Joel Mathealira V Pontso Mathealira & 3 Others (CIV/APN/0012/2023ND) [2025] LSHC 253 (7 April 2025)

# Joel Mathealira V Pontso Mathealira & 3 Others (CIV/APN/0012/2023ND) [2025] LSHC 253 (7 April 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/253/eng@2025-04-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2025/253/eng@2025-04-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2025/253/eng@2025-04-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2025/253/eng@2025-04-07) [ __](mailto:?subject=Take a look at this document from LesLII: Joel Mathealira V Pontso Mathealira & 3 …&body=https://lesotholii.org/akn/ls/judgment/lshc/2025/253/eng@2025-04-07) [ Download PDF (445.0 KB) ](/akn/ls/judgment/lshc/2025/253/eng@2025-04-07/source) Report a problem __ * Share * [ Download PDF (445.0 KB) ](/akn/ls/judgment/lshc/2025/253/eng@2025-04-07/source) * * * * * Report a problem __ ##### Joel Mathealira V Pontso Mathealira & 3 Others (CIV/APN/0012/2023ND) [2025] LSHC 253 (7 April 2025) Copy citation * __Document detail * __Related documents * __Citations 6 / - Citation Joel Mathealira V Pontso Mathealira & 3 Others (CIV/APN/0012/2023ND) [2025] LSHC 253 (7 April 2025) Copy Media Neutral Citation [2025] LSHC 253 Copy Hearing date 17 March 2025 Court [High Court](/judgments/LSHC/) Case number CIV/APN/0012/2023ND Judges [Dr. Shale J](/judgments/all/?judges=Dr.%20Shale%20J) Judgment date 7 April 2025 Language English Summary Read full summary * * * Skip to document content **IN THE HIGH COURT OF LESOTHO** **HELD AT LERIBE CIV/APN/0012/2023ND** **In the matter between:** **JOEL LECHESA MATHEALIRA APPLICANT** VS **PONTSO SEOEHLA MATHEALIRA 1 ST RESPONDENT ** **MINISTER OF LOCAL GOVERNMENT AND** **CHIEFTAINSHIP AFFAIRS 2 ND RESPONDENT ** **HIS MAJESTY THE KING 3 RD RESPONDENT ** **ATTORNEY GENERAL 4 TH RESPONDENT ** ________________________________________________________________ Neutral citation: Joel Lechesa Mathealira v Pontso Lechesa Mathealira & 3 others [[2023] LSHC 106](/akn/ls/judgment/lshc/2023/106) CIV/APN/0012/23ND (7 April 2025) **__** **CORAM: DR I. SHALE J** **HEARD : 17 March 2025** **DELIVERED : 7 April 2025** **_SUMMARY_** **_Succession to Chieftainship_** _: Review of His Majesty the King’s appointment of a successor to the office of Principal Chief – Line of succession in terms of section 10 of the Chieftainship Act – Widow of a deceased who predeceased his father before being chief and left no male issue has a prior right – Application dismissed._ **_ANNOTATIONS_** **_Cited Cases_** * _Mathealira v. Mathealira (CIV/A 43 of 18)_[[2020] LSHC 16](/akn/ls/judgment/lshc/2020/16) (20 February 2020) * _Mako Mohale v. Thato Mohale and 4 others CIV/A/8/2016_[[2017] LSHC 4](/akn/ls/judgment/lshc/2017/4) (26 January 2017). * _Masupha v. Masupha (C of A (CIV) 41 of 2015)_[[2016] LSCA 1](/akn/ls/judgment/lsca/2016/1) (29 April 2016) * _Senate Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea and Others (C of A (CIV) 29 of 2013_[[2014] LSCA 22](/akn/ls/judgment/lsca/2014/22)(17 April 2014) * _Sebueng Malebanye v Sechabaseoele Goliath_ 1974-75 LLR 276 * _Bereng Griffiths v Mants’ebo Seeiso 1926-53 HCCTR 50_ * _Shaw v DPP [1962] AC 220_ **_Legislation_** _Chieftainship Act, 1968_ _Chieftainship (Amendment) Act, 1974_ _High Court[Act No.5 of 1978](/akn/ls/act/1978/5)_ **_Journal Articles, Book Chapters and Reports_** * Duncan P _Sotho laws and customs: A handbook based on decided cases in Basutoland together with the Laws of Lerotholi_(1960) Oxford University Press __ * Kapa M.A “The Chieftainship in Lesotho: to retain or to abolish?” (2016) _Politea_ 33(2)101 * Mohau KK, “Scoping of all primary and secondary legislation relating to chieftainship” Unpublished report undertaken on behalf of Local Governance and Non-State Actors Support Programme in 2010 * Nyane H “The constitutional rules of succession to the institution of the monarch in Lesotho” (2019) 22 PER/PLJ – DOI <http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4461> * Rosenberg, Scott “Who determines a Chief? Motsoene Molapo and Succession Disputes in Lesotho 1867-1940” _2022 (55) 2 International Journal of African Historical Studies,_ 259 * Sekatle P “The relevance of Lesotho Chieftainship system to contemporary governance” in K Mengisteab and G Hagg (eds) (2017) _Traditional institutions in contemporary African governance_ ROUTLEDGE eBook ISBN 9781315227948 __ * Shale I “Women and succession to chieftainship in Lesotho: The evolution of customary law and the 1993 Constitution” (2014) 21 _Lesotho Law Journal_ 87 – 105 **_JUDGMENT_** **INTRODUCTION AND BACKGROUND** [1] This case centers around the order of succession to the office of the Principal Chief of Tsikoane, Peka and Kolbere. The parties in this case are the son and daughter-in-law of the late Principal Chief Lechesa Jonathan Mathealira. First Respondent is the daughter-in-law of the late Chief Lechesa Jonathan Mathealira by his firstborn son, the late Seoehla Lechesa Mathealira who predeceased Chief Lechesa while the Applicant is the late Principal Chief’s second born son. [2] While I need not repeat the history of litigation in this case, it is important to mention that the last case prior to the current one is the Court of Appeal decision of 2022 which declared that the Subordinate Courts do not have power to set aside the King’s decision as contained in the Government Gazette through which the First Respondent was nominated to the office of the Principal Chief of Tsikoane, Peka and Kolbere in 2006, hence the application before this Court. This is a review application brought in terms of Rule 50 of the now repealed High Court Rules 1980 and a declaratory relief in terms of section 2(1)(b) of the High Court [Act, No. 5 of 1978](/akn/ls/act/1978/5) couched in the following terms: 1. Second Respondent is directed to dispatch the record of proceedings that culminated in the decision to issue Legal Notice No. 50 of 2006 which purports to appoint 1st Respondent as the successor to the office of Principal Chief of Tsikoane, Peka and Kolbere pending finalisation of this matter. 