IN THE HIGH COURT OF LESOTHO
In the Application between -
LEHLOHONOLO SECHELE Applicant
LETHOKO SECHELE Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on the 4th day of February, 1988.
The applicant is applying for an order declaring him the heir to his late father Matela Sechele who died in 1973. He further asks that the respondent be directed to pay costs of this application.
The application is opposed on the ground that the mother of the applicant was not legally married to the late Matela Sechele. It is also argued that the matter is res judicata in that in cc. 17/82 of Hololo Central Court in which the present respondent was the plaintiff and the present applicant was the 7th defendant, it was decided that the chieftainship rights were wrongly conferred on the present applicant by defendants 1 to 6 on the ground that there was no valid marriage between the late Matela Sachele and the mother of the applicant Mateboho Amelia Sechele.
It seems to me that the applicant and one Lenka Sechele who was the 1st defendant in cc. 17/62 never complied with the order of Hololo Central Court. As a result of their defiance of the judgment of that Court the present respondent brought an application in the High Court in CIV/APN/186/83 in which he applied for an order in the following terms.
Declaring that the Applicant is the lawful successor to the title of chieftainship over the area of Lipeleneng in the district of Butha-Buthe, which title having been held by the late Matela Sechele was, after the aforesaid late Matela Sechele's decease, held by his late wife 'Mampe Sechele.
Restraining and restricting Respondents from in any way interferring with chieftainship affairs at Lipelaneng aforesaid pending the result of this application.
Directing the First and Second Respondents jointly and severally to pay the costs of this application should they oppose the application."
That application is still pending and the respondent has made no attempt to have it finalized. I fail to understand why the respondent brought an application to this Court despite the fact that he had a judgment of a competent court which declared him successor to the chieftainship right of the late Matela Sechele at Lipelaneng. What he had to no was to enforce the judgment in cc. 17/82 by issuing a writ of execution or by having the applicant end Lenka Sechele charged with contempt of court.
The facts which are not in dispute are that the late Matela Sechele was the chief of Lipelaneng. When he died in 1973 his wife 'Mampe Sechele succeeded him as chieftainess of Lipelaneng. She did not act for anybody because she did not have a male issue and the Sechele family did not regard the applicant as the legitimate son of the late Matela Sechele. However, when 'Mampe Sechele died six members of Sechele family introduced the plaintiff to the Principal Chief of Butha-Buthe as successor to the late Chieftainess 'Mampe Sechele. This led to the institution of cc. 17/82.
In his founding affidavit the applicant deposes that his mother Amelia Mateboho Sechele was lawfully married to the late Chief Matela Sechele. The couple first married by African custom in 1945 at Kokstad in the Republic of South Africa. In 1957 they were married by civil rites at Port Elizabeth in the Republic of South Africa. He deposes that the respondent is his uncle and cannot claim to be a successor to the chieftainship rights of his late father. (The applicant has attached as "Annexure A" his mother's affidavit in CIV/APN/186/83 to which a marriage certificate is annexed.
In that affidavit Amelia 'Mateboho Sechele deposes that she is the wife of the late Matela Robert Sechale and the mother of the applicant. They were married by African custom in 1948 at Kokstad in the Republic of South Africa. The "bohali" of ten (10) cattle was paid in cash and a beast was slaughtered as "tlhabiso". At the time of the marriage she was not aware that Matela Sechele was already married in Lesotho. They lived in Port Elizabeth and in 1957 at
New Brighton they solemnized a monogamous Christian marriage at the Congregational Church on the 22nd June, 1957. The late Matela declared that he was not married to any other woman and that she was his only wife. She entered into this Christian marriage believing that she was his only wife.
She further deposes that the applicant was born on the 27th August, 1957. They came to Lesoth in 1963 and is was then that she discovered that her late husband had another wife, 'Mampe Sechele.
