Jonathan v Minister of Home Affairs and Others (CIV/APN/281/96)

Case No: 
CIV/APN/281/96
Media Neutral Citation: 
[2004] LSHC 49
Judgment Date: 
19 March, 2004

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CIV/APN/281/96

IN THE HIGH COURT OF LESOTHO


In the matter between


MOKOKOANA JONATHAN APPLICANT

AND

THE MINISTER OF HOME AFFAIRS 1st RESPONDENT

THE ATTORNEY GENERAL 2nd RESPONDENT

NTHOLI RAMATEKOA 3rd RESPONDENT

THE PRINCIPAL CHIEF OF TSIKOANE,

PEKA AND KOLBERE 4™ RESPONDENT


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 19th day of March, 2004


This is a matter in which this court delivered judgment on 23 May, 1997 and apparently the 3rd respondent appealed.


It would seem on appeal the Appeal Court was not satisfied with the judgment of this court directing, in the result, that this court concern itself with alternative prayers of the application.


The alternative prayer to the substantive prayer which this court granted is:


1.1 declaring as void the recommendation of the aforesaid Boundary Committee on grounds of having been ultra vires the specific mandate of the said Boundary Committee.


  1. Declaring as illegal and void the consequent approval and confirmation, by the then Military Council, of the aforesaid recommendations and the resultant new and relocated boundary concerning the areas of authority under headman Selebalo Ramatekoa and Chief Mohale Mokokoana, both of Linots'ing, Leribe.


I am to mention that the reason this court found for the applicant in the substantive prayer was because the court had found as a fact that the Boundary Committee was not properly constituted. On reflection this court agrees that perhaps this is not a factor the court should have based its judgment on and should, rather, as the Court of Appeal found, based its judgments on the alternatives prayers as the Court is now intending to do. The alternative prayers as shown above read:


In the event of the Honourable Court holding that the Boundary Committee was properly constituted then:


1.1 declaring as void the recommendations of the aforesaid Boundary Committee on the grounds of having been ultra vires of the specific mandate of the said Boundary Committee.


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Declaring as illegal and void the consequent approval and confirmation, by the then Military Council, of the aforesaid recommendations and the resultant new and relocated boundary concerning the areas of authority under headman Selebalo Ramatekoa and Chief Mohale Mokokoana, both of Linots'ing, Leribe.


  1. Directing Respondents to pay the costs hereof.

  2. Granting Applicant further and/or alternative relief.


As to the Boundary Committee's mandate, this is to be gleaned from letter of appointment of the committee under reference INT/UVEST/l/91. paragraph 1 of which inter alia reads:


  • to investigate a boundary between Chief Mohale Mokokoana and Chief Selebalo Ramatekoa '


Paragraph 4: —


The appointment of the Committee to investigate a boundary and its proceedings are matters spelt out in sub-sections (8) to (13) of section 5 of the Chieftainship Act no 22 of 1968


Subsection (8) reads:


In the event of a dispute or uncertainty concerning the boundaries of the area of authority of a chief, the King may mem motu or upon the application of the Chief concerned determine and define such boundaries ""


While the letter appointment speaks of to investigate a boundary', sub-section (8) of section 5 of the Act speaks of determine and define such


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boundary between the applicant and 3rd respondent. It was argued on behalf of the applicant that the committee went beyond its specific mandate and that therefore it was ultra vires of its mandate for, instead of determining and defining the boundary it had drawn new boundaries and for this reason its recommendations were to be declared void and of no force or effect and equally approval and confirmation of the recommendations and resultant relocation of the new boundary between the applicant and 3rd respondent was to be declared void.


The question, in my view is whether the Boundary Committee 'determined and defined' the boundaries or whether instead of doing this it be went beyond its terms of reference. 1 understand determine as finding out what the real or true situation is so that in the first 1stace the Boundary Committee should have investigated what the boundary was between the applicant and the 3rd respondent. Having found what the boundary is, the committee should then have, from available evidence, spelled out what the boundary is. Did the committee do this 9


Before going into whether or not the committee abided by its mandate, 1 notice that the dictionary (Concise Oxford English Dictionary, 10th Ed. Revised) meaning of 'determine' amongst other things is 'ascertain or establish by research or calculation; 'specify the value, position or form,' while 'define' is, amongst others 'mark out the limit of."


The translated version of the committee's mandate (annexure MJ 2) reads: Dispute: Boundary Determination. Yes, as there was a dispute between the two chiefs as to what the boundary is, this was the boundary


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dispute upon which the Committee was mandated to 'determine and define' the boundary as shown above. Both the applicant and 3rd respondent had called witnesses in support of their boundary claim.


The gist of applicant's claim was that he had no boundary with the 3rd respondent his boundary being with Mats'ekha. Rightly so though, the committee had found there was such a boundary based on the evidence before it. Notice that Chief Mohale Mokokoana had said he does not know who demarcated the boundary between him and the 3rd respondent. Samuel Mokhachane applicant's witness had said he knew the boundary of headman Selebalo on being gazetted and 3rd respondent had reserve pastures from which he seized animals. Lichaba Kaibe supported Mokhachane. 3rd respondent's witnesses also testified that there was a boundary between the applicant and the 3rd respondent the only issue being that the applicant interfered with 3rd respondent's administration in his area of authority.


