Joel Mathealira V Pontso Mathealira & 2 Others (C of A (CIV) No.31/2025) [2025] LSCA 58 (7 November 2025)

# Joel Mathealira V Pontso Mathealira & 2 Others (C of A (CIV) No.31/2025) [2025] LSCA 58 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/58/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/58/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/58/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/58/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Joel Mathealira V Pontso Mathealira & 2 …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/58/eng@2025-11-07) [ Download PDF (254.1 KB) ](/akn/ls/judgment/lsca/2025/58/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (254.1 KB) ](/akn/ls/judgment/lsca/2025/58/eng@2025-11-07/source) * * * * * Report a problem __ ##### Joel Mathealira V Pontso Mathealira & 2 Others (C of A (CIV) No.31/2025) [2025] LSCA 58 (7 November 2025) Copy citation * __Document detail * __Related documents Citation Joel Mathealira V Pontso Mathealira & 2 Others (C of A (CIV) No.31/2025) [2025] LSCA 58 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 58 Copy Hearing date 8 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No.31/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Mathaba AJA](/judgments/all/?judges=Mathaba%20AJA) Judgment date 7 November 2025 Language English Summary ###### Flynote Chieftainship — Succession — Interpretation of section 10(1)–(4) of the Chieftainship Act 1968 (as amended) — Primogeniture and legitimacy — Widow succession — Heir-apparent predeceasing incumbent — No surviving male issue — Custodial widowship and continuity of the senior house — Younger brother’s claim — Customary law and constitutional context — Section 103 of the Constitution. Read full summary * * * Skip to document content ###### Flynote Chieftainship — Succession — Interpretation of section 10(1)–(4) of the Chieftainship Act 1968 (as amended) — Primogeniture and legitimacy — Widow succession — Heir-apparent predeceasing incumbent — No surviving male issue — Custodial widowship and continuity of the senior house — Younger brother’s claim — Customary law and constitutional context — Section 103 of the Constitution. 1 LESOTHO IN THE COURT OF APPEAL OF LESOTHO C OF A (CIV) 31/2025 HELD AT MASERU In the matter between – JOEL LECHESA MATHEALIRA APPELLANT AND PONTSO SEOEHLA MATHEALIRA 1ST RESPONDENT MINISTRY OF LOCAL GOVERNMENT AND CHIEFTAINSHIP 2ND RESPONDENT ATTORNEY GENERAL 3RD RESPONDENT CORAM MOSITO P MUSONDA AJA MATHABA AJA HEARD: 8 OCTOBER 2025 DELIVERED : 7 NOVEMBER 2025 FLYNOTE Chieftainship — Succession — Interpretation of section 10(1)–(4) of the Chieftainship Act 1968 (as amended) — Primogeniture and legitimacy — Widow succession — Heir-apparent predeceasing incumbent — No surviving male issue — Custodial widowship and continuity of the senior house — Younger 2 brother’s claim — Customary law and constitutional context — Section 103 of the Constitution. This appeal concerned the succession to the Principal Chieftainship of Tsikoane, Peka and Kolobere. The first respondent, widow of the deceased first-born son of the late Chief, was nominated by him, endorsed by the local chiefs, and duly recognised and gazetted. The appellant, the younger legitimate son, contended that as the deceased heir never assumed office, his widow could not lawfully succeed, and the chieftaincy ought to pass laterally to him. Held: The statutory scheme in section 10 embodies a coherent and sequential hierarchy of succession underpinned by Sesotho customary law, favouring legitimacy, primogeniture, and the orderly preservation of the senior line. Where the heir-apparent predeceases the chief without leaving male issue, section 10(4), read with the 1974 amendment, contemplates a custodial succession by the widow, not an immediate diversion to collateral males. The widow succeeds in her own right to maintain continuity of the senior house until the male line can be restored. A purposive, constitutional and customary reading of the provision confirms that collateral succession by a younger brother arises only after the widow’s entitlement is exhausted by death or disqualification. Judicial fidelity to the text precludes importing a requirement that the son must have survived to assume office. The recognition of the first respondent was therefore lawful and consonant with precedent, statute, custom, and constitutional protection of the chieftaincy as a cultural institution. Appeal dismissed. No order as to costs. 