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