HIGH COURT OF LESOTHO
MAKHUTLA 1st RESPONDENT
MAKHUTLA 2nd RESPONDENT
HOUSING AND LAND
CORPORATION 3rd RESPONDENT
by the Honourable Mrs Acting Justice A.M. Hlajoane On 15 Day of
to the papers filed of record, applicant is a widow whose husband
died in a car accident on the 24th March, 2001. The first and the
second Respondents are brothers to the deceased, the first Respondent
being an ex-soldier and the second Respondent still a soldier.
papers show further that the Applicant and her deceased husband had
not been staying together for sometime due to marital problems
between them. When the husband died they were still in separation.
Applicant was only informed of her husband's death by the wife of her
husband's eldest brother who apparently is also a widow. It has also
been the Applicant's case that in all her married life with her
deceased husband, first Respondent has always been source of their
Application, Applicant is asking the Court to order the first and
second Respondents to restore to her forthwith:
(a) (i) her husband's South African Passport
(ii) her husband's South African Identity Card (ID)
(iii) her husband's death certificate
to release to her the following:
Dining room suite
Television Set (Tedelex make)
Four Burner Gas Stove
Dishes, Cookery, and Cutlery
3rd Respondent be restrained from releasing to 1st and 2nd
Respondents compensation money accruing from Applicant's and her
deceased husband's field situated at Likotsi Ha Tikoe, declared by
3rd Respondent as a selected Development area.
Respondent be ordered to pay over to Applicant compensation for the
field referred to above.
1st and 2nd Respondents be restrained from making death threats
against the Applicant and other members of Makhutla family who
support Applicant as a family member of Makhutla family.
pay costs of suit.
admit in his answering affidavit that Applicant's husband died in a
car accident and that one 'Mamokete Makhutla is the widow of his
eldest brother, the first Respondent denies categorically that he
ever caused any rift between the Applicant and her late husband. He
also denies that the Applicant is the head of the family of Makhutla
but that the second Respondent becomes the head of Makhutla family. I
will not say much on who is the head of the family as that is not the
issue for determination before this Court.
worth mentioning at this stage that Applicant in her case is
supported by the affidavits of 'Mamokete Makhutla, the wife of the
late Fallang Makhutla, who was the Respondent's eldest brother;
Lehlohonolo Makhutla who calls both Respondents his uncles; and
Sechaba Makhutla who also showed he belongs to the Makhutla family
and that Respondents' father is his uncle.
answering affidavit, first Respondent does not deny that the
Applicant is the lawful wife of his late brother, Thomas Makhutla.
Neither does the first Respondent deny that he is in possession of
the documents claimed by the Applicant, viz the deceased's South
African Identity document, South African Passport and Death
Certificate but alleges that they were buried with the deceased as
they could not be of any use to anybody. In his words he says, "they
are in deceased's coffin under his pillow, and regard being had to
the high degree of bleeding that the deceased had, I guess the
documents have now decomposed".
and consider the first Respondent to have been malicious and
unreasonable, if I were to believe his story of having buried the
deceased with the documents in question. The first Respondent wants
us to believe that in this day and age, a death certificate could be
labelled as one of those useless documents that could be buried
together with the dead body in its coffin. I would not buy his story,
but take it that in fact the documents are still in his possession,
but only wants to spite the Applicant. His attitude towards the
Applicant shows so much hatred to the destitute widow. He has not
even denied that at some stage he had approached a lawyer to open a
divorce file for Applicant and her husband who unfortunate for him
reconciled. It is unheard of even under our custom to be told that
such valuable documents were buried with the deceased. As rightly
counsel for Applicant, that in every claim that a widow might wish to
make, she will be backed up by supporting documents such as a death
certificate. Both Respondents could only assist the Applicant but not
deprive her of what rightly belonged to her. It was for the Applicant
to deal with such documents as she pleased, but not the Respondents.
Applicant had a better title to them than the Respondents. Even for
Insurance claims, the death certificate will be needed and for Road
of Household Property
Applicant is asking the Court to order the Respondents to release to
her the property listed under (b) above.
Respondent is denying any knowledge of such property as shown under
(b) as he shows that nowhere has Applicant mentioned in her affidavit
that such property is in his possession. But he avers that the fridge
in question is at Germiston where Applicant's deceased husband was
staying with another woman, a South African. He says all that
property is in Germiston and that he can volunteer the address.
earlier on said in this judgment that I was not going to touch who is
of the Makhutla family. But I must hasten to mention that the first
Respondent in his affidavit deposed to the fact that second
Respondent is the head of the Makhutla family, and as such one would
have expected to hear Respondent saying they called or sent for
Applicant about her husband's death or approached the chief. No one
of them claims to have taken the initiative in seeing that applicant
was clothed in the mourning attire for her husband let alone
attending her husband's funeral. What only comes out is that both
Respondents attacked though not physically people who attended the
mourning ceremony one by one.
and her husband might have been married by civil rights but they do
not seem to have fully abandoned the customary way of life. Applicant
was clothed in mourning attire to mourn the death of her husband by
other relatives other than the respondents. By the same token, her
male relatives ought to have been the ones in assisting her to
recover her property from wherever it had been kept.
