CIV/A/10/80 IN THE HIGH COURT OF LESOTHO In the Appeal of : SEKESE NALEBANYE : Appellant v. CHIEFTAINESS 'MAMMUALLE CHABASEOELE : Respondent JUDGMENT Delivered by the Hon. Judge Mr. Justice B.K. Molai on the 9th day of November 1981. The appellant in this case sued the present Respondent before Likueneng Central Court claiming succession to the chieftainship over the Ward of Likueneng in the District of Mohale's Hoek as the heir and rightful successor to the late chief Chabaseoele. The Court found for the appellant. The Respondent subsequently appealed to the Judicial Commissioner's Court which varied the decission of the Central Court to that of absolution from the instance. It is against this judgment of the Judicial Commissioner's Court that the appellant has now appealed to this Court under a certificate granted by the Judicial Commissioner. There was a number of grounds of appeal but the important one was that all in all the judgment of the learned Judicial Commissioner was at variance with the facts proved that Sekese was born at Ha Maphohloane the son of Chabaseoele and Mahloekisang while they lived together at Ha Maphohloane. /The evidence
-2- The evidence was that the late chief Chabaseoele got married to Sekese's mother, Mahloekisang, by the Sesotho Customary Law on the 30th August, 1940. This fact was disputed by the Respondent according to whose evidence Chief Chabaseoele had merely abducted Mahloekisang and six cattle were subsequently paid as compensation. In accordance with the Sesotho Customary Law there was therefore no marriage between Chabaseoele and Mahloekisang. There was however, evidence that the marriage between Chabaseoele and Mahloekisang had been negotiated at Ha Maphohloane by the late Chief Goliath, the father of Chabaseoele and Malebona, the mother of Mahloekisang. A letter of agreement (Exhibit 'A') in which Malebona acknowledged receipt of the bohali cattle from Chief Goliath was on the face of it drawn by the parties on the 30th August 1940 at Ha Maphohloane, Several people signed their names as witnesses to the agreement. One of the people who actually took part in the negotiations and signed exhibit 'A' as a witness was Chief Setlolela Mohale (P.W.1). According to the evidence of Setlolela Mohale the negotiating parties concluded an agreement whereby the quantum of bohali was twenty five (25) cattle although only twenty one (21) were actually paid to Malebona. There was also evidence that when he got married to the Respondent, Chabaseoele had already been placed as the chief over the area of, and was living at Ha Maphohloane. It may be observed that in accordance with the Sesotho Custom it is unlikely that Chabaseoele could have been placed as a chief before he was married. When Hloekisang, admittedly the first child born of Chabaseoele and Mahloekisang, got married her bohali cattle were paid to the late chief Goliath, the father of Chabasoele. Both the trial court and the /Judicial
-3- Judicial Commissioner took the view that the fact that Hloekisang's bohali cattle were paid to Chabseoele's father and not to Mahloekisang's parents is yet another proof that Mahloekisang was in fact married into Chief Goliath's family. That in my opinion is the correct statement of the position under the Sesotho custom and I am prepared to share the view held by the trial court and the Judicial Commissioner that on the evidence Mahoekisang was lawfully married to Chief Chabaseoele. The evidence further disclosed that chief Chabaseoele later got married to the Respondent. According to Plaintiff's evidence confirmed by some of the Respondent's witnesses chief Chabaseoele himself negotiated the marriage and paid 15 cattle as bohali. In my view if Chief Chabaseoele himself and not his father negotiated the marriage and paid the bohali cattle for the Respondent the implication is that he was regarded as a married man for according to Sesotho Custom the father negotiates the marriage and pays the bohali cattle when his son marries the first wife. He is not obliged to do so when the second wife is married. On the 6th October 1963 Chief Chabaseoele and the Respondent went to Church and contracted a marriage before a marriage officer. What had been their customary marriage was thus converted into a civil or Christian marriage. It is clear from the evidence that chief Chabaseoele had two wives, namely, Mahloekisang and the Respondent married according to the Sesotho Customary Law and the Civil rites respectively. As far as I am aware the two types of marriage are recognised in Lesotho. According to Sesotho Customary Law of succession as cordified in 1968 it would appear that where a person is married to two or /more wives
-4- more wives the first married is the senior wife. On the evidence accepted by the trial court in the instant case Mahloekisang was the first married wife of chief Chabaseoele. It follows therefore that she is the senior wife. It was common cause that following their marriage to chief Chabaseoele both Mahloekisang and the Respondent had male issues in their respective "houses". As far as is relevant here their male issues are Sekese and 'Mualle respectively. It is also common cause that at the time of his death chief Chabaseoele was the acknowledged Ward Chief of Likueneng area. Following his death there was a division among the members of the family as to who was to succeed in the chieftainship of Likueneng. Some of the family members favoured Sekese while others nominated 'Mualle as the heir and rightful successor to the late chief Chabaseoele. It is common cause that it was the choice of those who favoured 'Mualle which was eventually accepted by the authorities. As 'Mualle was still too young to take over the reins of administration the Respondent, his mother, was appointed the regent and gazetted the Acting Chieftainess over the Ward of Likueneng. The appellant's contention is that he as the only son in the senior "house" and not 'Mualle, his younger brother in the second "house" ought to have been nominated and recognised by the family and the authorities respectively as the heir and rightful successor of chief Chabaseoele. He has therefore approached the courts of law to have the nomination of 'Mualle as the successor to the chieftainship of Likueneng set aside or varied in terms of S. 11(2) of the Chieftainship Act No. 22 of 1968 which provides : /"If the
