HIGH COURT OF LESOTHO
KHOELI (born Maliela) APPLICANT
KHOELI 1ST RESPONDENT
FLOUR MILLS 2nd RESPONDENT
THE HON. MR JUSTICE S.N. PEETE
27th FEBRUARY 2005
1. This is an application in which the applicant prays for an order
couched as follows:-
Applicant as the sole heir of the late THABO KHOELI.
the 2nd Respondent from paying the death benefits of the deceased to
the 2nd Respondent to pay the said benefits to Applicant.
the 2nd Respondent to pay the costs of this Application.
the 1st Respondent to pay the costs only in the event of opposition.
Applicant such further and/or alternative relief "
2. In her founding affidavit the applicant alleges that she "had
entered into a civil marriage in community of property with
THABA- KHOELI" on the 19th July 2000 at Thaba-Tseka. The said
marriage was solemnised by one Joseph Khoase Letsoisa
the then Deputy
District Secretary - Thaba-Tseka.
3. She alleges that when the deceased THABO KHOELI died on the 15
November 2003 the said civil marriage still subsisted.
4. It is common cause therefore that in order to succeed in her
claim, the validity of applicant's marriage must first be established
by the applicant. Marriage certificate is often the best evidence of
a marriage [See Section 35 (3) of the Marriage Act No.10 of
5. Ex facie, the marriage certificate seemingly appears to have been
signed by "Deputy District Secretary" one Joseph
3 6. The 1974 Marriage Act reads:-
"6.(1) Every District Administrator shall by virtue of his
office and so long as he holds such office, be a marriage officer
the district in respect of which he holds office.
6. The Minister and any other officer in the public service
authorized thereto by him may designate any officer or employed in
the public service or the diplomatic or consular service of Lesotho
to be, by virtue of his office and so long as he holds such
marriage officer, either generally or for any country or area. "
7. Mr Monyako and Mr Matooane are in consensus ad idem as regards
the substitution of "District Secretary" for the "District
Administrator" [cf Act No.4 of 1993].
Section 31 (2) of the 1977 Interpretation Act reads:-
" Where an Act confers a power or imposes a duty on the holder
of a public office as such, then the power may be exercised
duty shall be performed by the holder for the time being of the
public office or by a person duty appointed to act for
9. Whilst it is common cause that when Mr Letsoisa purported to
solemnize the marriage between the deceased and applicant on the
July 2000, he was not the District Secretary for Thaba-Tseka but only
a Deputy, Mr Matooane submits that there exist a presumption
proper appointment1 and that the intending spouses were entitled to
assume that Letsoisa was duly appointed and thus
1 Hahlo -
The South African Law of Husband and Wife (4 ed) - page 75.
had authority to solemnize their marriage. There is substance in this
submission. But unless a marriage is solemnized by a duly
marriage officer it is null and void3 - Ex parte Azar 1932 OPD 107;
Ex parte L 1947 (3) SA 50 (c). In my view the presumption
appointment arises only if ex facie the marriage certificate, the
marriage officer was ex officio designated under section
6 (2) of the
Act. The presumption cannot validate a union which is otherwise null
and void ab initio.
10. In view of the explicit wording of section 6 of the Marriage Act
and the fact that Mr Letsoisa was then a Deputy District
it is not possible to presume the authority of the Deputy District
Secretary to solemnize a legally binding marriage
evidence that he was so designated by the Minister under section 6
(2) of the Marriage Act.
11. Unless the marriage was solemnized - in fact and in law - by a
duly appointed and competent marriage officer, such a union
and void and "the court is not vested with any general or
inherent jurisdiction whereunder it can declare a ceremony
marriage to be legally binding"4. In other words the court
cannot validate an otherwise void marriage, provided, of course,
where the court is satisfied that both parties to such a union
genuinely believed that their marriage had been lawful, it
(supra) page 85 re:omnia praesumuntur rite esse acta; Ochberg vs
Ochberg's Estate 1941 CPD
15 at 33.
(supra) page 75
parte L (supra) per Ogilvie Thompson A.J.
power to declare the issue of such union legitimate - and it can also
declare that a community of property existed between the
if such ignorance continued until their union was terminated by
death, that the surviving partner is in his or her
own right entitled
to a half share of the whole estate - Ex parte L (supra),
12. In the unique circumstances of this case, while the marriage
certificate may certainly be the most convenient evidence, much
has been cast upon its authenticity and it behoves this court to
order that the evidence of the marriage officer be called,
interests of justice [South African Law of Evidence - Hoffman &
Zeffertt page 620]. This step is also sanctified under
Rule 8 (14) of
the High Court Rules 1980 which reads:-
"8. (14) If in the opinion of the court the application cannot
properly be decided on affidavit the court may dismiss the
application or may make such order as to it seems appropriate with a
view to ensure a just and expeditious decision. In particular but
without limiting its discretion, the court may direct that oral
evidence be heard on specified issues with a view to resolving any
dispute of fact and to that end may order any deponent to appear
personally or grant leave for him or any other person to be
subpoenaed to appear to be examined and cross-examined as a witness,
or it may order that the matter be converted into a trial with
appropriate directions as to pleadings or definition of issues,
otherwise as the court may deem fit "
13. In the exercise of my discretion under Rule 8(14) I therefore
order that Mr Joseph Khoase Letsoisa be subpoenaed to appear
this court to be examined and cross-examined as a witness on a date
to be set by the Registrar.
14. I specifically order that the evidence of Mr Letsoisa be
confined to the following specified issues (a) his authority to
solemnize the marriage between the deceased and the applicant and (b)
circumstances surrounding attaching of his signature to the
Certificate No. 14/00 dated 19/07/2000.
15. The merits or demerits of this application will be decided upon
after the hearing of his evidence.
16. The court called Mr Letsoisa who categorically disowned his
signature on the marriage certificate as being fraudulently forged.
Since the applicant's claim is based on this certificate, her claim
collapses (like a packet of cards) and is hereby dismissed
Matooane : For Applicant
Monyako : For 1st Respondent
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