C of A (CIV)No.9 OF 1998
IN THE LESOTHO COURT OF APPEAL
In the matter between:
MOLETSANE MONARE PLAINTIFF
And
'MATIISETSO MONARE RESPONDENT
Held at: MASERU
Before:
LEON, J.A.
VAN DEN HEEVER, J.A.
SHEARER, A.J.A.
JUDGMENT
The appellant was the unsuccessful applicant in proceedings which were
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directed to a declaration that the purported marriage between the respondent and Elias None Khosi Monare, since deceased, contracted by Christian rites on or about the 10th September, 1972, was null and void.
The appellant also sought a declaration declaring him to be the customary law heir of None Monare "as against the respondent" The final item of relief sought was an interdict against the respondent restraining her from acting upon letters of administration issued to her by the Master of the High Court in terms which she was appointed curator bonis to the estate of None Monare. Those letters of administration were issued on the 7th of March 1996.
The deceased was first married to Liziwe Makhantsi Monare. He had lived with her in the Republic of South Africa. She was the mother of the 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 death.
In 1972 he married the respondent under civil rights and that marriage continued until his death. The appellant contends that since the previous customary union with his mother had not been dissolved by the time of that civil marriage, the latter was void. It seems that the deceased maintained the children of his three successive consorts. 'Mamoletsane's children, of whom the appellant was one, were however brought into the deceased's own home and were regarded as part of his family.
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After the deceased's death all the funeral rites, and other solemn ceremonies were conducted at the kraal which he shared with the respondent.
The appellant contends, as I have said, that the marriage with respondent was void, and the respondent contends as follows "a marital 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 proceedings.
The appointment of the respondent as curator bonis is one which lies within the discretion of the Master of the High Court. The appellant 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.
In any event since it is alleged by the appellant that the Master acted upon a false premise when issuing the letters of administration, he must contend that there would have been an improper exercise of the Master's discretion. The Master was undoubtedly an essential party to the present application and should have been cited
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as a party so that issues affecting her could be canvassed properly. It follows that the prayer for an interdict restraining the respondent from acting under the letters of administration must fail.
The declaration that the marriage contracted by Christian rites was null and void and the prayer seeking a declaration that the applicant is 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 these proceedings.
There are 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.
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The one aspect that the respondent appears to ignore is that the administration by the respondent will be under the supervision of the Master. With regard to his claims to succession to the deceased's estate, those claims may be made to the Master.
The 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 of Malie, the mother of the appellant himself, and perhaps other members of the extended family. With regard to the prayer for an interdict 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.
In my judgment the application was ill-conceived, ill-advised, and badly prepared. The appeal was ill founded. In my judgment the appeal should be dismissed with costs.
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I AGREE: LEON,JA
I AGREE:
