HIGH COURT OF LESOTHO
NQOSA 1st RESPONDENT
on the Honourable Mr Justice S.N. Peete on the 27th April, 2002.
applicant herein claims that the 1st respondent should be ordered to
bury their deceased daughter Puseletso Nqosa who passed away
unmarried on 12th February 2002 aged thirty (30) years old. She
applied for and was granted an interim court order on the 28 March
2002 couched as follows:
is ordered that:
ordinary Rules of Court pertaining to modes and periods of service
are dispensed with.
respondents to file their opposing affidavits (if any) on or before
noon on the 2nd day of April 2002, and the applicant to file her
replying papers on or before noon on the 3rd day of April 2002, and
the matter be heard on Thursday the 4th day of April 2002 at 9.30
am. Or so soon thereafter as the matter may urgently be heard.
Rule Nisi be and it is hereby issued returnable on the 4th day of
April 2002 calling upon the respondents to show cause (if any) why:
first respondent shall not be directed to take over the
responsibility of burying the late Puseletso Nqosa from House No.
186 at Mohalalitoe in Maseru.
(ii) Interdicting 1st respondent from interfering with funeral
arrangements and ceremonies in respect of the late Puseletso Nqosa to
be held at House No. 186, Mohalalitoe Maseru on 6th day of April
second respondent and/or officers subordinate to him shall not be
directed to maintain peace at the said funeral on the day of 6th
respondents shall not be ordered to pay costs hereof in the event of
Prayers 1 and 2 operate with immediate effect as interim court
founding affidavit, the applicant avers that in 1968 the 1st
respondent eloped with her. A chobeliso had occurred. She states that
their parents met later and agreed that twenty head of cattle, a
sheep and a horse were to be paid as bohali for marriage.
further to allege that "six cattle were given in marriage. ...I
aver that our marriage took place in 1975" (my underline). This
is important because it is not in dispute that the deceased was born
on to state that in 1984 there was a court litigation at Ralejoe
Local Court wherein Tholae Nteso her father sued Kelebone Nqosa - the
senior brother of 1st respondent - for 14 head of cattle being the
balance due to complete the twenty bohali "Sekepele". She
annexes a document "MN2" which is dated "4.2.75 Ha
Nqosa, Lipeleng Lesotho Re lumellane le Kelebone Nqosa ka likhomo tse
tseletseng tsa lenyalo 'me tse 14 ha li e-so tsoe ha sekepele sa
lenyalo e le mashome a mabeli a likhomo.
tse neng li le teng lehlakoreng la Tholae Nteso Ke Zakaria Nteso Le
Bosiu Nteso Lehlakoreng la Kelebone Nqosa ke Lazaro Nqosa. Mongoli ke
clear that this document was written post facto in 1975. The persons
it mentions were not present and did not sign the document as is the
clear therefore that in 1968 when the six head of cattle were paid
something was written down. The fact of chobeliso was still a
standing issue and was not forgone. Certain documents seem to have
been handed in at Ralejoe. Their importance required that they be
retrieved because they would indicate whether the six cattle were
being paid for chobeliso or for bohali. Unfortunately these documents
could not be found at Ralejoe. This does not help the applicants an
iota. Our Basotho courts have held that the mere description given in
a bewys - "bohali" or otherwise - can never be decisive
since the bewys is commonly obtained by the man's family who
unilaterally instruct the bewys writer to put the word "bohali"
hoping that their cattle will be accepted as such - Limape vs Lebona
- J.C. 95/1966. The Ralejoe Local Court judgment is however not at
all definitive on the issue of bohali because it dismissed the case
upon the reasoning that the first respondent should have been sued
and not Kelebone Nqosa. The matter is therefore not res judicata.
common cause that since 1982 the applicant and 1st respondent have
been living apart - a substantial period of about 20 years - and the
1st respondent is now married and living with another woman at Plot
No. 186 Mohalalitoe below the Lesotho High School.