3 JUDGMENT MOSITO P Factual Background [1] This appeal arises out of a long-running dispute concerning the Principal Chieftainship of Tsikoane, Peka, and Kolobere. The protagonists are, on the one hand, the son of the late Principal Chief, and on the other, his sister-in-law. The litigation has travelled a considerable distance through the courts, and the present appeal concerns the proper interpretation of section 10 (1) – (4) of the Chieftainship Act, 1968. [2] Chief Lechesa Jonathan Mathealira, the Principal Chief of the Tsikoane, Peka and Kolobere, departed this life in December 2006. He was survived by two sons born of his sole marriage. The elder son, Seoehla Lechesa Mathealira, was married to Pontso Seoehla Mathealira, who is the first respondent in these proceedings. The marriage was not blessed with any male issue. Before his demise, Chief Lechesa nominated the first respondent to succeed him in the office of Principal Chief. At a meeting held on 26 January 2006, seventy-two Chiefs and Headmen of Tsikoane expressed their concurrence with that nomination. Acting upon the advice of the Minister, His Majesty the King subsequently approved her succession to the chieftainship, which appointment was duly published in the Government Gazette of 16 June 2006. [3] Chief Lechesa had a younger son, Joel Lechesa Mathealira (hereinafter “the appellant”). The appellant lays claim to the 4 right of succession to his late father’s office as Principal Chief. Stated broadly, the appellant’s case rests upon his construction of section 10 of the Chieftainship Act 1968. In his notice of motion, he sought, first, an order reviewing, correcting, and setting aside the decision of the second and third respondents to recognise and endorse the first respondent as the lawful successor to the office of Principal Chief of Tsikoane, Peka and Kolobere, such recognition having been made under Legal Notice No. 50 of 2006. Secondly, he asked for a declaration that the first respondent had no lawful entitlement to succeed to that office, on the ground that her late husband had never succeeded to it in his lifetime, having predeceased both the then incumbent principal chief and his own father. Thirdly, the appellant prayed that the second and third respondents be directed, pursuant to section 5(1)(c) of the Chieftainship Act 1968 (as amended), to take the necessary steps to cause his own appointment as Principal Chief of Tsikoane, Peka and Kolobere. He further sought an order for costs and such further or alternative relief as the court might deem just should his application be opposed. [4] The application came before Shale J in the High Court. Upon full consideration of the matter, the learned judge held that it could not be said to be irrational to conclude that a younger brother may only succeed to the chieftainship after the widow has either died or become otherwise disqualified from holding office. In her view, that construction accords, first, with the plain wording of the 1974 Amendment, which expressly confers upon a widow the right to succeed in her own capacity, and 5 second, with a coherent reading of section 10 of the Chieftainship Act, under which the entitlement of a younger brother arises only at a later stage in the line of succession, when there is no surviving first-born son or legitimate successor. In the result, the learned judge dismissed the application and made no order as to costs. [5] Dissatisfied with that decision, the appellant lodged the present appeal, contending that the court a quo erred in declining to grant judgment in his favour. His principal complaint is that the learned judge failed to recognise that his elder brother had predeceased their father, with the consequence that the appellant’s right of succession to the chieftainship could not lawfully be subordinated to that of the first respondent, the widow of his late elder brother. On that basis, he maintains that the court below ought to have declared him the rightful successor to the office of chief. Issues for determination [6] The narrow issue for determination in this appeal is whether, upon a proper and purposive construction of section 10 of the Chieftainship Act 1968, read together with the 1974 Amendment, the appellant, as the younger legitimate son of the late Principal Chief, was entitled to succeed to the office of Principal Chief of Tsikoane, Peka, and Kolobere immediately upon his father’s death, or whether the first respondent, as the widow of the appellant’s late elder brother—who predeceased 6 their father—lawfully succeeded to that office in her own right under the statute. [7] Put differently, the question is whether section 10, properly interpreted, accords priority in succession to a widow of a deceased heir who never assumed the office, or to the surviving younger brother of the same lineage, in the context of maintaining legitimate, orderly, and constitutionally coherent succession to the chieftaincy. The law [8] As it relates to its legislative purpose and context, section 10 of the Chieftainship Act 1968 is the statutory articulation of Lesotho’s hereditary law of succession to the office of chief. Chieftainship is itself an institution of customary law. It translates into formal law the long-standing tenets of Sesotho customary law that govern the transmission of chiefly authority through legitimate male lineage, whilst introducing a degree of statutory clarity and predictability in a sphere historically governed by custom and