Authored By: MORAPELO LEBOHANG RAMOLEKO
- Official citation:
CIV/A/08/2016
- Court Name and Bench:
High Court of Lesotho
Coram: J. T. M. Moiloa J.
High Court Division
- Date of Judgement:
26th January 2016
- Parties involved:
‘Mako Mohale – Appellant
Thato Mohale – First Respondent
District Administrator – Second Respondent (party to the case in the court a quo) Director of Chieftainship Affairs – Third Respondent (party to the case in the court a quo)
Minister of Local Government and Chieftainship – Forth Respondent (government representative)
Attorney General – Fifth Respondent (government attorney and representative)
- Facts of the case:
The appellant brought an application seeking the orders that the court should set aside the nomination of the first respondent as a successor to the office of Principal Chief of Tajane, Ramoetsana and Pontšeng and present the name of plaintiff as the lawful successor amongst others.
The appellant is the son of the late Mopeli Mohale, who was the biological but not legitimate son of the late Chief Nkhahle Mohale, Principal Chief of Tajane, Ramoetsana and Pontšeng. It is said that on 21st January 1957 the late Chief Nkhahle Mohale married chieftainess ‘Mamonica Mohale by civil rites in the Roman Catholic Church at Mpharane and that in or around 1958 the late chief Nkhahle Mohale purported to marry Appellant’s grandmother ‘Mamopeli by customary rites.
The late Chief Nkhahle Mohale and ‘Mamonica were however not blessed with a male issue and that the late Chief Nkhahle Mohale and ‘Mamopeli procreated a male child, Mopeli, father of the appellant. The purported marriage of the late Chief Nkhahle Mohale and ‘Mamopeli was declared null and void by Rooney J in ‘Mamonica Mohale vs Mopeli Mohale1 whereby it was held that:
[T]he purported customary marriage between Chief Nkhahle Mohale and ‘Mamopeli Mohale was null and void ab initio on the grounds that the purported customary marriage of Chief Nkhahle Mohale to ‘Mamopeli Mohale was entered into by ‘Mamopeli fully knowing that Chief Nkhahle Mohale was married to ‘Mamonica Mohale by Christian rites.2
Following the death of Chief Nkhahle, the Mohale Family nominated Chief Tlali Mohale as the legitimate successor in title to Chief Nkhahle and presented him to the Minister and the King for approval and installation as successor to Chief Nkhahle. Tlali Mohale was approved and appointed by King Letsie III as lawful successor to the office of Principal Chief of Tajane Ramoetsana and Mohale’s (Pontšeng). As such Chief Tlali Mohale succeeded his older brother Chief Nkhahle Mohale on 20th July 2001.3
In 2008 Mopeli attempted to be declared as the legitimate son of the late Chief Nkhahle Mohale and therefore his successor to succeed him but failed and subsequently died in January 2014 while Chief Tlali Mohale died later on the same year in November. The dispute arose thereof as to who was the rightful successor to the throne between the applicant, grandson of the child born out of wed-lock, son of the late Chief Nkhahle Mohale and the first respondent?
The appellant’s case to sue was founded on the title of succession of Mopeli Mohale to the office of Principal Chief. He pleaded that his father Mopeli Mohale should have succeeded late Chief Nkhahle Mohale and that Tlali Mohale should never have succeeded Chief Nkhahle Mohale.4
- Issues Raised:
∙ Primary Issue is whether between Appellant and First Respondent, who is the rightful successor to the late Chief Tlali Mohale in the office of Principal Chief of Tajane Ramoetsana and Pontšeng Ha Mohale in terms of Section 10(1) and 10(2) of the Chieftainship Act, 1968?
∙ First Respondent (Thato Tlali) raised a special plea, namely, that Appellant lacked “locus standi” on the matter of succession.
- Arguments of the Parties:
∙ The Appellant contends principally that the Court a quo misdirected itself in treating special plea as though it were an exception that can be dealt with without trial of “disputed” facts to establish supporting evidence. Mr. Teele KC for Appellant said it was the legitimacy of Mopeli as the legitimate son of Chief Nkhahle according to customary law. In other words Mr. Teele KC, contended that the marriage of Chief Nkhahle to ‘Mamopeli was lawful by customary rites and therefore Mopeli was legitimate and should have succeeded his father Chief Nkhahle instead of Chief Tlali, father of First Respondent.
