office of chiefs merely because their names did not appear in the gazette. The same consideration must in my view apply to the Chieftainship (Amendment) Act 1984. It would no doubt work an injustice to limit the legitimate chieftainship rights of persons to gazette holders in all cases notwithstanding the fact that the real purpose of gazettement under the Chieftainship Act 1968 was merely to give public notice for general information of the names of persons who hold offices of chief It was clearly not to create such offices.
Continuing in the same vein in Mofoka v Lihanela LAC (1985 -1989) 326 at 328 this Court held that section 14 of the Chieftainship Act 1968 is merely permissive. It confers on the Minister the power to publish the names of persons who hold the office of chief or who are authorised to exercise the power and perform the duties of the office of chief, "for general information'1 The Court added that there is nothing in the definition of a chief (which includes a headman) in Section 2(1) which makes publication in the Gazette a legal requirement for the status of chieftainship, however desirable such a course might be for practical
reasons. More importantly the court held in no uncertain terms that "...a person who is a 'chief as defined in S 2(1) of the Chieftainship Act of 1968 as amended by Act 12 of 1984, does not cease to be a 'chief merely because his name has not been gazetted." This Court then concluded that in the absence of a formal gazetting, the question whether a person is a chief or not, in respect of a particular area, is a question of fact, to be determined from all the circumstances. The law is thus finally well settled on the point and requires no further elaboration.
It follows from the aforegoing considerations that the Appellants' contention that the Respondent is non-suited merely because he is not gazetted falls to be rejected. So is the submission that the gazettement of the Respondent will be tantamount to the creation of the office of a chief. Such reasoning flies in the face of the principle set out in such cases as Maqetoane v Minister of the Interior and others (supra) and Mofoka v Lihanela (supra).
In any event, the Appellant's contention as set out above overlooks the fact that it was never the Respondent's case that he should be
declared the headman of Ha Sakoane or that an office of headmanship be
"created" for him. On a proper reading of the papers his case was simply that his name be published in the gazette for public information to the effect that he is the headman of Ha Sakoane. As a matter of fact it will be recalled that the parties are on common ground that, not only is the Respondent a customary or hereditary headman of Ha Sakoane, but also it is not denied, and as earlier stated it must therefore be accepted, that the customary headmanship in question was "established well before 1945." The evidence in that regard is overwhelming and indeed compelling. The fact that his name may have been omitted from the Government Gazette is therefore neither here nor there and is of no moment on the authority of Maqetoane v Minister of the Interior and Others (supra) and Mofoka v Lihanela (supra).
The learned judge a quo came to the conclusion on the facts that the Respondent's status as a customary "ungazetted headman" of Ha Sakoane was an established fact and that there was no law prohibiting publication of that fact in the gazette for general information. This finding of the learned judge a quo was fully justified on the facts of the case
which, as pointed out previously, were mainly common cause particularly with regard to the fact that the headmanship in question was admittedly "established" or created "well before 1945."' Nor is it disputed that the office of chief or headman is by its very nature a public office.
Now in terms of English law the fact that a person acted in a public office is prima facie evidence of the validity of his appointment to such office. Put differently, evidence that a person acted in a public office as in casu gives rise to a presumption that he was duly appointed. See Hoffmann & Zeffertt: The South African Law of Evidence (Fourth Edition) at page 551. See also R v Suliman 1923 AD 659 at 660. This English law principle is in turn part of the law of Lesotho having been introduced into the country in terms of Section 18 of the Evidence in Civil Proceedings Ordinance No. 72 of 1830 (Laws of Basutoland 1960 Vol. I) which provides as follows:-
"Any evidence which would be admissible, and if credible, would be deemed in any case depending in the Supreme Court of Judicature in England to be in law sufficient proof of the appointment of any person to any public office, or of the
authority of any person to act as a public officer, shall be admissible, and if credible shall be deemed to be in law sufficient proof of such appointment or authority."
