CIV/T/20/61 IN THE HIGH COURT OF LESOTHO

In the matter of

NODOLLY MBANGAMTHI Plaintiff

V

ASHTON KBANGAMTHI 1st Defendant

JOEL LEBAJAO MOTSOAHAE 2nd Defendant
REGISTRAR
OF DEEDS 3rd Defendant

JUDGMENT

Delivered by the Hon. Acting Judge Mr. J.L. Kheola on
the 9th day of April, 1984.

On the 5th February, 1981 the plaintiff issued a summons
against the defendants seeking the following orders

1.An order setting aside the deed of sale entered into
between the First Defendant and the Second Defendant in respect of
the premises
situate on site number 87 in the Maseru Reserve;

2. An order directing the Third Defendant to

expunge from his records the registration of the
aforesaid premises on site number 87 in Second Defendant's name,

3.An order directing the First Defendant to pay
the costs of this action and, in the event of opposing the same
jointly and severally
with the second Defendant;

4.
Further or alternative relief.

In her declaration the plaintiff has stated that her
father, Jabavu Mbangamthi, who died in Maseru during May 1976 married
her (plaintiff's)
mother, Jane Mbangamthi (born Malumbazo) by
Christian rites in Methodist Church in Maseru

/on the

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on the 9th May, 1950 Prior to his aforesaid Marriage
plaintiff's father had married by customary law in the Cape Province,
Republic
of South Africa, one Irene out of which marriage First
Defendant was born.

Plaintiff's parents, during the subsistence of their
aforesaid marriage, built a home at site number 87 in the Maseru
Reserve where
they lived until their respective deaths and where
plaintiff lived ever since her birth to date hereof.On or about the
12th April,
1979 the First Defendan, wrongfully and unlawfully
purported to sell plaintiff's aforesaid parents' home, in which live
plaintiff's
two minor children and plaintiff's father's other minor
dependants, to Second Defendant in consequence of which purported
sale
Second Defendant, on or about the 12th day of April, 1979,
caused the said immovable property to be registered in his name in
the
office of the third Defendants

The aforesaid sale is void and of no force and effect in
as much as at the time it was concluded First Defendant was not the
lawful
owner of the immovable property the, subject matter thereof.

On the 24th April, 1981 the First Defendant filed a plea
in which he denies that the site at number 87 Maseru Reserve was
built as
a home solely for the plaintiff's parents and puts plaintiff
to proof thereof. He says that before the start of the Second World
War, the late Jabavu

/Mbangamthi

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Mbangamthi had already established a home at site number
87 Maseru Reserve where he had erected a hut which was a home in
which he
(First Defendant) grew up. He avers that later on during the
Second World War, the late Jabavu Nbangamthi brought plaintiff's
mother
and lived with her and their offsping on site number 87 Maseru
Reserve where First Defendant was already living. In consequence site
number 87 is as much home for plaintiff as it is for First Defendant.

First Defendant avers that as first born son of the late
Jabavu Mbangamthi he is the lawful heir of his late father and
succeeded
in the death of his father to his father's estate-He admits
that he sold site number 87 to the Second Defendant but says the sale
was lawful. He has provided adequately for plaintiff and her minor
children, setting aside his property at Motimposo comprising
of five
rooms and a shop that contained stock for the use of plaintiff and
her children.

In support of her case the plaintiff gave oral evidence
in which she said she was born on the 18th May, 1942 here in Maseru
on site
number 87.She handed in a copy of a marriage certificate of
the marriage of her father and mother (Exhibit A).Prior to her
mother's
marriage the late Jabavu was married to 1st Defendant's
mother.She and the First Defendant used to live together on site No.
87 but
when she was about 10 years old the First

/Defendant

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Defendant went to Port Elizabeth and lived there till
the death of her father in 1976.Under cross-examination she denied
that the
First Defendant lived on site No, 87 even before her parents
were married, one has never married, she admits that the First
Defendant
gave her the immovable property at Motimposo to be her own
property,.

Abraham Marumo Tleletsi (PW.2) testified that he and
Jabavu Mbangamthi arrived here in Maseru in 1940.He came from
Bloemfontein while
Jabavu came from Matsieng. He is the next door
neighbour of the late Jabavu Mbangamthi. When they arrived in Maseru
in 1940 'Mangomo
(plaintiff's mother) was the wife of the late
Jabavu. HE does not know

the First Defendant's mother but he saw that First

Defendant was living on site No.87 with plaintiff's
parents.

Fiorina 'Mamafuthoane Moletsane (PW.3) testified that
she first knew the First Defendant when they (the children) were
fetched to
come and live on site No.8 with 'Mangomo She also does not
know the mother of 1st Defendant, she would have known her if she
ever
lived on site number 87 because the Jabavu's family are her
neighbours, plaintiff was already a girl of about 6 or 7 years when
her
parents arrived at site No. 87.

The First Defendant gave evidence in which he confirmed
most of what is in his plea.His mother and father were living at
Palama's
in the Maseru district when his mother went to
Kingwilliamstown where she died.He was about 12 years old when she
died.(He handed
in his title deed for

/site

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site No. 87 (Ex.B), his father's title deed for site 87
(Ex.C) and the Second Defendant's title deed (Ex.A).

Senkolo Maqathatsane (D.W.2) testified that when the
mother of the 1st Defendant died the late Jabavu Mbungainth: married
the mother of the plaintiff, 'Mangoma, as a person who would
bring up the children. When he went to the Second World War in
1941 the 1st Defendant's mother was already dead and when he
returned from the war in 1945 he found that Jabavu had married
'Mangoma.
He says that when Irene died he was working in the mines
and his father wrote a letter to him to inform him about the death.

