HIGH COURT OF LESOTHO
MASILONYANE 1st RESPONDENT
EMPLOYMENT BUREAU OF AFRICA
LERIBE BRANCH) 2nd RESPONDENT
by the Honourable Mr. Justice G. N. Mofolo On the 12th day of August.
has approached this Court for an order as follows:
with ordinary modes and periods of service on account of urgency.
Nisi be issued returnable on 9th day of February, 2004 calling upon
the Respondents to come and show cause if any why:-
respondent shall not be interdicted and/or restrained from paying to
1st respondent death benefits accruing to late Lehlohonolo
Masilonyane pending the outcome hereof.
respondent shall not be directed to pay to applicant the death
benefits accruing to the late Lehlohonolo Masilonyane.
and/or alternative relief.
prayers 1 and 2 (a) operate with immediate effect as interim Court
application was opposed. Somehow it would seem the interim order
having expired it was formally revived.
applicant in her paragraph 1 of the Founding Affidavit claims to be a
widow of her late husband Lehlohonolo Masilonyane having
according to Sesotho custom (para. 5 thereof) and according to
annexure "MM1" (p.11) 5 head of cattle were
marriage. The certificate of marriage bears the chiefs stamp.
According to para. 4 of applicants Founding Affidavit 1st
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
applicant as successor to the estate of her late husband (annexure
"MM2") and 2nd respondent was signatory
to the family
decision. As applicant and her late husband did not have property of
own, it would seem the family decision concerned "death
annexure "2" the chief of Tsoinyane has written to the
effect that Masilonyane's family was at the chiefs place regarding
1st 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
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
to annexure "3" dated 28 November, 2003, at the chiefs
place a settlement was attempted between the applicant
respondent but failed the result being that applicant ngalaed
(sulked) to her home taking blankets with her. Annexures
is evidence that Lereko (applicant's father) took her daughter's
goods to his home.
"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
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 2nd 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.
respondent resists this application for two reasons, namely:
it is admitted that deceased was married'to applicant and as a
result Masilonyane's family appointed as successor to
estate applicant has not accepted to the family nomination and has
instead ngalaed(sulked) to her maiden home taking
all her effects
family renounced its decision appointing applicant as successor and
has instead nominated 1st respondent as successor.
deceased nominated 1st respondent as heir to his estate and the
principle of stipulario alteri applies.
(!) 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
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
on bohali being returned to the deceased's husband family. But here
we are not dealing with applicant's divorce or
her return to her maiden home.
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 Motsoene 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
ngalaed taking with her household property. As for ngala custom, it
is practice by which a wife goes to her
home to seek solace from ill-treatment by her husband and it would
seem the husband is to follow her and discuss the affair
35-36). So ngala or sulk is not divorce for there is always a
prospect of reconciliation. It would seem in the absence
husband for all intends and purposes applicant is accountable to 1st
respondent and 1st respondent has some responsibility
a responsibility overshadowing that of applicant's parents. On this
basis it would seem it's in 1st 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
1st respondent to inherit
the estate of her late son.
the stipulario alteri, I agree that it existed but was renounced by
1st respondent in appointing applicant as heir and successor
estate of the late Lehlohonolo Masilonyane. In addition, 1st
respondent acquiesced in the appointment of the applicant as
the estate of the late Lehlohonolo Masilonyane thus voluntarily
surrendering her right to the applicant. I repeat, I am
view that in appointing applicant as heir to the estate
late son, the 1st respondent renounced the benefits of the stipulano
alien and hence her solemn renunciation of interest
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 1st respondent
had no vested right
in deceased's estate or benefits held by the 2nd
respondent. This is so because instead of accepting deceased's
with the 2nd respondent 1st respondent parted
expressly and voluntarily with the benefits in favour of the
applicant by means of
the family decision annexure "MM2":
before me is that applicant deserted the matrimonial home or as is
1st 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.
of authority to
effect that women at custom are perpetual minors being minors to
their own parents, their husbands, in-laws and the family in
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
in-laws) a woman married according to Sesotho custom even after the
death of her husband belongs to her in-laws as applicant
whatever belongs to the family must be expended in the family.
are changing and women demand to be freed from shackles of outdated
and chauvinistic customary law and since customary law
in the Constitution this Court is not about the change it!
corning to finality in this application, I have been puzzled by the
way the record is paginated, a factor which took me quite
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
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.
aside, the result is that deceased's benefits held by the 2nd
respondent or having been released to the 1st respondent
are to be
released by the 2nd respondent to the applicant immediately and in
case they are in 1st respondent's hands to be released
applicant forthwith provided the applicant returns to her in-law's
home at 1st respondents and expends the benefits in her
within three (3) months of this judgment applicant will have returned
to her in-law's home at 1st respondent's and claimed
benefits lying with 2nd respondent or in 1st respondent's hands, the
benefits are to devolve on the 1st respondent.
