HIGH COURT OF LESOTHO
MPEKA 1st RESPONDENT
MPEKA 2nd RESPONDENT
MPEKA 1st RESPONDENT
SUNNYBOY MATSOARA 2nd RESPONDENT
by the Honourable Mr. Justice W.C.M. Maqutu On the 15th May, 2006
3rd April 2006, Mr. Nathane appeared before me to move an ex parte
application CIV/APN/136/2006 on a certificate of urgency
for an order
in the following terms:
rule-nisi do hereby issue calling upon the Respondents herein to
show cause if any, on a date to be determined by this Honourable
ordinary periods of Notice and modes of service shall not be
dispensed with due to the urgency of the matter;
1st and 2nd Respondents herein and or their agents shall not be
directed to stop forthwith from interfering with, alienating
in any manner whatsoever dealing with the estate of the late TJOKA
MPEKA save by due process of law;
1st and 2nd Respondents herein and/or their agents shall not be
directed to restore forthwith the status quo omnia ante to
Applicant herein pending the finalization hereof;
Applicant herein shall not be declared the lawful heiress to the
estate of the late TJOKA MPEKA;
1st and 2nd Respondents herein shall not be directed to pay the
costs hereof on the Attorney and client scale;
Applicant herein shall not be granted such further and/ or
alternative relief as this Honourable Court may deem fit.
prayers 1 (a) (b) and (c) operate with immediate effect as
application involved a lady who regarded herself as widow of the late
Tjoka Mpeka, this lady is the applicant and the first
the son of the late Tjoka Mpeka. This estate is governed by Basotho
law and custom not the "received" common
law of Lesotho as
modified by statute.
name of first respondent I was able to deduce that he was male and
that (as more fully appears in paragraph 9 of the founding
in CIV/APN/136/2006) first respondent was apparently the eldest son
of the late Tjoka Mpeka. Consequently I could not
"the lawful heiress to the estate of the late Tjoka Mpeka".
I made this clear to Mr. Nathane who appeared
for applicant that day.
Therefore I made the following interim order:-
the ordinary modes of service and periods be dispensed with on
account of urgency of the matter;
rule nisi is issued returnable on the 8th May 2006 calling upon the
respondents to show cause why prayer 1(b) 1(c) and 1(e)
be made final;
interdict pending the finalization this application is granted in
terms of prayer 1(b) and 1(c) of this application.
13th April 2006 first respondent anticipated the application and
filed a counter-application
On that day Mr. Mokaloba appeared for applicant and Mr. Sekonyela
appeared for the respondents.
I was not
happy that a second file had been opened. It probably was necessary
because Seabata Sunnyboy Matsoara who was not in the
application was cited. Consequently by consent of the parties I made
the following order by consent that CIV/APN/134/2006
CIV/APN/154/2006 be consolidated, and added:
much as this application (CIV/APN/136/2006) and its counter
application CIV/APN/154/2006 have been consolidated the papers
CIV/APN/154/2006 are transferred to this file. The parties will be
styled applicant and respondents respectively.
parties in trying to argue the anticipated application found that the
necessary affidavits have not all been filed. The court
into recess consequently the court made the following order to enable
the necessary affidavits and papers to be filed:
application and counter-application are allowed to stand though
disputed because of urgency. This is so despite the fact that
dispute of fact was foreseen - the reason being that the main
application had elements of spoliation.
affidavits and replying affidavits should be filed with 7 days of
each other from today.
Applicant is restrained from dissipating the estate in her hands
pending finalization of application.
Any contempt of court applications that may result will be dealt
with along with the merits.
Rule extended to 8th, 9th and 10th May 2006 and all applications
from this matter.
8th May 2006 this application was argued by the Mr. Nathane for
applicant and Mr. Sekonyela for respondents. Judgment was
until the 15th May 2006.
of material facts
Mr. Nathane for applicant applied for the hearing of viva voce
evidence the application was refused because points in limine
been disposed of together with other legal issues.
