CIV/APN/640/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

MAPINKI
MONAHENG First Applicant

TEFO
MONAHENG Second Applicant

KUENA
MONAHENG Third Applicant

AND

TAHLEHO
PHIHLELA First Respondent

LESOTHO
FUNERAL SERVICE Second Respondent

MASTER OF
THE HIGH COURT Third Respondent

ATTORNEY-GENERAL
Fourth Respondent

For the
Applicant: Mr Molapo

For the
Respondents: Mr Khauoe

JUDGMENT

Delivered
by the Honourable Mr Justice T. Monapathi On the 6* day of January.
2005.

This is
an application for stay of execution and rescission of an order given
by this court on the 24th December last year granted
by this court by
default.

As I
noted this application goes under a different case number. The main
claim goes under CIV/APN/628/04. That application spoke
about a claim
for prevention of the Respondent from burying one 'Matsepo Monaheng.
And in that application

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Tahleho
Phihlela who is the first Respondent in this application was the
Applicant in CIV/APN/628/04. In the present application
we have
'Mapinki Monaheng who was Respondent in the previous application
going with two other Applicants in the present one.

And as 1
have said Tahleho Phihlela is the first Respondent together with
three other Respondents. This present application was
brought to me
as of urgency. I agreed that after Counsel had made an index and had
paginated the record and had filed heads of
arguments that the matter
could be heard. Today they proceeded to argue on the following
footing. That the points in-limine raised
by Mr Khauoe to be argued
together with the merits. This court agreed.

The
papers reveal a number of the points in-limine and the points on the
merits of the matter are quite many in number, but what
was argued
was quite restricted on few grounds or points as against what was
originally envisaged in the papers.

The
background to the present application is that on the day when the
order was granted the present Applicant had been duly served.
He says
he had been present in the court premises together with his
companions. By way of inquiring into what she should expect
he spoke
to a lady at the reception who professed

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to be an
employee of the High Court. She is said to have been one 'Mamookho
Senyotong. She informed them that one Mr Mokeke was
the proper person
to talk to.

Unfortunately
Mr Mokeke was not present as he was not found as the Applicant
stated. But I noted just that Mr Mokeke was the Assistant-Registrar

assisting me when I dealt with this matter and others in my Chambers
on that date. The Applicant says it was later intimated to
him that
the Applicant had left and there had already been a judgment entered
by default. This was not disputed.

There was
a dispute about that the present Applicant could have been advised by
the Messenger of Court to get legal advise which
thing he ignored. It
may have been true that the messenger who served papers on that
Respondent advised her to consult Counsel
after she had received the
papers. What is of note is that she had not secured such Counsel but
indeed she appears to have attended
here at court. What is also
important is that she had not filed papers in opposition. It is not
denied that there was judgment
by default as a result This is the
background about facts which appeared to be common cause. What is
important for me to consider
is whether on these facts can it be said
that the Respondent was wilfully in default. Wilfully means the
default was deliberate,
with full knowledge and freely took decision
to

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refrain
from appearing. See NEUMAN (PTY LTD V MARKS 1960 (2) SA 170 (S.R). An
extreme such scenario was in KOULIGAS & SPANOUDIS
PROPERTIES
(PTY) LTD V BOLAND BANK BPK 1987 (2) SA 414 (OPA) in which it was
said:

'After negotiations between plaintiff and defendant, defendant
deciding not to oppose claims and agreeing to take judgment. After

judgment granted facts came to defendant's knowledge that coming to
defendant's knowledge which would establish a good defence
to on of
the claims. In such circumstances it cannot be found that defendant
had deliberately failed to enter appearance to defend
- Rescission of
judgment on that claim granted..." (Headnote)

I would
have found in favour of the Applicant that there was a valid excuse.
That there was something excusable about the failure
of this
Applicant to attend in court by having actually attended at the court
premises. I will find that there was a good reason.
The reason might
not be very lawyerlike but what is important is that Respondent
appeared to have been ready to appear before court
as I concluded. On
the basis of this finding I will conclude that she was not in wilful
default.