In his opposing affidavit the respondent says that when his late brother Matela Sechele purported to enter into a civil marriage in 1957 with Amelia Sechele, he was already married to his first wife 'Mampe Sechele by civil rites. The purported marriage between Amelia and the late Matela was null and void ab initio. He deposes that at the time he purported toenter into a civil marriage with Amelia the late Matela was 47 years old and that Amelia knew that he was already married to 'Mampe.
The respondent further deposes that the matter is res judicata. (He has annexed a marriage certificate which shows that on the 22nd October, 1941 the late Robert M. Sectionmarried Grace Mokhobo ('Mampe) by civil rites).
I shall first decide whether the marriage between Amelia and the Late Matela Sechele was null and void ab init-and whether Amelia was aware at the time of the marriage that the late Matela was already married by civil rites to another woman. There is no doubt that in 1957 when the late Matela
Sechele purported to enter into a marriage by civil rites with Amelia Male, he was already married to Grace Mokhobo ('Mampe) by civil marriage. He told Amelia Male ('Mateboho) that he was a bachelor and that his ago was 41 years. I disagree with the suggestion that because the late Matela was over 40 years old at the time of the marriage, Amelia must have known that he was already married to another woman. Some men marry very late in life.
The marriage officer who officiated at the marriage ceremony also believed that the late Matela Sechele was a bachelor. The ceremony took place in the Cape Province at Port Elizabeth which is several hundred miles from Lesotho and there is no evidence that either the late Matela or Amelia often visited Lesotho and that the latter ought to have known that 'Mampe was married to Matela. Nor is there evidence that 'Mampe often visited her husband in Port Elizabeth or Kokstad where Amelia would be expected to have seen her.
The allegation by the respondent that the mother of the applicant knew at the time she entered into a marriage with the late Matela by civil rites that the latter was already married to another woman by civil rites is without any basis at all and I reject it. I, therefore, come to the conclusion that Amelia was not aware of the existence of another civil marriage between 'Mampe and Matela. The purported marriage between the late Chief Matele Sechele and Amelia 'Mateboho Male was null and void ab initio on the ground that it was bigamous. However, because Amelia contracted the marriage in good faith, the
Court comes to the conclusion that it was a putative marriage to which certain of the effects of a valid marriage will attach. For instance on application the Court will declare the children of a putative marriage to be legitimate. See Thoko v. Hoohlo, CIV/T/29/77, Hahlo The South African Law of Husband and Wife, 5th edition at p. 113.
In Potgieter v. Bellingan, 1940 E.D.L. 264 it was held that an order having the effect of making a child of a bigamous marriage heir ab intestato to its father could not be made without representation in court of the child of his first marriage. In the present case there is overwhelming, evidence that the late Chief Matela Sechele did not have any son in his marriage with Chieftainess 'Mampe Sechele, as that there is no child in the first marriage who can claim to be heir to the late Matela. It is common cause that the respondent would be the next person in the line of successors if the applicant were to be declared illegitimate.
I have already come to the conclusion that the applicant is a child of a putative marriage and as such is entitled so be declared legitimate and the heir to his late father chief Matela Sechele.
I shall now consider the crucial question of whether this application is res judicata or not. In defining what res judicata Voet said
"Under no other circumstances is the exception allowed than where the concluded litigation is again commenced between the same persons, in
regard to the same thing, and for the same cause of action, so much so, that if one of these requisites is wanting, the exception fails." See Hoffmann South African Law of Evidence, 2nd edition p. 236.
In Mitford's Executor v. Ebden's Executors and others, 1917 A.D. 682 it was held that as the judgment had been given in the previous action (1) with respect to the same subject matter, (2) based on the same ground, and (3) between the some parties...." These requisites of the plea of res judicata have been restated in many cases. See Boshoff v. Union Government, 1932 T.P.D, 345, lurk v. Turk, 1954 (3) S.A. 971 (W.L.D.) Bantu Reformed Apostolic Church v. Ninow and Michael, 1947 (1) S.A. 187 (N.P.D.).
