HIGH COURT OP LESOTHO
MARY MAKHERA Plaintiff
'MAMASHEANE MAKHERA 1st Defendant
COMMISSIONER 2nd Defendant
by the Hon. Mr. Justice Sir Peter Allen on the 17th day of November,
plaintiff brought this action in order to obtain the following two
the first defendant be ordered to desist from holding herself as the
heir to the late Lebohang's estate;
second defendant be ordered to release the compensation amounting to
about M13,700 to the plaintiff.
plaintiff (PW1) was the mother of the late Edgar Lebohang Makhera who
was formerly an employee of the Lesotho National Bus Service
Corporation. He died on 29 April 1984. Apparently the second
defendant, the Labour Commissioner, is holding compensation amounting
to M13,700 to be paid to the deceased's heir, although this fact was
not proved in Court;
appears to be common ground.
defendant (DW1) claimed to be the wife of the deceased Lebohang and
so entitled to the compensation. The plaintiff denied
marriage had taken place and asserted that the family of the deceased
had met and appointed the plaintiff to be his heir.
Thus issue was
plaintiff started the matter off by filing an application in this
Court (CIV/APN/89/84) in August 1984 for a rule nisi worded
same way as the present summons (above). I have perused that file and
the record shows that.: on 17 August 1984 a rule nisi
was granted and
then there were numerous postponements and extensions of the rule
until 30 August 1985 when it was extended to
2 December 1985 (i.e.
for over three months). Nothing further is on the record. The rule
was not confirmed and it appears to have
lapsed. However, when the
rule was first granted the Court ordered the applicant to issue a
summons and this was done in the present
case on 19 September 1984.
As I said, the claim made in it is the same as that made in the
common ground that in February 1980, the deceased Lebohang abducted
the first defendant 'Mamasheane, a schoolteacher,
sister's home at Borokhoaneng in North Maseru. He took her to the
home of his unmarried mother, the plaintiff, at Qoaling.
plaintiff slaughtered a sheep after their arrival. The first
defendant was already seven months pregnant when she arrived and
gave birth to a son on 6 March 1980. The plaintiff named the child
grandson. The child and the first defendant stayed with the plaintiff
for some months and then the first defendant obtained
a teaching job
at St Mark's Mofoka.
September 1980 'Muso Lekoane, the father of the first defendant,
brought an action in the Thabana-Morena Local Court (CC 738/80)
against the plaintiff claiming "six head of cattle for the
abduction" of his daughter. The plaintiff paid four head of
cattle. This was for abduction, not for seduction as the plaintiff
stated in this Court (see annexure 'A').
1984 Lebohang died and his employers, the LNBS Corporation sent a
message to the plaintiff's home for the first defendant
to go to the
Labour Office and collect the compensation due to her. The plaintiff
sent someone to the school to inform the first
defendant and she went
to the Labour Office. But the plaintiff also contacted the Labour
Office and objected to the payment being
made to the first defendant.
The application already referred to (above) was then filed in this
Court, followed by the summons
in this case.
Court the plaintiff agreed that she accepted the first defendant into
her home and family as a daughter-in-law, that she
sheep, gave the baby a name as her grandson, and gave the first
defendant a mourning cloth on the death of Lebohang.
plaintiff insisted that, in spite of all this, the first defendant
was never married or regarded as being married to Lebohang
there had been no meeting with the first defendant's parents to make
necessary arrangements i.e., obtaining the agreement of both parties'
parents and agreeing on the bohali to be paid. The plaintiff's
witness, her brother Lisema Makhera (PW2), supported her on this
point and said that there had never been a meeting of the two
plaintiff agreed that the first defendant was also known as
'Mamasheane, the same as the baby, but she added that people merely
called her by that name and it was not actually given to her by the
plaintiff or the family. However, her brother Lisema (PW2)
contradicted her and stated that the Makhera family definitely
received the first defendant as a daughter-in-law and they gave
the name of 'Mamasheane.
plaintiff agreed that the custom is that a sheep is only slaughtered
for a daughter-in-law and not for a mere concubine, and
that this is
done after the formalities of marriage have been completed. In spite
of that she also insisted that such formalities
had not been
completed and that there was no marriage because there had been no
meeting of the families. The plaintiff's brother,
stated that the purpose of the custom of slaughtering a beast is to
receive a daughter-in-law and he agreed that
he was there when the
sheep was slaughtered for the first defendant.
plaintiff asserted that a mourning cloth could be given to be worn
whether or not there had been a valid marriage. Again her
witness, Lisema (PW2), disagreed with her. In cross-examination he
stated that he agreed that
it is the
custom that a woman can only wear a mourning cloth for the man to
whom she is married. He added that they gave her a mourning
because they were still expecting her parents to come and meet them.
