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A history of how Basotho lost their land

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MASERU – THE conversations around boundaries between Lesotho and South Africa ought to start, first, by agreeing on what happened leading to Basotho’s loss of land in the nineteenth century.

This would be a useful basis for assessments aimed at determining whether there is any need for discussion on these issues between Lesotho and South Africa.

In discussing this emotive issue we have to identify groups who raise questions of Lesotho boundaries and point to their respective motives.

This is important because journalists’ or journalistic shorthand associates all Basotho with positions that make some Basotho uncomfortable.

When these issues are raised there will also be need to first agree on the purpose for raising and discussing them.

As always happens, there are disputes, even among Basotho, regarding the question of quite what happened leading to Basotho’s loss of territory to the British in the nineteenth century.

This is an important question to ask, and try to answer, because such an answer might go a long way to inform judgments about the justifiability or not for need for discussion between governments of the two countries.

The point of this article is not to elevate one argument over the many that are already being discussed by others but to give another perspective that might edify this critical national debate.

A reading of Basotho history shows that all land that Basotho lost was lost by either treaties Basotho signed under British pressure, or war and conquest. No land was signed away by Moshoeshoe I for personal gain, as happened in some chiefdoms.

Some of the land Basotho lost initially to the British in ways described below, until 1854, when it was inherited by the Free State, who alienated more of Basotho’s land afterwards.

Even in boundary disputes of the period after 1854, Basotho sought, or agreed to, British mediation, and expected the British to act fairly but the British, by their own admission, were quite biased towards the Free Staters in their awards.

All that land became part of the Union of South Africa (1910), the Apartheid white minority-ruled Republic of South Africa (1948) and subsequently the majority-ruled Republic of South Africa (1994).

The chronology of events presented below might be one of the many that can provide a start to understanding how Basotho lost their land to the British and, then, to the Free State, and governments that followed.

  •  1830s: serious settlers’ grab of Basotho’s land began. From this time, British subjects known as Voortrekkers, arrived in the Mohokare valley, and began grabbing Basotho’s land with the aid of the British.

 

  •  1843: The Napier Treaty signed by Moshoeshoe I on 5 October, 1843 shaved off Basotho territory to the west and north. Moshoeshoe I signed this Treaty motivated by a desire to win British protection from the Voortrekkers. This protection was absolutely necessary for the survival of his Chiefdom and, he thought, its territory. The territory lost through this Treaty became British territory.

 

  •  1845: Moshoeshoe I signed the Maitland Treaty in which he demanded, and the British promised, removal of the Boers from Basotho’s territory they had occupied. In fact, however, the Treaty was never presented for signature of the British High Commissioner in the Cape Colony, and the British never alerted Moshoeshoe I of this. Without the British High Commissioner’s signature, the Treaty was null and void. The territory from which the British had promised to remove the Boers remained British territory, and was later inherited by the Free State. British treachery here included their recognition of independence of chiefs who acknowledged Moshoeshoe I’s authority, with a view to enable them to sign land and boundaries treaties independently of Moshoeshoe I.

 

  •  1848: British High Commissioner Harry Smith annexed territory between Senqu and Lekoa rivers, thereby turning all territory in between the two rivers into British territory known as Orange River Sovereignty. A large part of territory that became British territory in this way was Basotho’s land. A British official was sent to work on finer details of this annexation as regarded boundary between Orange River Sovereignty and Lesotho. With information from the settlers alone, he declared, as he determined the boundary: “…in my opinion, the Boers have more right to the land than Moshoeshoe…”

 

  •  1849: Warden Line, the agent of the British in Free State, unilaterally decreed a boundary between Basotho and the Free Staters. This boundary “…detached from Lesotho all land which…” the British and the Free Staters considered as land of the Free Staters, regardless of Basotho’s claims, and regardless of how many Basotho lived there before whites came.

 

  • 1854: The British withdrew their rule over the Orange River Sovereignty, handing over to government of the newly-created Orange Free State all territory they (British) had taken from Basotho and repudiating all their Treaties with Basotho. In these ways, the British left the Free Staters to take more Basotho’s territory using British-supplied superior arms that the British denied Basotho but allowed the Free Staters.

