CIV/T/256/78

IN THE HIGH COURT OF LESOTHO
In the matter
of :

'MACICILIA TSOLELE NDLEBE 1st Plaintiff MAKHOAKHOA
NDLEBE 2nd Plaintiff

V

'MADANIEL SOMOZA NDLEBE 1st Defendant
SOMOZA
NDLEBE 2nd Defendant

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
13th June, 1986.

The plaintiffs herein have sued the defendants

for payment of M4864.00 and M167.30, being compensation
moneys fraudulently received by the latter following

the death of the late Tsolele Ndlebe, costs of suit
and/or alternative relief.

In their plea the defendants conceded to have received
the M4864.00 and M167.30 but denied to have done so fraudulently as
by a decision
taken at a family meeting they were nominated the
beneficiaries to the. estate of Tsolele Ndlebe and, therefore,
entitled to receive
the compensation moneys. Alternatively the

defendants alleged to have incurred funeral and
incidental expenses amounting to M2670 as a result of

Tsolele Ndlebe's death for which expenses they
counter-claimed against the plaintiffs.

It is common cause that 2nd defendant is the son of the
late Tsolele Ndlebe's elder brother and 1st defendant his wife. In
1947 Tsolele
Ndlebe got married to 1st

/plaintiff

- 2 -

1st plaintiff according to Sesotho Law and Custom. 2nd
plaintiff is the only male issue born out of the marriage. In terms
of the
Provisions of. s. 11 (1) of

the Laws of Lerotholi he is, therefore, the
customary
heir in the house of Tsolele Ndlebe and the
1st
plaintiff.

According to 1st plaintiff her marriage with Tsolele
Ndlebe was initially a happy one until the latter, who was working in
the Republic
of South Africa, stopped maintaining her together with
the child. In an attempt to discuss the matter with Tsolele Ndlebe,
1st plaintiff
decided to go to his place of work at St Helena, in the
Republic of South Africa. She, however, found that Tsolele Ndlebe
had left
St Helena for Natal,

still in the Republic of South Africa. '1st plaintiff
had to return home and take employment with one Mrs Martin

of Fourisburg in the South African Province of the
Orange Free State - about a kilometer from her home. Later on Tsolele
Ndlebe, who
had lost a finger in a mine accident, returned home
bringing with him an amount of £70 as compensation. They stayed
together for
a while but when he had spent the £70 Tsolele Ndlebe
returned for work in the Republic of South Africa. He again stopped
maintaining
1st plaintiff and the child. It was then that 1st
plaintiff decided to go to Germiston, in the Republic of South
Africa, and xxxx

for
herself and the child.

1st plaintiff obtained work as a domestic servant. but
in terms of the laws of the Republic of South Africa she had to find
accommodation
in the location where other black people of that
country lived. To qualify for

/a house

- 3 -

a house in the location she had, again in accordance
with the law of the Republic of South Africa, to be lawfully married
to a man
with whom she lived. For that purpose 1st plaintiff and a
lover by the name of Wilson Makakole, also a married person who had
left
his family in Matetiele, concluded an arrangement whereby they
went through a civil marriage procedure before a commissioner of
Buntu
Affairs. In this manner Wilson Makakole and 1st plaintiff were
able to obtain a house -in the location where they have since lived
together as husband and wife.

It is also common cause that when she went to work in
the Republic of South Africa 1st plaintiff left 2nd plaintiff at her
maiden
home. This, according to 1st plaintiff supported by P.W.2,
Manamolela Motake, was with the approval of her father-in-law who had
no one to prepare food for the child.

it is likewise not disputed that after some years 2nd
plaintiff left Lesotho for the Republic of South Africa where he
joined his
mother, the 1st plaintiff. In order to facilitate his stay
and better employment in the Republic of South Africa, 2nd plaintiff
assumed
the surname of Makakole through which he also obtained

a South African passport (Doom Pass). 2nd plaintiff is
now a married man and has a number of children. He does not
contemplate returning
to Lesotho in the near future.

It transpired that in April, 1977 Tsolele Ndlebe passed
away in a mine accident. According to him 2nd defendant, who was also
working
in the Republic of South

Africa, went to the place where the plaintiffs stayed

/with

- 4 -

with Makakole to inform them about the death of Tsolele
Ndlebe. The plaintiffs, however, refused to come home for the
funeral, 1st
plaintiff claiming that as she was married to the family
of Makakole she no longer had anything to do with the family of
Ndlebe while
2nd plaintiff told him that he was "in the throne"
.- by which 2nd defendant understood him to mean that he could not
come
to Lesotho because of his religious commitments.