is a family matter there will be no order as to costs.
applicant: Mr. Molefi
Respondents: Ms. Tau-Thabane
IN THE HIGH COURT OF LESOTHO
RAKOMETSI 1ST RESPONDENT
WORSHIP MRS. MAPUTSOE 2nd RESPONDENT
ATTORNEY-GENERAL 3rd RESPONDENT
by the Honourable Mr. Justice G. N. Mofolo On the 12th day of August
an appeal from the Resident Magistrate's Court, Maseru.
hearing evidence the Court found for the plaintiff Sello Rakometsi It
is against this finding that the appellant has appealed
grounds of appeal read as follows:-
learned magistrate erred in reaching the decision that the matter at
the Land Tribunal was not pursuit, (to read, I think,
that matter is still pending therein.
learned magistrate erred saying the defendant failed to honour a
warrant of ejectment that was granted as such warrant was
through default judgement which was rescinded by the final court
order granted on the 8th day of December, 1995 as per
" hereto attached and is self-explanatory.
learned magistrate erred in concluding that the authenticity of the
letter that was written by the deceased 'Mamahlomola Rakometsi
allocating site which is in dispute to the defendant falls away only
because it was made before a chief of Ha Molipa not the
chief of Ha
Thamae where the site is situated. As the Land Amendment Act does
not require that the designation by the deceased
should have been
made before the chief, that is the Act does not mention the chief at
learned magistrate further erred in ignoring the designation that
was made by the deceased Makalo Rakometsi to the defendant
relation to another disputed site as the designation this time was
made before the chief of Thamae where the site is allocated.
learned magistrate erred in ignoring the fact that the letter
designating the plaintiff as heir over the disputed sites was
by non-members of Rakometsi's family as it was signed by people
bearing Tsatsanyane's surname.
going into these grounds of appeal I am desirous of recapitulating
evidence tendered before the court a quo.
plaintiff testified that defendant is his aunt's son and defendant is
his cousin while he (plaintiff) is the only surviving
that defendant and his mother give him problems. And while, according
plaintiff defendant's mother was married defendant was illegitimate
assuming his mother's surname. The plaintiff handed in Exhibit
being a notice by Urban Land Committee, Maseru. He has said Maseru
City Council confirmed his right of occupation
per Exhibit "B".
is a Sesotho version and regrettably it has not been translated. That
these documents have to be translated need
no emphasis except to say
how remiss counsel responsible can be sometimes. Nevertheless I am a
Mosotho well read and fluent in
Sesotho and since those responsible
have not translated the document my version cannot but stand. There
is a problem in the Index
to the proceedings. Another problem is that
there are two indices to these proceedings and I wonder why this was
causing unnecessary confusion. Thus in the first
index dated 21 October, 2004 exhibits "A", "B"
are on pages 82, 83 and 84 respectively but as I
have said there's no exhibit "A" on page 82 and on page 83
is what appears
to be Exh. "E" though this can be allowed
to pass as Exh "B" and on page 84 appears annexure "B".
It is a hopeless mess defying resolution. The other undated Index
shows Exhibits "A", "B", "IDA"
as well as annexure "B" but no pages are given.
Notwithstanding these errors though, a letter on page
83 of the
'Mamahlomola having allotted Mojalefa (defendant) where Mojalefa has
built and the latter is witnessed to by Clement Rakometsi,
Pakiso Rakometsi and Letebele Daniel Rakometsi countersigned by Chief
'Nena to the effect, translated, "I know those
who have signed
hereunder (sgd. P. G. 'Nena). Of course P.W.2 Potso 'Nena gave
evidence saying "I don't know Mojalefa Rakometsi.
chief appears to acknowledged his signature, he testified "the
date stamp was misused by Rakometsi family who were
my subjects at
cross-examination regarding his signature and date stamp the chief
replied: "they were both stolen and forged," and
mention it is the reason the learned magistrate in her judgment found
"but checking the authenticity of the letter that
makes such evidence fall away." The learned magistrate for
reason best known to her was very terse in her judgment.
court a quo meant was that the authenticity of Rakometsi's letter was
not authentic and it was rejected. Indeed it was
not authentic for as
P.W.2 testified, there was theft and forgery. Actually, the chief
disclaimed the letter claiming his stamp
had been stolen. In other
words that the transaction was fraudulent quite apart from the fact
that the chief of Molipa, Kolonyama
in the Leribe district has no
falling under the chief of Thamae in the Maseru district. Whatever
the case, there is nothing stopping subjects from approaching
chief regarding their personal problems for intervention as this may
be good for evidential purposes especially where a gift
or a decision
is made concerning a subject for there are such public events
requiring witnessing by a chief.
document on page 83 of the record of proceedings purported to be
something other than what it really is and there is an element
imitation (see Drayer 1967 (4) SA 614 (E) 618 B-C, also Banur
Investments (Pty) Ltd, 1970 (3) SA 767 at 772 D. It has also been
held a forged document most commonly tells a lie as to the person who
made it or authorized its making - see Mead v Young (1970)
775; re: Cooper (1882) 20 CLD 611; R v Hudson (1943) 14B 458. The
so-called Exh. "B" appearing on p.83 of the
proceedings was authorized by the defendant/appellant. The learned
magistrate although not in so many words rejected
the document as
this court does.
