C of A
(CIV) No 4 of 2004
COURT OF APPEAL OF LESOTHO
KHAKA FIRST APPELLANT
KHAKA SECOND APPELLANT
PELESA FIRST RESPONDENT
KHAKA SECOND RESPONDENT
KHAKA THIRD RESPONDENT
OF KHAKA FAMILY FOURTH RESPONDENT
BURIAL SOCIETY FIFTH RESPONDENT
INSURANCE CO. SIXTH RESPONDENT
Maseru on 14 October 2004.
and Wife - Void marriage ~ A customary marriage during the
subsistence of a civil marriage - Essential elements of a putative
marriage- Funeral benefits.
case once again highlights the ill effects of polygamy and its
debilitating consequences on Basotho society. In this regard
be said at the outset that a perception, a patently erroneous
perception for that matter, continues to grow amongst some
practitioners in this country and, so it would seem, some judges in
the High Court that a man married by civil rites is legally
marry polygamously as long as his civil marriage in question is
preceded by a customary marriage with the same woman. As
will be seen
shortly, this misconception permeates the very essence and conduct of
the instant case in the court below (Monapathi
 It is
common cause that on 6 April 1974 the late George Khaka Khaka ("the
deceased") married the Second Appellant
by civil rites. This
marriage subsisted until the deceased's sad demise on 4 December
2003. The First Appellant is admittedly the
first-born son of the
deceased and the Second Appellant and as such the deceased's heir.
 It is
further common cause that in 1991 during the subsistence of the civil
marriage between the Second Appellant and the deceased,
lived with the First Respondent as "husband and wife". They
produced a boy called Mpho. It is the First Respondent's
she married the deceased by customary rites and she is quick to
allege that this was made possible by the fact that the
marriage to the Second Appellant was preceded by a customary marriage
between the same parties and that consequently
the deceased was free
to marry polygamously.
Consequent upon the deceased's death on 4 December 2003 as aforesaid,
the Appellants applied for an order in the High Court
"1. Dispensing with the ordinary notice and periods of service
of this Application on the grounds of its urgency:
RULE NISI be issued and made returnable at the date and time to be
determined by this Honourable
Court, calling upon the Respondents to show cause, if any, why the
following order shall not be made final and absolute;
lst. 2nd, 3rd and 4th Respondents shall not be ordered and directed
to desist from preventing, denying and/or interfering
Applicant's (sic) rights to bury and make arrangements for the
burial of the late GEORGE KHAKA at deceased's home at
pending finalisation of this Application.
Honourable Court shall not declare that lst Respondent is not the
lawful wife of the deceased and direct that she desist from
herself out as such and from interfering and involving herself in
the arrangements for the burial of deceased forthwith
Respondent shall not be interdicted from releasing the proceeds of
deceased's insurance policies to lst, 2nd, 3rd and/or 4th
Respondents pending finalisation of this Application.
Respondent shall not be directed to desist from releasing the body
of the deceased GEORGE KHAKA to 1st, 2nd, 3rd and/or 4th
in any manner whatsoever pending finalisation of this Application;
shall not be ordered and directed that 1st, 2nd, 3rd and 4th
Respondents release to Applicants documents relating to the deceased
in annexure "MK2" attached herein.
shall not be granted such further and/or alternative relief.
2nd and 3rd Respondents shall not be ordered to pay costs of this
prayers 1 (a), (c), (d) and (e) operate with immediate effect as an
to be outdone, the First Respondent not only opposed the Appellants'
application but also filed a notice termed
for an order in the
"1. That her (First Respondent's) marriage be declared as valid
and/or putative in the circumstances;
MPHO the son of the deceased and 1st Respondent be declared as an
(sic) legitimate son of the deceased;
the aforesaid son, who is a minor with the assistance of lst
Respondent be declared the rightful person to bury the deceased;
the 1st Respondent acting on behalf of the minor MPHO be granted
such further and/or alternative relief;
the Applicants in the main (sic) be ordered to pay costs of this
the Application (sic) in the Counter-claim be granted such further
and/or alternative relief.
remains to be noted at this stage that when the matter came before
Monapathi J on the extended return day, the Respondents
Appellants' right to bury the deceased and this was duly made an
order of court. The parties must obviously be commended
mature approach, albeit an approach resorted to rather belatedly.
