C of A
(CIV)No.9 OF 1998
LESOTHO COURT OF APPEAL
appellant was the unsuccessful applicant in proceedings which were
to a declaration that the purported marriage between the respondent
and Elias None Khosi Monare, since deceased, contracted
rites on or about the 10th September, 1972, was null and void.
appellant also sought a declaration declaring him to be the customary
law heir of None Monare "as against the respondent"
final item of relief sought was an interdict against the respondent
restraining her from acting upon letters of administration
her by the Master of the High Court in terms which she was appointed
curator bonis to the estate of None Monare. Those
administration were issued on the 7th of March 1996.
deceased was first married to Liziwe Makhantsi Monare. He had lived
with her in the Republic of South Africa. She was the mother
deceased's first male child. According to the respondent that
association was terminated by decree of divorce. The respondent
alleges that thereafter the deceased cohabited with several women,
ultimately cohabiting with 'Mamoletsane, the mother of the applicant.
They parted in 1969 and were separated until the deceased met his
he married the respondent under civil rights and that marriage
continued until his death. The appellant contends that since
previous customary union with his mother had not been dissolved by
the time of that civil marriage, the latter was void. It
the deceased maintained the children of his three successive
consorts. 'Mamoletsane's children, of whom the appellant
were however brought into the deceased's own home and were regarded
as part of his family.
deceased's death all the funeral rites, and other solemn ceremonies
were conducted at the kraal which he shared with the
appellant contends, as I have said, that the marriage with respondent
was void, and the respondent contends as follows "a
union under Sesotho customary law is normally confirmed and sealed by
'bohali' followed by ho hlabisoa' of which I have
no evidence in
respect of Applicant's mother and Applicant is put to the proof
thereof" There is thus a dispute of fact with
regard to the
validity of the two associations which are relevant to these
appointment of the respondent as curator bonis is one which lies
within the discretion of the Master of the High Court. The
appears to suggest that the Master was not in possession of the full
facts in relation to the marriage of the respondent,
and also that he
would not have been informed of "the fact that the deceased had
not abandoned tribal custom in favour of
the European mode of life,
but also that he was a polygamist". He continues to allege that
had the Master been aware of these
facts she would not have issued
the letters of administration to the respondent.. At the conclusion
of his Affidavit the appellant
undertook to serve the Master with a
copy of the Affidavit. There is nothing on the record to indicate
that he did so.
event since it is alleged by the appellant that the Master acted upon
a false premise when issuing the letters of administration,
contend that there would have been an improper exercise of the
Master's discretion. The Master was undoubtedly an essential
the present application and should have been cited
party so that issues affecting her could be canvassed properly. It
follows that the prayer for an interdict restraining the
from acting under the letters of administration must fail.
declaration that the marriage contracted by Christian rites was null
and void and the prayer seeking a declaration that the
the heir, both depend upon the same contention. With regard to the
marriage there is upon the papers an irreconcilable
conflict of fact.
Appellant apparently seeks a declaration that he is a "customary
law heir as against the respondent"
in order to avoid the
necessity of joining others who may have an interest. It is clear
from all the facts on the papers that the
deceased by his first wife
had a son called Malie who by necessary-inference from the papers is
a major and older than the appellant.
He has a clear interest as the
eldest son of the first marriage in a declaration that someone is
heir to the estate of the deceased.
He was not joined. That is an
effective bar to the appellant obtaining any relief of that kind in
some puzzling features of the Opposing Affidavit. A family agreement
is put up but the respondent disputes what appears
to be her
signature on that document In terms of that document it would appear,
if genuine, that she is not concerned to feather
her own nest from
the estate and that she was prepared to share with the mother of the
respondent. The papers are silent on whether
the deceased left a
will, whether the respondent and the deceased were married in or out
of community of property, and who the
heirs would be in intestacy
should civil law as opposed to customary law govern the situation.
aspect that the respondent appears to ignore is that the
administration by the respondent will be under the supervision
Master. With regard to his claims to succession to the deceased's
estate, those claims may be made to the Master.
prayer designed to declare as null and void the marriage in question
certainly cannot be decided on the papers because of an
irreconcilable conflict of fact. With regard to declaring the
appellant as heir, that is affected adversely by the non joinder
Malie, the mother of the appellant himself, and perhaps other members
of the extended family. With regard to the prayer for
restraining the respondent from acting under the letters of
administration, the Master was an essential party and
she was not
joined. Nor, it seems was she given any notice of the application.
judgment the application was ill-conceived, ill-advised, and badly
prepared. The appeal was ill founded. In my judgment the
should be dismissed with costs.
VAN DEN HEEVER, J.A.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law