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