2. The decision by 2nd and or 3rd Respondents to endorse 1st Respondent as the lawful successor to the office of the Principal Chief of Tsikoane, Peka and Kolbere pursuant to Legal Notice No.50 of 2006 be reviewed corrected and or set aside. 3. That it be declared that the 1st Respondent has no right to succeed to the office of the Principal Chief of Tsikoane, Peka and Kolbere because her late husband never assumed that office but predeceased the incumbent principal chief and his father. 4. The 2nd and 3rd Respondent are directed pursuant to the provisions of Section 5(1)(c) of the Chieftainship [Act No.22 of 1968](/akn/ls/act/1968/22) (as amended) to cause for the appointment of Applicant as Principal Chief of Tsikoane, Peka and Kolbere. 5. Prayer 1 to be granted immediately as interim relief pending finalisation of this matter and Applicant reserves the right to amend the Notice of Motion and or supplement pursuant to Rule 50(4) of the High Court Rules Legal Notice No.9 of 1980 (As amended). 6. Further and or alternative relief. 7. Costs of suit in the event of opposition hereof. [3] This matter was first brought before my late brother Nathane J on 8 December 2023. Prayer 1 was granted and the matter was postponed to 21 March 2024 for hearing. However, owing to his untimely death, the matter could not be heard but was re-allocated to me on 22 October 2024. The parties appeared before me on 11 December 2024 for mention and the matter was set down for hearing on 17 March 2025. On this date arguments were heard and I reserved judgement. Parties were given an opportunity to file supplementary heads of arguments in relation to parliamentary debates that took place prior to the 1974 Amendment of the Chieftainship Act as well as further interpretation of this Amendment by the Courts of Law. Both parties filed supplementary heads of arguments on 27 March 2025. However, neither the parties nor the court obtained access to the parliamentary debates despite diligent search. [4] It is apposite to mention that because the record of proceedings and documents that culminated in the decision to recommend appointment of the first Respondent and consequently Legal Notice No. 50 of 2006 were not filed on time as per Nathane J’s order of 8 December 2023, Applicant filed an application for condonation of late filing of the record, which was opposed by the first Respondent. On the date of hearing, the record had already been filed and the parties agreed not to pursue the condonation application but to go straight into the main application. However, as I shall illustrate later in this judgement, Advocate Letuka on behalf of the first Respondent closed his argument by reference to failure of the Applicant to apply for condonation of late filing of the application itself and supported his argument by reference to section 11 of the Chieftainship Act, 1968. [5] The history regarding succession to the office of Principal Chief of Tsikoane, Peka and Kolbere is common cause. Chief Lechesa Jonathane Mathealira reigned as the Principal Chief of Tsikoane, Peka and Kolbere until his demise in 2006. It is also common cause that Chief Lechesa had only one wife who predeceased him and their marriage was blessed with two sons being Seoehla and Joel. It is undisputed that Seoehla predeceased his father, leaving a widow, first Respondent and no male issue. Therefore, at the time of Chief Lechesa’s death, he was survived by Applicant, his second son, and the first Respondent who is his daughter-in-law by his firstborn son. Now, the dispute is, who between the two has a prior right to succeed to the office of Principal Chief. I deal with this pertinent issue in the succeeding paragraphs. [6] Succession to chieftainship is governed by section 10 of the Chieftainship [Act No. 22 of 1968](/akn/ls/act/1968/22)[1] which provides: _“10. (1) In this section a reference to a son of a person is a reference to a legitimate son of that person._ _(2) When an office of Chief becomes vacant, the firstborn or only son of the first or only marriage of the Chief succeeds to that office, and so, in descending order,__that person succeeds to the office who is the first-born or_ ___only son of the first or only marriage of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection._ _(3) If when an office of Chief becomes vacant there is no person who succeeds under the preceding subsection, the first-born or only son of the marriage of the Chief that took place next in order of time succeeds to that office, and so, in descending order of the seniority of marriages according to the customary law, that person succeeds to the office who is the first-born or only son of the senior marriage of the Chief or of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection._ _(4) The only surviving wife of a person, or the surviving wife of a person who, but for his death or incapacity, would have succeeded to an office of Chief succeeds to that office when it is vacant, and she has no male issue. (5) If when an office of Chief becomes vacant there is no person who succeeds under the three preceding subsections, the only surviving wife of the Chief, or the surviving wife of the Chief whom he married earliest, succeeds to that office of Chief, and when that office thereafter again becomes vacant the eldest legitimate surviving brother of the male Chief who held the office last before the woman, succeeds to that office, or failing such an eldest brother, the eldest surviving uncle of that male Chief in legitimate ascent, and so in ascending order according to the customary law. _ _(6) A person is incapable of succeeding to an office of Chief if he is not a citizen of Lesotho._ _(7) No succession to an office of Chief in terms of this section or section 11 shall have any effect unless and until the King acting in accordance with the advice of the Minister has approved thereof._ [7] It is also important to note that the Chieftainship (Amendment) [Act No.7 of 1974](/akn/ls/act/1974/7) also amends section 13 of the 1968 Chieftainship Act in relation to acting in the office of Chief by deleting subsection 1 and substituting it with the following and inserting a new subsection after subsection (1) for it to read as follows: “ _(1)_ _Unless she is married to the King, or is Regent in respect of the office of King, the senior surviving wife or only of the person, who but for his death or incapacity, would have succeeded to an office of Chief in accordance with the provisions of section 10, exercises the powers and performs the duties of that office until the holder of that office has attained the age of twenty-one years or has married, whichever first occurs…_ _(2) If when the office of Chief becomes vacant there is no person who acts under subsection (1), the oldest of the surviving legitimate brothers, or the only surviving brother, or a person, who but for his death or incapacity, would have succeeded to that office in accordance with the provisions of section 10, exercises the powers and performs the duties of that office until the holder of that office has attained the age of twenty-one years or has married, whichever first occurs._ _(3)…”_ **APPLICANT’S CASE** [8] Applicant’s main argument is that because the first Respondent’s husband never set foot in the office of the Principal Chief as he predeceased his father, the family was wrong in nominating his widow, the first Respondent as the successor and that all processes which followed up to her gazettement were in contravention of section 10 of the Chieftainship Act, 1968. It is for this reason that in the current application he prays that such decisions be reviewed and set aside and Applicant himself be declared as the rightful successor to this office. [9] Applicant supports his case with reference to section 10(2) of the Act and argues that the order of succession provided in this subsection is such that at the time of death of a chief, the inquiry should be whether the chief has a first born or only son; if not, then the succession would follow a descending order. He argues that in _casu_ , at the time of Chief Lechesa’s death, his only son was Applicant as his elder brother had predeceased him and therefore the enquiry ought to have stopped there and the Applicant ought to have been nominated as the “ _only son_ ” who has a prior right as opposed to the first Respondent. [10] Applicant’s counsel Advocate Molati argued that the first part of Section 10 (2) ought to have been answered in the affirmative and there would have been no need to take the matter any further or to invoke provisions of the 1974 Amendment which refers to widows. [11] He argued that the situation would have been different if the marriage of Applicant’s late brother Seoehla and first Respondent had a male issue. In the latter case, the second part of Section 10(2) would be invoked as a result of which that first or only son of the late Seoehla would be covered in the words: “ _that person succeeds to the office who is the first-born or_ ___only son of the first or only marriage of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection.”_ Therefore, because the late Seoehla did not leave any male issue, the Applicant is the next in descent and has a prior right as opposed to the late Seoehla’s wife, the first Respondent. [12] He emphasized that the Applicant’s case is premised on the fact that the first Respondent’s husband, never set foot in the office of the Principal Chief and therefore she could not succeed to that which her husband never had. He argued that the 1974 Amendment would have application only if at the time of his death, the first Respondent’s late husband had occupied the office of Principal Chief and the Applicant would not have challenged the appointment. [13] He argued further that the order of the subsections in section 10 determine the order of succession hence the right to succeed under section 10 (2) overrides the right to succeed under section 10(4) which means, if Applicant, according to his argument is favoured by section 10(2), then the Court need not invoke section 10 (4) in favour of the first Respondent. [14] He argued at length that