 

  •  1858: Following Basotho’s defeat of the Orange Free State that year, British High Commissioner George Grey, accepted the Free State’s ex parte explanation of the war, agreed to Free State’s suggestion not to appoint a British Commission to look into boundary disputes but, instead, to accept a Commission made up of the Free State alone, and its ex parte submission as basis of Grey’s determination of a boundary between Lesotho and the Free State. This formed the basis of a settlement that Grey forced Moshoeshoe I to sign, on 23 September, 1858, in which Basotho lost more land to the Free State.

 

  • 1864: British High Commissioner Philip Wodehouse intervened in another boundary dispute between Basotho and the Free Staters. He admitted that his settlement was “…quite in favour of the Boers…” Prompted by the desperate situation that the British and the Boers had created for Basotho, Wodehouse later admitted the injustices his country perpetrated against Basotho—such as denying Basotho an opportunity to purchase arms in wars with the Free State that led to loss of more land by Basotho—and fiercely attacked the policies.

 

  •  1869: At the end of the 1865-1867 war between the Free Staters and Basotho in which, in 1866, the Boers had conquered all of modern Lesotho’s fertile lowlands to the north-east, warring parties agreed to British High Commissioner Wodehouse’s arbitration. The Free Staters succeeded to persuade Wodehouse against allowing Basotho and PEMS missionaries’ participation in the talks, and represented Basotho by himself in negotiations with the Free State. Although Wodehouse was able to prise modern Lesotho’s north-east lowlands from the Free State, and return the territory to Basotho ownership, he allowed the Free State to keep all land that Basotho lost to the British and the Free State from the 1830s. According to a Free State newspaper, through the 1869 Treaty Basotho lost a further “…large portion of their beautiful country…” Outcome of Wodehouse’s intervention left Moshoeshoe I sorely disappointed; and he declared: “I am left a small portion of my country, which is overcrowded with people”.

The facts are, perhaps, best left here without comment and interpretation. Only when we have agreed on them would it be useful to comment on, and interpret, them. Even in those comments and interpretations, it would be useful to agree on what the approach should be: Should it be a nationalist, statist one that emphasises power between states, and “might is right”? Or should it be one that searches for what is just?

Finally, it is important to note that concerns about boundaries are expressed by, at least, two groups in Lesotho. First, the political elites and middle class politicians who normally raise the issues during election campaigns. The basis of their claim for “return of territory” is nationalistic, and driven by nationalist pride. Secondly, poor Basotho and organisations that work with them, motivated by hope that arrangements can be made to remove the border and allow Basotho to move freely between Lesotho and South Africa, and be able to work in South Africa. In other words, the second groups are open for discussion of arrangements that can ease overcrowding, poverty and other socio-economic pressures that the majority of Basotho face.

Motlatsi Thabane

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City Council bosses up for fraud

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THREE senior Maseru City Council (MCC) bosses face charges of fraud, theft, corruption and money laundering.

Town clerk Molete Selete and consultant Molefe Nthabane appeared in the Maseru Magistrate’s Court yesterday.

City engineer Matsoso Tikoe did not appear as he was said to be out of the country. He will be arraigned when he returns.

They are charged together with Kenneth Leong, the project manager of SCIG-SMCG-TIM Joint Venture, the company that lost the M379 million Mpilo Boulevard contract in January.

The joint venture made up of two Chinese companies, Shanxi Construction Investment Group (SCIG) and Shanxi Mechanization Construction Group (SMCG), and local partner Tim Plant Hire (TIM), has also been charged.

Selete and Nthabane were released on bail of M5 000 and surety of M200 000 each. Leong was granted bail of M10 000 and surety of M400 000 or property of the same value.

The charges are a culmination of the Directorate on Corruption and Economic Offences (DCEO) investigation that has been going on for the past months or so.

The prosecution says Selete, Nthabane, Tikoe, and Leong acted in concert as they intentionally and unlawfully abused the functions of their offices by authorising an advance payment of M14 million to a joint-venture building the Mpilo Boulevard.

