University of Botswana Law Journal - PULP
University of Botswana Law Journal - PULP
University of Botswana Law Journal - PULP
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RECENT LEGAL DEVELOPMENTS – LESOTHO 181<br />
The respondent presented herself at work the following day after<br />
judgment was granted in her favour. The employer, being in a dilemma since<br />
it had already replaced her position after the DDPR’s award, requested her to<br />
stay at home until the question <strong>of</strong> what she could do was resolved. She was<br />
also told that in the meantime arrangements would be made for the payment <strong>of</strong><br />
her salary together with arrear salary. The respondent was paid her back-pay<br />
together with salary during the months she spent at home. Subsequent to this<br />
she launched contempt <strong>of</strong> court proceedings against the employer in the<br />
Labour Appeal Court alleging that instead <strong>of</strong> reinstating her, the employer<br />
wanted to retrench her. The Labour Appeal Court held that the employer was<br />
in contempt because it failed to allow the respondent to resume her teaching<br />
responsibilities. The employer appealed this decision.<br />
The Court <strong>of</strong> Appeal set aside the decision <strong>of</strong> the Labour Appeal<br />
Court on the ground that the respondent failed to prove beyond reasonable<br />
doubt that employer’s non-compliance with the reinstatement order was wilful<br />
and mala fide. It held that the employer was in a dilemma after the<br />
reinstatement order, but that the employer did not sit back when faced with<br />
this situation. The appeal was therefore allowed.<br />
2.2 SUCCESSION TO CHIEFTAINSHIP<br />
Neko Tsepo Qefate Nkuebe v Minister <strong>of</strong> Local Government and Three Others<br />
Court <strong>of</strong> Appeal Civil Case No. 41 <strong>of</strong> 2009 (delivered on 23 April 2010)<br />
(Unreported)<br />
This matter concerned a contest for the <strong>of</strong>fice <strong>of</strong> principal chief <strong>of</strong><br />
Quthing and Sebapala after the demise <strong>of</strong> the incumbent Chief Qefate<br />
Nkuebe. The appellant (applicant in the court a quo) is the third son born <strong>of</strong><br />
the late Chieftainess Mahlabathe Nkuebe while the marriage between herself<br />
and the chief was still subsistent. The family had nominated the fourth<br />
Respondent (his eldest brother) as successor to the <strong>of</strong>fice <strong>of</strong> the chief. The<br />
appellant applied to the High Court to stay the process leading to the final<br />
succession to the principal chieftainship <strong>of</strong> Quthing and Sebapala pending<br />
finalization <strong>of</strong> the matter. His basis was that he was the only legitimate son<br />
and successor <strong>of</strong> the late chief. The appellant wanted an order, which would<br />
subject him and the fourth respondent to a DNA test in order to bring this<br />
matter to finality. This application was dismissed by the High Court.<br />
On appeal the main issue was who was entitled to succeed to the<br />
<strong>of</strong>fice <strong>of</strong> the chief. This question was decided on the basis <strong>of</strong> section 10 <strong>of</strong> the<br />
Chieftainship Act No. 22 <strong>of</strong> 1968, which is to the effect that, the first born<br />
legitimate son <strong>of</strong> the only marriage should succeed. The court noted that under<br />
customary law, the fourth respondent would be regarded as the deceased’s<br />
legitimate son because he was so accepted through customary rites. The