In the absence of any evidence to gainsay the Respondent's version that his predecessors, and later himself, acted in the office of headman of Ha Sakoane for many years and (hat the office itself was "established" or created "well before 1945" it follows in my judgment that this is sufficient evidence that he was duly appointed in terms of the law as it stood at that time.
Finally Mr. Masoabi for the Appellants has sought to rely on Section 3 of the Chieftainship (Amendment) Act 1984 which repealed Section 5 of the principal Act and now provides as follows:-
"No person is a Chief unless -
he has a hereditary right to the office of Chief under customary law, and his succession to an office of Chief has been approved by the King acting in accordance with the advice of the Minister. "
It will be observed however that the Chieftainship (Amendment)
Act 1984 merely dealt with the definition of ''chief "and thus for the first time recognised the hereditary rights to the office of chief under customary law. Otherwise it left the whole of the Chieftainship Act 1968 as well as the Offices of Chief Order 26 of 1970 intact. More importantly Section 14 of the Chieftainship Act 1968, which as this Court held in Maqetoane v Minister of the Interior and Others (supra) expressly preserves any remedy that may exist in respect of legitimate holders of offices of chief, was left intact and is still the law. There is thus no justification for employing a different interpretation to this section and limit the legitimate chieftainship rights of persons to gazette holders only as Mr. Masoabi has suggested.
While correctly conceding in my view the hereditary right of the Respondent to the office of chief, Mr. Masoabi submits however that there is no evidence that the latter's succession to such office has been approved by the King. This submission is in my judgment clearly untenable. It overlooks the reality in the peculiar circumstances of the matter, namely, that the Respondent is admittedly recognised under
customary law as a headman not only by the Ward Chief of Lekokoaneng and the Principal Chief of "Mamathe, Thupakubu and Teyateyaneng but also by the Ministry of Home Affairs itself in terms of Annexture "MSI". As previously stated the Government through the Ministry of Home Affairs and Local Government even pays him a stipend in recognition of his office as hereditary chief. Once that is so it follows that a presumption of regularity (omnia prae sumnmtur rite esse acta) arose in favour of the Respondent and the evidential onus burdened the Appellants to rebut the presumption that the Respondent's succession to the office of chief was approved by the 'King. such onus and have got only themselves to blame for this outcome. In this regard it is not without significance that the Minister of Home Affairs and Local Government (1st Respondent) did not even file an opposing affidavit at all.
In any event, in view of the fact that the Respondent is admittedly recognised by his superior chiefs as previously stated it seems inconceivable that they would accord him such recognition if there was anything wrong with his office of Chief. More importantly and in view of the fact that there is evidence on record that they were duly served, it
seems inconceivable that they would fail to oppose his gazettement and thus demonstrating their willingness to abide by the decision of the Court if the Respondent 's succession to the office of Chief had not been approved by the King. The conclusion is in my view inescapable that they support the Respondents gazettement for general information. I might add that this factor has weighed heavily with this Court as it did in Maqetoane v Minister of Interior and Others'(supra).
In terms of Section 3 of the Chieftainship (Amendment) Act 1984 the King merely approves the succession to the office of Chief acting in accordance with the advice of the Minister. There is no provision that obliges him to issue a gazette to that effect himself. It follows therefore that the question whether or not the King has approved succession to the office of Chief is a question of fact to be determined on the facts of each case. In view of the Appellants' failure to challenge the material facts deposed to by the Respondent in the court a quo, I am driven to the inevitable conclusion that the Respondent's case was sufficient to pass muster.
In the light of the aforegoing considerations it follows that the appeal must be dismissed with costs and it is so ordered.
JUDGE OF APPEAL
PRESIDENT OF THE COURT OF APPEAL
JUDGE OF APPEAL
Delivered on the 12th day of October, 2001.
For the Appellants: Adv. Masoabi
For the Respondent: Adv. Teele