This was four years after the abduction and his assertion
to be unlikely in the circumstances.
plaintiff denied that the first defendant lived with her during the
years 1980-1984. Both the plaintiff and Lisema (PW2) said
first defendant lived there for less than a year. The plaintiff said
that her son Lebohang lived with her during that
time and that the
first defendant remained at her maiden home. In actual fact the
deceased Lebohang was not living at home but
working out of Maseru
with the LNBSC; and the first defendant was not at her maiden home
but living and working at the Morero Primary
School at St Mark's
mission throughout the period in question.
Lebohang's death in 1984 the Makhera family heard of the compensation
payment due and they met to appoint an heir. Both the
her brother Lisema (PW2) said that they attended the meeting. Also at
the meeting was their uncle, Moeketsi Makhera.
He afterwards wrote to
the Chief of Qoaling (annexure 'B') to inform him that the family had
appointed "'Mapokane 'Mamakatere
Makhera" to be the heir.
The plaintiff claimed that this referred to her by name yet she sued
as 'Malebohang Mary Makhera
and gave that as her name in Court when
she testified. The first two names are quite different and when she
was questioned about
this, she insisted that all of the names
mentioned were hers. However, in my opinion, if a plaintiff relies in
Court on a document
to name her in it in support of her claim, then obviously she ought
to sue and to testify in that same name or, at least,
when doing so
right at the start state one name and add "also known as"
the other name. Instead nothing was said at all
about the difference
and it was only explained when the Court brought up and queried the
matter during the trial. Counsel must
be much more careful and
precise about such matters.
defendant asserted that when she arrived with Lebohang at his
mother's home in February 1980, they were married according
and that the Makhera family were well aware of this and they treated
them as being married in every respect. Hence the
naming of their baby as well as the first defendant; the slaughtering
of a sheep and later the giving to her of
a mourning cloth. In
addition she said that the child stayed with his grandmother, the
plaintiff, and that the first defendant
spent all her school
vacations with the plaintiff up to the time of Lebohang's death in
1984. She added that Lebohang visited her
at St Mark's whenever he
was off duty, contrary to what the plaintiff had said. According to
her the Makhera family and everyone
else treated her as being the
wife of Lebohang for those four years and she lived with them in
harmony and friendship.
only after Lebohang died and the family discovered that a large
sum of money in compensation was due to be paid to her
proceeded to disown her and to claim that the marriage had never
existed and that she was thus not entitled to the money.
in addition to her claim that she was married by custom she also
stated that they were married by the church on 18 March
1981. She put
in a marriage certificate (exhibit 'A') to this effect and called a
priest, Father Patrick Ntebele (DW2), to confirm
it, which he did.
The marriage certificate shows that Edgar Makhera, aged 24, married
Melida Lekhoane, aged 21, at 5t Mark's Roman
Catholic Church on that
date in front of two witnesses. All the necessary signatures are
there and so are the 25 cents revenue
stamps. The register number is
shown on the certificate as 3/81 whereas in the actual parish
register produced in Court (but not
retained) the same entry was
recorded but it was shown as no.4/81. Father Patrick explained that
this was a clerical error by his
secretary and 4/81 was the correct
number and I accept that.
objection to the certificate by plaintiff's counsel was that section
35(2) of the Marriage Act 1974 was not complied with.
sub-section required that:
A duplicate original of the register of every marriage duly stamped
with revenue stamps to the value of twenty-five cents shall
transmitted to the Registrar of Marriages within one month after the
solemnization of the marriage, and all such duplicates
carefully preserved in his office.
omission was admitted by Father Patrick who explained that he was
first satisfied that a customary marriage already existed
the church marriage was additional to it for social purposes and so
as to bless the
marriage. He added that the first defendant was teaching at the
church school and they preferred the staff who were married
be married by the church or, at least, to have the church's blessing
to a customary marriage. In the latter case, which
also applied here,
he said he did not normally forwarded a copy of the certificate to
the Registrar at the Law Office.
provisions in the above sub-section clearly apply to "every"
marriage and a copy of the certificate should have been
sent to the
Registrar. But that is a matter of later procedure only. As regards
the validity of the marriage there is no doubt
that, according to
section 35(3) of the Act, a copy of the entry in the register
certified by the marriage officer, i.e., a marriage
as exhibit 'A', is "legal proof of the due solemnization of the
marriage" in the absence of evidence
to the contrary.
28 of the Act is concerned with the ages of the parties to a
marriage. Father Patrick stated that he checked their agres
was satisfied that Lebohang was 24 and the first defendant was 21.
