Mmutlane villagers retain power to decide chieftaincy heir

Former Kgosana of Mmutlane village, Ketlaareng Lekhutile, and Shoshong’s Kgosi Felix Kgamane, who is also the brother of former Bammangwato regent Kgosi Sediegeng Kgamane, failed to reverse a verdict that declared Mmutlane village’s bogosi vacant.

The application by Kgamane and Lekhutile to rescind the Lobatse High Court judgment of August 19, 2022, by Justice Modiri Letsididi, was dismissed with costs, meaning the villagers still hold the power to decide the heir to the village’s bogosi.

The judgment declared, amongst other things that the decision of the Minister of Local Government and Rural Development to appoint Lekhutile as Kgosana be reviewed and set aside; that the post of Kgosana of Mmutlane be declared vacant; and that the appointment of the Kgosana be referred back to the tribe for elders to undertake consultation with the community of the village to designate a Kgosana. Kgosana Lekhutile attempted to appeal the matter but reportedly took no action after filing grounds of appeal until his recent application with Kgamane to rescind the judgment.

“The applicants’ reasons for the delay in bringing this application are that they were engaging one attorney after the other for legal representation. “In my view that explanation is unacceptable as it ought not to have taken that long to file this application due to the fact that two months after the judgment was delivered a notice of appeal was filed and nothing thereafter was done by the applicants,” he said.

Justice Letsididi, when dismissing the application, noted that it was brought six months after he handed down the judgment.

“The applicants’ reasons for the delay in bringing this application are that they were engaging one attorney after the other for legal representation. In my view, that explanation is unacceptable as it ought not to have taken that long to file this application, regard being had to the fact that two months after the judgment was delivered, a notice of appeal was filed and nothing thereafter was done by the applicants,” he said.

The judge emphasised that an application for rescission on common law grounds must be brought within a reasonable time. He further explained that the applicants must show sufficient cause by providing a reasonable explanation for the delay and demonstrating that the application for rescission has prospects of success.

“In my view and on that basis the applicants have no reasonable prospects of success as the review application was fully argued and determined on the merits. It is clear to me based on the affidavits filed in this application that the applicants seek to introduce new facts which are entirely different from those appearing in the review application. That is not acceptable. Rescission proceedings are not meant to re-open a case,” Justice Letsididi explained.

Therefore, he dismissed the application with costs, stating that it had no merit. Meanwhile, on January 25, 2021, approximately 53 villagers filed an application with the court to review the decision of the Minister of Local Government and Rural Development, who had appointed Lekhutile as Kgosana of Mmutlane on July 22, 2020.

Service of the review application was effected on Lekhutile, Kgamane personally, and on the Attorney General on February 17, 2021. On February 18, 2021, a notice of opposition against the review of the said decision was filed by the Attorney General on behalf of the pair and the minister. Subsequently, on March 4, 2022, the matter was argued by both attorneys for the applicants and the respondents, and the court delivered its judgment on August 19, 2022.

In my view and on that basis the applicants have no reasonable prospects of success as the review application was fully argued and determined on the merits