CIV/APN/24/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
MARETHABILE MASILONYANE APPLICANT
AND
MALEHLOHONOLO MASILONYANE 1ST RESPONDENT
THE EMPLOYMENT BUREAU OF AFRICA
LTD (TEBA LERIBE BRANCH) 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. MofoloOn the 12th 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 ofurgency.
2.
A Rule Nisi be issued returnable on 9th day of February, 2004 calling upon
the Respondents to come and show cause if any why:-(a) 2nd respondent shall not be interdicted and/or restrained frompaying to 1st respondent death benefits accruing to lateLehlohonolo Masilonyane pending the outcome hereof.
(b) 2nd respondent shall not be directed to pay to applicant the deathbenefits accruing to the late Lehlohonolo Masilonyane.
(c) Further and/or alternative relief.
3.
That prayers 1 and 2 (a) operate with immediate effect as interimCourt 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 tobe a widow of her late husband Lehlohonolo Masilonyane having beenmarried according to Sesotho custom (para. 5 thereof) and according toannexure MM1 (p.11) 5 head of cattle were paid in marriage. Thecertificate of marriage bears the chiefs stamp. According to para. 4 ofapplicants Founding Affidavit 1st respondent is applicants mother-in-lawand a child who passed away was born in the union. On deceaseds deaththe family has met and appointed applicant as successor to the estate of herlate husband (annexure MM2) and 2nd respondent was signatory to thefamily decision. As applicant and her late husband did not have property oftheir own, it would seem the family decision concerned death benefits
only.
By annexure 2 the chief of Tsoinyane has written to the effect thatMasilonyanes family was at the chiefs place regarding 1st respondentMalehlohonolo Masilonyane and her daughter-in-law MarethabilieMasilonyane concerning money which Marethabiles husband wrote it inthe name of his mother Malehlohonolo Masilonyane. Marethabile hadpointed out since the money was not written in her name she would notaccept it even when her mother-in-law offered to have it transferred into hersavings book and even before the chief she refused and she refused whenthe chief suggested they settle their differences. The letter is dated 7September, 2003.
According to annexure 3 dated 28 November, 2003, at the chiefsplace a settlement was attempted between the applicant and 1st respondentbut failed the result being that applicant ngalaed (sulked) to her hometaking blankets with her. Annexures 4 is evidence that Lereko(applicants father) took her daughters 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 ofher late husband and for six (6) months the family has endevoured to bringthe family decision to fruition but failed because applicants mother andfather resisted this saying since the deceased had written his benefits in thename of his mother this shows deceased did not love applicant and in theresult applicant would not accept benefits from a person who did not loveher and it was better benefits went to the 2nd respondent whom deceasedloved. The second reason was that applicant and her parents had hlahlaed(removed) all property of the marriage saying they were not unable tosupport their child. In fact annexure 5 is cancellation of the familysdecision dated 6 June, 2003 appointing Marethabile (applicant) as heir tothe estate of her husband.
The 1st respondent resists this application for two reasons, namely:
Although it is admitted that deceased was married to applicant and as aresult Masilonyanes family appointed as successor to her husbandsestate applicant has not accepted to the family nomination and has insteadngalaed (sulked) to her maiden home taking all her effects with her.
The family renounced its decision appointing applicant as successor andhas instead nominated 1st respondent as successor.
The deceased nominated 1st respondent as heir to his estate and theprinciple of stipulario alteri applies.
As for (1) above, when the family nominated applicant as heir and
successor to deceaseds estate, this was sheer formality because by reason ofapplicant being deceaseds wife she was entitled to inherit deceaseds estate.Whether the family can renounce and repudiate its decision is doubtfulhaving regard to the fact that a woman married by custom on her husbanddying marriage relationships are not severed in that she remains a child ofthe family. Family ties are only severed if the widow re-remarries thoughher re-marriage is dependant on bohali being returned to the deceasedshusband family. But here we are not dealing with applicants divorce or re-marriage but her return to her maiden home.