because succession to chieftainship is governed by customary law, it prefers males over females hence in the presence of the Principal Chief’s only surviving son, the law prefers him over the late Principal Chief’s daughter-in-law. Advocate Molati argued that discriminatory as the law may seem, “where Parliament fears to tread, it is not for the courts to temper with the law” and that in the absence of ambiguity, section 10(2) ought to be applied as it is. He argued, in the absence of robust amendment of the laws in conformity with modernity, then the court has to apply the statute in accordance with the rules of interpretation. [15] With regard to the order of acting in office of the chief pending appointment, as stipulated in the amended section 13, Advocate Molati sought to differentiate the current case with that of the office of Principal Chief of Kueneng and stated that in the Kueneng chieftainship, there was a male issue hence Chieftainess Mapeete Lesaoana Peete could act as such until her son was of age and took over; whereas in _casu_ there is no male issue and therefore, the order stipulated in section 13 would not be applicable at all. [16] He argued lastly that regardless of its findings, the Court should not order costs considering that this is a burning family issue. [17] Applicant also filed supplementary heads in support of his case. In this regard he cited the case of **_Malebanye v Goliath LLR_** _**[2]**___ in which the Court discussed line of succession where there is a widow and sons of a chief. The facts of this case are worth discussion. Chief Goliath had many wives. His first wife, predeceased him, leaving no male issue. The second wife had two sons, Lesupi and ‘Mualle. Lesupi died at an early age, predeceasing his father. ‘Mualle too died while preparations were made for his inauguration as chief and subsequently his widow Sebuoeng was installed by Chief Goliath at an area that was meant for her late husband ‘Mualle. The third wife had a son, Sechabaseoele who was also installed as chief in another area. When chief Goliath died, he was survived by his daughter-in-law, Sebuoeng from the second house, and his son from the third house Sechabaseoele. [18] Now a dispute arose as to who between the two should succeed Chief Goliath in his main area of chieftaincy, Likueneng. Sebuoeng argued that on the basis of section 10(4) of the Chieftainship Act, 1968 as amended in 1974, she has a prior right. However, the Court in rejecting this argument stated that: _“the customary law of the Basotho since time began, as enshrined in the successive editions of the Laws of Lerotholi, as interpreted by the courts, as modified from time to time, and as codified in 1968, is that (with rare exceptions that we need not go into) the eldest son of the first “house”, if any, succeeds his father, and failing male issue from the first “house” the eldest son of he second “house”, and so on. Succession is through the male line only and it is reported that even Moshoeshoe the Great failed in his attempt to nominate Motsoene, the son of Senate, Letsie’s daughter from his first “house (by her cousin Joseph Letsie’s nephew) to succeed, after Letsie, to the Chieftainship. (see Duncan, Sotho Laws and Customs, page 44.)_.”[3] [19] Applicant’s case is that this decision is an indication that succession to chieftainship is intended to remain along the males in the family and not the females. He quotes the judgement further where the court says: _“As I read it, the amendment intended one woman (the wife of the deceased heir with no male issue) to take precedence in succession over another woman (wife of the deceased chief), if any, or other male relatives,_but not precedence over his sons.”__ (underlining for our emphasis).[4] [20] Based on this case, Applicant argues that the surviving son of the chief takes precedence over a widowed woman without a male issue an therefore, Applicant has a prior right as opposed to the first Respondent, the widow of his late brother. Therefore, there is a need to exhaust the Chief’s sons first before the widow. **RESPONDENT’S CASE** [21] First Respondent’s case is that her late husband, is the late Chief Lechesa’s first born son as contemplated by section 10(1). She argues that she was correctly appointed to this office upon Chief Lechesa’s death since her husband, who, could have succeeded under section 10(2) met his death earlier than his father. She contends that at the time of Chief Lechesa’s demise, Applicant was not “firstborn son or only son” of Chief Lechesa hence he could not succeed under section 10(2). She opposes the review and declarator sought on the ground that she was rightfully appointed and gazetted as the Principal Chief of Tsikoane, Peka and Kolbere. Her opposition is mainly based on section 2 of the Chieftainship (Amendment Act) 1974 which insert a new section 10(4) covering succession by widows. She argues that she qualifies as a “ _widow of a person, who but for his death could have succeaded”_ because had it not been for predeceasing his father, her husband could have succeeded as the firstborn son of the late Principal Chief. [22] Her case is further that the fact that her husband had not, prior to his death succeeded to the office of Principal Chief, and the fact that she does not have male issue, do not preclude her from succeeding to this office in her own right and not as a caretaker as the 1974 