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.