CIV/APN/2/82

IN THE HIGH COURT OF LESOTHO

In the application of :

'MACOBA MOFOKA Applicant

v

1. 
   MOSIUOA MAJORO 1st Respondent

   
   

2. MOSALA
   MAJORO 2nd Respondent

   
   

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai
on
the 21st day of February, 1983.

This application is for an order of this Court declaring
applicant the rightful heir to the estate of the late Anna Mofoka.
The respondents
oppose the application.

In his founding affidavit, the applicant deposes that
before his death at Maseru in 1947, Libe Moiloa Mofoka had married
two wives,
Anna Mofoka and 'Masebaki Mofoka, according to Sesotho
customary law.

There were no children out of the marriage between Anna
and Libe. By her marriage to Libe, 'Masebaki gave birth to the late
Sebaki
Mofoka, who is the present applicant's father. The applicant
is therefore the grandson of Libe.

As Anna had no children of her own, the applicant was
given to her and he has lived with Anna since his childhood. They
lived in Maseru
until 1950, when they moved to Lithabaneng in the
district of Maseru. On 7th September, 1981 Anna passed away and
applicant contends
that he is the sole heir to her estate.

However, after the death of Anna on 7th September, 1981,
her brothers, the two respondents, wrongfully occupied her house at
Lithabaneng
claiming that she was never married and consequently her
estate belonged to the Majoro family.

Wherefor applicant prays for an order of this Court as
aforesaid.

Two other affidavits were filed in support of the
applicant's averment that Anna was married to Libe. They were

2/ the affidavit

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the affidavit ,of 'Masophia Makoanyane and that of
Teboho Petrus Bale. In her affidavit, 'Masophia desposes that she
was born in
1910 and is the sister of Anna, who was born in 1902.
'Masophia further avers that around 1918,Anna eloped with one
Ntebejane Pepenene
and they lived together at Popa for several years.
Around 1927, Anna and Ntebejane Pepenene separated. Around 1929,
'Masophia was
at Marquart in the Orange Free State, where Anna and
Libe (who was already married to 'Masebaki) met and got married.

Libe paid eight (8) head of cattle (through 'Masophia)
to her parents, who were then living at Popa, towards the

bohali for Anna. This is denied by the affidavits of
1st respondent and Abia.

In September 1981, 'Masophia attended the funeral of
Anna at Lithabaneng and was surprised to hear her brother, 1st
respondent, saying
Anna had not been married. She told him that Anna
had in fact been married but 1st respondent , refused to listen to
her simply
because he wanted the Majoro family to have a share in the
estate of the late Anna.

In his supporting affidavit, Teboho Petrus Bale deposes
that he is the rector of the Catholic Church at Senekal in the Orange
Free
State and as such in-charge of baptismal registers of that
parish and its outstations.

. According to the baptismal registers in his custody
Johannes Libe Mofoka and Anna Maliau Majoro (married Mofoka) were
baptised in
the Catholic church on 27th February, 1938 at Marquart.
At the time of the baptism there was already a Sesotho marriage,
which was
accepted without any further blessing.

The opposing affidavits were filed by 1st respondent,
Ramoneuoa Pepenene and Abia Tohlang. In his opposing affidavit
confirmed by
those of Ramoneuoa and Abia, 1st respondent makes very
important averments, firstly,that prior to her purported marriage to
Libe,
Anna was already married to Ntebejane Pepenene in accordance
with Sesotho customary law and ten (10) head of cattle had been paid
by the family of Pepenene towards the bohali for Anna. In 1933, and
during the subsistence of the marriage between Anna and

3/ Ntebejane

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Ntebejane Pepenene, Libe ran away with Anna to the Free
State. As the marriage between Anna and Ntebejane Pepenene had not
been dissolved
and still subsisted, no valid marriage could ever have
been concluded between Libe and Anna.

I say this is an important averment because, in my
opinion, the order which applicant is seeking before this - Court
depends entirely
on whether or not Anna was in fact validly married
to Libe his grandfather. It seems to me there is a real dispute of
fact as to
whether Anna was in fact married to Libe and this is a
matter that cannot be properly decided on affidavit papers that have
been
filed before this Court. There is need for,viva voce,
evidence that can be subjected to a test by cross-examination in
order to arrive at the truth and a just decision in this matter.

Secondly, in his opposing affidavit, 1st respondent
avers that he, and neither the applicant nor the family of Pepenene
to which he
contends that Anna was validly married according to
Sesotho customary law, is entitled to succeed to the estate of the
late Anna
by reason of her last Will and Testament dated 27th July,
1981 - Annexure A -which appoints him the heir to the estate.

In my opinion, the validity of any written disposition
purporting to have been executed by Anna inseparably hinges on the
question
whether or not she was married woman according to Sesotho
customary law. Any attempt to debate the validity of her will before
the
question of Anna's marital-status has been finally resolved would
be premature and purely academic.

In the premises, I come to the conclusion that this is a
proper case where absolution from the instance should be granted and
it is
accordingly granted.

Before the commencement of the hearing of this
applicant, the parties requested a short adjournment with a view to
deciding whether
leave of the court could be sought

4/ to lead,

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to lead,viva voce,evidence, I was informed that
the parties had dicided that because of the nature of the papers
filed before the Court, there was
no need to lead,viva voce,
evidence and the application should therefore proceed on the
affidavits.

No award is made as to costs.

B.K. MOLAI
21st February, 1983.

For the Applicant : Mr. Maqutu.
For the
Respondents : Mr. Kolisang.