IN THE HIGH COURT OF LESOTHO
In the Application of :
MARIETTE KEMONG MASUPHA Applicant
MOLOMO MASUPHA Respondents
Delivered by the hen. Chief Justice Mr.Justice T.S. Cotran on 11th day of August 1980
Mariette Kemong Masupha, nee Mosoeunyane, (the plaintiff) issued process in the High Court on the 3rd May 1979 (CIV/T/125/79) against three persons:'Makhelu Litsebe or Masupha, Molomo Masupha and Libenyane Masupha (the defendants) claiming the return of certain property, both movable and immovable, allegedly belonging to her in her capacity as the wife and lawful heir of the late Solomon Sankatana Masupha to whom she was married first by Sotho Law and Custom in 1960 and then by civil rights at the office of the District Commissioner Leribe on 17th June 1962. In her declaration she claimed that the defendants unlawfully siezed the property (including her marital home) on the ground that the property belonged to a "wife" her late husband had married previously This "wife" is the 1st defendant 'Makholu. That action is still pending and the Court is not aware what stage it had reached. I do not know if the defendants contest that applicant was a wife. In that action Mr.Maqutu did not ask for interim relief. In April of this year, i.e. about a year after the action was lodged he made an urgent application to the Court seeking an interim interdict restraining the three defendants from disposing of the property, or to be more accurate, of disposing of the remainder of the property, since it is common cause some of the property(cattle and other stock) has been sold by or on behalf of 1st defendant
'Makholu and the proceeds used for her or the other defendants' benefit.
The application for an interdict pendente lite is resisted by the defendants on the following grounds:
that this is a dispute about an estate which
falls to be administered under Sotho Law and
Custom and that the proper forum is a Local
or Central Court and
that under Sotho Law and Custom(Laws of
Lerotheli Part I s.14(4)) a "family council"
should be convened to resolve the dispute
before it can go to Court.
Both these contentions must fail. Firstly there is nothing, as far as I can see,that ousts the Jurisdiction of the High Court to pronounce on matters relating to estates that fall to be administered under Sotho Law and Custom whore the subject matter of the dispute exceeds the monetary jurisdiction of the Local and Central Courts and secondly, whilst it is true (and it was so held) that a family council is normally a condition precedent to the bringing of an action either in the Local Courts or the Subordinate or the High Court, (see Poulter Family Law and Litigation in BaSotho Society p.223 and Ramatekoa v. Ramatekoa CIV/A/l6/79 - unreported) this must of necessity apply whore all the parties agree on which members of the family are to be consulted. It cannot apply in cases whore two contesting factions of a family held separate meetings attended only by supporters of each. In this case there appears to be a dispute whether a marriage or marriages exist and it would seem on the papers before me that one faction of the family of Masupha decided (according to the applicant) that she was heir, whilst another faction (that of Molomo Masupha who is 2nd defendant/respondent) supported the claims of the first alleged wife (1st defendant/respondent). Now the applicant denies that 1st defendant/respondent was ever a wife, and that even if she was, she had ceased cohabiting with the applicant's husband 30 years before. She alleges further that the estate which her husband left was acquired in the main by their joint labour and that even if an earlier valid marriage was established she was entitled to a major portion.
The principles on which an interim interdict is granted or refused are well-known and need not be repeated. As long as the defendants/respondents keep the estate intact and in proper order an interdict will not be necessary, but once there is a
legitimate fear that the defendants/respondents will dispose of the property the balance of justice and convenience demands that the property, or what is left of it, be protected until the outcome of the civil action. Here the defendants/respondents not only deny that applicant is entitled to anything, but admit they have disposed of some of the property and say they will continue to do so if it is for the benefit of the estate. In other words they have already unilaterally and extra-judicially presumed that the applicant has no rights. That contention of course is nonsense at this stage.
An interim interdict will be granted to applicant as prayed pending the outcome of the action or an order of this Court. The Chief under whom the litigants live will make an inventory of what is left of the deceased's property in the hands of the defendants/respondents. I will not disturb the status quo regarding possession of the property as distinguished from its disposal, but if the defendants/respondents flout this interdict the applicant may proceed against them for contempt and/or for variation of the order.
The respondents to pay the costs.
CHIEF JUSTICF 11th August, 1980
For Applicant : Mr. Maqutu
For Respondents: Mr.Kolisang
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