HIGH COURT OF LESOTHO
ELSINA SEMAHLA Applicant
KOENAESELE JOSEPH LEPHOLE Respondent
by the Honourable Chief Justice Mr. Justice J.L. Kheola on the 4th
day of January. 2000
an application for an order in the following terms:
Ramonate Koenaesele Joseph Lephole, the respondent herein, from in
anyway, except by due process of law, interfering with the
applicant's rights of ownership and occupation of or any person
deriving the same from the applicant of certain residential premises
lately the property of Mafereka Semahla, since deceased, situate at
Qoaling, Ha Seoli in the Maseru urban area.
the respondent from going onto the premises for any purpose whatever
that detracts from the applicant's right to the said property and,
more particularly, letting out any portions thereof for hire and
collecting its rent or interfering with any tenants placed thereat
by the applicant.
forthwith the respondent and all persons occupying the said premises
by act or deed of the respondent from the same.
the applicant the costs of this application.
the applicant such further or alternative relieve as to this
Honourable Court may seem just.
common cause that the applicant is the widow of the late Mafereka
Semahla. They lived at Levy's Nek in the district of Leribe where
they had a home. In 1965 her late husband came to live here in
Maseru. During his stay in Maseru he lived as husband and wife with a
certain woman who used to state that her name was 'Mateboho Alina
Mokhali and she said that she was married to one Tlhoriso Nchepe.
his stay in Maseru her husband (the deceased) built a four roomed
house which constituted his residence, three single and one double
roomed structure let out to tenants. The applicant alleges that she
used to collect rent of these rooms since the deceased's death
without let or hindrance. The trouble started in 1996 when the
respondent expelled all her tenants from the rooms and substituted
them with his own tenants from whom he collected rent for his own
applicant alleges that the respondent is the husband to the sister of
the woman who she has averred used to live with the deceased. The
respondent's aforesaid conduct emanates from his claim of right based
on this relationship. She respectfully submits that this is
untenable, insupportable and merely provocative. She further submits
that the respondent is taking advantage of the fact that she is
single and an old woman aged seventy-eight years.
opposing affidavit the respondent gives an entirely different story
from that of the applicant. He avers that the woman referred to above
by the applicant was the second wife of the deceased. Her name is
'Mateboho and her eldest son is Teboho. The respondent has filed
supporting affidavits of people who know that the deceased and
'Mateboho were lawfully married to each other
customary law. Their marriage was blessed with three children,
a girl bom in 1963.
a boy bom in 1967.
a girl bom in 1980.
to the respondent Teboho as the only son in the second house of the
deceased is the heir in that house. The applicant is the senior wife
of the deceased in the first house. Her son, Pitso, is the heir in
the first house. In 1994 in CC 86/94 of Matala Local Court Teboho
sued Pitso for ejectment from the site which is the subject matter of
the present application. That case was decided in favour of Teboho
and Pitso was ordered to vacate the site as it was found by the court
that it was Teboho's parental home. The court found that Pitso had
his parental home at Leribe ha Nkhasi. That is where the deceased had
his home for his first house.
judgment of Matala Local Court in CC 86/94 is annexed to these
proceedings as Annexure "A". It seems that Pitso was not
happy with that decision and applied for review by Chief Magistrate
on the 13th September, 1994. The learned Chief Magistrate confirmed
the decision of the President of Matala
Court. That decision is Annexure "C" to the present
respondent avers that during 1995 Teboho fell ill and authorised him
(respondent) to follow up the execution of CC 86/94. Annexure "B"
is a document signed by Teboho authorising the respondent to
represent him because of ill health and work. Annexure "B"
was made in terms of section 20 of the Central and Local Courts
Proclamation No.62 of 1938. In 1996 Teboho passed away leaving
orphans who also appointed the respondent as their representative in
litigation. Annexure "D" is a document made by the orphans.
He denies that he uses the rent for his own benefit but avers that he
duly passed it to the minor children.
supporting affidavit 'Mantsane Amelia Mokhali avers that she is the
mother of 'Mateboho who was married to the deceased by customary law
in 1967 and that about eighteen head of cattle were paid as "lobola".