applicant avers that when he was informed about the death of
Puseletso the 1st respondent shirked the paternal responsibility
stating that Puseletso was not his child and that there was not
marriage between himself and the applicant.
states she is now living in a rented flat at Matamane Borokhoroaneng
and that the 1st respondent should shoulder as father of the deceased
and her husband all the funeral arrangements.
advises the court that the first respondent is a "rowdy and
belligrent person" and wants the court to order that the police
should be present to maintain peace and security at the funeral.
opposing affidavit the first respondent he admits that in 1968 he and
applicant eloped but contends stated that the cattle which were paid
later were for elopement (chobeliso) and not for bohali.
that MN2 (supra) is a forged document surreptitiously made by the
applicant's father Tholae Nteso who being the chief secretary was
able to affix thereto the chief's stamp. He states that the applicant
maliciously deserted and left the matrimonial home in 1985 publicly
stating that even Puseletso was not his child.
he is presently living with his wife whom he married by civil rites
on the 23rd March 1988.
on to state that the plot no. 186 at Mohalalitoe where he is
presently living is his sole matrimonial home with his wife Mamatete
Nqosa and that applicant cannot claim that funeral arrangements for
Puseletso be made at the house. He concludes that Puseletso belongs
to the applicant and Nteso family. The Nqosa family is under not
legal obligation to bury her.
quite evident that there was a serious dispute as to whether a lawful
customary law marriage between applicant and the 1st respondent ever
existed. The onus naturally is on the applicant to prove this fact on
a balance of probabilities. In terms of Rule 8 (14) of the High Court
Rules oral evidence was therefore allowed to be led on the issue of
of the applicant, Bosiu Nteso was called and he informed the court
that the applicant was his younger sister. He confirmed the fact that
in 1968 the applicant and first respondent eloped and that later six
head of cattle were paid by Nqosa family in 1968 or 69 "they
were for bohali" and that "chobeliso" was forgone.
Present then were Zakaria Nteso (late), Kaizer Ratalenyane (late),
Moahloli Nqosa, Simon Nqosa. Although something was written down
after this cattle payment was made in 1968, the court is however
still in the dark as to what was written down and we have the two
conflicting versions of the applicant's witnesses that the six cattle
were being paid for bohali and that of the 1st respondent that it was
for chobeliso and that bohali was never agreed between the parties.
It is clear however that the applicant lived in the matrimonial home
for about seventeen years. Cohabitation however does not per se
establish a marriage where none exists. Under the customary law in
Lesotho marriage is established only if there exists:
between the parents of the parties as to marriage and as to amount
between the parties to marry; and
of bohali or portion thereof. (Section 34 of the Laws of Lerotholi)
While one would assume in applicant's favour that their cohabitation
indicated their willingness to live as man and wife, there is no
credible evidence - besides the two opposed versions - that (a) and
(c) were established on a balance of probabilities by the applicant.
Brother Molai J. stated in Lepelesana vs Lepelesana - 1985-90 LLR 86
at 90-91 where the parties had cohabited for some time, but there was
no parental agreement
"In my view, for a valid Sesotho customary marriage, all the
requirements referred to under the provisions of S. 34 (1) of the
Laws of Lerotholi must be satisfied. The second requirement, has on
the balance of probabilities not been satisfied. I come to the
conclusion therefore that on the evidence no valid Sesotho customary
marriage has been proved.... "
case the learned judge noted that from their living together, "it
seems reasonable therefore to infer from this that the parties had
agreed to marry each other."
case a lawful marriage would be proved if it is showed that the
Nteso's and Nqosa's agreed in 1968 that marriage between applicant
and first respondent was to take place and that the six head of
cattle paid were being paid for bohali and not for chobeliso. That
the documents handed in at
in 1984 are missing is not a misfortune that should be placed at the
door of the first respondent - it is for the applicant to rise or
fall by her case.