practice. [9] The legislative purpose is to secure a stable, predictable, and legitimate succession to the office of chief, thereby insulating the institution from internecine disputes and ambiguity. It balances three foundational values: (a) legitimacy of birth; (b) seniority of marriage; and (c) continuity of lineage. The purposive lens, therefore, demands that the section be read not mechanically, but as a rational framework designed to maintain 7 dynastic order consonant with customary principles of primogeniture. [10] Subsection (1) establishes legitimacy as the cornerstone of succession to the office of chief. It provides that any reference to a “son” within this section must be understood as a reference to a legitimate son—that is, one born within a legally recognised marriage, whether under customary or civil law. By so providing, the Legislature makes it plain that mere biological descent is insufficient to confer a right of succession. What qualifies a person to inherit the chieftaincy is not simply paternity, but lawful legitimacy. This requirement safeguards the integrity of the chiefly line, ensuring that authority is transmitted through unions recognised by law and custom, and thereby preventing disputes founded upon doubtful or irregular relationships. In this way, the Legislature begins by drawing a firm jurisdictional boundary around the concept of “son.” This subsection does not merely define the term; it establishes legitimacy as a juridical prerequisite for succession eligibility. The adjective ‘legitimate’ operates to exclude any claim arising outside a lawful marriage recognised under either customary or civil law. [11] In purposive terms, subsection (1) affirms that the bloodline alone is insufficient; legitimacy confers the legal nexus necessary for inheritance of an office bound up with public authority and community representation. The Legislature thus codifies a customary precept that the chief must emanate from 8 a recognised union, lest the continuity of authority be clouded by doubt or moral contestation. [12] Subsection (2) lays down the governing principle of direct primogeniture. It provides that, upon the vacancy of a chieftainship, succession passes automatically to the first-born or only legitimate son of the chief’s first or only marriage. In doing so, the law affirms the long-standing customary rule that the eldest son of the senior marriage inherits his father’s office as of right. The provision further contemplates that, if such a son has predeceased his father or is incapable of assuming the office, the right of succession does not lapse but descends vertically to his own firstborn legitimate male issue. The legislative intention is thus to preserve the continuity of the senior family line, ensuring that chiefly authority remains anchored in the direct and legitimate male lineage of the principal marriage. [13] This subsection encapsulates the doctrine of direct primogeniture — the eldest legitimate son of the senior marriage is the automatic successor upon vacancy of the chieftaincy. The provision continues in a cascading form, extending succession to the first-born of the next generation of that senior line “who, but for his death or incapacity, would have succeeded.” In purposive construction, the legislative intent is not to create a rigid genealogical ladder but to preserve linear continuity along the senior branch of the family tree. Thus, where a first- 9 born son predeceases his father, the succession passes not laterally to a younger son, but vertically to the predeceased son’s own first-born legitimate male issue. [14] This subsection thereby ensures that the mantle of chiefly authority flows down the senior trunk of the genealogical tree before any lateral movement is contemplated. The purposive objective is clear: to preserve order and prevent disruption by pre-empting collateral claims that may fracture traditional leadership. [15] Subsection (3) provides for succession through junior marriages when no qualified heir exists in the senior line. It stipulates that, in the absence of a successor under subsection (2), the right to the chieftaincy passes to the first-born or only legitimate son of the marriage that followed next in order of time. In essence, the law recognises that a chief may have several marriages and accordingly arranges these in a hierarchy of seniority determined by their chronological order. The succession therefore proceeds sequentially through these marriages, beginning with the eldest and moving downwards, so that the first-born legitimate son of the next senior marriage inherits when the senior line has been extinguished. The underlying purpose is to preserve an orderly and predictable line of descent, consistent with customary notions of marital seniority and legitimacy. 