HIGH COURT OF LESOTHO
GET RUDE RASEBOLELO APPLICANT
RESEBOLELO 1st RESPONDENT
COMMISSIONER OF POLICE 2nd RESPONDENT
ATTORNEY GENERAL 3rd RESPONDENT
by the Honourable Justice Mrs. KJ. GUNI On the 8th August 02
deceased - TEBOHO RASEBOLELO married his first wife-the 1st
respondent's mother by customary law. There is no date given for this
marriage. Apparently they have only one child born of that marriage.
That first-born child of the deceased and his customary law wife is
the 1st respondent herein. Subsequently, on the 25/05/1973 the
deceased married for the second time, another woman by civil
in community of property. Therefore it is an established fact that
the deceased married twice two different women under two different
systems of law.
kingdom we have a dual system of law. The SESOTHO CUSTOMARY Law
system operates simultaneously with the civil law which was received
during the colonialism of this country. Any person intending to enter
into a contract of marriage in this country has a right and he or she
is obliged to elect the system of law which must govern his or her
marriage relationship. Although the two systems (i.e. customary law
and civil law) operate simultaneously, they run parallel each other.
That is why the parties are compelled to make their choice because
they cannot enjoy the operation of both systems together at the same
time. MAKATA V. MAKATA (C of A) 1982-84 LLR Page 29. They can only be
bound by the rules and principles of only one of the two systems -
deceased elected to enter into his first marriage in accordance with
the SESOTHO CUSTOMARY law. The consequences of that marriage are
determined in accordance with the Customary Law.
deceased died on the 9th February 2000. He was buried on the 26th
February 2000. Roundabout March 2000, the family was engaged in the
arrangements to wind and distribute his estate. The applicant herein
obtained letters of introduction as the heiress to the deceased
estate from some members of the family, the chief and the district
secretary. During the same period the 1st respondent also obtained
the same letters from the same offices, as the heir to the deceased
estate. This process of indicating the heir to the deceased estate
was completed round about April.
deceased was a policeman during his lifetime. He died while he was
still working as a policeman at Mafeteng charge office. There are
therefore terminal benefits resulting from his untimely death while
working as a policeman. These are known as death benefits. In his
case they apparently consisted of his salary, leave pay and gratuity.
The applicant claims to be the widow of the deceased,
such she is entitled to receive the said death benefits. This she
claims on the grounds that she married the deceased by civil rites
and in community of property on the 25/5/73. She produced the
marriage certificate - Annexure "A" attached to the
respondent claims to be the first-born son of the deceased and as
such entitled to be his heir according to SESOTHO CUSTOMARY Law.
According to the applicant she became aware that the 1st respondent
was a contestant to the heirship of the deceased's estate roundabout
26th June 2000. She instructed her attorneys of record who wrote a
letter dated 26th June 2000, to the Commissioner of Police. (Refer to
Annexure "E" attached to the founding Affidavit). The
Commissioner of Police was asked to release the death benefits to
no-one except this applicant. For one month or so nothing happened.
On the 8th August 2000, the applicant filed this application.
sought and obtained a rule Nisi in the following terms:-
the periods and modes of service be dispensed with on the grounds of
urgency of this matter.
a rule nisi be issued and be returnable on the date and time to be
determined by the Honourable Court calling upon the Respondents to
show cause, if any, why:-
Second Respondent shall not be interdicted forthwith from paying
the terminal benefits of the late TEBOHO PATRIC RASEBOLELE to the
First Respondent or anybody else besides the Applicant;
Applicant shall not be declared to be the lawful and or rightful
beneficiary of the said terminal benefits of the late TEBOHO PATRIC
First Respondent shall not be ordered to pay costs of this
application and the Second and Third
to pay costs only in the event of their opposing this application;
Further and/or alternative relief.
2 (a) supra should operate with immediate effect as an interim
AND THAT the affidavit of Application attached hereto will be used in
support of this application.
TAKE NOTICE THAT Applicant has appointed the office of the
undersigned attorneys as the address of service in this matter.
respondent has opposed this application. He has raised the question
of law regarding the manner in which the applicant approached this
court. He has also claimed on the merits of this
that he is the first-born son of the deceased. In terms of the
Sesotho Customary Law he is his heir.
to deal first with the question of Law. It is the 1st respondent's
contention that the applicant is not entitled to proceed as a matter
of urgency because there was no urgency and even if there was
urgency, the affidavit filed in support of the urgent application
does not comply with the HIGH COURT RULES, which govern such
who seeks relief from this court is entitled to choose the manner
and/or procedure to adopt when approaching the court. The party must
exercise this right of choice to approach the court very carefully.
She or he must comply fully with the rules governing the procedure
she or he prefers. The applicant in our case preferred to approach
this court by way of an urgent application. How and why she
approaches the court in this fashion is fully set out in Rule 18 (22)
(a) (b) (c) HIGH COURT RULE Legal Notice N0.9 of 1981. The
of this rule, which is particular relevant for the determination of
this matter, reads as follows:-
(22) (a) ......................
