IN THE HIGH COURT OF LESOTHO
In the Application of :
'MAKHIBA MOTSEKI Applicant
'MAMOTSEKI MOTSEKI 1st Respondent
RAPAULINA MOTSEKI 2nd. Respondent
TSOENE MOTSEKI 3rd Respondent
Delivered by the Acting Mr. Justice M.L. Lehohla on the 6th day of April, 1988.
A rule nisi was issued on 30th March 1988 at the instance of applicant who sought an interim order from this Court forbidding respondents
to make burial preparations for the deceased 'Mathaane Motseki; and
to make misleading announcements as to the date of the deceased's burial, pending the determination of this application.
Respondents' answering papers were filed on the return date i.e. 5th April, 1988 whereupon by consent between the parties' respective counsel the return date was extended to April 6th in order to enable applicant to study the respondents' papers and reply thereto if necessary.
Applicant avers in her founding papers that the deceased 'Mathaane Motseki is her mother-in-law in that applicant's late husband Thaane who was married to her by Sesotho Custom on 17th March 1969 was the only son of 'Mathaane. Applicant avers further that nine cattle were paid as bohali in respect of her
marriage which subsisted till Thaene's death in 1983. Out of this marriage five children were born the eldest a boy Refuoe was bom on 5th February, 1970.
Applicant has not filed any documentary proof of her marriage to Thaane nor has she by affidavit brought forth any witness in support of her allegation. She admits that first respondent was married to Thaane also by Sesotho Custom but avers that the deceased Thaane told her during his life time that he and 1st respondent had had their marriage terminated.
The 1st respondent denies all these allegations in so far as they tend to show that the marriage between her and Thaane terminated before Thaane's death. She further swears that applicant and Thaane became lovers only in 1976. She states that as a result of the love affair between Thaane and applicant Thaane left 1st respondent's joint home and lived in adultery
with applicant at Maseru West. She denies that applicant was at all married to Thaane and avers that applicant was merely Thaane's concubine.
First respondent has attached annexure "B" to her answering papers which' consists of two bewyses showing that between 20th and 27th October 1969 some three beasts and a horse were paid as bohali by one Pati Motseki in respect of one Lejone Lehoke's daughter's marriage to Pati's son. "However 1st respondent does not say when she got married to Thaane. But it is not necessary to go into that because applicant implicitly conceded that 1st respondent married Thaane before she herself did so.
In an attempt to show that there was marriage between her and the late Thaane applicant indicated that they set up home at Lower Seoli and Thaane's father the late Pati Motseki came to live with the two there. The deceased 'Mathaane Motseki only came to visit them otherwise applicant and Thaane provided for all 'Mathaane's needs. As further proof of her marriage to 'Mathaane's son applicant avers that when she learnt
that 'Mathaane could no longer afford to live on her own she took the trouble to employ a nurse 'Matsepang Selibo to look after 'Mathaane from the beginning of February 1988 until 19th March 1988 i.e. three days after 'Mathaane's death when Chieftainess 'Mamotheo Mokhameleli of Qeme at the instance of 2nd respondent came to expel her from 'Mathaane'.s household at Qeme the previous' day.
It is common cause that 'Mathaane died at Queen Elizabeth 11 Hospital Maseru on 16th March 1988. It is not denied that applicant through her resources employed 'Matsepang for purposes of looking after 'Mathaane in her failing health and during the late sun set of her life.
Respondents set great store by the fact that neither the applicant nor any of her witnesses mentioned that it was 2nd respondent who came to collect and convey 'Mathaane to the Hospital on 15th March when her illness took a turn for the worse.
Applicant has tried to show that she indeed was married to Thaane because she and he lived together. But it is a well known principle of law that not cohabitation but consent constitutes marriage. She further avers in paragraph 17 of her founding affidavit that
"I do not believe this woman (meaning 1st respondent) was still married to my late husband and I verily believe that she has been produced by 2nd and 3rd respondents to frustrate my endeavours to have the late 'Mathaane Motseki buried in Lower Seoli according to her wishes."
The flaw in this averment is that it seeks to suggest that termination of marriage can be presumed, whereas the position in law is that pending proof to the contrary marriage is to be presumed to subsist.
It is indeed regrettable that customary marriage does not provide any formal means by which marriage comes to an end during the life time of parties thereto
even though it recognises that divorce can take place between them. Sebastian Poulter in his book Family Law and Litigation in Basotho Society (See 204-5) that in certain circumstances it is enough to bring marriage to en end if one of the parties informs the other that he or she no longer wants her or him even without any publication whatever. The result in such circumstances would be that termination of marriage could be inferred from the conduct of the parties taken along with the assertion of the party claiming that such termination has in fact taken place.
In this regard Mosiuoa Sello's replying affidavit ad 4 would seem to lend support to applicant's belief that there had been divorce between Thaane and 1st respondent before Thaane married applicant. This may be so because Mosiuoa avers that
"I also know that the deceased Thaane Motseki married 'Makhiba Motseki after divorcing his first wife 'Mamotseki Motseki."
Averments made on behalf of applicant show that 2nd respondent in particular and also the 1st respondent were not well - intentioned towards the deceased 'Mathaane and her late husband Pati. Much has been made of the existence of bad blood between them and deceased and her husband.
It is not denied that Thaane was buried at Lower Seoli where he lived with applicant. It is a fact that Pati indicated preference to be buried next to his son Thaane at Lower Seoli and this wish was given effect to.
Annexed to applicant's papers is Annexure "A" on which she relies in support of her claim that third respondent who is the head of Tsoeneng family relinguished his claim to have Pati buried at Qeme in deferrence to that deceased's wish.
Enough has been traversed in the affidavits to show that it could never have been out of place or character
for 'Mathaane likewise to prefer, as stated by applicant that she confidentially intimated to her, to be laid to rest near her husband Pati.
I am therefore satisfied that if applicant was married to Thaane then she stands as guardian to the minor first born son begotten of Thaane and herself. Such son having in the circumstances the right to choose where his grandmother should be buried if he has come of age. But because he is still a minor his guardian has a right to exercise such right on hid behalf. Heir of my heir is my heir.
I have not been called upon to pronounce on the existence or no-existence of marriage between Thaane and any of the parties claiming to be his wife. But relying on the fact that 1st respondent's conduct strikes me as utterly startling that she forsake her lawful right in favour of a concubine to bury her own husband Thaane and acquiesced in such usurpation of her own right, and further that her denial that she did not don any of the customary livery of grief to show that she mourned Thaane's death strikes me as just lame, and that Gwintsa showed that he paid pension funds to applicant upon Thaane's death upon introduction to him by the chief that applicant was Thaane's wife I am satisfied that on a balance of probabilities applicant's claim should be preferred to that of the respondents. I accordingly reject respondents' opposition to applicant's assertion that deceased intimated to her that she would like to be laid to rest next to her husband at Lower Seoli in the event of her death. I rule that respondents' case fails to meet with the light of my countenance.
Application is upheld and rule confirmed. Each party is to bear its own costs since this is a family affair.
6th April, 1988.
For Applicant : Miss Mofolo
For Respondents : Mr. Moorosi. '
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