Sekonyela for respondents had objected to the fact that applicant had
not disclosed material facts that are detrimental to her
particular applicant had not disclosed that when she entered into a
civil marriage on the 4th August 1993, applicant knew
Mpeka with whom she purported to marry had a subsisting marriage with
the mother of first respondent. Consequently the
civil marriage that
was the basis of her application was null and void.
appears Mr. Sekonyela's submission is partially correct because the
following paragraphs do disclose some of the facts which
bearing on the validity of the applicant's marriage:
I wish to
inform this Honourable Court that before contracting the civil
marriage, I had cohabited with the deceased herein for
a period of
ten (10) years - if I still remember well.
apposite to mention that when I first met the late Tjoka Mpeka, he
was already estranged from his wife 'Matsoanelo Mpeka the
1st respondent herein. At that point the 1st respondent herein was a
toddler of about 3 years and the duty of his upbringing
me as his late mother had abandoned him...
also mention that before 1st respondent's mother passed away, she and
deceased herein had divorced as evidenced by a copy
of the decree of
divorce annexed hereto and marked "MM2".
be observed that "MM2" is a final divorce order dated 19th
March 2003. The parties are Petrose Tjoka Mpeka and
'Matsoanelo Mpeka the parents of 1st respondent. In that divorce
order the following is said:
of plaintiffs adultery is granted.
decree of divorce is granted on the grounds of Defendant's
of the minor child is granted to plaintiff.
of the benefits of the marriage is granted.
seem therefore that what applicant failed to appreciate were the
legal consequences of the above facts. It is therefore
say she did not disclose these facts. What applicant failed to
disclose or to appreciate was that the court would
entertained her application (in the manner it was put) had it been
aware of the significance of these facts.
in her replying affidavit did not dispute that the late Tjoka Mpeka
and the mother of 1st respondent were married by Christian
the 16th June 1986 as more fully appears in respondent's "TMM1.
Applicant at paragraph 6 of her replying affidavit
categorically that when she
"The supporting affidavits must set out a cause of action. If
they do not, the respondent is entitled to ask the court to
the application on the ground that it discloses no basis on which the
relief can be granted".
learned authors on page 365 say:
"The necessary allegations must appear in the supporting
affidavits, for the court will not, save in exceptional
allow the applicant to make or supplement his case in
a replying affidavit". Bay at & Ors v Hansa & Another
SA 547 at page 553 C-E.
general rule is that applicant stands or falls by her founding
affidavit and the facts alleged in it.
parte applications like this one utmost good faith is required.
Applicant must make full disclosure of all material facts
affect the granting or otherwise of an order.
J in Hall & Another v Heyn & Others 1991 (1) SA 381 at page
397 B-C concluded:
"It is trite law that an applicant should, especially in the
case of an ex parte application, place all relevant facts before
court. A fortiori, no incorrect information may be furnished. Even if
this is done carelessly and not recklessly or deliberately".
It can be
said without hesitation that applicant was careless in basing her
claim on a void marriage which she entered in 1993 during
subsistence of a marriage that was only dissolved in 2003. She had in
her possession the facts that should have revealed to
her that she
cannot base her application on the civil marriage of 1993. Yet even
when she put them in her affidavit - she could
not appreciate the
legal significance of the facts disclosed to the court. Her
carelessness in not seeking proper advice on the
facts and thereby
concealing from the court that the remedy she was
was out of her reach was unfortunate and devastating to her
to seek another remedy based on the belated appreciation of the facts
in a replying affidavit were of no avail. Her application
flawed. I decided to reserve my judgment on the preliminary objection
of respondent until I had been addressed on the
merits. This was
necessary to allow applicant to ventilate her grievance fully.
knowledge of the previous marriage
applicant could have suggested in her founding papers that hers was a
putative marriage - that is the remedy for legitimizing
She could not benefit from such an assertion. Applicant's problem is
that her averments on this issue are contradictory.
