The Court of Appeal (CoA) is expected to settle a territorial legal battle and the fight for a common name between residents of Matolwane and Lesenepole villages.
The legal war that has been running for over a decade regarding choosing one common name to share as official name reached the CoA this week after residents of Matolwane filed an appeal. Matolwane residents were not happy about an order that was made by the late Justice Moatlhodi Marumo of the High Court where both residents agreed to vote for a common name.
Their contention was that residents of Lesenepole wanted to be territorially superior, expecting their name to be the one used while an earlier agreement chose Matolwane.
They were not happy that the order of the High Court did not take into consideration that the Lesenepole residents were numerically higher and that they will automatically outnumber their Matolwane counterparts during voting.
Further, that they were not consulted nor cited, meaning that they never consented to voting as per Justice Marumo’s judgement. Their lawyer, Setso Mokoti argued that the re-naming of the village was not only made of Matolwane/Lesenepole but was based on the four merged villages meaning that two more villages were involved though not part of any court proceedings. He told court that it was critical to lodge an appeal because the application in the Marumo judgement was made without all the residents of the four villages being cited in the proceedings, being heard and being joined.
“The residents were not consulted nor represented and the Marumo judgement was made without their knowledge and consent. This gave rise to so many issues and disputes. And it shows why the right to be heard is fundamental and ultimate,” he said.
Mokoti submitted that failure of the Marumo judgement to give notice of the proceedings and to cite all the residents of the merged villages opened a can a worms.
Pointing out that it was according to the law to have cited, joined and heard the residents of all the four villages because the villages of Matoposane, Raphiri and Moremi would have placed before the court the history of the merger and that the resulting village had, with the agreement of all of them, been named Matolwane and that there was no need to rename the village.
“Of course, the court was unaware of this pertinent fact by virtue of the lack of notice of the
He said that the election by virtue of an order made that affected the residents of the villages but without the residents having been cited and heard ultimately was a nullity.
More so that the court did not consider that not all the applicants or residents of the Matolwane village were aware of the Justice Marumo case. He explained to court that in the absence of proof of notice of the proceedings or citation of the applicants, the court could only come to one obvious conclusion, that the applicants and the residents were unaware.
“However, the court a quo made its determination on speculation or on an assumption that there appeared some names of some people who were part of the application before a different judge. This is not proof of notice of the proceedings of case before Justice Marumo on all the applicants,” he said. Mokoti also argued that there was no affidavit in proof of service let alone substituted service of the case before Marumo as evidence that the applicants and the residents of the village were notified. Lastly, they argued that the original agreement on the name of the village being Matolwane, which was never placed before Justice Marumo, binds all four villages including the larger one of Lesenepole.
Respondent’s lawyer Tshekiso Tshekiso said there was no way the appeal should succeed just because Matolwane residents were outnumbered in voting. He said the residents should have raised the issues before the order was made rather than coming back to court.
“The order was made accordingly with both the residents agreeing to vote for a common name and now they are saying they were never cited,” he said. Tshekiso said the name Lesenepole was voted as a common name after both residents were noticed and informed about the court order therefore it should remain as such.
He requested the bench to throw out the appeal with costs. Neo Sharp represented the Attorney General and Ministry of Local Government and Rural Development.