This Court has warned often enough against the use of
pawns or test cases for disputes over inheritance of deceased's
estates. See in this regard Ntloana and Another v Rafiri
C of A (CIV)
No. 42 of 2000 (unreported).
Monapathi J's order in relation to the dispute as fully set out above
may be summarized with reference to what he says on page
22 of his
"I have allowed prayer 2(a) as amended to say that these
Applicants are the right people to bury the deceased. I have said
about prayer (b) that I make no declaration, I decide that the
proceeds of the insurance that they must go to the First Respondent.
I confirm the order that the First Applicant and the Second Applicant
must bun the deceased. None of the prayers in the counter-application
are allowed because my decision has been that an order of absolution
is returned. I am not able to decide on the balance of probabilities
that the two marriages did take place on the evidence available."
Appellants have now appealed to this Court primarily on the ground
that the learned Judge a quo erred in ordering absolution
instance instead of declaring the purported marriage between the
deceased and the First Respondent null and void ab initio.
directing that the proceeds of the deceased's insurance policies
accrue to the First Respondent is also challenged on
determining the issues that arise in this appeal as reflected in the
preceding paragraph, it is no doubt convenient to start
examination of the learned Judge a quo's approach to the matter. In
this context it is necessary to have regard to what
he. states on
page 6 of his judgment. Therein he expresses himself in part as
"Having disposed on (sic) that (the learned Judge a quo was here
referring to the question of the right to bury the deceased)
remained was the question of the existence of the customary marriage
between the deceased and the Second Applicant on the
one hand. And
proof of the marriage between the Deceased and the First Respondent
on the other hand."
learned Judge a quo then continues in the following terms;-
"The legal issues had become very clear in this respect. It is
because Counsel agreed that if there was a pre-existing customary
marriage between the Second Applicant and Deceased then the Deceased
would have lawfully contracted a customary'' marriage between
and the First Respondent. But if the situation was such the Deceased
and the Second Applicant had contracted a civil marriage
customary law marriage (if ever the latter existed), then the
Deceased's marriage with First Respondent would be null
There can be no doubt in my view that the learned Judge a quo's
approach as reflected in the above quotations stems from the
misconception referred to in paragraph  that a man who marries his
wife by customary rites and thereafter enters into a civil
with the same woman is thereafter legally free to marry polygamously.
I should like to say at once that this proposition
Court accepted the view expressed by Jacobs CJ in Zola v Zola 1971-73
view the law must therefore now be considered as settled. It is
clearly in the nature of a civil marriage that it cannot subsist
by side with a customary marriage. For the avoidance of doubt I
conclude, therefore, that all those cases which hold a contrary
must now be considered as having been wrongly decided.
the light of the aforegoing considerations it follows inexorably in
my judgment that the learned Judge a quo's approach
was erroneous. He
needlessly went into a laborious and costly time-wasting exercise of
determining the two purported "customary"
notwithstanding the fact that the Second Appellant was admittedly
married to the deceased by civil rites. A marriage
that regard was attached to the Second Appellant's founding papers as
Annexure "MK". It was never contested.
