CIV/APN/24/2004

IN THE HIGH COURT OF
LESOTHO

In the matter between:

MARETHABILE MASILONYANE APPLICANT

AND

‘MALEHLOHONOLO
MASILONYANE 1^ST
RESPONDENT

THE EMPLOYMENT BUREAU OF AFRICA

LTD (TEBA LERIBE BRANCH) 2^ND
RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice G. N.
Mofolo
On the 12^th day of August, 2005

Applicant has approached this Court for an order as
follows:

1.

Dispensing with ordinary modes and periods of service on
account of
urgency.

2.

A Rule Nisi be issued returnable on 9^th
day of February, 2004 calling upon

the Respondents to come and show cause if any why:-
(a)
2^nd respondent shall not be interdicted and/or restrained
from
paying to 1^st respondent death benefits accruing
to late
Lehlohonolo Masilonyane pending the outcome hereof.

(b) 2^nd
respondent shall not be directed to pay to applicant the
death
benefits accruing to the late Lehlohonolo Masilonyane.

(c) Further and/or alternative relief.

3.

That prayers 1 and 2 (a) operate with immediate effect
as interim
Court order.

The application was opposed. Somehow it would seem the
interim

order having expired it was formally revived.

The applicant in her paragraph 1 of the Founding
Affidavit claims to
be a widow of her late husband Lehlohonolo
Masilonyane having been
married according to Sesotho custom (para.
5 thereof) and according to
annexure “MM1” (p.11) 5 head of
cattle were paid in marriage. The
certificate of marriage bears
the chief’s stamp. According to para. 4 of
applicants Founding
Affidavit 1^st respondent is applicant’s
mother-in-law
and a child who passed away was born in the union.
On deceased’s death
the family has met and appointed applicant
as successor to the estate of her
late husband (annexure “MM2”)
and 2^nd respondent was signatory to the
family
decision. As applicant and her late husband did not have property
of
their own, it would seem the family decision concerned “death
benefits”

only.

By annexure “2” the chief of Tsoinyane has written
to the effect that
Masilonyane’s family was at the chief’s
place regarding 1^st respondent
‘Malehlohonolo
Masilonyane and her daughter-in-law ‘Marethabilie
Masilonyane
concerning money which ‘Marethabile’s husband wrote it in
the
name of his mother ‘Malehlohonolo Masilonyane. ‘Marethabile
had
pointed out since the money was not written in her name she
would not
accept it even when her mother-in-law offered to have it
transferred into her
savings book and even before the chief she
refused and she refused when
the chief suggested they settle their
differences. The letter is dated 7
September, 2003.

According to annexure “3” dated 28 November, 2003,
at the chief’s
place a settlement was attempted between the
applicant and 1^st respondent
but failed the result
being that applicant ngalaed (sulked) to her home
taking
blankets with her. Annexures “4” is evidence that
Lereko
(applicant’s father) took her daughter’s goods to his
home.

Annexure “5” also dated 28 November 2003 reiterates
the fact that

the family
appointed ‘Marethabile (applicant) as to successor to the estate
of
her late husband and for six (6) months the family has
endevoured to bring
the family decision to fruition but failed
because applicant’s mother and
father resisted this saying since
the deceased had written his benefits in the
name of his mother
this shows deceased did not love applicant and in the
result
applicant would not accept benefits from a person who did not
love
her and it was better benefits went to the 2^nd
respondent whom deceased
loved. The second reason was that
applicant and her parents had hlahlaed
(removed) all
property of the marriage saying they were not unable to
support
their child. In fact annexure “5” is cancellation of the
family’s
decision dated 6 June, 2003 appointing ‘Marethabile
(applicant) as heir to
the estate of her husband.

The 1^st respondent resists this application
for two reasons, namely:

1. 
   Although it is admitted that deceased was married to
   applicant and as a
   result Masilonyane’s family appointed as
   successor to her husband’s
   estate applicant has not accepted to
   the family nomination and has instead
   ngalaed (sulked) to
   her maiden home taking all her effects with her.

   
   

2. 
   The family renounced its decision appointing applicant
   as successor and
   has instead nominated 1^st respondent
   as successor.

   
   

3. 
   The deceased nominated 1^st respondent as
   heir to his estate and the
   principle of stipulario alteri
   applies.

   
   

As for (1) above, when the family nominated applicant as
heir and

successor to
deceased’s estate, this was sheer formality because by reason
of
applicant being deceased’s wife she was entitled to inherit
deceased’s estate.
Whether the family can renounce and repudiate
its decision is doubtful
having regard to the fact that a woman
married by custom on her husband
dying marriage relationships are
not severed in that she remains a child of
the family. Family ties
are only severed if the widow re-remarries though
her re-marriage
is dependant on bohali being returned to the
deceased’s
husband family. But here we are not dealing with
applicant’s divorce or re-
marriage but her return to her maiden
home.