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In this
kind of application there are other requirements besides that of
wilful default. One of them would be whether a Respondent
would have
had a bona, fide defence. And this is normally connected with the
concept of prospects of success. This is about whether
there is
likelihood that she would succeed on the merits.

It is the
last mentioned requirement which counsel argued about at length. And
it is related to the following history of the matter.
That the
Applicant in the main application Tahleho Phihlela says that her
daughter 'Matsepo was never married to the family of
'Mapinki
Monaheng particularly to her son Bojoalo who predeceased 'Matsepo.
She says she may have cohabited with the son of 'Mapinki
over a
number of years (since about 1982) but there was never a valid
marriage according to Sesotho customary law nor according
to civil
rites.

Applicant
says there was indeed payment of cattle but those were for abduction
or damage (tsenyo) not for bohali. It appears to
be common cause that
cattle which passed hands and which sounded in money were six in
number. Although the cattle are expressed
in money it is agreed that
the total number of the cattle was six. And the dispute is about
whether the cattle constituted only
tsenyo or damage or whether they
constituted payment for bohali.

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So that
the investigation, in my view, is not a complicated one. It is
whether if there was negotiations for marriage: When was
that done?
Who were present? What was the real agreement then? Could it be that
there was a number of cattle which were part-paid
and which cattle
remained as the form of balance and how this was expressed? But
according to our law it is just not enough that
the bride and
bridegroom or the boy or the girl cohabited over a long time. That
does not constitute a marriage.

I
informed Mr Molapo for the present Applicant that my approach was
going to be a simple one as above. Mine was to look for pieces
of
evidence in the affidavit of the Applicant which spoke about these
things I have just recited. And then if there would be need
for viva
voce evidence there must be a basis therefor in the papers. I thought
the evidence in the affidavit of the present Applicant
would have
been much better constructed in the sense that the Respondent must
have been fully aware what the case for the Applicant
was.

I
criticized the content of the present Applicant's affidavit because
it was sadly lacking in showing all the elements of Sesotho
customary
law. He must have been aware of the contents of paragraph 11,
paragraph 12 and paragraph 13 of the founding

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affidavit
of Tahleho Phililela, the original (previous) Applicant. This he
should have shown in his response. But that was not to
he. In
paragraph 11 of that affidavit in the main application the Applicant
speaks about a payment of one thousand ma/oti. And
he says it was
agreed that that money amounted to four head of cattle.

In
paragraph 12 he continuous and he says that between 1989 and 1994
Bojoalo the boy and his daughter came to him Tahleho Phihlela
and
gave him M500.00 as another payment. And he says that amount was
acknowledged as equivalent to two head of cattle.

And he
concluded that as a result six head of cattle being payment for
abduction has been paid. He says after that there was never
any
discussion about marriage, the reason being that those payment
amounted to abduction and that was all. And in that paragraph
15 he
reiterates that there was never any negotiation over bohali. Nor was
there acknowledgment or agreement about marriage between
the parties.
As I have previously said it is not enough that the boy and the girl
can cohabit over a number of years. Neither is
it helpful that the
parents can be led to believe that that a long period of cohabitation
amounts to a marriage, when in fact they
were in error.

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I attach
importance to this last statement I have made. It is because this
misunderstanding that marriage is the result of cohabitation
was
cited or perceived as corroboration that the marriage exists. This
belief by parents was cited by present Applicant as indicating
or
corroborating existence of a marriage. I disagree. There are other
matters which were mentioned or indicating that there was
a valid
marriage.

An
incident is mentioned where before the police or somewhere the
Tahleho Phihlela is said to have made a statement rather
acknowledging
that there was a marriage between the boy and the girl.
At one time at the mortuary Applicant is said to have handed over
papers
in a concession that there was a marriage. I refuse to accept
that this in itself can be taken as a basis for concluding for the

existence of a marriage.