∙ First respondent pleaded that as plaintiff was grandson of the late ‘Mamopeli Posholi whose marriage to the late Chief Nkhahle Mohale had been declared null and void ab initio, the children of a void marriage are illegitimate and therefore as plaintiff’s father was illegitimate plaintiff, could not succeed to office of Principal Chief of Tajane Ramoetsana and Pontšeng. As the plaintiff’s claim and foundation was premised on the title of his late father Mopeli, who was illegitimate, the plaintiff could not have locus standi in judicio. As he cannot succeed to such office plaintiff therefore had no “locus standi in judicio” to bring the action.
First respondent contended that Plaintiff (present Appellant) did not have locus standi to claim that he is the rightful person to be nominated as Principal Chief of Tajane, Ramoetsana and Pontšeng Ha Mohale. The basis of Defendant’s contention was that the Plaintiff having been born of Mopeli who was the illegitimate son of Nkhahle and ‘Mamopeli cannot be nominated to succeed Chief Tlali Mohale as Principal Chief of Tajane, Ramoetsana and Pontšeng Ha Mohale in terms of Section 10(1) and (2) of the Chieftainship Act, 1968.
- Legal Reasoning / Ratio Decidendi
The court held that:
It is trite law that pure issues of law may be dealt with and determined at any stage of the case without adducing evidence. When this is done the facts of the issue that is challenged are assumed to be correct for purposes of argument. Mr. Maqutu KC submits that Appellant has misunderstood the procedure of advancing or arguing a Special Plea when he claims that in all cases extrinsic evidence has to be led. I agree with Mr. Maqutu KC that all that needs to be done in fact is to bring facts that link and prove the special plea that are already on record. Pleas in bar of trial like non-locus standi in judicio do not always introduce fresh matter which must be proven by extrinsic evidence. See Beck’s Theory and Principles of Pleadings in Civil Litigation 6th Edition @page 56. The learned authors say:-
“The question of locus standi is in a sense procedural, but it is also a matter of substantive law. It concerns the sufficiency and directness of interest in the litigation to be accepted as a party.”
In my view this statement of the law by the learned authors cannot be faulted. It is true and correct.
In this case special plea was argued like an exception. The defendant took the facts as pleaded and contended that they did not entitle the plaintiff to succeed Chief Tlali Mohale to the office of Principal Chief of Tajane Ramoetsana and Mohale’s. In deciding an exception a Court must assume the correctness of facts made in the relevant pleadings which of necessity must be confined to undisputed pleaded facts readily found in the pleadings. As we have seen earlier in this judgment the case of Mamonica Mohale vs Mopeli Mohale CIV/APN/109/81 in the original judgment of the reported case which Appellant introduced at paragraph 13 and 14 of his particular of claim in his summons is the reported case of Mamonica Mohale vs Mopeli Mohale 1982 -84 LLR 117.
In that case Rooney J held that Mopeli Mohale was illegitimate son of Chief Nkhahle and ‘Mamopeli. It seems to me to be to be perfectly in order for the Magistrate to feel entitled to treat the Special Plea in the same way as exception if First Respondent elected not call evidence.
In C of A (CIV) 21 of 2008 Mopeli Mohale & ‘Mamopeli Mohale vs Tlali Mohale & Attorney General was correctly used by the Magistrate as a decided case of the highest court in the land that both the decisions, “set precedents for this court and they are binding on it that Mopeli Mohale is illegitimate son of late Chief Nkhahle and ‘Mamopeli.” The Magistrate cannot be faulted on that score. Appellant’s father attempted and failed to overcome his illegitimacy in a case against the late Chief Tlali Mohale in a court of competent jurisdiction. So, in the end Appellants father died in January, 2014 having a declaratory order of illegitimacy against him. In the result the trial Magistrate legitimately noted that Mopeli died having failed to upset Rooney J’s decision that he was illegitimate and could not set up any right of succession against Mamonica Mohale nor Tlali Mohale. Mamonica and Nkhahle were succeeded by Chief Tlali Mohale as Principal Chief of Tajane Ramoetsana and Pontšeng Ha Mohale as their marriage produced no male heir to succeed them in terms of Section 10(1) and (2) of Chieftainship Act, 1968.
Mr. Maqutu KC for 1st Respondent submits, to borrow expression from Black’s Law Dictionary, that a litigant of Appellant’s type in relation to his late father Mopeli as a privy of blood because he is an heir to his father Mopeli. Mr. Maqutu further submits that there is an issue estopped in respect of Mopeli’s legitimacy in respect of the
chieftainship of Tajane, Ramoetsana and Pontšeng because there is a judgment in rem that is binding on the parties and their heirs who wish to claim the said position of Principal Chief. Joubert et al The Law of South Africa 2nd Edition vol.9 @ Paragraph 651 @ page 400 puts the legal principle in the following manner:
“A judgment in rem which declares or determines the status of a person or thing, and is binding on everyone, not only those who were parties to the suit in which it was delivered or which in law are identified with the parties. Examples of judgments in rem- — are —a judgment declaring a marriage to be void ab initio.”
