IN THE HIGH COURT OF LESOTHO
MAHATA MAJARA APPLICANT
THE PRINCIPAL CHIEF OF LER1BE 1st RESPONDENT
(Mamosa Molapo Motsoene)
TELLO MAKHOA 2nd RESPONDENT
MINISTER OF HOME AFFAIRS 3rd RESPONDENT
ATTORNEY GENERAL 4th RESPONDENT
Delivered by the Honourable Mr Justice T. Nomngcongo on the 26'" day of October 2004
The applicant has approached Court urgently for the following orders: "
Dispensing with the ordinary Rules pertaining to the modes and periods of service herein due to the urgency of this matter in terms of Rule 8 (22) of the High Court Rules of 1980.
The Rule Nisi be and is hereby issued called upon the respondents to show cause (if any) why the following orders should not be made final and absolute.
The 1st respondent should not be interdicted forthwith from inaugurating and/or installing and/or placing 2nd respondent as the Headman of Metolong at Pela-Ts'oeu Ha Majara in Leribe and the 2nd respondent be interdicted from accepting his inauguration, and/or installation and or placing as the Headman of Metolong Pela Ts'oeu in Leribe until the final determination of this application.
That the 1st and 2nd respondents be ordered to pay the costs of this application, the 3rd and 4th respondents should be ordered to pay the costs only in the event of opposition.
That prayer 1 and 2 (a) should operate as an interim interdict.
On the 3rd August I granted an interim order and ordered that the papers be served on the respondents on or before 12 noon of the following day. This was apparently done and on the 6th August the 2nd Respondent filed a notice of intention to oppose. None of the other respondents filed any papers. They will presumably abide the decision of this court. The 2nd respondent did not file an answering affidavit but, as he was entitled to do in terms of Rule 8 10 (c) raised the following points of law that:
There was no urgency in the application.
The applicant was guilty of non-joinder
The application did not meet the requirements of an interdict.
The applicant is guilty of non-disclosure.
At par. 8 of his founding affidavit the applicant states as follows about events leading to this application.
"This issue had been going on for sometime prior of (sic) annexure MMl and 1 wrote to the District Secretary in which letter I had
requested the District Secretary to intervene but unfortunately the District Secretary ordered me to comply with the order from the office of 1st respondent. I beg leave to attach hereto a copy of the letter addressed to District Secretary marked annexure MM2".
MMl is the letter written to the applicant by or on behalf of the 1st respondent. The letter is by way of a reminder that applicant has been instructed on several occassions to instal the third respondent in his (presumably chiefly ) father's rights, which instruction the applicant has refused to carry out. By this letter the applicant is informed that the Principal Chief together with the District Secretary would be coming to carry out the task themselves on the 5th August 2004. He is reminded that the Principal Chief has authority o\er Chiefs subordinate to her and that she is in process of taking action against applicant for contempt of her instructions. He is further instructed to convene the public in large numbers for the occasion of the 5th August 2004. It is this letter which
prompted the applicant to approach court urgently on the 3rd August 2004. The letter is date stamped the 19th July 2004. The applicant does not say exactly when he received it except to state non-committaly that it was "sometime in July 2004".
MM2 is a letter written by the applicant to the District Secretary dated the 13th April 2004. It acknowledges receipt of the District Secretary letter of the 2nd April 2004 received by the applicant on the 9th April 2004. In this letter the applicant complains that the District Secretary does not address the matter of his request for intervention by the District Secretary between the Principal Chief and himself. He goes on to say that he takes note of his advice to instal the third respondent but that there are reasons why he cannot do so and these arc the reasons why he wants intervention. He makes a further plea for intervention and that the District Secretary should not hear one side only.
These two letters amply demonstrate what applicant himself states, that the "issue had been going on for sometime prior to MM1". The applicant had disagreed with the first respondent over the matter of the installation of the third respondent at least prior to April 2004. The applicant had then appealed to the District Secretary who turned down his request for intervention and advised the applicant to install the third respondent. MM2 in terms of its own contents is an appeal to the very District Secretary who had advised against the view point of the applicant in favour of the Principal Chief.