not help applicant's case that in entering into the "civil
marriage" of 1993 she was a divorcee. Furthermore at
the time of
the "civil marriage" she styled herself as a spinster in
the marriage certificate. She was in fact a divorcee
cohabited with Tjoka Mpeka for about three years at the time of the
marriage. By the same token Tjoka Mpeka made a false
he was a bachelor when he entered into the illegal bigamous marriage
with applicant. All these facts were hidden
to the court. Most of the
facts were clarified in the applicants replying affidavit, where it
revealed that she had four children
and had been divorced on grounds
of adultery with Tjoka Mpeka in 1991. To say in her replying
affidavit she did not know Tjoka
Mpeka was married did not help her
founding affidavit applicant said she was aware that Tjoka Mpeka had
a three year old child born of a wife with whom Tjoka
estranged. This is the averment from the founding affidavit by which
her application stood or fell. The subsequent allegation
that she did
not know Tjoka Mpeka
married - was an impermissible building of her case in a replying
affidavit. As if this flaw is not enough applicant is not
this later averment contradicts her first averment that she was aware
Tjoka Mpeka had a wife from whom he was estranged.
In other words she
could not be heard to say she did not know Tjoka Mpeka was still
married to first respondent's mother.
claims she comes from St. Theresa, Mashai Thaba-Tseka. This is the
place where Tjoka Mpeka had married applicant's mother
on the 16th
June 1986. It may be possible that applicant did not know of that
marriage. She however heard of it because she claims
to have known
that Tjoka Mpeka was estranged from first applicant's mother. It
becomes difficult to understand the reason for not
the other woman had been divorced before marrying the late Tjoka
Mpeka by civil rites on the 4th August 1993.
It is significant that
applicant does not say the late Tjoka Mpeka deceived her into
marrying her by civil rites
the subsistence of a prior Christian marriage. The court is left to
strange that in March 1991 when the Thaba-Tseka Local Court was
deciding the divorce case of applicant, in CC 108/90, the
Local Court was seized with CC 88/91 in which first respondent's
mother was asking the court to expel applicant from
her home with
Tjoka Mpeka - but applicant says she did not hear of that case. It is
even more strange that Tjoka Mpeka and applicant
cohabitation) did not discuss these cases as they were vital to their
future prospects of marriage.
no proof that applicant was told or came to know of the case 1st
respondent's mother brought against the late Tjoka Mpeka
applicant from her marital home so that she could return to it. This
case CC 88/91 of the Sehonghong Local Court was CC
66/92 of the
Thaba-Tseka Central Court marked "TMM2". Applicant says she
does not know of this case but does not deny
it took place. In it
applicant is said to
an employee of the late Tjoka Mpeka. Tjoka Mpeka challenged first
respondent's mother to prove that applicant was his
lover. Yet applicant admits that at that time she and Tjoka Mpeka
were living as husband and wife. It is sufficient
in this application
that this incredible fact which appears in a replying fact has to be
struck off and ignored in these proceedings.
JA in M. Moletsane v M. Moletsane & Others C of A (CIV) NO. 10 of
2004 has this to say about a marriage that is contracted
subsistence of a Christian or civil marriage:
"A customary marriage following a pre-existing civil marriage is
null and void ab initio".
As I have
already said a civil marriage that is entered into during the
subsistence of a Christian marriage is not only void it
is also a
criminal offence of bigamy. I have already said the issue of putative
marriage is raised when the legitimacy of
is in issue. Friedman J in Moola & Others v Aulsebrook NO &
Ors 1983 (1) SA 687 in a Cape Provincial Division judgment
concept of putative marriage has no legal significance for parties
themselves as they can resort to the universal partnership
page 690 D of Moola & Ors v Aulsebrook NO & Ors
"The true importance of the concept of putative marriage lies
therefore in the fact that children of such a union are legitimate
with all legal advantages of legitimate children".
Provincial Division had been invited to clarify the confusion sown by
academic and text book writers about the concept.