Nor did the
Respondents contest the fact that the purported marriage between
Respondent and the deceased was subsequent to the latter's civil
marriage with the Second Appellant. In these circumstances
sufficient material, in my view, for the court a quo to have declared
the First Respondent's purported customary marriage
to the deceased
null and void without the calling of oral evidence. The only issue
that was fit for oral evidence was the question
of the purported
customary marriage between the First Respondent and the deceased and
whether it was a putative marriage. The cardinal
question here would
be whether the First Respondent knew about the pre-existing civil
marriage between the Second Appellant and
the deceased and whether
she was aware of the legal impediments that civil marriage posed to
her own purported customary marriage.
matters turned out the learned Judge a quo heard oral evidence from
which it emerged that the Respondents were unable to
existence of the alleged customary marriage between the Second
Appellant and the deceased. The Second Respondent's evidence
regard to such customary marriage was in my view
disbelieved by the learned Judge a quo and there is no challenge to
so far as the purported customary marriage between the First
Respondent and the deceased was concerned, the Respondents
a memorandum of agreement Annexure "MK1" which had, for
that matter, been produced by the Appellants themselves
to their founding papers. It is dated 26 September 1999 and is
ostensibly an agreement between the deceased and the
Respondent's mother. Although it is in Sesotho language, the official
translation appearing on page 11 of the record reveals
admittedly records the marriage in part in the following terms:
"Here is agreement of 'Mathabiso Pelesa and Khaka Khaka for
'Mathabiso's daughter who is married by Khaka called 'Mahlasoa
Khaka has tendered six cattle (6) he is not paying he is marrying."
his judgment the learned Judge a quo was highly critical of the
memorandum of agreement Annexure "MK1" mainly
that it recorded "events of the past" and that this was an
"unusual practice". He then condemned the
Annexure in the
following words: "I am bound to say that it does not satisfy me.
it leaves a lot of doubt." For some
unexplained reason he relied
on the following unofficial translation:
"This is an agreement between 'Mathabiso Pelesa and Khaka Khaka
in relation to the daughter of 'Mathabiso Pelasa (sic) who
married to Khaka named Mahlasoa Pelesa. Khaka has paid six heard
(sic) of cattle. He is not paying but he is marrying".
supplied by the learned Judge a quo).
is obvious from these two translations, one is written in the present
tense while the other is in the past. In my view nothing
this difference in the absence of any suggestion as to fraud. An
agreement recording an event is an agreement notwithstanding
tense in which it is written. The intention of the parties in the
agreement was clearly to record the existence of the customary
marriage in question and the quantum of 'bohali' paid as at that
stage. It is in my view a complete binding agreement between them.
however, that it would be safer to stay with the abovementioned
official translation referred to in paragraph 
somewhat of an anticlimax, the learned Judge a quo said this:
"In the context of where this evidence does not satisfy me. I do
not think it is in the interest of justice to make a finding
declaration that this marriage did not take place. But it is safer as
previously said to say that there be an order for absolution."
with respect to the learned Judge a quo, the statement quoted above
is by no means a model of lucidity, he did hold, by
analogy at least,
and correctly so in my view, that the customary marriage between the
First Respondent and the deceased did take
place after all. Once that
is so, his order for absolution is with respect incomprehensible to
me. Perhaps it stems from the fact
that he failed to attach due
weight to the memorandum of agreement Annexure "MK1"
recording the existence of the customary
marriage in question.
is hardly necessary to say that the onus of proof in a civil case, as
here, is one that must be discharged on a balance
of probabilities if
the claimant is to succeed (see the leading case of Pillar v Krishna
and Another 1946 AD 946). In casu, I would
say that the Respondents
succeeded, in my view, in discharging such onus based on the
memorandum of agreement Annexure "MK1" in itself amounted
to proof of the existence of a customary marriage between
Respondent and the deceased. The authenticity of this document was
not challenged. After all, it bore the chief's date
stamp and, as
indicated above, was produced by the Appellants themselves.
page 16 of his judgment (record page 102) the learned Judge a quo
himself actually made a crucial finding that the memorandum
agreement Annexure "MK.1"
"reflected that there had been such a marriage."
is not seriously denied that the First Respondent has been accepted
into the deceased's family. Customary rituals in that regard
First Respondent and the deceased admittedly lived together as
husband and wife for twelve (12) years.