My
attention have been drawn to an exhibit called "TP1". I did
not quite understand the value of this annexure. I will
quote it to
indicate that it may end up being ambiguous. This is so more
especially because there has been an attack by the present
Applicant
that the annexure could be fraudulent. But I was interested to find
out how and in what manner can it tip the scale in
favour of this
party or the other. I read it from the translation wherein it makes
more sense, I suspect. It says:

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"Mokhotsi we are still well this days what about yourself?
Mokhotsi do not be surprised to see my children when they come
to
you. They are there with my authority to bring you the list that I
have and the rest will be taken care for this coming day.
When Ntate
come so that we can settle the issue. Goodbye 'Mapinki Monaheng. My
money is R1000.00."

There are
several attacks that come from the present Applicant of this
annexure. One of them was that on the 26th December, 1989
when this
document was authored her husband was already dead. There is no how
present Applicant could speak of her husband coming
from anywhere.
Still more significantly it does not speak of a marriage nor any
reason for the payment I conclude by saying this
is one document that
does not influence me either way. But there was something which
influenced me.

It is a
judgement of Maputsoe Local Court of the 11th November, 2004. In this
claim the first Respondent Tahleho Phihlela was claiming
against
'Mapinki Monaheng (present Applicant).

The claim
was for fourteen head of cattle or M 1000.00 per head for Plaintiff's
daughter's bohali. It was for fourteen head of

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cattle
each of Ml000.00 for bohali of the Plaintiffs daughter 'Malikhetho
who was allegedly married by Bojoalo son of Defendant

This case
is not a very clear in its pleadings. In the body of the proceedings
themselves there was one witness who was not even
cross-examined.
Unfortunately the court delivered a very brief and not so clear
judgment indeed. It could have been redeemed if
the witness who was
called was cross-examined. It dismissed the plaintiffs claim. Mr
Khauoe submitted that the reason for a dismissal
of the claim was
that the court had concluded there was not marriage and therefore no
bohali ought to be paid. I agreed that this
was most probable.

I have
had further problems in believing that there was ever a marriage. It
is this problem about one Putsoa Monaheng who was said
to have been
present during the marriage ceremony. And this is the person who is
said to have been a competent witness to testify
about the cattle
paid for bohali. And this is a person was said to be able to testify
if the matter was very re­opened.

Putsoa
Monaheng was referred to at paragraph 13 of the Applicant founding
affidavit. It is put in a very unhelpful way. I quote
from the
paragraph 13 which said:

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"In addition I have a valid defence in as much as I have witness
Putsoa Monaheng, who had gone to the First Respondent to
deliver
deceased cattle as part payment of bohali."

I have
already point out to the problem of lack of particularity in the
approach that the Applicants adopts. These is an even further

complication about Putsoa Monaheng. We are not told when Putsoa
Monaheng paid the six head of cattle, where payment was made, who
did
he spoke to and so forth. This is unhelpful in the extreme.

There are
other things which are pointed out in argument by counsel, from both
sides in relation to the prospects of the success.
It was on the
legal issue of the requirements for or elements of Sesotho customary
law, which were to be reconciled with the facts
in the paper. All
circumstances indicated abject failure to do so,

I can
safely say that the present Applicant at last conceded, that no case
was made out for reconciling the requirements of Sesotho
customary
law with the facts as they were stated. I am therefore unable to
conclude that prospect of success exist that would require
this
judgment to be rescinded. I am not able to

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accept
and I do not accept that there are good grounds that show that there
were prospects of success.

I cannot
for above reason cancel the judgement nor can I order that the matter
be reopened. I do not accept that should stay of
execution. I
therefore say that the decision of the 24 December, 2004, remains a
valid as a judgment. It must be executed. This
application therefore
fails with costs.

T.
Monapathi

Judge.