The good faith of
one of the parties in entering such a void marriage must be alleged,
demonstrated and proved. This has not been
done in this case.
JA in M. Moletsane v M. Moletsane & Others (supra) said of a
divorce that took place several years after a void marriage:
"In my view the fact that she did not insist on a divorce order
as proof that the deceased's marriage to the first respondent
been legally terminated, is a factor that must adversely affect her
own bona fides".
with Ramodibedi JA and what Teele AJ had said in the court below i.e:
"These unforced errors and contradictions did not inspire
confidence that the truth was being told".
JA in M. Moletsane v M. Moletsane & Others (already referred to)
did not take kindly to applicant's failure to disclose
"What is inexcusable for that matter is that the appellant
failed to disclose this fact in her founding affidavit".
JA concluded that a bigamous marriage of this kind is "void ab
initio and is therefore incapable of validation as
a result" of
the dissolution of the pre-existing Christian or civil marriage. In
other words only after Tjoka Mpeka had dissolved
his first marriage
could he validly marry applicant which did not happen.
significant in CC 168/90 of the Thaba-Tseka Local Court applicant's
former husband divorced her because she had been rendered
the late Tjoka Mpeka. What is puzzling is that applicant did not ask
for proof that Tjoka Mpeka had divorced or been
divorced by the
estranged wife whose son she was living with at the time. It is
rather strange that applicant flippantly just accepted
Mpeka was no longer married to the mother of first respondent. On the
papers before me, I have to rely on words of applicant
Mpeka was already estranged from his wife the late
Mpeka the mother of the first respondent. I might add her subsequent
denial of knowledge that Tjoka Mpeka was no longer
'Matsoanelo Mpeka is suspect - but I do not have to deal with this
issue because I am bound by what applicant said in
heiress to the Estate of Tjoka Mpeka It is clear that the purported
letter from the family that applicant is Tjoka Mpeka's
deceased's) heiress is contrary to Basotho custom and factually
incorrect. The reason being simply that an heir by Basotho
born not chosen. The family merely produces the heir to the chief and
the authorities. If the wrong person is produced
as the heir the
courts will declare the action of the family wrong and recognize the
proper person as the heir.
letter "MM3" recognizes applicant as the heiress because he
is the wife of the deceased Tjoka Mpeka. She is not validly
to him by civil on the 4th August 1993
that marriage is null and void as Tjoka Mpeka was still lawfully
married to first respondent's mother at the time. Since
claim to be heiress depends on a nonexistent marriage - she
cannot be Tjoka Mpeka's heiress. The reason is succinctly
Hahlo Husband and Wife 5th Edition page 111 as follows:
"Having been null and void as bigamous when it was contracted it
is non-existent and therefore incapable of validation".
be observed that applicant had been put in possession of Tjoka
Mpeka's estate according to custom by letter "MM3".
this was done as guardian to minor children is not specified. However
at a meeting of 1st April 2006 which applicant attended
and put her
case to the family, the family made another decision in "TMM8"
in which it directed applicant to handover
the entire estate of the
late Tjoka Mpeka to 1st respondent who was still at school in
February 2004 when the family met. This
fact applicant had
mentioned in the founding affidavit. It was as if the sole family
decision was that contained in "MM3" which favoured
She was obliged to disclose this adverse decision in ex parte
applicant confined herself to spoliation proceedings and not asked
the court to declare her the heiress, her application for
of possession would have been straight forward and steep for the
first respondent to resist. Applicant herself conceded
respondent was the son of the late Tjoka Mpeka that she found living
with the late Tjoka Mpeka when she first cohabited
with the deceased.