An advance payment guarantee is a commitment issued by a bank to pay a specified amount to one party of a contract on-demand as protection against the risk of the other party’s non-performance.

The prosecution says the payment was processed after the company had provided a dubious advance payment guarantee. It says the officials knew that the guarantee was fake and therefore unenforceable.

As revealed by thepost three weeks ago, SCIG and SMCG were responsible for providing the payment guarantee as lead partners in the joint venture.

The prosecution says the MCC was required by law to make advance payment after SCIG-SMCG-TIM Joint Venture submitted a guarantee as per the international standards on construction contracts.

It alleges that the MCC has now lost the M14 million paid to SCIG-SMCG-TIM Joint Venture because of the fake advanced guarantee.

thepost has seen minutes of meetings in which officials from the joint venture admitted to MCC officers that the advance payment guarantee was dubious.

SCIG-SMCG-TIM kept promising to provide a genuine guarantee but never did. Yet the MCC officials did not report the suspected fraud to the police or take any action against the company.

It was only in January this year that the MCC cancelled the contract on the basis that the company had failed to provide a genuine guarantee.

Despite receiving the advance payment SCIG and SMCG refused to pay TIM Joint Venture for the initial work.

SCIG and SMCG, the lead partners in the joint venture, are reportedly suing the MCC to restore the contract. Officials from TIM Plant Hire however say they are not aware of their partners’ lawsuit against the MCC.

Staff Reporter

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Scott fights for free lawyer

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DOUBLE-MURDER convict Lehlohonolo Scott is fighting the government to pay a lawyer to represent him in his appeal.
Scott, serving two life sentences for murdering Kamohelo Mohata and Moholobela Seetsa in 2012, says his efforts to get a state-sponsored lawyer have been repeatedly frustrated by the Registrar of the High Court, Advocate ’Mathato Sekoai.
He wants to appeal both conviction and sentence.
He has now filed an application in the High Court seeking an order to compel Advocate Sekoai to appoint a lawyer to represent him.
He tells the court that he is representing himself in that application because the Registrar has rejected his request to pay his legal fees or appoint a lawyer for him.
People who cannot fund their own legal costs can apply to the Registrar for what is called pro deo, legal representation paid for by the state.
Scott says Sekoai has told him to approach Legal Aid for assistance.
The Legal Aid office took a year to respond to him, verbally through correctional officers, saying it does not communicate directly with inmates.
The Legal Aid also said he doesn’t qualify to be their client.
“I was informed that one Mrs Papali, if I recall the name well, who is the Chief Legal Aid counsel, had said that Legal Aid does not communicate with inmates so she could not write back to me,” Scott says.
“Secondly, they represent people in minor cases. Thirdly, they represent indigent people of which she suggested I am not one of them.”
“Fourthly, there are no prospects of success in my case hence they won’t assist me.”
He says the Legal Aid’s fifth reason was that he has been in jail for a long time.
Scott is asking the High Court to set aside Sekoai’s decision and order her to facilitate pro deo services for him, saying her decision was “irregular, irrational, and unlawful”.
He argues that the Registrar’s role was to finance his case to finality, meaning up to the Court of Appeal.
The Registrar insists that the arrangement was to provide him a lawyer until his High Court trial ended.
Scott says his lawyer, Advocate Thulo Hoeane, who was paid by the state, had promised to file an appeal a day after his sentencing but he did not.
He argues that the Registrar did not hear him but arbitrarily decided to end pro deo.
Scott says he wrote to Acting Chief Justice ’Maseforo Mahase in 2018 soon after his conviction and sentencing seeking assistance but he never received any response.
Later, he wrote to Chief Justice Sakoane Sakoane in November 2020 and he received a response through Sekoai who rejected his request.
Scott tells the High Court that he managed to apply to the Court of Appeal on his own but the Registrar later told him, through correctional officers, that “the Court of Appeal does not permit ordinary people to approach it”.
He argues that “where justice or other public interest considerations demand, the courts have always departed from the rules without any problem”.
Staff Reporter

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Army ordered to pay up

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THE Ombudsman has asked parliament to intervene to force the Lesotho Defence Force (LDF) to compensate families of people killed by soldiers.
Advocate Tlotliso Polaki told parliament, in two damning reports on Monday, that the LDF is refusing to compensate the family of Lisebo Tang who was shot dead by soldiers near the former commander, Lieutenant General Tlali Kamoli’s home in 2014.