The plaintiff's version was slightly different. Although
they conceded that 2nd defendant did come to their residence and
announced
the death of Tsolele Ndlebe he made it plain that he wanted
only the 2nd and not the 1st plaintiff (who was married to Makakole)
to come home for the funeral. For that reason 1st plaintiff felt that
she would not be welcome at the funeral of Tsolele Ndlebe and
so she
did not dare come to attend it. 2nd plaintiff did, however, come home
although he arrived 2 days after Tsolele Ndlebe had
been burried.
This, according to 2nd plaintiff, was due to the fact that he was
using a South African passport and had difficulties
in obtaining
travelling documents which would enable him to enter into Lesotho. As
he arrived home late for the funeral 2nd plaintiff
could only place a
stone on the grave of his father,Tsolele Ndlebe, in accordance with
the Sesotho custom.

Notwithstanding the defendants' denial that 2nd
plaintiff came home following the death of Tsolele Ndlebe it is
significant to note
that in her evidence 1st defendant did concede
that she saw 2nd plaintiff at home after the funeral had taken place.
He, however,

/stayed

- 5 -

stayed at the maiden home of 1st plaintiff and did not
come to her (1st defendant's) home.

It is clear, therefore, that defendants'' denial that
2nd plaintiff came home following the death of Tsolele Ndlebe is
based on the
fact that 2nd plaintiff stayed at his mother's maiden
home and not at their home. That 2nd plaintiff stayed at the maiden
home of
his mother is, however, no surprise if it were borne in mind
that before he went to join her in the Republic of South Africa he
was
staying at the maiden home of her mother. He must have regarded
his mother's maiden home as his home. Moreover, 2nd defendant,
and,
indeed, as we shall see in a moment, D.W.3, Mpondulo Ndlebe, regarded
1st plaintiff as belonging no longer to the family of
Ndlebe but that
of Makakole to whom she was married.

Plaintiffs' evidence that the family of Ndlebe was no
longer interested in 1st plaintiff seems to find support in the
evidence of
D.W.3, another member of the family, who told the court
that following the death of Tsolele Ndlebe he too went to the place
where
the plaintiffs were staying with Makakole to announce the news
of Tsolele Ndlebe's death to the 2nd and not the 1st plaintiff who
was married to Makakole and therefore, belonged to the family of
Makakole.

Granted that Ndlebe's family was no longer interested in
his mother there seems to be no good reason why 2nd plaintiff would
be expected
to stay with the defendants when he was at home in
Lesotho.

/According

- 6 -

According to the defendants when the news of the death
of Tsolele Ndlebe was received 2nd defendant was unable to come home
because
of the exigency of his work. He, however, sent an amount of
M500 to 1st defendant as contribution towards the burial expenses.
After
the 2nd plaintiff had given him the impression that he would
not associate himself with the burial of Tsolele Ndlebe 2nd defendant
again sent, by hand post, an amount of M200 to 1st defendant in order
that she might meet funeral expenses. Although 1st defendant
told the
court that she in addition used some of the money that was in her
house she was unable to say how much.

Because at the death of Tsolele Ndlebe 1st plaintiff was
married to Makakole and no longer living with Tsolele Ndlebe; 2nd
plaintiff
had assumed the surname of Makakole with whom he lived in
the Republic of South Africa and both plaintiffs did nothing to bury
Tsolele
Ndlebe whose funeral expenses were borne by the defendants, a
decision was taken at a subsequent family meeting nominating the 2nd
defendant as the heir to the estate of the late Tsolele Ndlebe.

It is not disputed that following the death of Tsolelo
Ndlebe certain moneys became payable to his estate as compensation.
The 1st
and 2nd plaintiffs as the widow and the heir, respectively,
of the late Tsolele Ndlebe came to Lesotho to receive the first
payment
of the compensation money from the mine authority agents in
Lesotho. The 1st defendant unsuccessfully challenged the plaintiffs'
right to receive the money and it was paid to the plaintiffs. In
addition the

/plaintiffs

- 7 -

plaintiffs completed certain forms to facilitate the
processing of the second payment of the compensation money.

