CIV/APN/196/2001

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

NTSIOANA
TSATSI Applicant

and

MOHAU BOY
TSATSI First Respondent

METROPOLITAN
LIFE Second Respondent

COMMANDER
MAKOANYANE BARRACKS Third Respondent

THE
ATTORNEY GENERAL 4th Respondent

For the
Applicant : Mr. Mofoka

For the
Respondent : Mr. Mosae

IUDGMENT

Delivered
by the Honourable Mr. Tustice T. Monapathi on the 10th day of June
2002

This was
an application in which Applicant prayed for an order declaring her
as a beneficiary on the death of alleged husband, the late Rafutho P
Tsatsi, under a policy held by the Second Respondent.

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This
urgent application was lodged at the time when preparations were
already being made by the Second Respondent to issue First
Respondent, the deceased's father with a cheque. The First Respondent
consequently claim the said benefits as the deceased's father.

Initially
the application was not opposed and the rule therein was confirmed in
favour of the Applicant. First Respondent applied for rescission of
the order which was granted by agreement of the two Counsel. That
made for the bulkiness of the papers before Court.

First
Respondent opposed the application solely on the ground that
Applicant was never married to his late son and hence she could not
be beneficiary of benefits resulting to his death. In effect he was
disputing that the Applicant was heiress to the estate of the
Deceased but that the Respondent was the lawful heir.

The
following points of law were raised in-limine on behalf of the First
Respondent. Firstly, that the Applicant's founding affidavit did not
comply with the requirements of a valid affidavit as it had not been
sworn to before a Commissioner of Oath. This point was not persisted
in during argument.

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Secondly,
that the Application did not satisfy the requirements of an on
interdict as Applicant has not shown that the award of damages cannot
adequately redress her.

And
thirdly, that there was a clear and foreseable dispute of fact as to
whether Applicant and First Respondent and First Respondent's son
were married, hence Applicant ought not to have proceeded by way of
an application. This being different from whether the matter can or
cannot be decided on affidavit.

The Court
thought that Mr Mosae clearly understood the following. That by
dispute of fact is already meant; "real dispute of fact."
Generally where the facts of a case are in dispute it is undesirable
to endeavour to resolve the matter on affidavit. The requirement in
every case is that a Court should examine the alleged dispute of fact
and see whether there was a real issue of that which cannot be
resolved solely on paper without recourse to oral evidence. It
necessarily meant that if the Court was able to resolve the matter on
the papers there was no need for the referral to viva voce evidence.

I had
problems with the point made by Mr. Mosae. It was that in order to
follow the logic of his argument or points of fact shown in support
of the point-

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in-limine one would conclude that the Court, on probabilities or
relying on the version of the First Respondent, ought to dismiss the
application. This meant that even according to Mr. Mosae's argument
the Court did not need oral evidence to dispose of the application. I
thought in the interest of justice the merits would have to be
investigated because there were other factors that went into the
nature of the papers filed I dismissed the point-in-limine.

In a
similar way to the previous point-in-limine Mr Mosae was not able to
argue without asking the Court to conclude that the case would be
dismissed on the merits. To start with, where the existence of
marriage was alleged by the Applicant such a dispute would be
resolved as a matter of evidence even if legal principles would
finally decide those issues. The Court would still have to decide
whether or not on the papers the matter was such that the Court could
decide the dispute of fact on affidavit. This I could only decide
after hearing the merits.

Secondly,
as a matter of fact, a harm to be apprehended was proved as soon as
the Respondent agreed that he had taken steps to seek to uplift the
cheque from the Second Respondent. It was Applicant's own contention
that First Respondent took such steps.

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Thirdly,
it was not whether another remedy was available to the Applicant
elsewhere. It was whether the remedy claimed herein would, if
granted, by more effective more convenient and less costly. In
deciding so it has to be taken into account the circumstances of the
Respondent. That is, to begin with, whether his rights cannot be
instantaneously decided. And in addition whether an alternative
remedy would not (to the prejudice of the Respondent) entail
re­visiting the facts and the issues which could easily be
canvassed in the present application. I thought this point in-limine
should also be dismissed.

