HIGH COURT OF LESOTHO In the matter of:
LIBE MASUPHA Plaintiff
MATELA MASUPHA Defendant
by the Hon. Mr Justice M.L. Lehohla on the 13th day of October, 2000
plaintiff has instituted proceedings against the defendant who was
later joined in this suit by the 2nd defendant 'Malereko Mojela
Masupha following a successful application for joinder before this
plaintiff claims and seeks against the defendants a declaratory order
that there was never any valid marriage between 1st defendant's
mother and father.
seeks also costs of suit and further or alternative relief.
important from the outset to sketch the broad parameters of this case
in order to avoid getting bogged down in fine details which however
strenuously argued cannot prevail against such parameters.
I find it fitting to indicate that at the close of the plaintiff's
case this Court refused to entertain an application for absolution
from the instance made on behalf and for the benefit of the
defendants. The Court having indicated that on the evidence before it
there was a strong case made on behalf of the plaintiff requiring the
defence side to answer. But in exercise of their right and no doubt
through the advice of their counsel the defendants decided to close
their case without finding it necessary to answer the prima facie
case established on behalf of the plaintiff.
thus important to note that unlike in a criminal case where the
existence of a prima facie case against the accused does not
necessarily always result in a conviction even where the accused has
decided not to give evidence in his defence, in a civil case once a
prima facie case has been established it cannot be dispelled by the
defendant's silence. The rationale being that one of the most
3 to take
into account when refusing an application for absolution is that
there may be
that would strengthen the case for the plaintiff emanating from the
defence side even if the court was wrong in finding that the
plaintiff at the close of his case had established a prima facie
case. But in a criminal case a prima facie case has to exist at the
conclusion of the Crown case before the accused can be called upon to
answer. The importance of this principle is amply illustrated by the
fact that even if, when called upon to answer where no case existed
to require him to do so, he confesses to the crime charged he would
still be entitled to his acquittal because the crown would have ex
hypothesi have failed to discharge the onus cast on it at the stage
when its evidence did not measure up to the standard required in a
now to the facts of the instant case the plaintiff has made it clear
that the purpose of his search for the relief outlined in his papers
is that this would affect the matter in another form between him and
the 1st defendant.
defendant has pleaded at paragraph 2 that his mother was married by
custom and as such was legally married.
indicated earlier an application for joinder of the 1st defendant's
defendant duly pleaded - see her plea dated 02-02-2000. At paragraph
2 thereof she says she was married by custom and as such was legally
married and that 'bohali' cattle were paid.
when an assertion of this nature is made, in other words the
preliminary point is that when a party goes beyond making a denial of
an assertion by his/her opponent and makes a positive assertion for
the existence of a certain state of affairs then he or she bears the
onus to prove it. The maxim is that he who asserts must prove.
Needless to state notwithstanding the wisdom entailed in the above
proposition the Court waited in vain for proof of payment of 'bohali'
cattle for the marriage of 1st defendant's mother. The 2nd defendant
shied away from giving evidence which would subject her to
cross-examination in regard to the crucial question before Court of
her marriage to the 1st defendant's father.
regard both defendants decided not to enlighten the court regarding
the allegations in their pleadings. Thus the plaintiffs version which
is at variance with
has been pleaded by the defendants without benefit of the important
cross-examination. Of importance in this regard is that the evidence
proffered on behalf of the plaintiff remains uncontradicted in the
sense that even if the defendants' is just a denial the Court would
nonetheless still expect them to go into the box, but unfortunately
the Court has not been favoured with proof of the positive averment
made in their pleading. Accordingly it is only logical that the Court
should make an adverse finding against them in this regard, and
because their silence pertains to a matter of crucial importance to
their own case, it is inevitable that such a finding would have a
telling effect on the outcome of their case.
has heard the evidence adduced on behalf of the plaintiff. In its
essential aspects that evidence was such that the Court was really
not surprised when the defendants' counsel decided not to call
listened carefully to PW2 Mr Mahone Souru Masupha an elderly man way
into his eighties in age having been born in 1913. He was not
contradicted in his evidence that in age he is the most senior of the
Masupha family based in its dual stations of Lekokoaneng and
According to his testimony he is about the same age as the late Chief
Chief Mojela married around more or less the same time.
important to note that by virtue of PW2's relationship with Chief
Mojela, PW2 would have known if the deceased had married a 3rd wife.
