C OF A (CIV) NO.34 OF 91

IN THE LESOTHO COURT OF APPEAL

In the Appeal of:

MATSELISO THAI APPELLANT

AND

STANDARD CHARTERED BANK AFRICA P.L.C 1ST RESPONDENT

REFILOE SEMPE (alias THAI) 2ND RESPONDENT

Coram:

STEYN J.A.

BROWDE J.A.

KOTZE J.A.

JUDGMENT
Steyn J.A.

This is an appeal against the decision of the High Court of
Lesotho (Kheola J. presiding) dismissing an application brought
on notice of motion.,

In the proceedings before the Court a quo Appellant sought the following relief:

"(a) Dispensing with the periods of notice required by the rules of court;

2. Directing Second Respondent herein to desist forthwith from withdrawing funds from the accounts of the late

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Samuel Kekeletso Thai with First Respondent;

2. Directing Second Respondent to release forthwith to Applicant the bank books and other savings books of the late Samuel Kekeletso Thai which are in her possession;

2. Directing Second Respondent to release forthwith to applicant the motor vehicles described in paragraph 8 of the founding affidavit;

2. Directing Second Respondent forthwith to vacate the house of the late Samuel Kekeletso Thai situated at Thabaneng Mohale's Hoek Urban Area;

2. Directing Second Respondent to desist forthwith from holding herself and/or claiming herself to be the wife of the late Samuel Kekeletso Thai;

2. Directing Second Respondent to refund the monies drawn by herself from the accounts of the late Samuel Kekeletso Thai since the death of the said Samuel Kekeletso Thai and bank the same with First Respondent into the account of the late Samuel Kekeletso Thai;

2. Directing Respondents to pay the costs hereof only in the event of opposition;

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(i) Granting Applicant such further and/or alternative relief;"

Appellant filed an affidavit in support of the application. In
it she alleges the following:

She was married to the late Samuel Kekeletso Thai (hereinafter referred to as the deceased) in December 1958 in accordance with Sesotho Law and Custom, (The deceased was married to more than one woman - the appellant was in fact his second wife). She also alleges that the deceased commenced co-habitat ion with the second
Respondent as his mistress since about 1981. The monies in respect of which relief were claimed in the notice were allegedly generated out of businesses jointly operated by her (Appellant) and the deceased at Thabaneng in the Mohale's Hoek district. She
also alleges that the three motor vehicles referred to in the notice were purchased from the proceeds of the business and that all this property (as well as a house which she also alleges was hers) are wrongfully in the possession of the Second Respondent who has no lawful claim or right to the property.

The application was opposed by the Second Respondent (referred to hence as Respondent). She denies that she was the mistress of the deceased. She alleges that she married him as his third wife by customary rites in 1978 and lived with him as such until his death on February 4th 1990. Subsequent to the marriage and on the 12th June, 1981 eight head of cattle were

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paid as part of the bohali in respect of the marriage. A copy evidencing this payment was attached to the opposing affidavit. Three children were born of this marriage.

Respondent also contends that the businesses, the house, the money and the cars are hers. Funds were pooled by the deceased and herself with which they opened businesses (a shop and a butchery) at Thabaneng. She ran these businesses as the deceased was in poor health. The motor vehicles were bought out of the proceeds of her own shop at Ha Mapotsane. The vehicles were registered in her name and that of one of her minor children and she attached documentary proof to this effect. The moneys claimed in the notice which were deposited in the accounts identified, were generated by her shop at Ha Mapotsane and she attaches a licence in her name for this shop. The books claimed
were also hers.

As far as the house which Appellant claims is concerned, Respondent reiterates that she had lived there since her marriage to the deceased; that it never was the property of the Appellant and that it is her house and not that of the Appellant.

She accordingly averred that Appellant had no rightful claim to any of the property he subject matter of the relief claimed in the notice.

Upon the election of the Appellant the Court a quo proceeded

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to try the matter on the papers before it. This despite a clear warning sounded by the Respondent in her opposing affidavit that there were clear disputes of fact in the matter. In fact a point in limine was taken by Respondent at the hearing that in view of these disputes the application could not properly be decided on notice of motion and without hearing oral evidence.

In his judgment the Court a quo came to the conclusion that the application had to be dismissed with costs. It is against this decision that the Appellant appeals.