Amendment covers her entirely. These arguments are reiterated and supported further in the supplementary heads of arguments. [23] Advocate Letuka’s argument in relation to costs is that although a family matter, the Applicant has dragged the first Respondent to court over the years and caused her unnecessary stress and pressure and therefore costs should be awarded. **ISSUES FOR DETERMINATION** [24] Although on the hearing day, the parties hammered more on one issue than others, there are three issues raised in the pleadings: * Whether the applicant has made a case for review; * The order of succession to chieftainship in the office of Principal Chief of Tsikoane, Peka and Kolbere, which would determine the declarator sought; and * Costs of suit **ANALYSIS** **Application for review** [25] While it is not disputed whether Applicant was right to proceed by way of review, it is important to note that the Applicant had earlier lodged a challenge in the Subordinate Court and the court found in his favour. The Magistrate Court decision was challenged in the High Court and the High Court set it aside on the grounds that the Magistrate Court had no jurisdiction to set aside a Gazette by His Majesty the King. This decision was upheld by the Court of Appeal in its judgment on the appeal between the same parties in _Mathealira v Mathealira_ , where it stated at para 13 that: _A challenge such as the one by Ntate Joel can only be entertained by the High Court. In terms of Rule 50 of the High Court Rules, read together with section 119(1) of the Constitution of Lesotho, the High Court has the power to_ _review and set aside proceedings and decisions of, amongst others, any person performing a judicial, quasi-judicial, or public administrative function under any law. This applies to the King’s function in this case, according to the High Court.**[5]**_ [26] The above is also supported by earlier jurisprudence in cases such as **_Masupha v Masupha_** __ wherein the Court of Appeal stated that _“As long as the approval by the King of Molefi Libe’s succession to the chieftainship is not set aside on review, it stands and it may not be ignored, even if it is considered that the approval was incorrectly granted.”**[6]** _ [27] The approach and forum in the current case therefore is considered appropriate as this is not just a dispute over succession but it is a dispute which comes after His Majesty has already issued a Notice through a government Gazzette. See also **_Mako Mohale v. Thato Mohale and 4 others_**.[7] The next question then to be determined is whether Applicant’s application for review in the present matter is meritorious. I proceed to deal with this issue herein below. **Order of succession to chieftainship** [28] I would like to first analyse the historical background on succession to chieftainship in Lesotho and principles related thereto. According to scholars such as Kapa and Sekatle, the institution of chieftainship remains relevant in Lesotho’s governance structures in the modern-day democracy and even after establishment of local councils.[8] Therefore, determination of this case is very crucial, not only for the litigants but for the future of the institution chieftainship in Tsikoane, Peka and Kolbere and for Basotho as a nation. [29] Whilst chieftainship is the basis on which the Basotho as a nation were founded, succession to this office has not always been easy to ascertain, especially prior to enactment of the Chieftainship Act, 1968. Hence, there have been several disputes regarding succession to chieftainship. In his critique of succession to the throne of King, which critique also touch to chieftainship due to the customary law link between the two, ‘Nyane states that the power to determine succession is vested in the college of chiefs, who do so in accordance with the customary law of Lesotho “in order of ‘prior right’.” He argues that while the customary rules of succession are not settled as different historians interpret them differently, there is however, consensus that one of the factors considered is the principle of “primogeniture.”[9] [30] As to where the concept of primogeniture emanates from as far as succession to chieftainship is concerned, I am persuaded by ‘Nyane’s observation that this could be traced back to the 19th Century during King Moshoeshoe I’s era.[10] He became the chief (Morena e moholo) when he organized various communities which had been scattered by the Lifaqane wars and founded the Basotho nation for which he became Chief. After his death, his son Letsie was recognized as a successor/ heir to his father’s office of “Morena e moholo.” This could be argued to be the root from which the concept of primogeniture sprung. [31] However, commentators such as Duncan argue that at times the principle would be bypassed by what he terms “ hereditary modification by expediency.” [11] That is, there were times when the family council opted to appoint a successor without adherence to the principle of primogeniture.[12] The inconsistency in application of the primogeniture rule is also highlighted by Rosenberg in her study on chieftainship disputes on succession to the office of Chief of Leribe between 1867-1940. She contends that the disputes around succession in this era illustrated how “Basotho actors and the colonial government manipulated succession to achieve their goals.”