Poulter in his book Family Law and Litigation in Basotho Society
(1976) p.115 opines that where six or less head of cattle are paid
following an elopement (abduction) they will be presumed merely to
constitute a compensatory payment for abduction and therefore the
onus is thrust upon the man's family to prove that they requested the
inclusion of these cattle in the bohali and that the girl's father
acceded to this request. (Matlere vs Raphoto - J.C. 74/1966;
Puseletso vs Raphoko - J.C. 11/1957.
(supra) goes on to say
task of proving a valid marriage where less than six cattle have been
paid following an elopement will be just as hard, if not harder, for
the parties will still usually be at an early stage in the marriage
conclusion the learned author states:
broad position is this. For any marriage following an elopment to be
regarded as complete it must satisfy the requirements of Section 34
(1) of the Laws of Lerotholi). While it is true that compensatory
cattle may be "borrowed" for inclusion within bohali if the
girls1 father is agreeable, the fact that he has really consented
both to this and to the marriage is far more readily established
where he has
a total of more than six cattle. Even here, this fact of accepted is
far from conclusive proof of a completed marriage. But where six
cattle or less have been paid it is clearly correspondingly harder to
prove his agreement to the marriage ". P. 116-7.
evidence of Bosiu Nteso is to the effect that one Kelebone Nqosa
later brought an emaciated horse pleading that it be taken as two
cattle to make eight cattle (this version, as we shall see, is denied
by Kelebone Nqosa). Bosiu says the Ntesos refused to accept the horse
and Kelebone returned with it and never came back. Until the present
no other animals have been paid by the Nqosa family. The number of
cattle paid therefore ever since stood at five according to the
called by applicant was Moahloli Nqosa who stated that in 1968 he was
invited by Tholae Nteso to attend the meeting between the Ntesos and
Nqosas at which cattle were being paid as bohali for the marriage
between applicant and 1st respondent; present also were Zakaria
Nteso, Bosiu Nteso, Tholae Nteso, Kelebone Nqosa, Tatolo and Simon
Nqosa, most of whom are now late. At this meeting only a horse had
been brought by Kelebone Nqosa. At this meeting, the Nteso's refused
to accept the horse as a substitute for two cattle. He conceded that
he was absent when the payment of other cattle had been made.
Nonetheless, something was written down but this court was not shown
the relevant document. Under cross-examination, this witness failed
to explain why if he was present at the meeting his name was not
included by Tholae in the document (unsigned by those present)
purportedly made in 1975.I will not go as far as to say that this
document is forged - all I can say is that it is not satisfactory and
seems to have been made post facto
absence of the persons alleged to have been present; in all
probability Tholae Nteso forgot to mention Moahloli Nqosa when he
wrote this document seven years later in 1975.
Nqosa was then called on behalf of the applicant. She told the court
that in 1968 Tsiu eloped Tseleng Nteso and Qobete was later born only
to pass away after two months. Puseletso was then born in 1972 when
applicant and first respondent were living together. She went on to
say that in 1969 she was present and sitting on "moitel"
when six head of cattle were being paid for bohali. Later Kelebone
Nqosa brought a horse as a substitute for two additional cattle, but
that the Nteso refused this offer. She maintained that the applicant
and 1st respondent were man and wife - but estranged since 1985.
applicant then closed her case.
behalf of the first respondent was Kelebone Nqosa who informed the
court that he is the elder brother of the first respondent and that
then-father was the late Tahlo Nqosa. He informed the court that
after chobeliso had taken place in 1968, he informed Tilane
Moshoeshoe - apparently because applicant stayed with him but that
her mother wrote a letter objecting to any payment of cattle being
made to the Moshoeshoe's.
continues to state that five cattle were personally driven by him to
Tholae Nteso as payment for chobeliso in 1968 and these animals were
accepted as such; he later sent a horse as a "sixth cow"
and was accepted as such. He
that the horse he presented was rejected. This is diametrically
opposed to the applicant's version.