salutary principle requires to be stated at this juncture. It is
that, as upper guardians of minor children, both the High
this Court will, in principle, generally be reluctant to bastardize
children except in the clearest of cases showing
factual absence of
second marriages during the subsistence of civil marriages or absence
of evidence to show that such second marriages,
if any, are putative.
is a matter of regret then that the learned Judge a quo failed to
define the issues as set out in paragraph  above namely
the First Respondent knew about the pre-existing civil marriage
between the Second Appellant and the deceased and if so
was aware of the legal impediments that civil marriage posed to her
purported customary marriage. As a result, the parties did not
address themselves to these material issues and it seems just,
therefore, that they should be given an opportunity to do so. See
Leoma v Leoma & Another C of A (CIV) No. 29 of 2000. Rafiri
Another v Rafiri C of A (CIV) No. 42 of 2000.
[21 ] The
claim relating to payment of deceased's funeral benefits can quickly
be disposed of as it poses no real difficulties.
It is common cause
that during his lifetime the deceased entered into a group insurance
scheme with Metropolitan in terms of Annexure
view of the importance of this Annexure in the determination of this
matter, it is no doubt convenient to attach
it to this judgment as I
hereby do for ease of reference.
is self-evident from Annexure "MK4" the participants
covered therein were the deceased himself as a member, the
spouse (admittedly First Respondent), children and parents as well as
an extended family member referred to as M.H.
The benefits covered were the following: funeral benefit, accident
benefit and life benefit.
dealing with this aspect of the case the learned judge a quo said
this in his judgment:
"That in the papers the First Respondent was reflected as
beneficiary had not been disputed" (my own emphasis).
respect to the learned Judge a quo, it is precisely at this point
that he got it completely wrong. This was a bad error on
which inevitably led him to a wrong decision. As is self-evident from
Annexure "MK4", nowhere does the annexure
say that M Khaka
(First Respondent) is the beneficiary. This word is simply not used
at all. On the contrary, her name only appears
as someone who is
covered under family funeral benefits. She is not, for that matter,
the only one so covered as shown above.
Having incorrectly held that the First Respondent was reflected as a
beneficiary, the learned Judge a quo then reasoned that
the case of
Ramahata v Ramahata 1985-1989 LAC 184 applied. He characterized
Annexure "MK4" as a contract for the benefit
of a third
party, namely the First Respondent. In my view, nothing can be
further from the truth. The nature and scheme of the
reflected in Annexure "MK.4" was clearly to cover the
funeral expenses of the members mentioned therein including
deceased himself. Viewed in that context the funeral benefits in
question were clearly intended for the deceased's estate to
utilized at his funeral.
always be borne in mind that in Ramahata's case the deceased had
nominated the appellant (admittedly not his lawful wife)
as his death
beneficiary. That is not the case here and it follows that Ramahata's
case is distinguishable from the present case.
It was thus wrongly
follows that the appeal succeeds. In the result the following order
appeal is upheld with costs.
order of the court a quo granting absolution from the instance in
respect of the customary marriage between the First Respondent
the deceased is set aside and replaced with the following order:
"The customary marriage between the First Respondent and the
deceased is hereby declared null and void."
question whether the marriage between the First Respondent and the
deceased was putative or not is referred to oral evidence
determination thereof by the court a quo.
making a determination under (2) above the court a quo must
determine whether the First Respondent knew about the pre-existing
civil marriage between the deceased and the Second Appellant and
whether she was aware of the legal impediments that civil marriage
posed to her own customary marriage.
court a quo's order that the deceased's funeral benefits accrue to
the First Respondent is set aside and replaced with the
"The deceased's funeral benefits accrue to the deceased's estate
and shall be held by the First Applicant as heir."
at Maseru this 20th day of October 2004.
Appellants: Adv. M. Mahase-Ramatabooe
Respondents: Mr. K.T. Khauoe
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