They were both of full age and so able to consent to
17 of the Act provides that there may (not must) be publication of
the banns and Father Patrick stated that he complied
requirement by making an entry in the register which which he keeps
especially for that purpose and which is kept all
the time displayed
to the view of the public and anyone interested (see section 17(1)
30(2) of the Act provides that:
A marriage officer shall solemnize any marriage in a church or other
building used for religious service, or in a public office
dwelling-house, with open doors and in the presence of the parties
themselves and at least two competent witnesses.
Patrick (DW2) testified that he conducted the marriage ceremony in
the church office, which is part of the church and also
office. There were two witnesses present who afterwards signed the
register: Father Patrick described the ceremony performed
which was in accordance with section 31 of the Act. For
instance, he asked each of them if he/she would take the other
his/her lawful wife/husband. He added that, although his main
intention was to bless what he considered to be an existing lawful
customary marriage, he agreed that the ceremony which he performed
was the same as that normally conducted in the church itself
for the fact that no mass followed the ceremony conducted in the
church office since its main aim was only to bless an existing
customary marriage. But the presence or absence of a following mass
would not affect the legality of the ceremony itself for it
is not a
requirement of the Marriage Act. Father Patrick also agreed that the
ceremony which he performed could thus stand by itself
as a lawful
marriage whatever the legitimacy of the prior customary marriage. I
would agree with that view.
opinion the requirements of the Act with regard
performance of a lawful marriage were complied with substantially.
Thus, whether or not the alleged customary marriage was
legal, the couple were duly married by the priest on 18 March 19 81.
Mofolo for the first defendant pointed out that it is very difficult
for a woman to prove that a customary marriage has taken
the husband's family choose to deny all knowledge of it. But, in this
case, she submitted that the plaintiff's conduct
should be taken into
account especially as both the plaintiff and her witness, Lisema
(PW2), claimed that they had a good knowledge
of Sesotho customs.
main requirements are that the parties should agree to marry, that
the families agree to it and that the amount of bohali
is fixed and
agreed. On the first point the first defendant stated that the
deceased and she agreed to marry and I find that there
evidence to the contrary. On the other two points there is a lack of
evidence. The plaintiff and her witness repeatedly
stated that they
called for a meeting of the families but it never took place. The
first defendant insisted that her father did
meet with the plaintiff
and her family but, as she did not attend the actual meeting,she
could not say what took place or what
regard to the conduct of the plaintiff and her brother Lisema (PW2),
both of them admitted that they received the first defendant
daughter-in-law when she was brought to their home by Lebohang.
Lisema added that they gave her the name of 'Mamasheane, though
plaintiff denied this
unconvincingly. They also slaughtered a sheep which they admitted was
the custom when receiving a daughter-in-law. This is
done after the
marriage formalities have been completed. The plaintiff also admitted
that she had regarded her as Lebohang's wife.
defendant stayed at the plaintiff's home and, when her child was
born, the plaintiff named him Mamasheane, as an indication
baby was her grandson. Afterwards, when she was able to return to her
work as a school teacher, the first defendant said
that she spent all
her school vacations at the plaintiff's home. Lebohang, meanwhile,
continued to visit the first defendant at
her place of work where the
couple were regarded by the priest Father Patrick as being married to
each other both before and after
the 1981 ceremony. This situation
went on until Lebohang's death four years later.
defendant then returned to the plaintiff's home where she was given a
mourning cloth by the plaintiff. Lisema (PW2) agreed
that the custom
was that a woman can only wear a mourning cloth for the man she was
opinion all these matters of customary conduct point in only one
direction, that is a clear acceptance by the plaintiff and
that the first defendant was married to Lebohang. In addition, the
denials by the plaintiff and Lisema, to the effect
that no family
meetings took place and that nothing was ever agreed, were given in a
shifty and evasive manner which I found to
be most unconvincing.
Consequently I find that on the balance of probabilities there
was sufficient evidence of a customary
marriage between the deceased
Lebohang and the first defendant.
two were married by custom in 1980 and by the church in 1981. Either
of these marriages would be sufficient alone to justify
defendant's legitimate claim to be the lawful wife of the deceased
Lebohang. It follows therefore that she would be entitled
payment of any compensation due to the estate of Lebohang. There
was no evidence from the deceased's employers
that he had made any
other disposition of such compensation due and there would
therefore appear to be nothing to prevent
her now from receiving it
from the second defendant.
circumstances I find that the claim of the plaintiff, the deceased's
mother, that she is entitled to receive the compensation,
supported by the evidence. Accordingly the plaintiff's claim is
dismissed with costs to the first defendant. The second
should pay the compensation due to the first defendant forthwith.
P. A. P.
for the plaintiff
for the first defendant
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