As Counsel for Respondent correctly pointed out in a well- reasoned argument there are four issues upon which the Court was asked to make a decision on the papers before it.

"(a) The existence or otherwise of a marriage between 2nd
Respondent and the late Samuel Thai (deceased);

2. Ownership of a residential house situate at Thabaneng;

2. Ownership of motor vehicles, registration numbers F 0253, F 224 and F 0141;

2. Ownership of certain moneys which were in account numbers 0670-461-04371 and 0670-176-99831;"

As to the first issue, Counsel for the Appellant correctly

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conceded that the Court a quo was correct in holding that a marriage did exist. On the ownership of the house the Court says the following at p.43 of the record:

"With regard to the house in which the deceased and the second respondent lived, the applicant has failed to prove that long before the second respondent
started cohabiting with the deceased the house was already built as her second house. All what she alleges is that it is her house. To make things more
difficult it is on a different site from that of the businesses. I come to the conclusion that the applicant has failed to prove that the deceased built
that house for her. The second respondent and her late husband were living in that house when the latter died. The applicant never complained during the lifetime of the deceased that he must build a house for his mistress. They occupied the house openly and without any complaint by her. What was important in the present proceedings was for her to prove that the house was built for her own house.’

However in the final paragraph of his judgment the Court says the following:

'The second respondent amassed the wealth for her own house and not for the appellant's house. She can

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remain in the occupation of the business premises at Thabaneng but not the house. In the result the application is dismissed with costs.”

Counsel for Appellant relied on the second last sentence of the judgment in support of his contention that the Court should accordingly at least have granted Appellant some relief pursuant to this finding. However it seems clear to us that we are dealing here with an error by the Judge a quo. He had immediately prior to this finding recorded (in my view correctly) reasons why also in respect of this aspect of Appellant's claim
she had failed to establish any rights to the house in question. Either his reasoning was recorded erroneously or the bald statement "but not the house" was an error. It seems obvious that the latter must be the case. Indeed an analysis of the evidence indicates that there was a clear conflict of fact on this issue and no valid reason exists for preferring the version of the Appellant above that of the Respondent. There is
accordingly no basis for disturbing the order dismissing the application under this heading.

The same applies to issues identified under items number (c) and (d) above. Indeed no argument was addressed to us by Counsel for the Appellant on these two claims for relief.

This would in the normal course of events have disposed of the appeal. However in the course of his judgment the Court a

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quo makes the following finding in dealing with the various
business operations conducted by the deceased and his wives:

"With regard to the two businesses at Thabaneng there seems to be no dispute that when the second respondent got married to the late Samuel Thai they were already in existence but had closed down because of the poor health of the late Samuel Thai. The second respondent avers that she and her late husband had opened the shop and butchery at Thabaneng. She personally ran
those businesses herself as her late husband was still not very well. I understand the second respondent to mean that the buildings were already there and that they merely reopened them and bought stock. I am of
the view that as far as the two businesses are concerned the second respondent has not right to them. She and her late husband used those premises and put
in their own stock and traded. It seems to me that the applicant cannot claim any right to the proceeds from the sale of the stock not bought with her own
money or money from her own house."

Relying on this finding Appellant's Counsel contended that his client was entitled to some relief, albeit by way of a declaratory order that "the businesses" were hers because in terms of the Judge's finding cited above she had "no right to them".

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Appellant faces two formidable obstacles in this respect. Firstly, she had claimed no such relief in the papers before the Court; neither could Respondent reasonably have anticipated that such relief would be claimed or entertained mero motu by the
Court.

Secondly, there was insufficient evidence to justify the finding made by the Court a quo. It is not known who owned "the buildings* to which the Judge a quo refers and whether they were indeed ever owned by the deceased. In any event there is a clear
dispute of fact on this issue which could hardly have been resolved against Respondent in view of the incidence of the onus and the form of proceeding which Appellant decided to adopt. See in this regard Tamarillo (Pty) Ltd. vs. B.N. Aitken (Pty) Ltd 1982 (1) S.A. 398 (A) at p. 430 G - H.

For these reasons the appeal is dismissed with costs.

I agree

J.H. STEYN

JUDGE OF APPEAL

I agree

J. BROWDE

JUDGE OF APPEAL

I agree

G.P.KOTZE
JUDGE OF APPEAL

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Delivered at Maseru this 20th day of July 1992