Indeed according to Duncan’s Sesotho Law and Custom
p. 41 “it is
of no moment whether the husband is dead or
alive” for, as stated by
Huggard J in Motšoene v.
High Commission and Others, 1954
H.C.T.L.R.I, “when a
husband dies, the widow remains a member of the
family of her
deceased husband and cannot re-marry unless she obtains a
divorce.”
What is of importance is that on a husband’s death a widow
remains
a member of the family of her husband this equally applies to
the
applicant. It is claimed that applicant ngalaed taking
with her household
property. As for ngala custom, it is
practice by which a wife goes to her
maiden home to seek solace
from ill-treatment by her husband and it would

seem the husband is
to follow her and discuss the affair (Duncan pp 35-36).
So
ngala or sulk is not divorce for there is always a prospect
of
reconciliation. It would seem in the absence of her husband for
all intends
and purposes applicant is accountable to 1^st
respondent and 1^st respondent
has some responsibility
over applicant, a responsibility overshadowing that
of applicant’s
parents. On this basis it would seem it’s in 1^st
respondent’s
interest to persuade applicant to return home. And
the Court is also of the
opinion that applicant should return home
for she belongs to the
Masilonyane’s family. As for the family,
I do not think that they have the
right to disinherit applicant
for she remains married to Masilonyane’s
family. Also, I have
found nothing in annexure “5” above entitling 1^st
respondent
to inherit the estate of her late son.

As for the stipulario alteri, I agree that it
existed but was renounced by
1^st respondent in
appointing applicant as heir and successor to the estate of
the
late Lehlohonolo Masilonyane. In addition, 1^st respondent
acquiesced in
the appointment of the applicant as heir to the
estate of the late Lehlohonolo
Masilonyane thus voluntarily
surrendering her right to the applicant. I
repeat, I am of strong
view that in appointing applicant as heir to the estate
of her
late son, the 1^st respondent renounced the benefits of the
stipulario

alteri and
hence her solemn renunciation of interest in deceased’s estate.
The
interest was not, in my view, revived. Indeed it is not only that
interest
in the stipulation was not revived, but that a condition
precedent in
stipulation is that the recipient must accept the
stipulation for in doing so he
acquires a vested right to claim
the benefit and may sue for it – (see Grotius
3.3.38; Voet
2.14.12; Van der Keesel Th 510; Wessels 1754;
Tradesmen’s
Benefit Society v. Du Preez (1887) 5 SC 269 at 278; Van
der Plant
v. Otto 1912 (A) 353 at 365; Mccullogh v. Ferwood Estate
Ltd. 1920
AD 204 at 206, 215). As I have said it follows that prior to
her
acceptance 1^st respondent had no vested right in
deceased’s estate or
benefits held by the 2^nd
respondent. This is so because instead of accepting
deceased’s
benefits lying with the 2^nd respondent 1^st
respondent parted
expressly and voluntarily with the benefits in
favour of the applicant by
means of the family decision annexure
“MM²”.

Evidence before me is that applicant deserted the
matrimonial home or
as is 1^st respondent’s case, she
ngalaed though as I have shown above ngala
custom is
not divorce or severance of relations with in-laws. Ngala
as
authorities have it has to do with ill-treatment. There’s
plenty of authority
to the effect that women at custom are
perpetual minors being minors to

their own parents,
their husbands, in-laws and the family in general. Indeed
when
deceased stipulated in favour of his mother, it was not because he
did
not love applicant but that he looked upon her as a minor
looking upon his
mother as the proper person to look after the
applicant and family affairs.

As I have already shown above, unless she is a divorcee
(in which case
“bohali” (marriage) cattle are to be
returned to her in-laws) a woman
married according to Sesotho
custom even after the death of her husband
belongs to her in-laws
as applicant does and whatever belongs to the family
must be
expended in the family.

Things are changing and women demand to be freed from
shackles of
outdated and chauvinistic customary law and since
customary law is
enshrined in the Constitution this Court is not
about the change it!

Before coming to finality in this application, I have
been puzzled by
the way the record is paginated, a factor which
took me quite sometime to
unravel. To start with, pages are filed
in an obverse order starting from the
last page to the first page
though there is intermingling of pages and missing
pages thus; 63,
62-58, 56-57; 55-51, 50-46, 63, 43-44; 34-33, 36, 35, 35, 37,

42-39, 26-16, 31,
32, 32, 33, 34, 35, 35, 35, 35 15, 14, 13, 12 and 1-11; I
have not
experienced such disorder! Well trained staff is to be assigned
to
compiling and pagination of records for disorderly pagination
delays
judgments.

Pagination aside, the result is that deceased’s
benefits held by the 2^nd
respondent or having been
released to the 1^st respondent are to be released
by
the 2^nd respondent to the applicant immediately and in
case they are in 1^st
respondent’s hands to be
released to the applicant forthwith provided the
applicant returns
to her in-law’s home at 1^st respondents and expends
the
benefits in her in-law’s homestead.

Unless within three (3) months of this judgment
applicant will have
returned to her in-law’s home at 1^st
respondent’s and claimed deceased
benefits lying with 2^nd
respondent or in 1^st respondent’s hands, the
benefits
are to devolve on the 1^st respondent.

As this is a family matter there will be no order as to
costs.

G. N. MOFOLO

JUDGE

For the applicant: Mr.
Molefi