CIV/APN/285/83
IN THE HIGH COURT OP LESOTHO
In the matter of
MOSONGOA MATSOSA Applicant
v
ALICE SELEBELENG Respondent
REASONS FOR JUDGMENT
Filed by the Hon. Acting Mr. Justice J.L. Kheola on the 4th day of January, 1985.
On the 22nd October, 1984 I dismissed the application for rescission of a default Judgment granted by this Court on the 28th November, 1981. I intimated that my reasons for judgment would follow later. These now follow.
In her founding affidavit, the applicant deposed that on the 10th November, 1983, the process in CIV/APN/229/1983 was served on one 'Mapaseka Kasane who was the officer in charge at the applicant's place of work. At the relevant time she was on three weeks' leave. She denies that she ever confirmed that this process had reached her as the Deputy Sheriff alleges. When the process came to her notice, and because most of the evidence she required in rebuttal of respondent's claim was in Vereeniging, she tried to proceed there herself but was refused entry at the South African Border Post. She then contacted a relative to assist her procure the evidence.
She further avers that she did not realise that she should not have waited for the documents she needed before filing her notice of intention to oppose.
She further avers that when she was put out of occupation of the site and improvements herein, she went to the High Court, there to discover that judgment had been given in favour of the respondent and that her intended notice of intention to oppose was out of time. When she and the
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deceased pooled their resources to improve the said site, the respondent was in Vereeniging where she has lived up to this day. The respondent is, therefore, a peregrinus. She further says that the respondent was fully aware of her relationship with the deceased, but she connived at it and she was in collusion, and she condoned it.
She further avers that she incurred heavy expenses, medical and otherwise, during deceased's long and last illness, even the burial
expenses were her sole concern. She claims the entire estate as hers; at the very worst she alleges that she is entitled to her half-share of what might be held to have been a universal partnership. Annexure 'A' is a letter of 'bohali' showing that the deceased paid ten head of cattle to the father of respondent on the 11th October, 1970; Annexure 'B' is a receipt No. 075161 for R542-22 being the price of the coffin; Annexure 'C' is a sort of a will made by the deceased awarding the site at Borokhoaneng to the respondent.
In her supplementary affidavit the applicant admits that when she got married to the deceased in 1970 her marriage to one Paul Rampona was still subsisting. This was a civil marriage solemnized at Maseru in the Parish of Our Lady of Victories on the 8th August, 1964.
A supporting affidavit has been filed by one Selebeleng Selebeleng who is the elder brother of the deceased. He avers that the deceased
married his first wife, 'Mampoye, according to traditional marriage. As far as he knows the deceased never divorced his first wife before he married the respondent. He knew the applicant as the only legal wife of the deceased at the time of his death.
In her answering affidavit, the respondent avers
that the applicant was properly served as more fully appears in the Deputy Sheriff's return of service;
that the applicant has not disclosed a defence in as much as she does not deny that she is the wife of Paul Rampona;
that in 1969 she and her late husband
worked in the Republic of South Africa until he came permanently to Lesotho in 1978,
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leaving her still working in the Republic of South Africa. She denies that she is a peregrinus because her domicile followed that of her husband.
She further avers that she personally supervised and, paid for the building of the house on the site. The first builder she employed was Thabo Mohono and the second one was the late Motlomelo. She denies that she ever condoned or colluded in the said adulterous
relationship between her husband and the applicant. When she heard the rumours about applicant's association with her husband, she went to Chief Seqobela Letletsa. Her husband denied the rumours.
In his supporting affidavit, Ernest Fusi Ramoepane deposes that he was employed as a taxi driver by the late Molefi Selebeleng from the 16th July, 1969. He used to transport building material from Vereeninging to the site at Qoaling in the truck of the respondent and her husband, and he knews that the respondent was in charge of the building operations at the site.
In order to succeed in an application for rescission of judgment, the applicant must satisfy the following requirements:
she must explain to the court's satisfaction the reasons for the default,
she must persuade the court that the application is not made simple to delay plaintiff's claim;
she must show a bona fide defence. (See Rabby Ramdaries v. Khadeoe Mefaesa, CIV/T/ 56/83.(unreported) and Taiwan Construction v. Lesotho National Insurance Co., CIV/APN/ 101/83 (unreported).
I am afraid that in the present case the applicant has hopelessly failed to explain to the court's satisfaction her reasons for the default. She has deliberately refrained from telling the court the exact date on which the process came to her notice. All she says is that when process came to my notice, and because most of the evidence I required in rebuttal of respondent's claim was in Vereeninging, I tried to proceed there myself but met with refusal on entry at the S.A. border post". Why is she afraid of
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telling the Court the exact date on which she received the notice of motion from 'Mapaseka Kasana? The date on which she received the process is very important because the Deputy Sheriff's return shows that service was effected on 'Mapaseka Kasana but he went back later and the applicant confirmed that she had received the process. In an application of this nature, the applicant must be honest with the Court and she must reveal every information to enable the Court to decide whether the default was wilful or not.
Again the applicant has deliberately refrained from telling the Court what evidence was in Vereeninging. All the annexures to her founding affidavit are documents which ought to have been in her possession at her home. The only document (Annexure "A") which is a certificate of "bohali" ought to have been at her parents' home at Mafeteng under the Principal Chief of Tebang, Ts'akholo and Selese before whom the agreement was made.
As a conclusive proof that the applicant's default was wilful, on the 14th November, 1983, this Court postponed the matter to the 28th November, 1983 and ordered Mr. Maqutu, counsel for the applicant to arrange for service of set down upon the applicant. On the 21st November, 1983, one Refiloe Litsoane, a messenger in the offices of Messrs. Maqutu & Co. went to Maseru Club where the applicant works. 'Mapaseke Kosana duly pointed out the applicant to Litsoane who attempted to serve the applicant with the notice of set down. She refused to accept service on the ground that the names used were not the ones by which she is known. This very important point showing that the applicant is a person who usually defies process of a court of law was not denied by the applicant in her affidavits. I do not think that any court can assist any person who treats its process with such contempt.
Now the next point that I have to consider is whether the applicant had a bone fide defence or not. It is common cause that when the applicant purported to enter into a marriage with Molefi Selebeleng according to Sesotho customary law, she was still legally married to one Paul
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Rampona according to civil marriage. To make things worse, even Molefi Selebeleng was still legally married to the respondent according to civil marriage solemnized in Vereeniging on the 2nd February, 1968 (See Annexure A to applicant's founding affidavit in CIV/APN/285/83).
Both applicant and Molefi Selebeleng could, therefore, not enter into any valid customary marriage while their civil marriages were still subsisting. The purported customary marriage between them was void ab initio (Mokhothu v. Manyaapelo, 1976 L.L.R. 281.). A void marriage produces none of the legal consequences of a marriage (Wells v. Dean - Willcocks. 1924 C.P.D. 89 at 92). The applicant cannot be heard to say that she is entitled to the division of the estate of the late Molefi Selebeleng as their customary 'marriage' was a nullity which produced no legal consequences, A void putative customary union, whether or not it was bona fide, could never result in community of property and can, therefore, never be a universal partnership (Manyaapelo v. Mokhothu. 1976 L.L.R. 55.
For the reasons I have attempted to summarise above, I came to the conclusion that there was no merit at all in the application and accordingly dismissed it with costs.
J.L. KHEOLA,
ACTING JUDGE.
4th January, 1985.
For Applicant . Mr. Matsau
For Respondent : Mr, Pitso.