[13] The inconsistencies were however, settled with the enactment of the Chieftainship Act, 1968 which incorporated and codified the customary principle of primogeniture. Therefore, from 1968, while the family council retained the power to nominate, such should be guided by section 10 of the Chieftainship Act, 1968[14] which I discuss below. [32] Now coming to the order of succession as contained in the 1968 Act as amended, I begin with analysis of section 10(2). It states: _(2) When an office of Chief becomes vacant, the firstborn or only son of the first or only marriage of the Chief succeeds to that office, and so, in descending order,__that person succeeds to the office who is the first-born or_ ___only son of the first or only marriage of a person who, but for his death or incapacity, would have succeeded to that office in accordance with the provisions of this subsection._ [33] On the one hand, Applicant claims that at the time of Chief Lechesa’s death, he was and remains the “only son” of the late Chief. On the other hand, first Respondent argues that Applicant is not covered in that section as he had a brother although that brother predeceased Chief Lechesa. What stands to be determined therefore, is the meaning of the term “only son” in the context of section 10(2). The Chieftainship Act, 1968 as amended does not define the words “only child”. It is therefore imperative to resort to the rules of interpretation which dictate that where there is no ambiguity, the literal rule should be used. [34] In casu, the literal dictionary meaning of the term “only son” is “ _a male child who is the sole male offspring or only offspring of his parents_.”[15] That is, a male son who has no brothers. In my opinion, there is no ambiguity in this meaning and its use in section 10(2) does not lead to any absurdity which would require resort to other rules of interpretation. This literal approach provides a clear and objective standard. [35] While advocate Molati argued that the law means “the only surviving son” at the time of the Chief’s death, this argument cannot stand for several reasons. In subsections subsequent to subsection (2), where the legislature intended to use the word “surviving” it did so in clear terms. For instance, in subsection (5) there is reference to “only surviving…wife….only surviving brother…”. Therefore, the omission of the words “surviving” in section 10(2) is intentional and does not create any ambiguity or uncertainty. The Court cannot therefore, alter the law my inserting the words “surviving” when it is clear that the legislature never intended to use such in section 10(2) but used the words “only son” for situations where there is only one son born in the family of a chief. Therefore, the same principle which Advocate Molati invoked that “where Parliament fears to tread, it is not for the courts to rush in” is applicable in this aspect of the case. This was said by Lord Reid in his dissenting opinion in the House of Lords’ decision in _Shaw v DPP_ wherein he illustrated that in a situation where the law does not punish a particular act, even if found to be against public morals, it is not for the courts to punish such in the absence of its clear proscription in the law; the proper place to settle that is parliament and not the court of law, for the court’s duty is not to legislate but to interpret what the legislature has enacted.[16] [36] If the lawmaker, intended to include other male heirs in this subsection, it could have used broader terms such as “rightful heir” or “successor.” Looking at the wording of section 10(2) and the jurisprudence of this Court and the Court of Appeal, one can safely conclude that section 10 exclusively governs or creates a special position for firstborn or only sons of the Chief. For instance, **_Senate Masupha v. Senior Resident Magistrate for the Subordinate Court of Berea and Others_** wherein Senate Masupha, the firstborn female child of a late principal chief of Ha ‘Mamathe, challenged the constitutionality of the Chieftainship Act, which precluded women from succeeding to chieftainship. The Constitutional Court and the Court of Appeal upheld section 10, stating that only firstborn sons could succeed to chieftainship.[17] The Court declined to declare this provision unconstitutional on the grounds that it is part of the current customary law of Lesotho and in the absence of any changes in the law, it remains the operating standard. Therefore, despite being the only surviving son of the late chief Lechesa, Applicant is not the “only son” as during his lifetime, Chief Lechesa had two sons and was survived by one. [37] In terms of section 10 (2) succession is reserved for first born or only son of chief or a first born or only son of a person who, but for his death or incapacity would have succeeded to that office. That is, the descending order contemplated in section 10(2) is vertical from a father to his firstborn son and to that son’s firstborn son if the first son had died before succeeding to the office. Therefore, in my view, the horizontal application in terms of which the baton would pass to the firstborn son and upon his death to his brother is not covered in section 10 (2). [38] By acknowledging that he had an older brother, Applicant cannot claim to be the only son of the late Chief as section 10(2) does not refer to the only “surviving” son but is specific to firstborn or only son; thus, suggesting an emphasis on