-5- "If the nomination of a person has been duly announced in pursuance of the provisions of subsection (1),. and any other person claims that the person nominated is incapable of succeeding, or that some other, person who. is capable of succeeding should have been so nominated instead of the person who was nominated, the person so claiming may apply to a court of competent jurisdiction to have the nomination set aside or varied accordingly." Having decided that the late chief Chabaseoele was legally married to Mahloekisang and the Respondent and that the former is the senior wife it seems rather incongruous that 'Mualle and not Sekese should have been nominated the heir and rightful successor to the late chief Chabaseoele. In Sebueng Malebanye v Sechabaseoele Goliath 1974-1975 L.L.R. 276 at p. 280, the Basotho Customary rule of succession was expounded by Cotran, J. (as he then was) in the following terms : "The Customary Law of the Basotho since time began, as enshrined in the successive editions of the Laws of Lerotholi, as interpreted by the courts, as modified from time to time, and as codified in 1968, is that (with rare excep- tions that we need not go into) the eldest son of the first "house, if any, succeeds his father, and failing male issue from the first "house" the eldest son of the second "house", and so on." This aparently anomalous choice in favour of 'Mualle came about as a result of Respondent's contention that even if it were held that Mahloekisang was legally married to chief Chabaseoele, her son Sekese was fathered by a certain Gauda Manosa and not the late chief Chabaseoele. Sekese was therefore an illegitimate son and as such failed to satisfy the legal requirement for succession to the office of Chief in terms of S. 10 of the Chieftainship Act Mo. 22 of 1968 which provides inter alia, that : "(1) In
-6- " (1) In this section reference to a son of a person is a reference to a legitimate son of that person," In support of her contention that Sekese was an illegitimate son the Respondent adduced the evidence of Madaniel Molefe and Gauda Manosa. The two witnesses told the court that Sekese was born in Bloemfontein in 1955. Manosa further informed the court that Sekese was born as a result of his illicit love affair with Mahloekisang in Bloemfontein, The trial court before which the witnesses appeared and testified considered their evidence and came to the conclusion that it was a mere fabrication aimed at deceiving and misleading the court in its judgment. The evicence was accordingly rejected. Plaintiff's evidence that Sekese was born of Mahloekisang was accepted by the trial court. However, the court took the view that after it had been established that Sekese was born of Mahloekisang who was legally married to chief Chabaseoele the courts of law had no jurisdiction to investigate his legitimacy. Indeed, the question of whether Sekese was in fact born in Bloemfontein or Ha Maphohloane was not even entertained. This the court considered unnecessary on the basis of the Sesotho saying that a married woman is incapable of begetting a bastard (Mosali ea nyetsoeng h'a tsoale sekhaupane). In my opinion the Sesotho saying that a married woman is incapable of begetting a bastard is a rebuttable presumption. To hold the contrary would clearly mean that every child born of a legally married woman is legitimate and therefore entitled to succeed in the estate or to the chieftainship of the deceased husband of its mother, notwithstanding that it had clearly been fathered /by another
-7- by another person. In my view that proposition would be not only untenable but render the provisions of S. 10(1) of the Chieftainship Act No. 22 of 1968 completely unnecessary. I have no hesitation in rejecting it, for if all children born of a married woman were legitimate regardless of who had fathered them why then has it become necessary for the legislature to enact that reference to a son of a person is a reference to a legitimate son. It seems to me that (with perhaps rare exceptions) the correct Sesotho Customary Law position (at least for purposes of the Chieftainship Act) is that a child born of a married woman but fathered by a person other than the husband of its mother is illegitimate and therefore unlikely to succeed in the estate or chieftainship of the deceased husband of its mother. I am fortified in this view by the decision in Khosi Molapo v Lepoqo Molapo 1971-1972 L.L.R. 289 at p. 294 where Jacobs, C.J. is reported as having said : "On the evidence there can be little doubt that the Plaintiff was not fathered by Lelingoana. Mr. Maqutu for the Plaintiff, however, argued that all children born of a woman during the subsistence of a marriage and even after her husband's death, if the bohali cattle have not been returned, are regarded in Customary Law as legitimate and that it is in that sense that the words "legitimate son" are used in section 10(1). I have grave doubts whether that is so." In the instant case there was evidence that after she had been married to and lived together with Chief Chabaseoele for a while, Mahloekisang returned to her maiden home. She had since never come back to her marital home. The exact year in which Mahloekisang left the marital home for her maiden home was not, on the evidence, conclusively established. Nor was it / proved on
-8- proved on the evidence that after her return to her maiden home Mahloekisang and Chabaseoele ever met as husband and wife. In the circumstances the probability that Sekese could have been born many years after Mahloekisang had left her marital home and therefore not fathered by chief Chabaseoele could not be discarded. Sekese's legitimacy was however a crucial question which the trial court had to decide positively if he were to be regarded as the heir and rightful successor to the late chief Chabaseoele and therefore succeed to the chieftainship of Likueneng. As has been pointed out earlier the trial court took the view that having decided that Mahloekisang was legally married it became unnecessary to go into the question of the legitimacy of her son, Sekese, for she was incapable of begetting a bastard. I have no doubt in my mind that that was a misdirection. The Judicial Commissioner was therefore justified in granting, as he did, absolution from the instance to enable the trial court to resolve, on evidence, the question of Sekese's legitimacy so that a fair decision might be reached in this matter. I come to the conclusion that this appeal ought not to succeed and is accordingly dismissed with costs. ACTING JUDGE, For the Appellant : Mr. G. Kolisang For the Respondent : Mr. W. Maqutu.