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

2

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

1. that
   the applicant was properly served as more fully appears in the
   Deputy Sheriff's return of service;

   
   

2. that
   the applicant has not disclosed a defence in as much as she does not
   deny that she is the wife of Paul Rampona;

   
   

3. 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:

1. she
   must explain to the court's satisfaction the reasons for the
   default,

   
   

2. she
   must persuade the court that the applica­tion is not made simple
   to delay plaintiff's claim;

   
   

3. 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.