I agree with Mr. Maqutu KC. It seems to me that Appellant had inherited an issue estopped to the office of Principal Chief of Tajane, Ramoetsana and Pontšeng on the grounds of his father’s illegitimacy. This personal bar of Appellant’s father creates a non locus standi in judicio situation for Appellant too in this case for the decision of the Court in ‘Mamonica Mohale vs Mopeli Mohale (supra) regarding the illegitimacy of Mopeli (Appellants father) became his impediment to be heir to Chief Nkhahle Mohale as a legitimate successor in title to that office after Nkhahle’s demise. Following Chief Nkhahle’s death in 1999 the Mohale family recommended Chief Tlali Mohale younger brother of Chief Nkhahle to the office of Principal Chief of Tajane, Ramoetsana and Pontšeng. As indicated earlier the recommendation was accepted by the King on the advice of the Minister and 1st Respondents father was appointed to that office and gazetted in his own right. See Legal Notice 39 of 2001 Published on 20th July, 2001 in Gazette No.58. Chief Tlali Mohale succeeded into that office in his own right as lawful successor to it.
On the basis of material facts common to both parties on their pleadings, I have come to the conclusion that there was no need to for the Magistrate to refer to evidence any fact material to determination of the special plea of “lack of locus standi in judicio of Appellant. As the foundation of First Respondent’s title to the office of Principal Chief of Tajane Ramoetsana and Pontšeng is reliant on the lawful title of his father Tlali Mohale, who was the immediate previous incumbent in office of the office of Principal Chief of Tajane, Ramoetsana and Pontšeng there is no doubt in my mind that 1st Respondent (Thato Mohale) is the only lawful nominee to that office for appointment by the King to it in terms of Section 10(7) of Chieftainship Act 1968.
I am satisfied that ex facie the plaintiff’s summons and declaration the right of plaintiff to sue was non-existent in that his right was founded on the right of Mopeli (his father) to succeed Chief Nkhahle following Nkhahle’s death. Chief Nkhahle and Chieftainess ‘Mamonica were in fact succeeded by Chief Tlali, father of defendant and not Mopeli, father of plaintiff. As Mopeli had been declared illegitimate progeny of Chief Nkhahle and ‘Mamopeli Posholi by the High Court in 1982 and had never in his lifetime succeeded Chief Nkhahle and as the present dispute is concerned with successor to the office of Principal Chief of Tajane, Ramoetsana and Pontšeng Ha Mohale following Tlali Mohale’s death, it is the lawful successor to Tlali who is in issue here. Defendant’s Special Plea of lack of locus standi in judicio and its determination by the Magistrate without requiring extrinsic evidence was correct. The plaintiff’s undisputed facts pleaded in plaintiff’s summons in law pointed to plaintiff’s lack of a direct personal right to succeed Chief Tlali, assuming the truth of every allegation made in plaintiff’s declaration.5
- Judgement/Final Decision
The court made the following orders:
∙ Appellant’s appeal from the judgment of the Mafeteng Subordinate Court in CC 05/15 is hereby dismissed with costs to 1st Respondent. Such costs to include costs attendant upon the employment of two Counsel.
∙ Setting aside of the nomination of 1st Respondent as successor to the office of Principal Chief of Tajane, Ramoetsana and Pontšeng is hereby refused.
∙ Presenting the name of Appellant as the alleged lawful successor to the office of Principal Chief of Tajane, Ramoetsana and Pontšeng is refused.
∙ The nomination of Thato Mohale by the Mohale family to His Majesty, the King as the lawful successor to the office of Chief of Principal Chief of Tajane, Ramoetsana and Pontšeng is hereby confirmed to be correct and lawful in terms of Section 10(1) and (2) of Chieftainship Act, 1968.
- Conclusion/Observation
St. Augustine’s statement that, ‘if a law be unjust, it is no law at all’ should be greatly considered by any legislature when enacting any law for the fulfilment of the right to equality before the law and equal protection of the law. If the nature of any law, such as section 10 of the Chieftainship Act 1968 or any other law that is or can be considered as unfair which segregates one party as more favourable from his counterpart, it should be, without doubt, be regarded as no law at all.
11. Reference(S):
1 1982-84 LLR 117.
2‘Mako (n44) 6, [2.12].
3Ibid 5, [2.6].
4Ibid 7 – 8, [4] – [5].
5‘Mako (n44) 13 – 21, [15].