primogeniture or succession through a strict line of descent from the firstborn. It is common cause that the firstborn son did not leave any male issue, but left a widow. Therefore, the question is whether the second born son has a prior right to that of the firstborn son’s widow. [39] I agree with Advocate Molati that the order of the subsections in section 10 determine the order of succession. Now the question is, if both the Applicant and first Respondent are not covered by section 10(2), where do they fit? The next is section 10(3) which then passes the baton to the firstborn son in the next house, which is in line with the **_Malebanye v Goliath_** (supra) as the baton was then passed to the firstborn son in the third house, skipping the widow of the second born son in the second house. [40] However, because in casu it is common cause that Chief Lechesa had only one wife, section 10(3) does not apply and we pass onto section 10(4). It provides that the next in line is “ _The only surviving wife of a person, or the surviving wife of a person who, but for his death or incapacity, would have succeeded to an office of Chief succeeds to that office when it is vacant, and she has no male issue.”_ There is no dispute that first Respondent was married to Seoehla, Chief Lechesa’s firstborn son. There is also no dispute that had he lived, Seoehla could have succeeded to the office of his father. Therefore, first Respondent squarely fits in the definition of the person contemplated in section 10(4). [41] In opposing the first Respondent’s appointment, Applicant has heavily relied on the case of _Malebanye v Goliath_(supra) by arguing that in this case the court made it clear that succession to chieftainship is through male line only. However, he fails to take into account that the male line referred to in this case is the line of firstborn males as in this case the court clearly stated that: _the customary law of the Basotho since time began, as enshrined in the successive editions of the Laws of Lerotholi, as interpreted by the courts, as modified from time to time, and as codified in 1968, is that (with rare exceptions that we need not go into)___**__the eldest son of the first “house”, if any, succeeds his father, and failing male issue from the first “house” the eldest son of he second “house”, and so on__** _._(emphasis added) [42] That is, the difference between the Malebanye’s case and the current case is that Sebuoeng was a widow to ‘Mualle who was the second born son in the second house of Chief Goliath whereas the first Respondent in casu, is a widow to the firstborn son of Chief Lechesa. Therefore, Sebuoeng was not covered by the 1974 Amendment because even if ‘Mualle was still alive, he would not have a prior right to that of Sechabaseoele as he was a second born in the second house whereas Sechabaseoele was the first born in the third house, thus having a prior right by virtue of “firstborn status”. Therefore, the Court correctly rejected Sebuoeng’s claim because she was not a widow of _“a person who but for his death could have succeeded_ ” as contemplated in section 10(4) as amended in 1974. [43] Applicant’s argument that section 10 of the Chieftainship Act of 1968, is patriarchal in nature cannot be denied. However, contrary to his argument that such is applied to all males within the family, section 10(2) primarily upholds the principle of male primogeniture, where the chieftainship is inherited by the firstborn legitimate male descendants first. The 1974 amendment introduced provisions allowing a chief's widow or a widow of a person “ _who but for his death would have succeeded_ ” to assume the chieftainship in the absence of a male heir from their family with the deceased. That is, the succession still remains within the house of a firstborn son as the widow succeeds not by any other right but by virtue of being married to the firstborn son of a chief. [44] Now turning on to the argument that the situation would have been different if there was a male issue in the firstborn’s house. Attention should be paid to the wording in section 10(4) of the Act as amended. It states that such a widow is not merely a caretaker for a future male heir but occupies the office of chief independently. That is, she has the right to succeed rather than just hold the position temporarily; this strengthens the argument that her tenure should continue until her death or disqualification (such as remarriage). Then, logically, the younger brother’s claim would only arise after her tenure ends—meaning he would succeed only after her death or disqualification. [45] This argument can be supported by practice which has already taken place in many areas in Lesotho. An example is the case of **_‘Mako Mohale v Thato Mohale and others_**. Following the death of Chief Nkhahle of Tajane, his younger brother, Tlali Mohale, was nominated as the legitimate successor. The observation in that case is that the nomination occurred after the death of the chief's widow, who had been acting as chieftainess. This case also suggests that the younger brother's succession was considered appropriate only after the widow's tenure had concluded. [46] The next question would be: Does this interpretation in terms of which a widow has a prior right as compared to the younger brother of her late husband contradict male primogeniture? The immediate answer to this is “NO”. This is so