Respondent shows that the fridge is in Germiston, same as all the
other property under prayer (b) above. This is a clear indication
that second Respondent knows about the property. He alleges the
property is in Germiston with the woman who was staying with the
deceased, understandably was living
in adulterous association.
own words, second Respondent says, relating to the property alleged
to be in Germiston, "Applicant is free to go to Germiston and
she will meet that woman in Germiston". They will meet and what
is going to happen or expected to happen when they so meet?
second Respondent, being the only one who deposed to an affidavit in
answer to the Applicant's claim, has in fact not denied, knowledge of
the documents and property but only strives to justify why the items
are where he wants us to believe they are or had been stored.
not been very clear as to where the funeral took place, but it is
common cause that the Applicant did not attend her husband's funeral
as she was afraid of the Respondents. She even approached the chief
for assistance. Also other daughters-in-law chose not to go for fear
of the Respondents, one of them alleging under oath that she suffered
the same maltreatment by the Respondents during the death of her
husband, the eldest brother to Respondents. To these allegations the
second Respondent has only given a bare denial, and says he does not
know why the Applicant did not attend her husband's funeral.
of compensation Money
on this point alleges that her late husband was allocated a field at
Likotsi Ha Tikoe, which field had been declared by the third
Respondent, Lesotho Housing and Land Development Corporation, a
selected Development Area. As such there is some compensation money
being paid for that field.
opposing papers the first Respondent showed that in fact the field
never belonged to Applicant's husband but that the deceased had only
been using it during the lifetime of their mother. In support of this
a letter purporting to have been written by their late mother is
attached to the papers and labelled "LAMI"
authenticity of that letter is being challenged by the Applicant
showing that the hand writing is not in her mother-in-law'
handwriting. In support of her case on that point, the Applicant has
annexed two letters from the chief bearing two different dates in one
month, and also a list of field owners where Applicant husband's name
appears. In the first letter annexure MDI, the chief wrote to Lesotho
Housing and Land Development Corporation (LHLDC) informing them of
the mysterious disappearance of the form in his office relating to
the field in question for Applicant's husband. He was also
introducing the Applicant as the successor to the title in that
field. See Land (Amendment Order) No. 6 of 1992
"(2) Notwithstanding section (1) where our allottee of the land
dies, the interest of the allottee to,
(a) Where there is a widow, the widow is given the same rights in
relation to the land as her deceased husband.
the case of'Mapali Phakoe vs Teboho Phakoe and Others 1997-98 LLR
second letter annexure MD2, the chief wrote to cancel his date stamp
on a letter by the Makhutla family which purported to transfer Thomas
Makhutla's rights to the field in question to Moqeti Makhutla who
unfortunately is even insane. His explanation being that he had been
made to sign in a hurry but that he had signed without having read
the papers due to pressure of work and that the person who had come
for signature pretended to be in such a hurry. In short the chief
showed he had been cheated into signing that transfer letter as he
knew all along that the field belonged to the Applicant's husband and
1st Respondent only signed on his (deceased's) behalf as he
(deceased) was at work. This is therefore no case where the Court
could adopt the Plascon Principle and assume the correctness of the
Respondents' version, the facts are so clear and evidence on the
paper is overwhelming, coupled with the conduct of the Respondents.
is therefore clear that the field in question belonged to the
Applicant's husband, the compensation money accruing from the field
belongs to the Applicant as the deceased's legal wife. The 1st and
2nd Respondents therefore are restrained from receiving that money
and 3rd Respondent also restrained from releasing that money to the
1st and 2nd Respondents. By the same token the 3rd Respondent is
ordered therefore to pay over the compensation money to the
regards the prayer pertaining to death threats against Applicant and
all those who support her of Makhutla family, the first Respondent in
his answering papers admitted having approached one Lehlohonolo
Makhutla at his (Lehlohonono) office to ask him why he had
participated in the act of clothing Applicant with mourning cloth. As
if Thomas was going to die again and Applicant wear her mourning
attire for the second time, the first Respondent went further to say
to Lehlohonolo that he should never repeat that act again. First
Respondent's behaviour confirms the allegation that he attacked in
words, threatening words, one by one all those who attended the
ceremony of the Applicant of putting on a mourning cloth.
Applicant therefore succeed in all the prayers she had asked for with
issues of locus standi would not stand as there is evidence on papers
that the field belonged to Applicant's husband. There has been no
genuine dispute of facts which could necessitate the calling of viva
voce evidence. All the facts have been admitted by the Respondents in
their papers. Respondents showed they know about the deceased'
Passport, Death Certificate and Identity Card ; also the household
property. As borne out by the chief the field belonged to Thomas
Makhutla and on his death his wife succeeds to the title, therefore
the Applicant entitled to the compensation money.
application succeeds with costs.
Applicant: Mrs Kotelo
Respondents: Mr Mosito
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