that before the Ralejoe Local Court he handed in two documents and
one of them was a bewys dated 1968 and another a document evidencing
payment of cattle being for chobeliso; he contends that the Nqosa's
never entered into any negotiations for marriage nor were the cattle
being paid for bohali because applicant's mother had clearly stated
her opposition to her daughter being married to Nqosa family. He
states that during the 1970s he again drove a horse which was
accepted as a "sixth cow" for the chobeliso payment.
that in 1982 the applicant and first respondent separated after a
bitter accusation by 1st respondent that applicant was committing
rampant infidelities, was a drunk and that he had grown tired of
assaulting her illicit menfriends. He says the applicant was
impenitent and in fact publicly declared her fixed intention of
leaving the 1st respondent as in fact no marriage existed between
them. In response to this the applicant merely states in her replying
went to the Nqosa family as clearly appears in "BB"
hereunto attached Otherwise other contents are irrelevant and I do
not accept them."
cross examination by Mr Mosito he denied that the name of Qobete was
formally given to the applicant's first child because, as he put it,
the's child was born mysteriously "only six months" after
the elopement. He says
Nqosa family did not even wear a mourning cloth when Qobete died two
months after birth. Tholae Nteso had been invited to attend the
funeral as a maternal grandfather.
maintained that in 1968 he personally drove the five cattle to the
homestead of Tholae Nteso and that a document evidencing receipt of
the cattle was written and that cattle were being received as payment
for chobeliso. He says he handed in this document of Ralejoe Local
Court in 1984. (NB it appears as Ex "B" dated 15.5 1968. He
says Rantsala Nqosa had accompanied him on this journey.
further denied knowing anything about an agreement reached by the
Nqosa family that deceased Puseletso be buried at Mohalalitoe. He
denied ever having seen the document or letter "BB" dated
26.2.2002 purportedly signed by Rantsala Nqosa and other thirteen
members of Nqosa family (including his wife Makhethisa Nqosa). He
recognized the signature of Rantsala Nqosa but refuted that
purporting to be his wife's.
that he was ganging with the 1st respondent to shirk off
responsibility to bury Puseletso. He dissociated himself completely
from what was written in the document. "BB"
called was Tsiu Nqosa the 1st respondent. He told the court in no
uncertain terms that the applicant was not his wife but was "only
a girl friend" and that they had eloped in 1968 - at the time
she described herself as a daughter of Tilane Moshoeshoe but later a
letter from her actual mother Matiisetso Nteso clarified the
further informed the court that he personally secured the bewys for
the five cattle from his Chief Seeiso Makotoko Theko and accompanied
Kelebone Nqosa halfway when the said cattle were being driven to the
house of Tholae Nteso a distance of five kilometers. He says these
five cattle were a payment for chobeliso, and that a horse was in
later years sent as "a sixth cow".
explained that he has been living at house No. 186 Mohalalitoe since
1977 and that because of marital problems, the applicant left the
marital home in 1984. He had summoned the holding of a joint Nqosa -
Nteso family meeting at which the applicant had declared that she no
longer loved him and since there had been no marriage she was taking
all the children along.
informed the court that in 1986 he married his present wife Mamatete
Nqosa and that they have two children.
he was never informed about or invited to the Nqosa family apparently
held on 26.2.2002 at which a decision was made that Puseletso be
buried at No. 186 Mohalalitoe. He dissociates himself from its
decision as taken.
cross examination by Mr Mosito he admitted that he was not personally
present when the five head of cattle were handed over to Tholae Nteso
on the 15.5.1968. He says that on that day he noticed that Rantsala
Nqosa was also present at Tholae Ntesos.
hard pressed by Mr Mosito the 1st respondent was led to state
publicly that though he might be the biological father of Puseletso,
Moetsa and Julia, they are not his children because he was not
married to their mother.
crucial issue in this case is whether customary law marriage existed
between applicant and respondent and since Puseletso was born in
1972-about four years after elopement -Puseletso can only be a
legitimate offspring of 1st respondent only if - and only if - the
cattle paid in 1968 were being paid for bohali and not for chobeliso.
