CIV/APN/13/83
IN THE HIGH COURT OF LESOTHO
In the Application of
MENSEL KHETHISA Applicant
and
JOANG KHETHISA 1st Respondent
DINIZULU KHETHISA 2nd Respondent
SHOAEPANE MASUPHA 3rd Respondent
BOLOKOE MOTSOENE 4th Respondent
SOLICITOR-GENERAL 5th Respondent
MINISTER OF INTERIOR 6th Respondent
JUDGMENT
Delivered by the Hon. Mr Justice B K. Molai on the 12th day of June, 1985
The applicant herein moves the court for an order declaring him as, the rightful successor to the chieftainship of Bokong ha Kennen in the district of Leribe, directing the sixth respondent to place him as the Chief of Bokong ha Kennen, granting him further or alternative relief and costs of this application only in the event of opposition by the Respondents. Only the 1st and 2nd Res-poendents oppose the application.
It is common cause that the late Chief Khethisa Molapo was married to several wives of whom 'Malepikoane was the most senior The first Respondent who became the Chief of Thaba Phatsoa and Mahobong is the eldest son in the house of 'Malepikoane. The second wife was 'Mamatoli. One of the boys born in the second house was Kennen Khethisa who became the chief of Bokong ha Kennen. The late Chief Khethisa Molapo had several other junior wives the most junior of whom was Raselane. At the time of his death Chief Khethisa Molapo had no issue in the house of Raselane.
According to the first Respondent, after the death of Chief Khethisa Molapo, the family took a decision that
2/ his son
2
his son by the second house, Kennen Khethisa, should raise seed in the house of Raselane and the applicant was one of the children born out of that union. The applicant is, therefore, the son of the late Chief Khethisa Molapo and not Kennen Khethisa on the basis of the Sesotho adage that "Bana ke ba khomo" (cattle beget children).
Applicant, however, denies that Kennen Khethisa was merely allowed by the family to raise seed in the late Khethisa Molapo's house of Raselane and avers that Kennen Khethisa actually re-married Raselane and he is the eldest of the children born out of that marriage. As such he is, therefore, entitled to succeed in the chieftainship of Bokong ha Kennen.
That Kennen Khethisa re-married Raselane after the death of his father Khethisa Molapo, the applicant is supported by Tomaki Ramapepe who deposed that following the death of Khethisa Molapo ten (10) head of cattle were paid as bohali towards the re-marriage of Raselane
I am not so sure that the custom which according to the 1st Respondent took place between Kennen Khethisa and Raselane can be considered marriage at all, particularly after coming into operation of the Laws of Lerotholi If it were not marriage, it seems to me that the Applicant was born out of wedlock and in terms of 5.10(2) read with (1) of the Chieftainship Act 1968 he would not be entitled to succeed to chieftainship even that of Khethisa Molapo let alone that of Kennen Khethisa. Again I have serious doubt whether according to that custom a step son would be allowed to raise seed with his step mother. On the other hand, I do not understand how the bohali cattle would have to be paid by the Khethisa family for the re-marriage of Raselane who was already married in that same family.
Be that as it may, it is common cause that when he made children with Raselane, Kenneth Khethisa was already married to another women namely 'Mamothobi with whom he had no children. When in 1953 Kennen Khethisa passed away, his widow, 'Mamothobi Khethisa, was gazetted in her own right as chieftainess over the chieftainship area of Bokong ha Kennen. She was the chieftainess over
3/ that area
- 3 that area in her own right until her death in 1976.
It seems to me that if the applicant were indeed the legitimate son of the late Kennen Khethisa, the
widow, 'Mamothobi would have been gazetted in an acting
capacity and not in her own right, that is, assuming that
the applicant was still a minor. This is clearly in accordance with the provisions of S.3(1) of the Laws of Lerotholi Part I which section reads as follows
"3.(1) If a chief dies leaving a minor son the senior widow or the younger brother of the deceased chief may act as chief during the minority of such son, and when that son ceases to be a minor the widow or the younger brother shall give place to him."
I am not convinced that on the papers before me the applicant has established a case entitling him to the reliefs he seeks in this application. I have, therefore, no alternative but to dismiss the applicant's application with costs.
B K MOLAI JUDGE
12th June, 1986.
For Applicant Mr. Monaphathi,
For respondent Mr. Maqutu (for 1st and 2nd Respondents)