His unswerving and unwavering answer was that he had no such
knowledge when asked if the deceased had taken a 3rd wife. The legal
position based, no doubt on logic and common sense, is that if a
party would have known a certain state of affairs if it took place;
but does not, such a state of affairs did not take place, because an
integral part of this statement is that had such an event taken place
such party would have known it. Nohow could he have not known it. The
fact that he does not know it, following from the kind of
relationship he had with the supposed participant in the event, means
it did not take place.
to say a number of other witnesses testified that by virtue of their
relationship with Chief Mojela they would have known if he had
married a 3rd wife but they didn't.
Masupha born in 1917 and married into the Masupha family
indicated that the late Mankata who was married by Mojela intimated
to her that there
marriage between 2nd defendant and the late Mojela. This may be in
the nature of hearsay but the conduct of the defendant's supporters
towards her egged by the testimony they knew she was going to give
regarding whether or not there was marriage between Mojela and the
2nd defendant is most telling. She indicated that they made threats
to her and applied other forms of pressure to suborn her as a witness
who was prepared for nothing else but to tell the truth. Indeed she
repeatedly invoked the name of the Lord in a frantic fashion to make
her stand plain to the Court and her tormentors.
of some cogency which acts as an important factor in exposing the
emptiness of the defendants' defence is the family meeting which took
place after Mojela's death and where it was to be decided who would
be successor. The facts there speak for themselves.
parenthesis one has to take cognizance of the fact that the 1968
Chieftainship Act 22 section 11 makes it a prerequisite, even if the
successor is known, for the family to nominate him so that the
Minister can recommend to the King that he be made successor.
Returning to the matter under consideration; the existence of this
meeting is not
nor is it denied that both defendants were present. It is not denied
also that the senior wife of Mojela Chieftainess 'Mankata declared
herself the rightful successor. There is no denial that her statement
remained unchallenged by either of the defendants.
shows that there was a faction wanting to promote the cause of the
1st defendant. Mathe's husband Api didn't contest 'Mankata's
evidence shows that there being nobody to contest 'Mankata's claim
she continued being Chief of Sefikeng acting continuously on behalf
of her husband. She didn't bother to show that she was now Chief in
her own right. But of importance is that the 1st defendant never
challenged her. Yet the law is so clear that if indeed he had a right
as a successor nothing would have stopped him asserting his right
during the very life-time of 'Mankata but because "where there
is no male issue the widow succeeds" it would not be wrong to
infer that the 1st defendant took good counsel of prudence not to
dash in where the angels fear.
evidence before Court remains uncontradicted that it was only after
'Mankata's death that the 1st defendant wanted to assert that he had
a right to succeed.
there is a right no counter conditions can prevail, real or perceived
for the right overcomes all.
my view it is obvious why the lst defendant temporised and failed to
assert his purported right. He only came out of the woodwork because
'Mankata was no longer there. Thus now it becomes convenient for him
to pursue the question of existence of the marriage where 'Mankata
had alleged none at all existed.
plaintiffs witnesses were surprised by the 1st defendant's claim that
his mother was married to Chief Mojela when they in fact knew that
this was not the case. Further that she was housed in one of the run
down hovels used by the homeless and vagabonds.
witnesses were very impressive and cross-examination enhanced the
impression I formed of them that theirs was a statement of truth
before this Court. They indicated, and I felt that they had nothing
against the 1st defendant and that they therefore were not biased in
which were bandied about purportedly bearing the plaintiffs signature
only factor which placed him under the necessity to come into the box
to refute the signature which he did with success.
was told that Api the husband of Mathe did strange things in his
attempt to compel witnesses for the plaintiff to perjure themselves
all because he had fallen out with 'Mankata for the stand she took
regarding the question of who would succeed Chief Mojela; a factor
closely related to whether there was marriage between the mother of
1st defendant and Chief Mojela.
defence didn't bother to have the papers for all they were worth
handed in by person/s qualified to do so.
each time an attempt was made to hand them in by other means than
proper, Mr Sello rightly made it clear they were not being admitted.
This had left the defence with the option to hand them formally if
deemed necessary so that cross-examination could ensue. But the
upshot of the matter is that exercising their discretion it seems the
defence thought better of following that option. In the result even
those papers form no part of this proceeding.
I have no
hesitation in making a finding that the plaintiff has discharged the
onus placed on him for the relief sought. The prima facie case
established at the application for the absolution phase thus becomes
is thus entered for the plaintiff as prayed in terms of prayers (a)
and (b) in the summons.
Plaintiff: Mr Sello
Defendants : Mr Panyane
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