IN THE HIGH COURT OF LESOTHO
In the Application of
'MA-ALICE TSILO Applicant
'MA-ROSINA TSILO 1st Respondent
MINISTER RESPONSIBLE FOR CHIEFTAINSHIP
AFFAIRS . 2nd Respondent
THE PRINCIPAL CHIEF
OF MATSIENG 3rd Respondent
THE SOLICITOR-GENERAL.. 4th Respondent
REASONS FDR JUDGMENT
Filed by the Hon. Mr. Justice B.K. Molai
on the 18th day of November,1987.
This application has already been allowed for the
The applicant herein had filed with the Registrar of the
High Court a notice of motion in which she moved the court for an
in the following terms.
(a) An order for the cancellation of
the gazettment of the chief or Headman of Tloupe Ha
Tsilo, under the Principal Chief of Matsieng.
An order directing that the applicantbe gazetted in
the place of the 1stRespondent.
An order for costs of this application.
Further and/or alternative relief."
The papers were duly served on Respondents who intimated
their intention to oppose the application.
However, the 2nd, 3rd and 4th Respondents subsequently
withdrew their notice of intention to oppose and only the 1st
opposition remained. Both the applicant and the 1st
Respondent filed their affidavits.
The facts disclosed by the affidavits were brief,
straightforward and common cause viz. that on 20th August, 1935 the
married to one Makhetha Tsilo by civil rites. The
civil marriage between the applicant and Makhetha Tsilo, who was the
chief of Tloupe Ha Tsilo, was never resolved and it
subsisted until the letter's death. However, during his life time
and the subsistence
of the civil marriage the later Chief Makhetha
Tsilo entered into a customary law marriage with the 1st Respondent.
This was, according
to 1st Respondent, because applicant had deserted
Chief Makhetha Tsilo since 1942.
It transpired that following the death of Chief Makhetha
Tsilo, who apparently left no male issue, a family meeting was held
on the question of a successor to the chieftainship of
Tloupe Ha Tsilo. The family meeting took a decision that the 1st
as the widow of the late Chief Makhetha Tailo be nominated
the successor to the chieftainship of the area. The applicant
to the nomination and/ or recommendation of 1st Respondent
as the successor to the chieftainship of Tlouoe Ha Tsilo.
the applicant's objection the 1st Respondent was
recommended and gazetted the chieftainess of Tlouoe Ha Tailo on
that she was the surviving wife of the late Chief Makhetha
Tsilo. Wherefor the applicant approached the court as aforesaid.
It is to be observed that one of the consequences of a
civil marriage is that "while the marriage subsists, neither of
may contract matrimony with an another person."
- p. 106 of the South African Law of Husband and Wife (4th
Ed.) by Hahlo. It follows, follows therefore that Chief Makhetha
Tsilo could not
legally enter into another marriage during the
subsistence of his civil marriage with the applicant.
As it was common cause that at the time
Chief Makhetha Tsilo purported to enter into a customary
law marriage with the 1st Respondent his civil marriage with the
had not been resolved and still subsisted there was no
doubt in my mind that the purported customary law marriage was null
and void ab initio. Granted that there was no valid marriage,
between the late Chief Makhetha Tsilo and the 1st Respondent it
stands to reason that
the 1st Respondent could not, in law, be his
wife or widow i.e. the applicant was the only surviving wife 01 widow
of the late Chief
S. 10(5) of the Chieftainship Act No.22 of 1968
clearly provides, in part
"(5) If when an office of chief becomesvacant
there is no person who succeeds the only surviving
wife of the chief, or the survivingwife of the chief
whom he marriedearliest, succeeds to that office ofchief . "
It seemed to me, therefore, that even if 1st Respondent
were legally married as the second wife to the late chief Makhetha
could not succeed to the chieftainship of Tlouoe Ha Tsilo
in preference to the applicant who was admittedly the earliest
wife of the late chief. The family decision on the basis of
which the 1st Respondent was apparently recommended and gazetted to
the chieftainship of the area was clearly a violation of the
provisions of S.10(5) of the Chieftainship Act No.22 of 196B
and the court did not consider itself bound by such a decision.
From the foregoing I came to the conclusion that this
application ought to succeed. It was accordingly declared that
was not legally married to the late Chief Makhetha Tsilo, the
1st Respondent, 'Ms.Rosina Tsilo, was not and could not be a
to the chieftainship of Tlouoe Ha Tsilo. On the contrary
'Ma-Alice Tsilo as the only surviving and legally
married wife of the late Chief Makhetha Tsilo was the rightful
successor to the
chieftainship rights of Tlouoe Ha Tsilo under the
Principal Chief of Matsieng. This being a family matter, I made no
order as regards
The decision was to be brought to the attention of the
2nd Respondent for his necessary action regarding the rectification
B.K. MOLAI JUDGE
23d November, 1987.
For Applicant Mr. Moorosi For Respondent
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law