10 [16] This provision is the statutory articulation of subsidiary primogeniture. It operates only in default of an heir in the senior marriage line. The Legislature recognises that chiefs often contract multiple marriages in accordance with custom, and that each marriage bears its own rank in order of seniority. By directing that succession shall pass to “the first-born or only son of the marriage … next in order of time,” Parliament intends that the chieftaincy descend sequentially through marriages ranked by seniority. The subsection therefore institutes a chronological hierarchy of eligibility, reflecting the customary order of wives and their offspring. [17] The purposive reading reveals a deliberate legislative effort to reconcile plural marriages with stability in succession. It guards against arbitrary displacement of senior marital lines by younger ones, thereby maintaining the moral architecture of Sesotho patriarchy where age, order, and seniority dictate authority. [18] Subsection (4) addresses the exceptional circumstances in which no qualified male heir exists under the two preceding subsections. In such a case, the law provides that the only surviving wife of the chief, being the woman he married earliest, shall succeed to the office. This succession by the widow is not hereditary in nature but custodial — intended to preserve continuity of leadership until the male line can be restored. Upon her death or when the office next becomes vacant, the succession passes to the eldest legitimate surviving brother of 11 the last male chief. If there is no such brother, it reverts to the eldest surviving uncle of that male chief in legitimate ascent, and thereafter continues in ascending order according to customary law. The scheme thus ensures that the chieftaincy remains within the legitimate family lineage, even in the absence of a direct male heir, thereby maintaining both order and legitimacy within the traditional institution. [19] Here, the Legislature contemplates the exceptional and residuary scenario — the extinction of the male line within all recognised marriages. Rather than allowing a vacuum of authority, subsection (4) provides for an interim matriarchal succession, vesting the chieftaincy temporarily in the earliest surviving wife. [20] This provision exemplifies the purposive elasticity of the statute: it recognises that the authority of the chief is not purely patriarchal but communal and representational. The widow’s succession is, however, custodial and transitional. Upon her death or the next vacancy, succession reverts to the eldest legitimate surviving brother of the last male chief, or, failing that, to his eldest surviving uncle in legitimate ascent, and “so in ascending order according to the customary law.” [21] The ascending hierarchy of collateral succession reflects the Legislature’s intention to keep the office within the legitimate paternal lineage, thus ensuring continuity of clan leadership and preserving ancestral legitimacy. 12 [22] When read as a whole, subsections (1) to (4) reveal a coherent and internally consistent framework governing succession to the chieftaincy. Together, they create a closed genealogical circuit designed to sustain the institution through all foreseeable contingencies. [23] This structure exhibits deliberate legislative layering and precision: direct vertical succession is favoured before lateral or ascendant claims; legitimacy is given precedence over mere blood relation; and customary principles are invoked to fill any remaining gaps. Interpreted purposively, the section must be viewed as a harmonious and comprehensive scheme, carefully crafted to avert disputes and ensure the continuous, lawful, and legitimate transmission of chiefly authority within the recognised lineage. [24] The scheme demonstrates meticulous legislative layering: vertical succession is prioritised before lateral or ascendant claims; legitimacy precedes consanguinity; and custom supplements statutory gaps. [25] A purposive interpreter must, therefore, construe the section as a harmonious composite designed to prevent succession crises by sequentially exhausting every legitimate line of descent and, failing that, reverting to customary norms to restore stability. Also, when section 10(5) of the Act is read purposively, the intention of Parliament becomes clear. If a chief dies and there is no lawful successor under the normal order— 13 no eligible son or other heir within the categories previously set out—the statute allows the widow to step in. It specifies that, where there is only one surviving wife, she succeeds; and where there are several, the one married first assumes the office. This provision must be read as a temporary measure, recognising the social and symbolic position of the widow within the late chief’s household. It ensures that authority continues uninterrupted, the community remains orderly, and the dignity of the chieftaincy is preserved while the family line reorganises itself. The clause then makes it plain that the line of succession does not pass through the widow’s descendants, but reverts to the male line of the family. When the office next becomes