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CIV/APN/230/99
IN THE HIGH COURT OF LESOTHO
In the Application of:
'MANGOAKO MACHAKE Applicant
MOTLATSI MACHAKE 1st Respondent
LESOTHO FUNERAL SERVICES(HLOTSE) 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr Justice ML. Lebohla on the 21st day of June, 1999
This is a very nerve-racking case unfortunately it is also very urgent so I'll only paraphrase what would for the moment stand as the judgment of the court; fuller reasons will be given later when the Court shall have had time to go through all the papers.
The applicant brought her application on an urgent basis before this Court asking for a rule nisi to be issued returnable today or last Friday, calling upon the
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respondents, i.e. Motlatsi Machake who is the first respondent and the Lesotho
Funeral Services second respondent to say -
why the first respondent or anyone of the Machake family shall not be restrained and interdicted from making arrangements for the funeral of the deceased Falatsi Machake; and (iv) why first respondent or anyone of the Machake family shall not be restrained and interdicted from removing the body of the late Falatsi Machake from the mortuary of the second respondent; (
iii) Why the second respondent shall not be ordered not to release the body of the deceased Falatsi Machake to anybody other than the applicant; (iv) why applicant shall not be declared to be a rightful person to bury the deceased and/or
(iv) why applicant shall not be declared the rightful person to bury the deceased Falatsi Machake as guardian of Tjobasi Machake heir of the deceased according to custom.
Applicant called 'Mangoako Machake set out in an affidavit that the deceased was her husband, and that they got married with him in 1987, and that four(4) head of cattle were paid as bohali. She has the support of her father in that regard. She said further that two(2) children were bom of this marriage i.e. 'Malefu Machake and Tjobasi Machake, a girl and a boy bom in 1989 and 1995 respectively. She states that before moving to Hlotse she used to stay at the home of the first respondent at Likhakeng Ha Mahlomola. She gave oral evidence on the type of the homestead in
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that area. The type of evidence left the Court in no doubt, and in any case it was confirmed by the respondent, that there was no further need for her to give the description of the homestead because it was so accurate. In this regard Mr Teele's submission has merit that only a person who stayed in that place could know the place that thoroughly.
She was supported in her evidence by her aunt 'Mabulane. 'Mabulane is the sister to the first respondent. Credible evidence shows that she bears no grudge against the first respondent, in fact the first respondent says likewise he has nothing against his sister, on the contrary they love each other. She was referred to a document "MM 1" on which she recognised immediately what she called her brother's handwriting, and she testified that this handwriting is in keeping with the type of handwriting that her brother applied in correspondence between her and him when the brother was working on the mines. Of course the brother denied that he ever, ever, ever at all
wrote her a letter. In that letter the writer states :
"This is proof that I give consent that my son Falatsi Machake may undergo a civil rights marriage ceremony with his wife Matseliso Jeannet Mbele whom he married in 1987, I confirm that she is his wife with whom they have a baby girl named 'Malefu Machake. I confirm that she is his wife, that I know as his biological father. That's myself Motlatsi Machake."
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He disputes the authenticity of this letter and the contents therein, not only that but in a batch of papers which were served on him there is at the back of this batch of papers the date 11th June, 1999 next to which the court messenger says the first respondent signed. The signature on this, if one may say so, is strikingly similar to the signature on that document "MM1" which he disputes. In any event his sister recognised also the writing on the back of this batch of papers as her brother's. No reason whatsoever at the time that the witness was in the box was given why she should say something about her brother which is not true nor was it put to the first witness, the messenger of court, why he is saying something that is not true concerning who wrote and signed here. It was later in the afternoon of this case when the first respondent was giving evidence before Court now that he says the two(2) must have or did - in fact he said they did - conspire. Now the question of conspiracy is a very serious thing which if it was true at all it should have been put to that elderly woman so that the Court could observe how she reacts to this type of thing or how she came to conspire with a young court messenger and under what circumstances they did so.
In short the attacks on the credibility of these witnesses on this aspect of the
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matter are rejected as beyond belief.