When the second payment became due the 1st defendant
obtained on the basis of the family decision a letter from the chief
certifying
that she was the person entitled to receive that money. It
was on the strength of that certificate that she received the amounts
of M4864 and M167.30, being compensation to the estate of the late
Tsolele Ndlebe. She has kept the bulk of that money in a separation
bank account.

The defendants' contentions are that there was no fraud
in their act because there was a family decision appointing them the
beneficiaries
to the estate of the late Tsolele Ndlebe and,
therefore, the rightful persons to receive the money; as 1st
plaintiff was married
to Makakole she was not entitled to the money
which rightly belonged to the children of Ndlebe; likewise 2nd
plaintiff who had assumed
the surname of Makakole and did nothing to
bury the late Tsolele Ndlebe had no rightful claim to the money
belonging to the children
of the family of Ndlebe.

The first question for the determination of this Court
is whether or not by going through the civil marriage procedure in
the Republic
of South Africa 1st plaintiff and Wilson Makakole have,
in fact, entered into a lawful marriage. Although there is evidence
that
at the time the parties went through the civil marriage
procedure Wilson Makakole had already concluded another marriage in
Matatiele,Republic
of South Africa

/it is

- 8 -

it is not clear what type of marriage it was.

The significance of this is that if the marriage were
what is commonly called native union in the Republic of South
Africa,Wilson Makakole was free to enter into a lawful civil
marriage. If,'however, the marriage were a
civil marriage it is trite
law that he could not lawfully enter into another marriage during the
subsistence of the previous one.

Be that as it may, there is no doubt, on the evidence,
that at the time the parties went through the civil marriage
procedure 1st
plaintiff was already married to Tsolele Ndlebe,
according to Sesotho Law and custom, and the marriage had not been
dissolved. That
a Sesotho customary marriage vis-a-vi native union
is a legal marriage and neither of the parties thereof can lawfully
enter into another civil marriage during its subsistence has
definitely been decided in Makete v Makate C. of A. CIV) No. 8
of 1982. It follows from this decision that the question I have
earlier posted viz. whether or not by going through
the civil
marriage procedure in the Republic of South Africa 1st plaintiff and
Wilson Makakole did in fact enter into a lawful marriage
must be
answered in the negative. As there is no evidence that at the time
Tsolele Ndlebe passed away his marriage with 1st plaintiff
had been
dissolved I have no alternative but to come to the conclusion that
they were still married to each other and 1st plaintiff
is,
therefore, the late Tsolele Ndlebe's widow and the lawful beneficiary
to the estate.

/In terms

- 9 -

In terms of the provisions of section 11 (1) of Part
1 of the Laws of Lerotholi the heir in Lesotho is "the first
male child of the first married wife." As has already been
pointed out earlier 2nd plaintiff
is the only male child born of the
marriage between the late Tsolele Ndlebe and the 1st plaintiff, his
first married wife. 2nd plaintiff
is, therefore, Tsolele Ndlebe's
customary heir in accordance with the provisions of s. 11 (1) of the
Laws of Lerotholi, above.

In the circumstances the decision of the family of
Ndlebe appointing (during the life time of 2nd plaintiff) 2nd
defendant as the
heir to the estate of Tsolele Ndlebe was a departure
from the accepted rules of custom in this country and for that reason
wrong.
True enough the defendants may have contemplated no fraud and
genuinely believed that they were, on the basis of the family
decision,
entitled to receive the compensation moneys. This Court is,
however, unable to permit an act done pursuant to a wrongful decision
of a family meeting. That being so, I come to the conclusion that
the defendants had no right to receive the compensation moneys
for
which they must re-imburse the plaintiffs.

As regards their counterclaim the defendants failed
decimally to prove how they could have incurred funeral expenses
amounting to
M2670. In their own evidence the money sent home by 2nd
defendant to meet the funeral expenses amounted to M700. The
plaintiffs
are quite prepared to refund them to that extend.

/From

- 10 -

From the foregoing it is obvious that the view that I
take is that the plaintiffs succeed in their claim end defendants
must re-imburse
them the amounts of M4864 and M167.30. In their
counterclaim the defendants also succeed albeit in part i.e.
to the tune of only M700 for which the plaintiffs must re-imburse
them.

I have given serious thought to the question of costs.
The fact that this is a family dispute in which both parties have
succeeded
in their claims has weighed heavily in my mind. I am
prepared, therefore, to make an order that the parties bear their own
costs.

J U D G E
13th June, 1986.

For the Plaintiffs : Mr. W. Maqutu
For the
Defendants : Mr. M. Matsau.