As I have stated, the evidence in this regard is equivocal and
inconclusive. If chobeliso had not occurred, perhaps things would
stand on a different footing. We cannot wish it away either.
It is our
law that where an applicant launches an application and foresees a
dispute of fact (and in this case such dispute was clearly foreseen
because since 1975 or at most 1985 the existence of the marriage was
being questioned), the respondent's version will be accepted where
there is a conflict. In this case the applicant's case is embattled
by the fact most of the people who are alleged to have been present
in 1968 meeting have since passed on to the other world; secondly,
the important document, are missing from the Ralejoe Local Court
file. She must however, as applicant, stand or fall by her papers and
the viva voce evidence also given. This evidence is equivocal and
mutally destructive and I am of the view that the applicant has
failed to discharge on a balance of probabilities the onus resting on
her to show convincingly that the payment of cattle was for bohali
and not chobeliso. Ralejoe Local Court made no definitive decision on
reliance should not be place on the document MN2 because it is not
signed by people allegedly present but only by Tholae Nteso. I also
fail to understand why the document is dated 1975 when the cattle
were paid in 1968 - 7 years previously. The court has not been told
that this 1975 document was for the agreement made in 1975 when the
horse was brought - anyway there is no mention of a horse in the
conceding that chobeliso occurred in 1968, Mr Mosito submits in the
main that a distinction has to be brought between "right to
bury" and "duty to bury" and argues that "duty to
bury" is a matter more of public policy and of what is morally
right. He quotes in support thereof the case Ntloane - C of A .....
No.42 of 2000. Mr Mosito further submits that it is against public
policy and amoral for a father to forsake the burial of his
biological offspring. The 1st respondent whilst not refusing
paternity, states that he has no legal obligation to bury Puseletso
his daughter at the house at No.l86 Mohalalitoe.
regards marriage, Mr Mosito submits that where parties cohabit for a
long time there arises a rebattable presumption of validity of
marriage and the evidential burden then rests upon the respondent to
show on a balance of probabilities that no marriage exists. Caution
must however be had before applying a common law presumption to a
customary law problems. He submits that the 1st respondent and his
witness Kelebone are "disaster" witnesses who are unworthy
of credence. He says it is more probable that the document "BB"
dated 15.5.68 was handed in as evidence of bohali payment. One should
however note here that Kelebone could not possibly hand in a document
which was prejudicial to his interest. It is probable
that it was handed in as evidence for chobeliso payment and not for
bohali. The document MN2 dated 21.2.75 would, in my view carry
satisfactory weight, if it was signed by persons allegedly present;
it is only signed by Tholae Nteso. This document was handed in at
Ralejoe Local Court and date - stamped 24.4.84 as Ex.A. and Kelebone
has however dissociated himself from it.
further submits that the fact that Matsiu Nqosa says she was -
sitting on "moiteli" confirms the version that bohali
negotiations were taking place. He argued that all the evidence - on
affidavit and viva voce falls to be subjected to the litmus test of
credibility and argues that must of the version of the respondents'
case was not put to the applicants witnesses to admit or deny and
that the demeanour of 1st respondent and Kelebone Nqosa left much to
be desired; he cited the cases of R. v. M. 1946 AD 1023; Small v
Smith 1954 (3) SA 433 at 438 and Khanyapa vs Rex 1997-8 LLR 8. He
rested his case upon the argument that in this case the ideal of
public policy should tip the scales of probabilities in favour of the
Thabane, for the 1st respondent, submitted in the main that all
requirements of a valid marriage have not been shown to exist under
customary law. The occurrence of chobeliso prior to the payment of
cattle has, in her respectful submission, marred the applicant's
case; she argues that unless it can be shown that there was a prima
facie parental agreement and part-payment of bohali over and above
chobeliso issue, the onus rests heavily upon the applicant on the
balance of probabilities to prove the existence of such marriage.