She confirms that one Charles Mofeli was sent to her family to engage
'Mateboho on behalf of the deceased. She accepted the engagement but
insisted that the marriage should be solemnised in church because she
was a Christian.
supporting affidavit Charles Dabende Mofeli avers that the deceased
cousin. In 1967 the deceased married 'Mateboho by Sesotho law and
custom. He was personally present and thirteen head of cattle were
paid as "lobola". In 1968 the deceased and 'Mateboho were
allocated a residential site at Maseru Lower Seoli. He avers that he
knows that as a matter of fact because he used to stay with the
deceased and 'Mateboho. The said site was allocated to them by Chief
Jobo Seoli Matsoso.
supporting affidavit 'Matsoso Margaret Lephole avers that during 1967
her sister 'Mateboho married the deceased. At the time of his death
the deceased had already paid eighteen head of cattle as "lobola".
supporting affidavit is made by one Matsoele Matsoele who avers that
the deceased is his brother-in-law as he is married to his sister
'Malikhapha. He knows as a matter of fact that the deceased married
Mateboho and paid eighteen cattle as "lobola". He even
contributed an amount of five hundred maloti for his marriage.
replying affidavit the applicant avers that she is unable to deny
that her late husband paid "bohali" for 'Mateboho. What she
does submit is that such purported "bohali" could not
result in any marriage whatsoever inasmuch as when
allegedly paid "Mateboho was still lawfully married to one
concession made by the applicant that she is not in a position to
deny that her late husband paid "bohali" for the marriage
of'Mateboho settles this matter. Her late husband was a polygamist
with two wives. The applicant was the senior wife whose home was in
Leribe. 'Mateboho was the second or junior wife with her home at
Seoli's here in Maseru. The applicant's submission that the "bohali"
that was paid by her late husband for the marriage of 'Mateboho could
not result in a marriage inasmuch as when it was paid 'Mateboho was
still married to one Tlhoriso Nchepe is without any substance. The
applicant has failed to call Tlhoriso Nchepe as her witness to prove
that 'Mateboho was his wife at the relevant time when the deceased
purported to pay "bohali" for her marriage. This is the
second time that the applicant has failed to call Tlhoriso Nchepe as
her witness. On page 49 of the record in CC 86/94 the Local Court
President remarked that her heir (Pitso) failed to call this star or
very vital witness in his case. The evidence by the respondent and
his witnesses is to the effect that 'Mateboho was still unmarried
when the deceased married her. It is their evidence that she already
had some children when the deceased married her but he took her
together with them. Teboho and Mpho were bom after the marriage. What
importance is whether there was a valid marriage between the deceased
I have found that there was a valid customary marriage between them
and that the applicant has failed to prove any marriage between
'Mateboho and Tlhoriso Nchepe.
aspect of this case which is causing me some serious concern is the
fact that as long ago as 1994 the two widows of the deceased already
had heirs who were already majors. Teboho is the son of 'Mateboho. He
instituted an action against Pitso who is the son of the applicant.
He wanted to have him ejected from the same site which is the subject
matter of the present application. The case is CC 86/94 which is
Annexure "A". Teboho won the case and Pitso was ejected.
The Chief Magistrate confirmed that judgment on review.
been no appeal against that review order. The applicant has changed
the forum and has come to the High Court to have the respondent
ejected from the said site. His son Pitso is still alive and is her
lawful heir who lost a similar case against Teboho. What is clear
from the record is that the marriage of 'Mateboho was found to be a
lawful one. How can the applicant again raise the question of the
validity of "Mateboho's marriage again when her heir has already
lost that case? It can be argued that the case is not res judicata
applicant and respondent are different parties. I agree with that.
However Pitso is the applicant's heir and has already lost the case
in which the validity of 'Mateboho's marriage was well canvassed and
was found to be in order. The respondent is merely a representative
of the minor children of 'Mateboho.
stand: of the applicant also arises in this application. Section 11
(1) of the Laws of Lerotholi provides:
heir in Basotholand shall be the first male child of the first
married wife, and if there is no male in the first house then the
first bom male child of the next wife married in succession shall be
there is no male issue in any house the senior widow shall be the
heir, but according to the custom she is expected to consult the
relatives of her deceased husband who are her proper advisers."
applicant's heir is Pitso and therefore she has no locus standi to
have brought this application. Her heir was previously sued by Teboho
and was ejected from the said'premises.
result the application is dismissed with costs
Applicant - Mr. Sello
Respondent - Mr. Mafantiri
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