What transpired since MM2 was written I have not been told. If anything had one would expect that the applicant would slate it. However MM1, annexed by the applicant himself speaks of several occasions on which applicant had been instructed to instal the third respondent and he refused. Since this is central to this application, applicant must say something about the several instructions and several refusals by him revealed in his own annexure. He has said nothing. The court is entitled therefore to assume that since before April and certainly after the authorship of MM1 the 1st respondent persisted in his demand for the installation of the third respondent and the applicant equally persistently refused to comply with the demand and the swords have ever since been drawn. MM1 was but a long-awaited strike. It should not have come as any surprise at all to the applicant. If he had seriously sought to prevent the installation of the third respondent, which in my view he foresaw that the applicant was bent on pursuing, he had ample time to seek redress. He did not do so. He sat back and when 1st respondent sought to do what, to the definite knowledge of the applicant, he had always intended to do, the applicant cries foul and runs to the court claiming urgency.
There was no urgency in this matter at all.
The respondents ha\e also raised three other points as I have earlier indicated; but I will deal jointly with two of them only as it will then not
be necessary to proceed to the third in view of the decisiveness of the conclusions reached in the two. The respondents say that applicant has not joined Chief Majara Majara, who is a necessary party in these proceedings and further that he has not met the requirements of an interdict these being;
a clear right
an injury committed or reasonably apprehended
lack of an alternative remedy.
See SETLOGELO V SETLOGELO 1914 AD 221
A reading of the founding affidavit reveals that it is devoted almost entirely to the assertion of Chief Majara Majara's rights to the Headmanship of Metolong. After the introductory depositions the applicant immediately goes on to say at par. 9
"......there is no way 1 can comply with the request of 1st respondent as there is a Headman who was placed at area (sic) of Metolong by our predecessors and his name is Majara Majara."
At par. 10
"Headman Majara Majara was placed as the Headman of Metolong on the 27th May 1974."
At par. 11
"........agreeing to the inauguration of the 2nd respondent as the Headman of Metolong will not be proper as that will amount to taking the powers of Headman Majara Majara....."
Par. 12 then relates how the Tale Local Court ruled in favour of Headman Majara Majara in a case that has not been appealed against. Then in par. 13 the applicant says the Principal Chief's order to him is unreasonable as it violates somebody's rights - clearly referring to Majara Majara. Then in this paragraph the applicant ever so obliquely says those rights include his own. What his own rights in this regard are is not specified. I asked Mr. Mphalane for the applicant what those rights might be. He answered that they were what he called jurisdictional rights. When I was still at a loss as to what jurisdictional rights were and what they might entail it was answered that the Principal Chief or, I suppose, anyone else required the consent of the applicant before he could inaugurate or instal anyone as Headman of Metolong. Indeed applicant seems to imply as much at par. 14 of his founding affidavit when he deposes:
"I respectfully submit that it will be appropriate to interdict the 1st and 2nd respondents from executing the decision made by the I" respondent contrary to my consent." (sic)
What immediately emerges from this scenario is that clearly Majara Majara has. from the applicant's own affidavit a direct and substantial interest in these proceedings. He must therefore have been joined in these proceedings. See AMALGAMATED ENGINEERING UNION V
MINISTER OF LABOUR 1949 (3) SA 637. There was in the circumstances a fatal non-joinder by applicant. Conversely the applicant has failed to show that he has any right himself. He has put forward what was called a jurisdictional right to give consent whose derivation he has not established, nor have I been able to discern from anywhere including the Chieftainship Act NO. 22 of 1968 which governs succession to chieftainship and related matters. In fact the only right that was sought to be established with any certainty if at all was that of Headman Majara Majara. That he could not do. See KHAUOE V ATTORNEY GENERAL & ANOTHER 1991 - 1996 (2) LLR 1705 at 1710 where Dumbutshena A.J. said the following:
"A person who wants to institute an action must only sue on his own behalf. The right or interest which he seeks to enforce or to protect must be available to him personally."
In my view the applicant has not met the requirements of an interdict. He had no clear right to protect; if it was non-exist, such right could not be violated and the question of alternative remedies does not arise at all in the circumstances.
The application is dismissed with costs.
For Applicant : Mr Mphalane
For Respondent : Mr Hlaoli