Marriage under customary law, she argues, cannot be presumed - and
that section 34 of the Laws of Lerotholi lays
essentials of a customary law marriage. (cf Hoffman and Zeffertt - SA
Law of Evidence 4 ed p.538 as to presumption of marriage under common
case, she further submits there is absolutely no prima facie evidence
that the delict of chobeliso was condoned. She submits that no much
reliance can be placed upon the fact that Matsiu Nqosa had said that
she sat on moiteli without first deciding on the issue of chobeliso.
Thabane submits that if Matsiu wishfully sat on moiteli without
mutual parental agreement, she did so indeed prematurely or indeed
restatement of the concepts of chobeliso, bohali and customary law
marriage deserves a glimpse. Our customary law marriage in Lesotho
differs greatly from the marriage entered into under western civil
rites in that a customary law marriage is a process that involves the
parties' agreement to marry and the mutual agreement between the
parents of the intending spouses; it further involves nominal payment
of bohali cattle. The western type marriage can indeed come into
existence within minutes after the two parties solemnly agree before
the marriage officer if no impediments exist. The common law
presumption of validity of marriage does not in my view apply under
custom even if parties live together ostensibly as man and wife
unless the parental agreement as to marriage and part payment of
bohali can be established. In the application in casu, the
applicant's case is shadowed
fact that (a) chobeliso occurred and (b) the number of cattle paid in
1968 did not exceed six and (c) the evidence as to whether these
primary payment was for chobeliso or bohali is equivocal and is
mutually destructive, (d) the important document dated 15.5.68 is
missing. The Court is in the dark! (e) the important witnesses have
of all these, the court has to make do with the available material
presented to it. Credibility may be the issue, but our customary law
- static as it seem - requires those three important essentials
(section 34 of Laws of Lerotholi) before this court can come to a
conclusion that a customary law marriage exists. As my Brother Molai
J stated in Lepelesana vs Lepelesana (supra) cohabitation of parties
does not per se create a marriage under customary law unless it shown
that there was a mutual parental agreement as to marriage and amount
of bohali and some nominal payment (or at least agreement thereto).
To do otherwise, would be to create a customary law marriage where
none exists. Marriage is a legal status created by law ... not mere
considered all the circumstances of this case, I have come conclusion
that in view of the equivocal nature of the evidence presented before
this court and this being an application, the court must accept the
respondents' version that the cattle which were paid in 1968 were for
chobeliso and not for bohali.
matter there has existed a very serious dispute of fact on the
existence of marriage since 1984 (cf Ralejoe Local Court CC6/1984).
This must have been obvious from the start. The existence of this
customary law marriage
possibly be decided upon affidavits - See Deke vs Qhoai - 1985-1990
LLR 458 where Sir Peter Allen J. dismissed a similar application
(abduction followed by cohabitation resulting in birth of children)
upon the sole ground that the application should have foreseen that
the fact of existence of marriage would be highly disputed and should
not have sought relief by way of application.
as Cullinan CJ (as he then was) aptly stated in B.T. Wholesalers v
Lesoma 1985-1990 LLR 276 that where there are two stories mutually
destructive, the court has to be satisfied on adequate grounds that
the story of the litigant upon the onus rests is true an that of the
and the other false. In this application the version of the
respondents has not shown to be false.
therefore going to make no definitive conclusion as to the existence
or non-existence of marriage in this application proceedings; and
since this matter was not decided on at Ralejoe Local Court, the
issue will remain and may be pursued fully as a trial in another
forum. The legitimacy status of children should never be decided upon
is therefore discharged.
Applicant : Mr Mosito
Respondent: Mrs Thabane
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