Monare v Diphoko and Others (CIV/APN/356/2002)

Case No: 
Media Neutral Citation: 
[2004] LSHC 53
Judgment Date: 
30 March, 2004




In the matter between:



BOHLOKO DIPHOKO (alia Moeketsi Monare) 1st Respondent



For Applicant: Mr. K. Mohau

For First Respondent: Mr. Z. Mda


Delivered by the Honourable Mr. Justice T. Monapathi on the 30th day of March 2004

The background to this case is that succession to the headmanship of Siloe, Ntilane in the district of Mohale's Hoek is being contested.

The case concerns a number of prayers seeking declarations against the First Respondent who I will call Bohloko and who is also known as Moeketsi Monare.


Applicant wants that Bohloko be declared not to be the son of Solomon Tiheli Monare. It is because as he contends he is not the legitimate son of the latter who was the chief of Siloe, Ntilane (the area) in the district of Mohale's Hoek. He also wants Bohloko's nomination as headman to be declared null and void. Applicant seeks in turn to be declared as lawful successor to the headmanship of the area. The Minister of Local Government and the Attorney General are herein asked to recognize the Applicant as the lawful successor to the said headmanship by order of Court. Applicant says all in all his is the rightful successor to the said late headman Solomon Tiheli Monare. An order for costs is also sought.

This application is opposed by Bohloko. There are things that go into the application including what is the central factual issue being whether Bohloko has been fathered by Solomon Tiheli Monare or someone else. It is because it is revealed or rather contended (which still has to be decided) that Bohloko has been fathered as alleged by one John Basha two years before his mother, 'Mamoeketsi Monare's (Bohloko's biological mother) marriage to Solomon Tiheli Monare and that he was born in 1946 and not later.

When the matter was argued it was conceded that this issue or aspect of the disputed birth or pedigree of Bohloko would not be resolved on the papers before


Court as they stood. This had been followed by request by Applicant's Counsel Mr. Mohau that there must accordingly be oral evidence from people who know or would vouch for the pedigree of Bohloko including surrounding circumstances and those who would contest the issue whatever the case may be. I took it that this (leading of evidence) as it seemed to be agreed, would be the end of the matter. It was not to be.

Few other things however arose during argument which were in the nature of objections or point-in-limine, which were made by the Respondents. This concerned primarily the submission that the matter ought not to be heard by the High Court because the Court had no jurisdiction in the matter, in the present circumstances.

Firstly, they said the matter of chieftainship disputes cannot be heard by the High Court following certain decision of the Court of Appeal wherein a similar objection was successfully taken. It said the Subordinate Courts not the High Court were the proper Courts which ought to deal with Chieftainship issues such as one of succession. See Fiorina Mantai Papali Nko v Lijane Nko 1991-92 LLR 5(CA) at 8-9. It pronounced that a matter such as the present would have been irregularly brought to the High Court "..... contrary to the provisions of


section 6 of the High Court Act......". I agreed with respect.

Respondents submitted furthermore that for the High Court to be enabled to deal with a similar Chieftainship matter the person approaching the High Court must first make an application in terms of section 6 of the High Court Act 1978, which craves for leave to have the matter heard in this Court.

Respondents argued furthermore that the application by the Applicant is not such an application where he can make when the case is already being heard or argued or about to be entertained at hearing. It must be made before the case is heard leave having been granted. And that application is the kind of application envisaged by the said section 6. In my view that requirement is germane to this proceedings and it should have been followed.

I have been asked by the Applicant to exercise my discretion so as to allow the hearing of the case to be proceeded with. In exercising my discretion I am also being asked to look at the fact that the case is a serious one concerning Chieftainship rights.

Secondly, that likely or potential witnesses in this case are old people, gone


on in years who do not have a lot of time to live and since others have already died

due to old age and other causes. If there is more or undue delay these witnesses are likely to disappear and become unavailable due to death or ill-health. Indeed I looked at for example the deposition of Letia Monare who said she was 91 years old and other deponents who professed knowledge of the events in this case. Their stories indicated people who have gone on in years. Consequently as Applicant submitted that he or the other parties will have no support due to unavailability of evidence.

Indeed I agreed that these were important issues raised by the Applicant. I nearly forgot one other aspect. It was that, as shown in one of the papers, there would even be a concession (by his mother) that Bohloko was not fathered by the late chief Monare (the right person). So that if this was meant to show the prospects of success of the application such were abundant in favour of the Applicant. Then the Applicant says that that is the reason why this Court must exercise its discretion. The discretion sought was for application to be dismissed or alternative that it be remitted to a Subordinate Court for hearing as he contended. This was opposed by Mr. Mda. The decision or ruling that I had been asked to make is therefor to reject or to accept the Respondent's said objection.


On my part I have an initial problem however. In the first place there was no good or formal application for leave to hear the application. In my view, where there are good reasons such as those put forward by the Applicant even if I may associate or sympathize with this submission by the Applicant it ought not to be a basis for hearing or allowing ventilation of a matter where the Court does not normally have jurisdiction or have its inherent jurisdiction circumscribed. Principally this Court in this matter is being asked to hear a case which is a Subordinate Court matter. If not this should have been clearly stated. See Fiorina Mantia Mapapali Nko's case (supra), at page 9 in referring to section 12(3) of the Chieftainship Act No 22/1968 Court, for support.

This Court cannot bend the rules where there would or there is a requirement that certain procedures be complied with first. Even if an award of costs would be welcomed by the Respondents for failure by the Applicant to comply with procedure for leave, in my considered opinion, that would not be a good or sufficient reason for the Court to hear the matter without a formal application for leave. This would amount to subverting well-known procedures.

I feel however there will be costs to neither party but this case stands dismissed either for proper leave to be made to this High Court for its hearing or


that it be heard in a Subordinate Court. Not that I am unsympathethic to legitimate sentiments experienced as said before but it ought not to be a basis for exercising my discretion in the present circumstances.

That is my decision.

T Monapathi


30th March 2004