(b) In support of an urgent application the applicant shall set forth
in detail (1) circumstances which he avers renders the application
urgent and also (2) reasons why he claims he cannot be afforded a
substantial relief in a hearing in due course? ------" (My
underlining and numbering to highlight those two requirements).
applicant has elected to approach this court by way of an urgent
application. Has she complied with the requirements set out in the
rule which govern such applications? Is there anywhere in the
affidavit filed in support of this application where there are
specific avernments which set forth the circumstances which make this
paragraph 16 it is averred that the applicant was advised to get a
court order urgently to stop the issue of the cheque in the name of
the 1st respondent. When was this? Was it before or after 26th June
2000? But from the reading of the applicant's papers it becomes clear
least by 26th June 2000, she was aware that the cheque is due to be
issued in the name of the 1st respondent and for his own benefit as
the deceased's heir. There is again a deafening silence as to what
steps the applicant took and what frustrated her if she was
frustrated. A month or so passed. She then rushed to court and
obtained ex-parte this interim court order. What prompted this sudden
rush to the court in this fashion after allowing long periods of
inactivity to lapse? Perhaps there was no urgency. An attempt is
being made to create circumstances on paper in order to pass this
particular application as urgent. The matter should not become urgent
when it is placed before the court when in fact while it was in the
hands of the owners, there was no urgency. National University of
Lesotho V University Teachers and Researchers C of A f CIV) NO. 13/98
no avernments which specifically set forth circumstances which render
this application urgent. 1 have to fish and famble through the papers
in search of those avernments which render this application urgent.
This is purely the result of poor draftsmanship. No reasons are
mentioned anywhere in the affidavit
this court that this applicant could not obtain a substantial relief
in a hearing in due course.
must be paid to the rules of this court by the attorneys when
selecting the method to institute any proceedings before this court.
The rules of this court are there to give guidance and directions.
The rules must be followed to the letter otherwise what are they for.
For the none compliance with rule 18 (22) HIGH COURT RULES (Supra)
this application must fail.
though this application falls to be dismissed on this question of law
alone, I propose nevertheless to deal with its merits. The
established facts show unquestionably that the 1st respondent is the
deceased's first born. According to the LAWS OF LEROTHOLI PART 1. -
which is the statement of SESOTHO CUSTOMARY Law, a man's first-born
son is his heir.
applicant has made serious but unsupported allegations that the
deceased's first wife deserted him and he divorced him on that
These are mere allegations. She further claims that the 1st
respondent has changed his status of the deceased's first born son.
respondent denies all these allegations. According to the 1st
respondent his parents never divorced. He also denies that he ever
changed his name. The divorce of the deceased and the 1st
respondent's mother is hotly disputed. There is no proof. Therefore
this court cannot accept that:, bare allegation that the deceased
divorced his first wife prior to his purported marriage by civil
rites to this applicant. Now that there is no proof of divorce can a
man married in accordance with Sesotho Custom marry another woman in
accordance with civil rites while his customary law marriage
subsists? This question has been answered in the negative many times
at Judicial Commissioners Court, High Court and Court of Appeal, in
cases such as :-
V MAKHOOANE (J.C. 43/56) RAKHOABE V RAKHOABE CIV/T/11/68 MATSOETLANE
V MATSOETLANE CIV/A3/68 MAKHOTHU V MOKHOTHU C of A (civ) N0.1 OF 1976
MAKATA V MAKATA C of A 1982 - 84 LLR Page 29
validity of SESOTHO CUSTOMARY Law marriage is not questionable. It
has been recognised by statute law since the two systems commenced to
operate simultenously. The marriage Proclamation under which the
applicant purported to enter into marriage by civil rites with the
deceased does not allow polygamy. It specifically prohibits marriage
to a person who has been previously married to another. Even though
the deceased described himself as a bachelor on the marriage
certificate - (Annexure "A") he was in fact a married man.
His status as a married man remained unchanged until his marriage
with the 1st respondent's mother was dissolved. He therefore could
not contract a valid marriage during the subsistance of his valid
customary law marriage. MAKATA Vs MAKATA (Supra). The purported
marriage between the parties on the 25/05/1973 was invalid "Ab
inito". Therefore the applicant cannot in those circumstances
describe herself as the legal widow of the deceased.
side of this coin still confirms the 1st respondent as the heir of
the deceased. Even if there was a valid divorce between his parents
prior to the applicant's marriage to the deceased, as the first-
he was still his late father's heir.The serious allegation that he
was taken to his mother's maternal home does not divorce him from
being the son of his father. He acquired his status of being the
first-born son by birth. He will remain so, it does not matter where
he goes and what he calls himself thereat. Even if his mother was
divorced he is still his father's son.
application had no merit at all. It must be dismissed. It is so
dismissed with costs.
applicant - Mr. T. Molapo
respondents' - Mr. S. Phafane
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law