Indeed according to Duncans Sesotho Law and Custom p. 41 it isof no moment whether the husband is dead or alive for, as stated byHuggard J in Motoene v. High Commission and Others, 1954H.C.T.L.R.I, when a husband dies, the widow remains a member of thefamily of her deceased husband and cannot re-marry unless she obtains adivorce. What is of importance is that on a husbands death a widowremains a member of the family of her husband this equally applies to theapplicant. It is claimed that applicant ngalaed taking with her householdproperty. As for ngala custom, it is practice by which a wife goes to hermaiden 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 ofreconciliation. It would seem in the absence of her husband for all intendsand purposes applicant is accountable to 1st respondent and 1st respondenthas some responsibility over applicant, a responsibility overshadowing thatof applicants parents. On this basis it would seem its in 1st respondentsinterest to persuade applicant to return home. And the Court is also of theopinion that applicant should return home for she belongs to theMasilonyanes family. As for the family, I do not think that they have theright to disinherit applicant for she remains married to Masilonyanesfamily. Also, I have found nothing in annexure 5 above entitling 1strespondent to inherit the estate of her late son.
As for the stipulario alteri, I agree that it existed but was renounced by1st respondent in appointing applicant as heir and successor to the estate ofthe late Lehlohonolo Masilonyane. In addition, 1st respondent acquiesced inthe appointment of the applicant as heir to the estate of the late LehlohonoloMasilonyane thus voluntarily surrendering her right to the applicant. Irepeat, I am of strong view that in appointing applicant as heir to the estateof her late son, the 1st respondent renounced the benefits of the stipulario
alteri and hence her solemn renunciation of interest in deceaseds estate.The interest was not, in my view, revived. Indeed it is not only that interestin the stipulation was not revived, but that a condition precedent instipulation is that the recipient must accept the stipulation for in doing so heacquires a vested right to claim the benefit and may sue for it (see Grotius3.3.38; Voet 2.14.12; Van der Keesel Th 510; Wessels 1754;Tradesmens Benefit Society v. Du Preez (1887) 5 SC 269 at 278; Vander Plant v. Otto 1912 (A) 353 at 365; Mccullogh v. Ferwood EstateLtd. 1920 AD 204 at 206, 215). As I have said it follows that prior to heracceptance 1st respondent had no vested right in deceaseds estate orbenefits held by the 2nd respondent. This is so because instead of acceptingdeceaseds benefits lying with the 2nd respondent 1st respondent partedexpressly and voluntarily with the benefits in favour of the applicant bymeans of the family decision annexure MM2.
Evidence before me is that applicant deserted the matrimonial home oras is 1st respondents case, she ngalaed though as I have shown above ngalacustom is not divorce or severance of relations with in-laws. Ngala asauthorities have it has to do with ill-treatment. Theres plenty of authorityto the effect that women at custom are perpetual minors being minors to
their own parents, their husbands, in-laws and the family in general. Indeedwhen deceased stipulated in favour of his mother, it was not because he didnot love applicant but that he looked upon her as a minor looking upon hismother 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 casebohali (marriage) cattle are to be returned to her in-laws) a womanmarried according to Sesotho custom even after the death of her husbandbelongs to her in-laws as applicant does and whatever belongs to the familymust be expended in the family.
Things are changing and women demand to be freed from shackles ofoutdated and chauvinistic customary law and since customary law isenshrined in the Constitution this Court is not about the change it!
Before coming to finality in this application, I have been puzzled bythe way the record is paginated, a factor which took me quite sometime tounravel. To start with, pages are filed in an obverse order starting from thelast page to the first page though there is intermingling of pages and missingpages 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; Ihave not experienced such disorder! Well trained staff is to be assigned tocompiling and pagination of records for disorderly pagination delaysjudgments.
Pagination aside, the result is that deceaseds benefits held by the 2ndrespondent or having been released to the 1st respondent are to be releasedby the 2nd respondent to the applicant immediately and in case they are in 1strespondents hands to be released to the applicant forthwith provided theapplicant returns to her in-laws home at 1st respondents and expends thebenefits in her in-laws homestead.
Unless within three (3) months of this judgment applicant will havereturned to her in-laws home at 1st respondents and claimed deceasedbenefits lying with 2nd respondent or in 1st respondents hands, the benefitsare to devolve on the 1st respondent.
As this is a family matter there will be no order as to costs.
G. N. MOFOLO JUDGE
For the applicant: Mr. Molefi
For the Respondents:
Ms. Tau-Thabane