The LDF, she said, is also refusing to compensate the family of Molapo Molapo who was killed by a group of soldiers at his home in Peka, Ha-Leburu in 2022.

Advocate Polaki wrote the LDF in January last year saying it should pay Tang’s mother, Makhola Tang, M300 000 “as a reasonable and justifiable redress for loss of support”.

The Tang family claim investigation started in February 2022 and the LDF responded that it “had undertaken the responsibility for funeral expenses and other related costs”.

Advocate Polaki investigated whether the LDF could be held accountable for Tang’s death and whether his family should be compensated while the criminal case is pending.

She found that the soldiers were “acting within the scope of their employment to protect the army commander and his family” when they killed Tang.

Soldiers killed Tang in Lithabaneng while she was in a parked car with her boyfriend at what the army termed “a compromising spot” near the commander’s residence.

The three soldiers peppered the vehicle with a volley of shots, killing Tang and wounding the boyfriend.

Advocate Polaki found that the army arranged to pay for the funeral costs and to continue buying groceries and school needs for Tang’s daughter.

The LDF, however, kept this for only four years but abruptly stopped.

When asked why it stopped, the army said “there is a criminal case pending in court”.

The army also said it felt that it would be admitting guilt if it compensated the Tang’s family.

The Ombudsman said “a civil claim for pecuniary compensation lodged is not dependent on the criminal proceedings running at the same time”.

“The LDF created a legitimate but unreasonable expectation and commitments between themselves and the complainant which had no duration attached thereto and which showed a willingness to cooperate and work harmoniously together,” Advocate Polaki found.

“The LDF was correct in withdrawing such benefit in the absence of a clear policy guideline or order to continue to offer such benefit or advantage,” she said.

“However, she should have been consulted first as the decision was prejudicial to her interest.”

She said the army’s undertaking “fell short of a critical element of duration and reasonability”.

Tang was a breadwinner working at Pick ’n Pay Supermarket as a cleaner earning M2 000 a month.

Her daughter, the Ombudsman said, is now in grade six and her school fees alone had escalated to M3 200 per year.

She said an appropriate redress should be premised on her family’s loss of income and future loss of support based on her salary and the prejudice suffered by her mother and daughter.

She said M300 000 is “a reasonable and justifiable redress for loss of support”.

In Molapo’s case, Advocate Polaki told parliament that the LDF refused to implement her recommendations to compensate his two daughters.

The complainant is his father, Thabo Joel Molapo.

The Ombudsman told the army in August last year that it should pay the girls M423 805 “for the negligent death of their father”.

Advocate Polaki said despite that the criminal matter is before the court, “it is established that the Ombudsman can assert her jurisdiction and make determinations on the complaint”.

Molapo, 32, was brutally murdered by a soldier in Peka in December 2020.

Molapo had earlier fought with the soldier and disarmed him.

The soldier, the Ombudsman found, rushed to Mokota-koti army post to request backup to recover his rifle. When he returned with his colleagues, they found him hiding in his house. The soldier then shot Molapo.

The LDF, the Ombudsman said, conceded that the soldier killed Molapo while on duty and that he had been subjected to internal disciplinary processes.

“The LDF is bound by the consequences of the officer’s actions who was negligent and caused Molapo’s death,” she said.

She found that after Molapo was killed, army officers and the Minister of Defence visited his family and pledged to pay his children’s school fees. They also promised to hire one of his relatives who would “cater for the needs of the deceased’s children going forward”.

The LDF, she said, has now reneged on its promises saying its “recruitment policy and legal considerations did not allow for such decision to be implemented”.

Molapo’s father told the Ombudsman that the LDF said “the undertakings were not implementable and were made by the minister at the time just to console the family”.

All the payments in the two cases, the Ombudsman has asked parliament, should be made within three months.

Staff Reporter

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