vacant, it goes to the eldest legitimate surviving brother of the last male chief. If there is no such brother, it ascends to the eldest surviving uncle, and continues upward in accordance with customary law. In this way, the statute ensures that the chieftainship returns to its rightful agnatic lineage, respecting the deep-rooted customs of the Basotho. [26] Although section 10 codifies the rules of succession, it does not abolish or supplant Sesotho customary law; rather, it gives statutory expression to it and directs its orderly application. The use of phrases such as “according to the customary law” and “in descending or ascending order” demonstrates Parliament’s clear intention that custom should continue to possess interpretative force within the statutory scheme. The Act, therefore, is not to be read as a complete substitution for customary practice but as a framework within which such practice operates and finds 14 legal coherence. A purposive interpretation requires that customary law be treated as a vital contextual guide in determining issues of marital seniority, legitimacy of birth, and the recognition of rightful heirs. In this way, statute and custom are not in conflict but function in harmony to preserve both the authority of law and the continuity of tradition. [27] Hence, the statute should not be read as displacing custom but as providing a skeletal framework whose flesh remains customary practice. The purposive interpreter must therefore treat customary law as a contextual aid, guiding questions of seniority, legitimacy of marriage, and recognition of heirs. [28] Although the Chieftainship Act was enacted before the adoption of the 1993 Constitution, it must now be interpreted in a manner consistent with the Constitution’s foundational values of equality, legitimacy, and non-discrimination, particularly as reflected in sections 18 and 26. The purposive approach requires the interpreter to read section 10 through this modern constitutional lens, ensuring that its patriarchal framework is understood and applied in a way that respects contemporary human rights standards while preserving the institution’s cultural authenticity. [29] Thus, any apparent exclusion of women or children born outside wedlock must be examined within the constitutional context that recognises the chieftaincy as a protected cultural institution under section 103 of the Constitution. The task of interpretation is therefore one of balance: to safeguard 15 constitutional equality and human dignity without eroding the cultural essence of traditional leadership. Viewed purposively, section 10 remains a culturally specific yet constitutionally compliant instrument for maintaining legitimate and orderly succession within the Basotho chieftaincy. [30] Accordingly, any exclusion of women or illegitimate children must be justified within the bounds of the chieftaincy’s constitutional recognition as a cultural institution under section 103 of the Constitution. The purposive reading hence situates section 10 as an enduring, though culturally specific, mechanism for preserving leadership continuity consistent with the dignity of the Basotho chieftaincy. [31] In purposive construction, section 10 of the Chieftainship Act 1968 is not a mere mechanical succession code. It is a structured, hierarchical, and culturally harmonised framework designed to preserve the legitimacy, continuity, and stability of traditional leadership within the constitutional order of Lesotho. [32] It must be construed holistically, with due regard to its cultural ancestry and modern constitutional setting: legitimacy is its foundation, primogeniture its logic, seniority its compass, and customary law its animating spirit. The High Court judgment [33] The judgment by Dr Shale J is both legally sound and commendably reasoned. It reflects a careful and balanced 16 interpretation of the Chieftainship Act 1968, as amended in 1974, while respecting the deeper logic of Lesotho’s customary law and the principle of legislative supremacy. [34] The learned judge’s approach to section 10 of the Act is correct. She reads the provision textually yet purposively, distinguishing between the “only son” in subsection (2) and the “widow of a person who, but for his death, would have succeeded” in subsection (4). Her refusal to insert the word “surviving” into section 10(2) shows fidelity to the separation of powers: it is not for courts to legislate where Parliament has spoken plainly. [35] The reasoning harmonises statutory interpretation with Sesotho customary principles. By recognising the widow’s right as derived from her late husband’s “house”, the judgment affirms that succession remains within the firstborn line, consistent with the principle of male primogeniture but moderated by the 1974 amendment’s limited humanitarian exception. The decision rightly observes that the widow succeeds not by gender equality but by continuity of lineage—a distinction that respects custom without denying