because while male primogeniture remains the default rule, the 1974 Amendment creates an exception by explicitly allowing a widow to succeed in her own right. This means that male primogeniture is not absolute, and in cases where there is no male issue, the widow of the firstborn son shall effectively become the chief even if the firstborn had passed on prior to succeeding to that office. This interpretation does not, as Advocate Molati would suggest, depart from the patriarchal nature of succession to chieftainship under the Act as influenced by Sesotho customary law because the widow’s rights and the role she plays in the institution of chieftainship is tied to her marriage into that family. Hence, a distinction lies between the cases of widows of chiefs and those of daughters of chiefs as was the case in the _Senate Gabasheane Masupha case (supra)_. [47] To seal the argument, another example which would show that this order of succession was intended by the legislature is section 13 of the Act, as amended in 1974. While section 13 is meant to govern who should act in the office of Chief pending finalisation of appointment of a successor, the order which it provides is in sync with the order of succession as outlined by section 10 as amended. Therefore, having been amended at the same time, the intention of the legislature as far as this order is concerned, can be discerned from reading the two sections together. In terms of section 13, the order in the respective subsections is as follows: 1. Wife of a person, who but for his death, or incapacity would have succeeded to an office of chief in accordance with section 10 (in _casu_ this would be first Respondent) 2. The oldest surviving legitimate brothers, or the only surviving brother of a person, who but for his death or incapacity would have succeeded (in _casu_ this would be Applicant) 3. The oldest surviving legitimate brothers of the previous holder (in _casu,_ the brothers to the late Chief Lechesa) 4. Failing which the surviving legitimate uncles or the only surviving legitimate uncle of the previous holder (Chief Lechesa’s uncles). [48] Based on the analysis set out above as well as the law on the subject this Court finds that Applicant has failed to make a case for the declarator sought. **COSTS** [49] Normally costs follow the event. However, this is a matter of national importance and while the Courts have had occasion to interpret section 10 of the Chieftainship Act before, the amended section 10(4), in particular, has not been subjected to such interpretation. As such, Applicant cannot be taken to have unreasonably dragged the Respondents to Court. I therefore make no order as to costs. **CONCLUSION** [50] It is therefore not irrational to conclude that the younger brother can only succeed after the widow has passed on or is otherwise disqualified. In fact, this interpretation aligns with: * The clear language of the 1974 Amendment, which allows a widow to succeed in her own right. * A logical reading of section 10, where the younger brother's right only arises further in the line, if there is no other firstborn son or his legitimate successor at the time. [51] Therefore, the fact that Lesotho’s laws, while favoring male primogeniture, have made exceptions for widows, which must be respected unless explicitly overridden. **ORDER** [52] In the result, the following order is made: * Application is dismissed. * No order as to costs. **_________________** **Dr. I. Shale J** **Judge of the High Court** For Applicant: Advocate L. Molati For first Respondent: Advocate K. Letuka * * * [1] As amended by Chieftainship (Amendment) [Act No.7 of 1974](/akn/ls/act/1974/7) [2] _1974-1975 LLR 278_ [3] Malebanye v Goliath (supra) at p 280 para E [4] Supra p 281 para B [5] _(C of A No. 42/2021)[[2022] LSCA 10](/akn/ls/judgment/lsca/2022/10) (13 May 2022)_ [6] _(C of A (CIV) 41 of 2015)[[2016] LSCA 1](/akn/ls/judgment/lsca/2016/1) (29 April 2016)_ [7] _CIV/A/8/2016[[2017] LSHC 4](/akn/ls/judgment/lshc/2017/4) (26 January 2017)_ [8] Kapa M.A “The Chieftainship in Lesotho: to retain or to abolish?” (2016) _Politea_ 33(2)101; See also Sekatle P “The relevance of Lesotho Chieftainship system to contemporary governance” in K Mengisteab and G Hagg (eds) (2017) _Traditional institutions in contemporary African governance_ ROUTLEDGE eBook ISBN 9781315227948 __ [9] Nyane H “The constitutional rules of succession to the institution of the monarch in Lesotho” (2019) 22 PER/PLJ – DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4461;see also Shale I “Women and succession to chieftainship in Lesotho: The evolution of customary law and the 1993 Constitution” (2014) 21 _Lesotho Law Journal_ 87 – 105. [10] ibid [11] Duncan _Sotho laws and customs_ 48 cited by ‘Nyane above. [12] Ibid. See also Shale I (supra) [13] Rosenberg, Scott “Who determines a Chief? Motsoene Molapo and Succession Disputes in Lesotho 1867-1940” _2022 (55) 2 International Journal of African Historical Studies, 259._ [14] Mohau KK, “Scoping of all primary and secondary legislation relating to chieftainship” Unpublished report undertaken on behalf of Local Governance and Non-State Actors Support Programme in 2010. [15] See <https://www.yourdictionary.com/only-son> (accessed on 2 April 2025) [16] _[1962] AC 220_ [17] _(C of A (CIV) 29 of 2013_[[2014] LSCA 22](/akn/ls/judgment/lsca/2014/22)(17 April 2014) #### __Related documents ▲ To the top >