In the present case the applicant is asking the Court to declare him the heir to his late father Matelo Sechele. In cc. 17/82 of Hololo Central Court the respondent claimed Chieftainship rights wrongly conferred on Lehlonola by defendants. As to the parties in the present case they are the same as in the previous case because the applicant was a co-defendant. As to the subject matter, I think it the same as in the previous case but it is not based on the same ground. I say it is the same because if the applicant claims that he is the heir to his father and the Court declares him as such, he automatically acquires the Chieft,s ne ship rights which were in dispute in the previous case.
I say the present case is not based on the same ground inasmuch as in the previous case the question of the civil marriage was never raised by the parties. They raised
on the customary law marriage and the applicant and his co-defendants failed to prove that the late Chief Matela Sechele had paid any "bohali" cattle to the parents of Amelia Male. The applicant did not even call his mother as a witness in that case. The Hololo Central Court Sound that there was no proof of a valid customary law marriage between Amelia Mateboho and the late Chief Matela Sechele Taking into account the evidence led before that court, i do not find anything wrong with its judgment.
The present application is based on an entirely different ground which is not part of Lesotho customary law. The applicant claims to be heir on the ground of the existence of a putative marriage between his mother and the late Chief Matelo Sechele at the time of his birth. The Central Court did not have jurisdiction to decide on the validity of a civil marriage even if the question had been raised. In terms of section 8 (1) (b) of the Central and Local Courts Proclamation No. 62 of 1938 Central and Local Courts shall have no jurisdiction in cases in connection with marriage other than any marriage contracted under or in occordance with native law or custom, except where and in so far as the case concerns the payment or return or disposal of dowry.
Amelia 'Mateboho Sechele has deposed that in 1948 her late "husband" paid ten cattle to her parents as belies It follows that from 1948 to 1957 when their marriage was solomnized in church, the consequences of their marriage with in accordance with African customary law. In 1957 the parties
decided to convert their marriage into a civil lew marriage. The question is what was the status of the customary law marriage after the marriage was solemnized in church? In my view the customary law marriage was superseded by the civil law marriage. The former marriage ceased to exist and the consequences of a civil law marriage started to flow from the relationship. The only exception was that if the parties divorced the issue of the return of disposal of the cattle for "bohali" would still be decided by the local or central courts if one of the parents of the couple made the claim.
This is another ground why Hololo Central Court could not have jurisdiction in the matter if the issue of civil marriage had been raised. In 1982 when the litigation started the payment of cattle for "bohali" in order to prove the existence of a valid marriage, was irrelevant being only a civil law marriage governed the status of the applicant and his mother.
For the reasons stated above I have come to the conclusion that the judgment of Hololo Central Court was not based on the same ground as the present judgment and therefore the plea of res judicata must fail. See Mitford's Executor v. Ebden Executors and others (supra) at page 686.
This is not the end of the matter because litigation in this case has been going on from 1982. The Judgment of Hololo Central Court gave the chieftainship rights to the respondent. However, he seems to have abandoned that judgment because in 1983 he made an application (CIV/APN/I36/'
seeking the same relief which had been given to him. That application has not been finalized. In the mean time the applicant has brought the present application. He has not applied that the judgment in cc. 17/82 be reviewed and be set aside. If that judgment shall be automatically 'superseded by the judgment in the present, application everything shall be in order. But if not, ii, means that there will be two judgments of two competent courts which are in conflict with each other.
I propose to regularize the situation in the following manner I have reviewed the judgment of Hololo Central Court in cc. 17/82 (which was annexed to the pleadings of this application) and I find that in the light of the new evidence led before me regarding a valid nutativ. marriage between the late chief Matela Sechele and Amelia Mole, that judgment is wrong and is hereby set aside in rear of section 7 of the High Court Act 1978.
In the result the application is granted as prayed with costs.
4th February, 1988.
For Applicant - Mr. Maqutu
For Respondent - Mr. Teele.
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