legislative reform. [36] The High Court carefully situates itself within established jurisprudence. It correctly distinguishes Malebanye v Goliath (1974-75 LLR 276) demonstrating that the present widow—unlike in Malebanye—is the widow of a firstborn son, not of a 17 junior line. That distinction justifies her precedence and makes the Court’s reasoning both historically and legally coherent. Consideration of the appeal [37] At the heart of this appeal lies a narrow yet consequential question: whether, upon a purposive and holistic reading of section 10(4) of the Chieftainship Act, the widow of a deceased heir—who, but for his death, would have succeeded to the office of chief—may validly assume that office in her own right, or whether such succession must instead devolve upon the deceased chief’s surviving younger son. [38] The appellant’s argument, advanced ably by Advocate Molati, proceeds upon a literal construction of section 10(4). It was urged that, since the appellant’s elder brother predeceased their father and never held the office of principal chief, his widow could not, by operation of that subsection, claim a right to succeed in her own capacity. The appellant maintained that succession in such circumstances should revert laterally to the next legitimate male in line—namely, himself. [39] By contrast, Advocate Letuka for the first respondent contended that the true import of section 10(4), read purposively and contextually, is to secure the uninterrupted continuity of legitimate authority within the household of the late heir, by permitting his widow to succeed in her own right, particularly where there is no surviving male issue. 18 [40] Having considered both submissions, I am persuaded that the interpretation advanced by Advocate Letuka accords with both the text and purpose of the Act. The Chieftainship Act is not to be read as a rigid code divorced from its customary underpinnings. Its design is to give statutory expression to Sesotho customary law while safeguarding the institution’s continuity and stability. Section 10 sets out a hierarchy of succession designed to avoid disruption and preserve the legitimacy of chiefly authority. [41] Subsections (1) to (3) govern the ordinary course of descent through legitimate male lineage. Subsection (4) is exceptional, yet crucial: it provides for succession where all direct male heirs are exhausted. Its language—“the only surviving wife of the Chief” or “the surviving wife of a person who, but for his death or incapacity, would have succeeded to that office”—is both plain and purposive. It envisages precisely the situation presented by the facts of this case: where the heir-apparent dies before acceding, leaving no male issue, his widow becomes entitled to hold the office in her own right until the male line can be restored in accordance with custom. [42] That construction finds support in a series of decisions of our courts. In Mamonica Mohale v The Minister of Interior and Chieftainship Affairs (CIV/APN/83/1988, unreported), Rooney J held that, under section 10(4), the widow of a person who would have succeeded to a chieftaincy “is entitled to succeed to that office in her own right where her husband 19 predeceased his father and left no male issue.” The learned judge described her succession as “custodial and legitimate, preserving the dignity of the lineage pending the restoration of the male line.” [43] Similarly, in Matsoso v Matsoso and Others [[2002] LSHC 95](/akn/ls/judgment/lshc/2002/95), the High Court reaffirmed that the widow’s right of succession arises automatically once the male line under subsections (2) and (3) is extinguished, and that collateral males—such as younger brothers or uncles—enter the line only after that right has been exercised or extinguished. [44] Thus, as the Court below correctly observed, the legislative design of section 10 reflects a sequential hierarchy: vertical male succession; failing that, custodial widow succession; and, only thereafter, collateral succession through brothers or uncles. To interpret the section otherwise would invert its logic, disturb its legislative symmetry, and subvert the very stability it was enacted to protect. [45] On the facts of the present case, the appellant’s elder brother, Seoehla Mathealira, was the first-born legitimate son of the late chief and would have succeeded him but for his death. He died without male issue, leaving the first respondent as his surviving lawful spouse. Section 10(4), read with the 1974 Amendment, expressly anticipates this contingency. Upon the father’s death, there was therefore no direct male heir under subsections (2) or (3), and the widow of the person “who, but for 20 his death, would have succeeded” became entitled to assume the office. [46] The nomination of the first respondent by the late chief himself, the endorsement by seventy-two local chiefs, and the subsequent approval by His Majesty the King acting on ministerial advice, all accord with the statutory