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

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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

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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

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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

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"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

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" (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

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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

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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.