Applicant knew 1st respondent was the heir according to custom yet
she still claims to be the heiress. This
is surprising because at
paragraph 22 of her founding affidavit she said about first
"I was always alive to the fact that he was my late
husband's child however begged him to relent in respect of the other
property and share it with us as deceased had three other
being the case this court is entitled even in spoliation proceedings
to consider first respondent's defence and other issues
Minister of Agriculture & Others v Segopolo & Ors 1992 (3) SA
not get into how the property was acquired and whether there is
property that applicant is entitled to. Her claim before
me has to
fail; because of the manner it is brought.
first respondent was entitled to help himself to his birthright It is
clear from the papers that applicant was not and could
not be the
late Tjoka Mpeka's heiress. It is also clear that applicant was never
lawfully married to the late Tjoka
is also clear that the family decision "MM3" which
introduced applicant as the heiress to the estate of Tjoka
wrong. However it has to be recognized that it was made on or about
the 16th February 2004 and from that time the deceased
into the possession of applicant.
question for determination is whether first respondent aided by
second respondent can help themselves to the property
that has been
in the hands of applicant rightly or wrongly since February 2004?
becomes necessary to deal with this issue because of two prayers in
the rule nisi.
That 1st and 2nd Respondents herein and their agents shall not be
directed to stop forthwith from interfering with alienating
and or in
any manner whatsoever dealing with the estate of the late Tjoka Mpeka
save by due process of law.
That 1st and 2nd Respondents herein and/or their agents shall not be
directed to restore forthwith the status omnia ante
to the applicant
herein pending the finalization hereof.
spoliation proceedings the court does not deal with whether the
possession came into the hands of the possessor lawfully. The
test is whether the possessor was in possession. The law protects
possession and obliges even the owner of the possessed property
claim it from the possessor by due process of the law.
respondent does not deny that applicant was in possession of his
father Tjoka Mpeka's estate and that as applicant said in
20, 21 and 22, he began to pester applicant with demands to be given
his father's property. First respondent admits
that on the 1st April
2006 a family meeting was called. All first respondent says is that
applicant walked out of the family meeting.
respondent does not dispute that because of pressure exerted on by
the family applicant said she was always alive to applicant
Tjoka Mpeka's son but wanted first respondent to share deceased's
estate with applicant and her children. First respondent
deny he refused to share the estate with applicant.
family decision "TMM8" dated 1st April 2006 which was
handed in by first respondent confirms that before 1st April
applicant was in charge of the deceased estate because first
respondent was still at school and everything went smoothly.
being the case the possession of Tjoka Mpeka's estate by applicant is
unchallengeable. The family introduced first respondent
as the heir
now that he is no more at school.
"TMM8" of respondent dated 1st April 2006, continues:
"Today the family introduces his son Tsoanelo Moshe Mpeka
will take over all responsibility in respect of all the property of
his family which includes buildings or
sites, vehicles, livestock, bank accounts, and every other property
which may be forgotten including guns and the property in buildings".
"The family therefore instructs Mrs 'Manthabiseng Mpeka to hand
over all property and everything which was under her control
appears the decision of the family to pass the control of deceased's
estate lawfully is at the initial stages. First respondent
therefore wrong to help himself to the deceased estate. If he is
resisted and the property of deceased is being illegally frittered
away or stolen, first respondent must resort to the law and not help
him. To that extent applicant's application has merit. First
respondent must be stopped from acting illegally even though he is
the heir by Basotho law and custom.
not be wise for the court to go beyond this. The position of heir by
Basotho custom is a responsible position
the heir takes over assets and liabilities of the deceased. It is not
only the property and benefits that the heir inherits
but even the
burdens and liabilities that deceased had.