framework. Those official acts constitute a lawful and final recognition of her entitlement within the meaning of section 5(1)(c) of the Act. [47] It is essential to note that the chieftaincy, as a cultural institution, is expressly recognised in the Constitution of Lesotho under Section 103. The purposive interpreter must therefore read section 10 consistently with the Constitution’s respect for cultural traditions, if they are not inconsistent with principles of equality and legitimacy. The Act’s accommodation of widow succession is not inconsistent with constitutional values—it is a mechanism of continuity, not discrimination. Costs [48] In approaching the question of costs, this Court is guided by settled principle, not expediency. Costs are not awarded as a matter of course to punish the unsuccessful litigant, but rather to achieve justice between the parties. The discretion is judicial, principled, and sensitive to context. [49] In the present appeal, that discretion militates against the making of a costs order. Firstly, the contest was neither frivolous nor vexatious; it raised a genuine and nuanced 21 question concerning the interaction between statutory language and customary principles of succession. It is axiomatic that where an appeal raises an important point of law bearing on public administration or traditional governance, the imposition of costs may have the undesirable effect of chilling bona fide recourse to the courts on questions of constitutional or cultural moment. The law ought not to deter litigants from seeking authoritative clarification of statutory rights and duties in areas touching the structure of community leadership. [50] Secondly, the appellant, though unsuccessful, did not litigate in bad faith. He advanced a serious argument grounded in his understanding of lineage rights and the statutory text. While this Court has rejected his interpretation, the argument was neither contrived nor reckless; indeed, the long-standing complexity of succession law and the historical evolution of the statutory framework are apparent from the very necessity of this appeal. In such circumstances, it would be inappropriate to penalise a litigant for pursuing what he, not unreasonably, regarded as his lawful entitlement. [51] Thirdly, the first respondent holds a public office of a traditional and communal character. The appeal implicated not merely private interests but the stable governance of a recognised chieftaincy. In many systems of law, including that applied by the Supreme Court of the United Kingdom, courts have recognised that where proceedings concern the proper administration of public functions, fairness may require that 22 parties bear their own costs unless one has conducted litigation in an abusive or unreasonable manner. Nothing of that nature occurred here. [52] Fourthly, there is a broader constitutional dimension. The chieftaincy enjoys explicit constitutional recognition, and the statutory scheme in question seeks to harmonise customary practice with modern legality. The appellant’s challenge prompted the Court to reaffirm interpretative clarity in this sensitive field. In circumstances where a judgment serves to elucidate statutory architecture of public significance, the interests of justice may best be served by not discouraging legitimate challenges brought in good faith. [53] Thus, in line with the principled discretion articulated in leading authorities, and reflecting the modern judicial posture emphasised in senior appellate courts—that costs must not be imposed in a manner that chills legitimate resort to the courts on matters of public or institutional consequence—I consider that the appropriate order is to dismiss the appeal without an order as to costs. [54] In short: the issue was important, the appellant’s position was sincere, the question required authoritative resolution, and no conduct justifies a punitive award. Justice, fairness, and constitutional comity are best served by each party bearing their own costs. 23 Disposal [55] In my judgment, the High Court was correct to hold that the appellant’s right to succeed is postponed until the first respondent, as the lawful widow of the deceased heir-apparent, either dies or becomes disqualified. Her succession is squarely grounded in section 10(4) of the Chieftainship Act, as amended in 1974, and in the consistent jurisprudence of this Court and the High Court. The appeal, therefore, fails. The recognition of the first respondent as the lawful holder of the office of Principal Chief of Tsikoane, Peka, and Kolobere remains undisturbed. Order: [56] The appeal is dismissed. No order as to costs. ______________________________ K.E. MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: _____________________________ P. MUSONDA ACTING JUSTICE OF APPEAL I agree: ____________________________ R. MATHABA ACTING JUSTICE OF APPEAL 24 FOR APPELLANT: ADV. L.A. MOLATI FOR FIRST RESPONDENT: ADV. K. LETUKA #### __Related documents ▲ To the top >