I then
ordered the parties to argue the merits. I understood that the onus
was on the Applicants to prove the existence of a Sesotho customary
marriage. The following elements should occur in a lawful and valid
Sesotho customary law. First, an agreement before the parents as to
marriage and as to amount of bohali. Second, agreement between the
parties to marry; and lastly payment of bohali or portion thereof
(see section 34 of the Laws of Lerotholi). See also Lepelesana v
Lepelesana 1985-90 LLR 86 as referred to in page 7 ad 18 of Maqobete
Nqosa v Tšiu Nqosa and Another CIV/APN/155/02 Peete J 27th
April 2002. I bore in mind that, about the existence of the alleged
Sesotho customary marriage, the Applicant only said the following in
paragraph 6 of the founding affidavit:

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"In 1996 applicant entered into a Sesotho customary marriage
with Rafutho P Tsatsi (deceased) during his lifetime. An affidavit as
to marriage is hereto annexed and marked "Nl". However
applicant's passport and other documents do not reflect the surname
"Tsatsi" as applicant has not acquired another passport
since marriage. The said marriage subsisted until the demise of the
deceased in 2001." (My emphasis)

The
Applicant sought to dispel any suspicion or adverse conclusion based
on the absence of a different passport. I thought this factor could
not be taken in isolation. I noted that in the above paragraph there
was no mention of the bride and bridegroom's parents and no mention
of agreement for payment of bohali. It ought not to come as a matter
for surprise therefore how the First Respondent then responded to the
above paragraph 6 (See paragraph 3 of the answering affidavit).

First
Respondent denied that there was even a Sesotho customary marriage
between the Applicant and Respondent's son. He said if there were
such arrangements he could have known. He denied that as parents they
were ever involved in making such arrangements. He admitted however
that his son and Applicant did cohabit but they remained all along as
a boyfriend and

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girlfriend. First Respondent was supported by members of his family
to say that there was never a marriage between Applicant and the
Deceased. See supporting affidavits of Teboho Tsatsi, Matello Tsatsi,
Mamotebang Tsatsi, Moeketsi Tsatsi and Makhaile Tsatsi.

First
Respondent placed significance on the fact that in 1999 Applicant's
father instituted a court action before Majara Local Court where he
claimed six head of cattle for abduction (chobeliso) of Applicant by
Deceased. Judgment was entered for Plaintiff and First Respondent
still remain owing in terms of the judgment for six head of cattle.
This action was filed while Applicant had gone away and removed to
stay with her father.

The said
Annexure Ml entitled "Affidavit as to marriage" "stated
that there was a marriage between "Rafutho P Tsatsi"
(Deceased) and Ntšioana M Hlalele (Applicant) who were married
at Ha Thamae (Upper) Maseru in 1996. Sempe Godwin Hlalele who was the
deponent said the means of his knowledge was that the Applicant was
his daughter. As I indicated during argument without any other
support and more especially because the affidavit was made after
Deceased's death its probative value was shaky if not uncertain.

To the
said First Respondent's paragraph 31 the Applicant responded as

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follows
in her replying affidavit, to quote the full paragraph:

"I reiterate that I was married to the late Rafutho Tsatsi, 1st
Respondent's son and Respondent knows this fact as he is the one who
asked for my hand in marriage on behalf of his son (deceased). 1st
Respondent later agreed with my parents as to how many cattle would
be paid as bohali. A copy of the said letter is in 1st Applicant's
possession. In 1999 I ngalaed on account of the deceased's adultery
and this angered my father who instituted abduction charges against
1st Respondent." (My emphasis)

There is
a lot to say about the above statement much as it seeks to fill the
gaps in paragraph 6 of Applicant's founding statement. In the first
place this was only made on reply stage which is irregular. See
Executive Committee of the National Committee and 10 Others v Paul
Motlatsi Morolong C of A (CIV) No.26/2001, Ramodibedi AJA, 12th April
2002. Mr. Mofoka conceded as much and accepted that this would even
make it difficult for Respondent to respond except by way of an
additional affidavit at Respondent's own cost and not through his own
fault. There were several shortcomings on the evidence of the above
Applicant's reply (paragraph 3.1).

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Much as
Applicant may have been aware that the fact of agreement over bohali
and the amount of bohali and when negotiations were made (which was
not admitted by Respondent) this was not specified in the statement.
That is why it was urged on this Court that, on probabilities, it was
irresistible to conclude as First Respondent said in paragraph 3.2
that:

"......if the allegation about the existence of the marriage was
true it does not make sense at all that Applicant's father could have
instituted proceedings for six head of cattle for abduction without
also suing for payment of bohali cattle."

It does
not mean that there was no reply nor justification sought by
Applicant against the above. It was as follows; albeit in the
replying stage as said before.