The issue in this action is whether the late Jabavu
Mbangamthi was a polygamist or not.. If he was not a polygamist but
merely married
the mother of the plaintiff after the death of the
mother of the First Defendant then his estate is governed by Section
7(7) of the
Laws of Lerotholi (1959 edition) which reads.

"On the death of a person who has been allocated
the use of a land for the growing of vegetables or tobacco, or for
the purpose
of planting fruit or other trees, or for residential
purposes, the heir, or in the absence of the heir, the dependants of
such deceased
person shall be entitled to the use of such land so
long as he or they continue to dwell thereon."

(See Molatoli Ramontsoe v Molefi Ramontsoe
1980(2) LL.R. 4-38). The First Defendant would be the sole heir whose
only duty would be to see to it that the dependants of his
late
father are adequately provided for.

/If the

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If the late Jabavu had two 'houses' then the axiom
"malapa ha a jane" would apply.The heir would not have the
right to take
the property of the second "house" and use it
for the benefit of the senior house leaving the dependants of the
second
house inadequately provided for.

The onus was on the plaintiff to prove that her mother
was married during the lifetime of the mother of the.First Defendant,
In her
declaration and oral evidence she has stated that "prior
to his marriage to her (Plaintiff's) mother plaintiff's father had
married by customary law in the Cape Province, Republic of South
Africa, one Irene out of which marriage First Defendant was "born."
Mr. Sello, for the plaintiff, has submitted that this
statement shows that the late Jabavu was a polygamist. He asked this
Court to reject
the evidence of the First Defendant that plaintiff's
mother was married after the death of the First Defendant's mother.
He contends
that such evidence is in conflict with the plea of the
1st Defendant and that it is something new which has taken the
plaintiff by
surprise.He goes on to say that if the 1st Defendant had
not understood the summons he ought to have asked for further
particulars.

MR.Kolisang, for the 1st and 2nd Defendants has
submitted that there is no averment is the plaintiff's declaration
that her mother's marriage
was polygamous. Even in her evidence she
never stated th3t her father was a polygamist.I have read the
statement quoted above

/from

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from the plaintiff's declaration as well as her evidence
and I entirely agree with Mr. Kolisang that there is nothing
in the plaintiff's case to show that when her mother was married the
mother of the 1st Defendant was still
alive.At the end of the
plaintiff's case it was still not clear to me on what grounds the
plaintiff was basing her claim because
under Sesotho customary lav;
an unmarried daughter is not normally entitled to inherit anything
when her father dies.She remains
the dependant of the heir from whom
she is entitled to claim maintenance if she is in need of support,,
The statement that prior
to her mother's marriage her father had
married 1st Defendant's mother does not necessarily mean that when
her mother was married
the first marriage was still in existence.In
my view the Plaintiff had to aver that the first marriaige was still
in existence when
her mother was married.

The evidence of the plaintiff's witnesses tends to
support 1st Defendant's case in that they both say that though they
lived with
the late Jabavu as his neighbour they do not know the
mother of the 1st Defendant. When they first knew the Jabavu family
'Mangoma,
plaintiff's mother was the only wife of the late Jabavu who
was living with both the Plaintiff and the 1st Defendant.

It was during the cross-examination of the 1st Defendant
when I heard for the first time that the plaintiff was basing her
case on
the axiom "Malapa ha a jane." I do not think that
the plaintiff was justified

/to surprise

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to surprise the 1st Defendant in Court especially
because in her declaration she alleged that the 1st Defendant was not
the lawful
owner of the property at site number 87 in Maseru Reserve.
This allegation is wrong in law because as soon as the late Jabavu
died
the heir "stepped into his shoes." In his plea the 1st
Defendant clearly stated that he is the heir. The plaintiff has
not
refuted this statement but she says 1st Defendant is not the lawful
owner of the disputed property. Now who is the owner of
that
property⁹ The answer can be found in Section 7(7) of the
Laws of Lerotholi (supra).

The evidence of First Defendant's witness, Senkolc
Maqathatsane has been challenged on the ground that it hearsay.It
seems that when
1st Defendant's mother died he (Senkolo) was working
in the mines.He received a letter from his father informing him of
the death
of 1st Defendant's mother.I agree that that was hearsay but
he eventually came home and is sure that when he went to the war in
1941
1st Defendant's mother was already dead. I think that the second
part of his statement is admissible, I think he was in a position
to
know this because the orphans of Irene had to live with his sister
before they were brought to Maseru after 'Mangoma was married.

The plaintiff has admitted that it the 1st Defendant has
given her another property at Motimposo comprising some three flats
and a
shop.It means that the 1st Defendant did not only order
plaintiff to vacate site 87

/but

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but provided alternative accommodation for her. As heir
to the estate of his father the 1st Defendant was under an obligation
to
adequately provide for the plaintiff who is his dependant.But I
must point out that the plaintiff as a dependant cannot stop the
heir
from disposing of the property for as long as adequate provision has
been made for her.

I stated earlier on in this judgment that the onus to
prove that the late Jabavu was a polygamist is on the plaintiff.She
has failed
to discharge this onus on a balance of probabilities.I
reject the suggestion that the 1st Defendant had his defence up his
sleeve,
on the contrary I am of the opinion that it was the plaintiff
who failed to clearly state the basis of his claim.

For the reasons stated above the claim is dismissed with
costs.

ACTING JUDGE
9^th April, 1984.

For
the Plaintiff Mr. Sello

For
the Defendants 1 & 2 Mr. Kolisang.