It is to
be understood the so-called Exh. "B" appearing on p.83
purported to confer on defendant/appellant 'Mamahlomola's
where defendant/appellant has built. If the latter built on the site
he is a member of the family, there was no need for him to cheat
afterall even illegitimate children in the absence of
inherit. Question is, since appellant/defendant has improved not
withstanding his incapacity to inherit, can he be
behoves the Court to consider annexure "B" on page 84 of
the record of proceedings otherwise dubbed Exh. "B"
Index. Makalo Rakometsi according to plaintiff's evidence is
plaintiffs great uncle being elder brother of plaintiff's father.
Plaintiff claims he is Makalo Rakometsi's heir by virtue of being the
only male issue to Makalo and Nako (his father). Plaintiff
says he is
heir according to custom. A close reading of Makalo's letter on p.84
of the Record of Proceedings does not speak of
heir or succession.
Notably though, the document is witnessed by members of
family. Makalo claims in his letter to the chief of Thamae's:
"— Here is my story, to inform you of the place where I
run a cafe 'Khoikhotha cafe.' Because of my long illness, I
myself bound to publish my story before you chief. For having been
out of work for a long time, material which built this
cafe the money
I obtained from Mojalefa Rakometsi and in trying to raise money to
pay him I am confronted with infirmities and
it has seemed to me best
to write this letter chief."
letter Makalo has given the entire plot where the cafe stands
surrendering both the Form C and Title Deed to the
by reason of his indebtedness to
appellant/defendant. Makalo has said he owes
and it seems it's common cause that this is so. If so, defendant is
entitled to the property not because of succession
but by reason of
Makalo owing him. Take it from me, in this country so-called heir's
and successors are louts, lazy and idle creatures
hoping to strike it
rich on their father's and uncle's death. If not, why was it
necessary for defendant to support Makalo when
the latter should have
been supposed by plaintiff? The curse of Esau stays with us. And yet,
in our custom, "mojalefa"
is one who eats and pays. What
has Sello Rakometsi the plaintiff paid to earn? Defendant is entitled
to the property of Makalo
to the extend of Makalo's indebtedness to
him and can only be removed if his debt is paid. The magistrate
though appears to have
treated the claims globally when she should
have treated them singly and individually.
said notwithstanding that defendant is guilty of forgery and
misrepresentation of facts arising from the so-called Exh."A"
on p.83, since the defendant has developed the property, question is
whether this regardless he can be deprived of the property.
thoughts though, I am of the view that because defendant attempted to
deceive and cheat to acquire rights in 'Mamahlomola's
has forfeited all rights to the property for misrepresentation of the
also perused the Urban Committee's finding in July, '97 and find that
it was to the effect that Makalo's sites be passed
to Sello Rakometsi
grounds of appeal I have referred to above, in 1st ground of appeal,
it appears to me that matter lying with the Urban
Committee was not
pursued in that judgment of the Urban Committee was not challenged:
the 2nd ground of appeal, I agree that judgment obtained by default
was rescinded and hence the judgment in CC 470/1992.
As for the 3
ground of appeal, it's not a question of before whom the
representation was made regarding Mamahlomola's allocation,
the document purporting to allocate was false based on
misrepresentation and forgery.
the 4th ground of appeal, I have said in my judgment above that the
allocation of site where the cafe stands was made
by Makalo in
consideration of his indebtedness to defendant/appellant. It was
Makalo's representation that in his lifetime defendant
and not being at ease with his conscience in failing to pay off
defendant he had decided that
cafe stands and all that goes with it be surrendered to
defendant/appellant as he did, indeed, surrender both the Form
and Title Deed to defendant. I have said this has nothing to do with
succession as the relationship between Makalo
and defendant was one
of debtor and creditor.
I am not
aware that plaintiff took defendant to task about Makalo having
surrendered his property by reason of owing defendant.
plaintiff is claiming is that he is heir to his father and great
uncle Makalo by custom.
the fifth ground of appeal, it was not contended that plaintiff is
heir to estates of both his father and uncle Makalo.
result, sites in dispute are the property of the plaintiff as heir to
the estates of both his father and his uncle Makalo
property on which a cafe stands as this site and all that goes with
it is the property of the defendant by reason of
the said Makalo
being indebted to the defendant.
the defendant and plaintiff have succeeded and failed, there will be
no order as to costs.
appellant: Mr. Mosito
respondent: Mr. Phafene
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