Applicant's
father was acting out of anger as a result of Deceased's adultery
when he instituted the above action as Applicant said. I read this
together with what Applicant's father said in paragraph 12 of
supporting affidavit. Applicant's father therein said he had
instituted the action because

First
Respondent and his wife for taking the side of their son "......when
he beat up my daughter .... They failed to reprimand him/' While
Applicant believed that a claim of abduction did not hinder nor
disprove existence of a Sesotho

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marriage
I found it difficult to reconcile the notion with the alleged
agreement by Applicant's father to the effect that the M400.00 paid
by First Respondent was taken as part payment of bohali. As Peete J
says in Mapeete Nqosa v Tšiu Nqosa and Another
CIV/AFN/155/2002 27th April, 2002, the "evidence as to whether
these primary payment for chobeliso or bohali" should not be
"equivocal" and inconclusive. See page 14 and 18.

Applicant
then pointed out that the First Respondent had been party to marriage
negotiation as reflected in the supporting affidavit of Sempe Hlalele
(Applicant's father). Significantly this was in the replying
affidavit. Much as the Applicant must have had the sense to
anticipate she still did not address the question of the number of
cattle paid as bohali except to say that

".....1st
Respondent has in his possession a letter of agreement as to how many
cattle were to be paid as bohali. Such a letter signifies marriage."

The
impression is beyond doubt that the Applicant continues to miss the
notion that she has the onus to prove as an element of Sesotho
customary marriage that bohali or part thereof ought to have been
paid. This was further fortified by what Applicant's father says in
paragraph 8 of the supporting affidavit that:

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".... still in September 1996,1st Respondent duly came to my
house and told me that he would only pay part of bohali and that the
rest he would pay as time went since a debt does not (subscribe)."

It was
not said how may cattle would be paid. The Court was neither told how
much was in fact paid as that part of bohali.

The
Applicant's father had earlier said he had written a letter to First
Respondent in which he wanted 20 head of cattle, ten (10) sheep and a
horse as bohali for his daughter. He had not made a copy of the
letter. There was no need to emphasize that this still begged the
question as to how many head of cattle were paid,

Mr.
Mofoka for Applicant agreed the above marriage negotiations, if ever,
could best be described as negotiations by correspondence. First
Respondent was said to have written to Applicant's father responding
to "a request for a reply to a letter in which I had stated how
many cattle I wanted as bohali. "The best that the First
Respondent did was to prove that he "would inform as to when he
would come to conclude the matter."

Later on,
and three (3) months later, First Respondent was said to have

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apologized (in a letter) for failing to "pay part of bohali as
promised." This was said to indicate, together with other
circumstances, as the Applicant contended, a marriage between the
Deceased and the Applicant having taken place.

Firstly,
the abovementioned letter from the First Respondent was said to have
referred to a welcome made by the First Respondent of the Applicant
in front of his entire family. Furthermore that the Applicant would
be sent back (as the letter allegedly said) to the First Respondent
for ritual cleansing because she had miscarried.

Secondly,
a letter of the 1st April 1997 was said to have been written in which
First Respondent requested Applicant's father to perform ritual
"maseko" ceremony. And furthermore that permission be
granted for Applicant and Deceased to "confirm" their
marriage-in-church. Applicant's father said he did write a letter
granting such permission.

It was
submitted by First Respondent that all the above communications
between Applicant's father and First Respondent could only
demonstrate that there was a longish period of co-habilitation
between the Deceased and Applicant. This the First Respondent could
have found extremely difficult if not insurmountable to deny. This
means that the second element in a Sesotho

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marriage
would have been or has been easily proved (see page 5 supra).

The
crucial issue in this case was whether there was proof that a
customary law marriage existed between the Applicant and the
Deceased. This is primarily because much as the First Respondent and
Applicant's father allegedly negotiated it did not appear that there
was ultimately any agreement as to the amount of bohali. If there I
was unable to decide on the papers. As the above analysis of the
evidence went it may be no such agreement was reached.

Much as
one would want to take no account of the Applicant's replying
statement, whose pedigree has already been severely criticized, I
however thought that, in the interest of justice, it was fair to
comment on that evidence. And to decide how I would exercise my
discretion in terms of Rule 8(14). Having done so I reached the
conclusion that the matter could not be decided on affidavit and it
ought to be dismissed with costs to First Respondent.

T.
Monapathi

Judge

10June
2002