clear that there are grounds for first respondent to believe that
applicant and Seabata Sunnyboy Matsoara were not using the
for the benefit of the estate of Tjoka Mpeka and for first respondent
the heir. Seabata Sunnyboy Matsoara seems to be
operating a hauler
business with AP183 a vehicle belonging to the Tjoka Mpeka's estate
as more fully appears in "TMM11(a)"
"TMM10" also reveals the use of vehicle AP1 83 for Matsoara
in respect of Machabeng Store belonging
to the estate of the late
Tjoka Mpeka. Seabata Sunnyboy Matsoara cannot be blamed for doing so
as applicant had authorized all
this - because she considered herself
to be the heiress. Clearly Seabata Sunnyboy Matsoara was not being
truthful when he down-graded
case of Minister of Agriculture and Agricultural Development &
Ors v Segopolo & Others 1992 (3) SA 967 respondent
application for mandament van spolie applicant claimed more than
spoliation relief forcing the court to investigate issues
relief - thereby the obliging the court to consider the respondent's
defence to applicant's further relief. Consequently
Goldstein J at
page 971 A to B said of this qualification to the general rule
governing spoliation proceedings:
"It seems to me that the reason underlying the qualification to
the general rule in regard to spoliation is that, if an applicant
goes further than only to claim spoliatory relief, he in effect
forces an investigation of the issues relevant to the further relief
he claims. Once he does this, the respondent's defence in regard
thereto has to be considered and, if such a defence furnishes
justification for the respondent's possession, a court will not order
restoration of the status quo ante ..."
with earlier authorities such as Bester v Grundling 1917 TPD 492,
Doli v Mankele 1926 EDL and Zinman v Miller 1956 (3) SA
J in Minister of Agriculture and Agricultural Development & Ors v
Segopolo & Ors (already referred) page 971
D to F continued:
"Although perhaps not as clear, Bester v Grundling is, I think,
consistent with the view I have expressed. In the Zinman case
Rumpff J, as he then was, citing the Bester case said: The moment an
applicant asks for the return of an article or its
value he no longer
claims a mandament van spolie but is relying on a vindicatory
"This passage cannot, I think, be understood literally. The
learned Judge could not have intended to mean that the mere asking
for more than spoliatory relief in an action or application
disqualifies the applicant from invoking the mandament van spolie,
since our law contains no
such formalism. The passage must mean that, if an applicant asks for
the extra relief and persists in it at Court, the Court has
to adjudicate upon the extra relief and the respondent's allegations
in regard thereto, and the result of this may indicate
applicant has no right to the thing of which he was despoiled, which
in turn will deprive the applicant of his entitlement
restoration of the status quo ante".
clear therefore that applicant's persistent claim of her rights as
heiress and wife of the late Tjoka Mpeka as the basis of
application when she had no such rights gives this matter a different
court cannot order the restoration of the status onmia ante because
the crux of the application is not the restoration of possession
the declaration of who is the heir according to Basotho customary
law. Yet the property of the estate of Tjoka Mpeka has to
with in an orderly and
manner from now on. It cannot help first respondent to disregard the
fact that while he was at school when some members of
family peacefully placed the estate of the late Tjoka Mpeka in
applicant's hands. Applicant considered herself to have
property as heiress. The status onmia ante cannot be restored, the
balance of convenience does not favour such a
step - but law and
order has to be maintained and promoted.
13th April 2006 first respondent brought the following counter
TAKE NOTICE THAT the applicant will be made to this Honourable Court
on behalf of the above mentioned Applicants on 13th
APRIL, 2006 at
9.30 in the forenoon or so soon thereafter as the matter may be
conveniently heard for an order in the following
that the normal period of service prescribed by the Rules of Court
should be dispensed with on the grounds of urgency
of this matter.
the respondents herein and or their agents from interfering with
alienating and or in any manner dealing with the
estate of the late
aside the interim court order obtained by the 1st respondent against
the applicant in case number CIV/APN/136/06.
the 1st Respondent to hand over and deliver to the Applicant all the
property of the estate of the late Tjoka including
all the property
listed in TMM7 including but not limited to:
the vehicles, car-keys, registration certificates as well all the
relevant documents pertaining to the vehicles belong to
of the late Tjoka Mpeka including those vehicles registered in the
names of the Applicant purchased with resources
from the late
Mpeka's estate including Applicant's personal property locked in the
late Tjoka Mpeka's site at Khubetsoana.
the moneys from the all the bank books and accounts belonging to the
estate of the late Tjoka Mpeka and which were operated
by the 1st
Applicant in her own names.