Indeed the author in the LAWS OF LEROTHOLI does indicate that for there to be a Sesotho marriage there have to be a consent between the parties; consent between those who stand in loco parentis and that there should be an agreement as to the amount of bohali and part thereof. But nowhere does it say that such things should be reduced to writing. In fact that would be very strange if there was any insistence in that regard because when the Basotho laws were concretized to this sort of form in which Lerotholi laws are written, it was usually by word of mouth between witnesses as to what took place when bohali was being negotiated; and hardly in the beginning were there people who could write anything or who knew how to read and write. The fact that things are reduced to writing only facilitates ease of access to evidence; but the fact that this type of thing is not easily available doesn't dispense with the use that the courts can make of the witnesses who were there and who can testify to what happened.
There is the father of the applicant who testified as to the amount of bohali and the fact that he was there and he knows everything about what happened, and that four head of cattle were paid in the form of two(2) beasts which in turn were in the form
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of a black and white cow and a brownish donkey, and that the balance of bohali was in the form of money in the amount of eight hundred
Maluti(M800-00) constituting two beasts; and that the total amount of the agreement was twenty(20) head of cattle.
Well, the bewys and this agreement were all lost in the form of physical paper that they were, but their content was not lost to the memory of the witness who gave evidence truthfully, if I may say so, before this Court; and he stood the cross-examination very well.
'Malefu's evidence is credible also to the extent that she should know how, rather PW3 the old lady, her evidence too is important to the extent that it shows how the child 'Malefu got to be given that name. She testified that this name was given because when she was attending a funeral she reported to those who had attended the funeral that 'Mangoako had delivered herself of a baby girl and the response to this was that the baby girl had given herself a name meaning she had earned herself a name and the name was 'Malefu.
Well, the first respondent says he knows nothing about all this, and in fact he denies that the child was given that name because of the circumstances outlined by
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PW3 'Mabulane. But of greater significance is that after the applicant had gone to her matrimonial home as a young daughter-in-law the ritual of koae was performed, and of course the first respondent was not in the position to deny because he says he was not there, but what is stated by this witness is that there was correspondence between him and his wife about the arrangements leading to the holding of the marriage.
Well, when it was his turn to give evidence he cut a pretty poor figure. He brazenly stated that he is denying everything as true for the reason that it was stated by the applicant. He adamantly said even if it is true he would never accept it if it is stated by the applicant.
It puzzles the Court therefore why he himself bothered to give evidence on oath, because when you give evidence on oath it means you are going to adhere to what is truthful and acknowledge it even if it is stated by your worst enemy.
Now this about epitomized in sum his unacceptable attitude towards the business of litigation.
I have had regard to the case supplied to me. The reference made of the case is in
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Rey Teplin 1937(3) All England law reports, supposedly stating at 105, page 105 where I was referred -I have not had time to look at it - where it is stated, I am told, that cohabitation or repute to be a husband and wife does not entitle third parties to disclaim existence of marriage. In fact the onus is on the party disputing the existence of marriage between those who cohabit as husband and wife. This submission has strengthened my view that the first respondent has hopelessly failed to meet the requirement to discharge this onus.
There is also the question of balance of probabilities in a civil case and that is very important. Indeed while it could be said there are weaknesses here and there or even serious ones on one side of the fence the fact that another set of witnesses for the other side comes to testify gives the Court an opportunity to weigh and balance the two sides, and in the process the Court now is able to come to the conclusion if that is necessary that because one side has lied so much, then the lies that it has purveyed tend to strengthen the case for that other side; and come to the conclusion that if the defence side is lying then those lies have a tendency to strengthen the case for the applicants.
In this instant case the first respondent has successfully acquitted himself in that
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regard. By telling a lot of lies he has strengthened the case for his opponent.
In the circumstances, therefore, the Court confirms the rule in terms of prayers 2(a) (b) (c) (d) and (e) and costs are awarded to the applicant as well.
JUDGE
21st June, 1999
For Applicant: Mr Teele
For Respondent: Mr Putsoane