And while the applicant agreed he recommended 3rd respondent to be proclaimed as headman subordinate to him, he says what he disputes is 3rd respondent's right of allocation of land and ancillary rights on land. In this the applicant was terribly mistaken, the contention was clearly untenable and no wonder the committee rejected it. The committee (p.9 of the proceedings) came to the conclusion that having regard to the Principal Chief's letter reference LACCLC/L/8-70 it was 'satisfied that there ought to be a boundary between the parties' but unfortunately the committee made an unnecessary rider namely,' a boundary between the parties which will preserve peace.' The committee had not been mandated to 'preserve the peace", its task was merely 'to determine and define' the boundary;


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determining and defining the boundary was, in this court's view, to say whether, according to the evidence before it, there was such boundary and having found there was a boundary, to specify it instead of saying as it cuts across subjects' fields it is not conducive to peace. There is, for example, nothing wrong with interploughing for the law has always recognized it. The problem with senior chiefs is that invariably they have several subordinates under them resulting in power being wielded more by subordinate chiefs and headmen than the senior chief. It is as it should be for a senior chief's role is to superintent his subordinates not to interfere with or usurp their rights and powers. Clearly what the applicant was attempting is to interfere with and usurp 3rd respondent's administrative rights.


As I have said, the committee instead of confining itself to determining and defining the boundary between the two chiefs had gone on:


'Despite Respondent and his witnesses agreeing on the extent of the border, (probably boundary) it appears that it is such that it is not conduce to peace and tranquility since it cuts across people's fields in the middle It was a result of the boundary not being 'conducive to peace and tranquility since it cuts across people's fields in the middle" that the committee made it recommendations to the Minister of Interior and Chieftainship Affairs.


Noticeably, the Committee has not said it relied on evidence before it in determining the boundary but merely says 'the boundary starts upwards from the Khomokhoana River —.' The committee keeps on saying 'it


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should then go through, it should then turn —; it should pass a cluster of flat rocks—; it should then turn —; it should proceed thus, it should go across, it should join the road, etc., etc. Throughout its recommendation, the Committee has nowhere said it relied on the evidence of witnesses before it either of the applicant or 3rd respondent giving the unmistakable impression that it decided, despite the evidence before it, to carve own boundary in order to preserve 'peace and tranquility.' There can be doubt that in carving own boundary and having a new boundary in 1stace of the old boundary the applicant was prejudiced. In any event whether there was interploughing or the boundary cut across other people's fields this was not what the committee was mandated to investigate but purely to determine and define the boundary between the two chiefs in accordance with annexure "MJ1" being letter of appointment of a Boundary Dispute Committee 'to investigate a boundary between Chief Mohale Mokokoana and Chief Selebalo Ramatekoa.' The Boundary Committee was not tasked to 'redifine' but purely to 'define' the boundary between the two chiefs and by carving a new boundary I have no doubt in my mind that the committee exceeded its mandate.


According to Marius Wiechers, (Administrative Law p. 174) authority conferred by government is the cornerstone on which valid administrative act is built. The act of an administrative organ which goes beyond the government authority conferred upon it is ultra vires; in other words, the administrative organ must act within the scope of the powers conferred on it when exercising its governmental power.


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Quoting from B. Beinart (The Legal Relationship between the Government and its Employees 1955 SALR 21) Wiechers tabulates four principles governing an administrative organ's legal capacity:-


    1. An organ of government is not at liberty to use its power at will------. Even

  1. if a government organ has a wide discretion it must always exercise its power in the public interest and to promote the specific objective for which the discretionary power has been confessed.

---------

  1. …….

  2. …….

.

  1. The government organ and the state employer cannot, on their own, arrange to render public services for the future;

  2. ---------

  3. The government organ cannot, without necessary authority, render an appointment of retrospective effect;

  4. ---------


At p. 175 Wiechers has also said 'when it is said that a government organ may not act ultra vires, this means that it must keep within the bounds of its authority and must use its powers in the prescribed manner ' On the same page Wiechers says ultra vires would in the result be 'nothing more or less than a generic term embracing all the grounds for the invalidity of administrative acts.'


Undoubtedly the Boundary committee is a government organ and 1 have said in carving an entirely new boundary instead of defining one it went beyond its mandate and acted ultra vires of the mandate.


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Accordingly this court declares void the recommendations of the aforesaid Boundary Committee on the ground of having been ultra vires of the specific mandate.


In view of the fact that there was nothing legal or valid for the Military Council to approve and confirm, the purported recommendations and the resultant new and relocated boundary concerning the areas of authority under headman Selebalo Ramatekoa and Chief Mohale Mokokoana, both of Linots'ing, Leribe are declared to be a nullity and of no legal force or effect.


In view of the fact that it was not 3rd respondent's case that new boundary be carved, I consider it unfair to load the 3rd respondent with costs. Accordingly there will be no order as to costs.


G. N. MOFOLO

JUDGE


For the Applicant: Mr. Ntlhoki

For the 3rd Respondent: In person


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