the marriage between the 1st Respondent herein and the late Tjoka
Mpeka to the null and void ab initio.
the Applicant herein to be the lawful heir to the estate of the
late Tjoka Mpeka.
the 2nd Respondent to restore and return to Applicant, forthwith
the trailer, all the starters, ignitions switches
and any other
parts of vehicles of the late Tjoka Mpeka plus any other property
whatsoever of the late Tjoka Mpeka.
the Applicant any further or alternative relief.
the Respondents to pay costs of this Application.
already stated by consent of the parties I made the following order
as on the 13th April 2006.
and CIV/APN/136/2006 are consolidated. Consequently it is ordered
that the papers in this file be transferred to
the file of
order was made because what was demanded from Seabata Sunnyboy
Matsoara was relatively minor. He was effectively merely an
'Manthabiseng Mpeka, the applicant in the main application.
already determined that Tsoanelo Mpeka, the first respondent is the
heir (according to Basotho custom) of the late Tjoka
Mpeka. It will
be observed that it appears that "MM7" of respondent which
was made on 17th July 1999 shows that applicant
was given the residential site and buildings at Thabaneng ea Batlokoa
and the shop at Sehong-hong under Chief
Tlelaka. Tjoka Mpeka was free
to dispose of his property as he chose. He could even give it to
strangers in his life-time provided
he does not deprive
of more than half of his estate. The heir only inherits what deceased
has left unallocated.
I am not
deciding this issue it is relevant to the counterclaim because
this affidavit was made when the two applications had
consolidated. All I am drawing attention to is that the Tjoka Mpeka
estate will not be easy to deal with. Deceased estates
custom are dealt with by the heir advised so far as is necessary by
uncles. This is never a simple and straightforward
matter. What the
court can do is to protect the existing property while applicant
TVlanthabiseng Mpeka is handing over the property
belonging to the
Tjoka Mpeka Estate and accounting for the rest of the state.
already said first respondent Tsoanelo Mpeka is not entitled to seize
the estate and help himself to the Tjoka Mpeka Estate.
All has to be
done properly according to law and custom.
I will make the following orders in respect of the main application
and the counter-application.
applicant is not the wife or heiress of Tjoka Mpeka, in as much as
deceased estate had been put in her hands, first and
respondent and/or their agents are directed to refrain from helping
themselves forthwith to the estate of the late Tjoka
Mpeka save by
due process of the law.
first respondent Tsoanelo Mpeka is declared the heir of the late
Tjoka Mpeka entitle to gather the estate of the late Tjoka
pay debts, meet the obligation that Tjoka Mpeka had and deal with
Tjoka Mpeka's estate according to Basotho custom.
'Manthabiseng Mpeka is declared not to have been validly married by
civil rites to Tjoka
community of property on the 4th August 1993 because at the time of
that marriage the marriage by Christian rites of Tjoka
Ernestina Mpeka entered into on the 16th June 1986 still subsisted.
Consequently applicant's said marriage to Tjoka Mpeka
null and void.
applicant is ordered to account to the first respondent all the
money in the banks, animal stock, moveable and immovable property
that came into her possession when she was declared the heiress of
Tjoka Mpeka on or about the 16th February 2004.
('Manthabiseng Mpeka) following upon the accounting for the property
of the late Tjoka Mpeka Estate to first respondent
applicant is directed to hand over all assets moveable and immovable
to Tsoaneio Mpeka the first respondent to
deal with and to
according to Basotho custom - without prejudice to what belongs to
her by Basotho law and custom.
Sunnyboy Matsoara is ordered to return to the applicant whatever
property which applicant says belongs to the estate of
Tjoka Mpeka to enable applicant to hand it over to first respondent
Tsoanelo Mpeka who is the heir.
both parties have been partially successful there will be no order
as to costs.
Applicant: Mr. Nathane
Respondents: Mr. Sekonyela
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
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