CIV/A/7/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MANTHAKO
RANTHAKO Appellant

and

LENKOA
RANTHAKO Respondent

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 26th February, 2007.

This is
an appeal against the judgment of the Maseru Magistrate's Court. The
Appellant was the Plaintiff in the Court a quo but
judgment turned
out to be against her, hence the appeal.

But
before going into the merits of the appeal, I will deal with the
point of law raised by Respondent's Counsel. The point being
that in
terms of section 6 (1) (a) of the Land Act 1979, that Appellant has
no right to own land in Lesotho as a South African
citizen.

2

In
response to the point raised Appellant's view has been that
notwithstanding that section 6 (1) (a) of the Act, Respondent being

the. legal wife to her deceased husband, is entitled to hold title as
her husband had in terms of section 8 (2) (a) as amended
by section 5
of order 6 of l992.

The
amendment to section 8 of the Land Act 1979 under Order No 6 of 1992
reads as follows:-

"5. section 8 of the Principal Act, is amended

1. ..............

   
   

2. by
   deleting subsection (2) and substituting the following subsection:

   
   

2. Notwithstanding
   subsection (1) where an allottee of land dies, the interest of that
   allottee passes to,

   
   

1. Where
   there is a widow - the widow is given the same rights in relation to
   the land as her deceased husband....".

   
   

In her
evidence the Appellant had shown that she was married to her late
husband Edward Nthako and that when he died their marriage
was still
subsisting. They had during their marriage accumulated property which
included residential sites, flats for rental, business
sites, animals
and vehicles. There has also been evidence that in their marriage
with her husband, Appellant was blessed with three
.

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children.
This came from P.W.2 at the trial one Moseme Ranthako who also showed
that only two of the three children are surviving,
a boy and a girl.
Moseme Ranthako who claimed that Appellant and her husband were his
uncles.

From
Appellant's evidence at the trial, through two witnesses who are
members of Ranthako's family, it was made clear that Appellant
was
the first wife to the deceased. Appellant herself showed that she had
been married customarily but later contracted a civil
rites marriage.
It came from Defendant's cross examination at the trial that in fact
it was a civil rites and a marriage certificate
to that effect was
produced as confirmation.

Appellant's
evidence had shown further that after she was married civilly on the
1st May, 1955 as per ID "1" her husband
later sought to
enter into two more marriages. The second such wife being
Respondent's mother. The point of law raised by Respondent
is
answered in favour of the. Appellant on the basis of the amendment to
1979 Land Act section 5 (2) (a) thereof.

The
Magistrate in giving her judgment on the matter considered that
marriage to first Respondent's mother was a putative marriage
thus
rendering children born out of such marriage legitimate.

4

June
Sinclair, on the Law of Marriage, Vol. I at 404 on putative marriages
has given out requirements for a putative marriage. It
is stated
there that, "the rule that a marriage which is null and void ab
initio has none of the consequences of a valid marriage
is subject to
qualification in the case of a putative marriage." The
requirement being that,

First -
the marriage must have been solemnized with the prescribed
formalities, that both or at least one of the spouses had contracted

the marriage in good faith.

Appellant
had said that she moved to Ladybrand because they were not in good
terms with first Respondent's mother, she expelled
her from home. The
witnesses called by the Appellant showed that Appellant stayed in
Ladybrand due to ill health, and Appellant
also said the same thing
under cross-examination. She said her husband sought her a house
where she could stay when going to see
the doctor.

At least
as between Appellant and her husband there has been proof of
marriage. No proof of a customary law marriage between the
two, but
there is a proof of marriage out of Community of Property.

5

With the
Respondent's mother we have only been told that they lived together
as husband and wife but no proof of such marriage was
shown. We do
not know if it was by custom or under common law.

As
rightly pointed out by the magistrate in her judgment, that right to
inherit property is determined by the validity or otherwise
of her
marriage to the deceased. She went further to say that in her
judgment, "a widow may lose her right to the property
if she
fails to convince the Court that she was validly married to the
deceased. The Respondent has not shown any proof of marriage
to his
mother or called in evidence to prove that, but Appellant has proof
of her marriage by civil rites.

Recent
decisions have shown that even where parties were initially married
by custom, once they opt for a civil rites marriage,
only the later
is given recognition, Ntloana and Another v Rafiri C of A No.42 of
2000. It is trite law that any marriage which
follows a civil
marriage is null and void and as such no property rights may follow
in such instances unless there can be proof
of a putative marriage.

6

The Court
a quo erred in holding that there was a putative marriage between
deceased and Respondent's mother as there has been no
proof of any
such marriage. It is also surprising to observe that nothing has been
said about the Appellant's children by the magistrate
in her
judgment. Even Counsel in his argument never made any mention of
those children who must be majors by now since we were
told Appellant
was born in 1936. The South African Law of Husband and Wife by Hahlo,
5th Edition at 302 has clearly stated that
where marriage is out of
Community of Property, the estate of the first dying spouse devolves
upon his or her heirs.

We cannot
in this case even talk of a putative marriage between Respondent's
mother and Appellant's husband as there has not been
proof of any
marriage between the two. No one ever showed in evidence that they
know of such a marriage safe to say that the two
were living together
and bore children. There has not even been any evidence as to when
Respondent's mother was married.

To the
alleged 3rd wife, the Respondent has shown that his father was not
married to that 3rd wife as she was only an employee at
his father's
business. He farther showed that he has allocated some property to
that house merely because the children were fathered

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by his
father and so were his half sisters and half brothers. He allocated
them property as maintenance.

For the
reasons stated above the Court finds that judgment by the Court a quo
was not based on any evidence.

The
appeal is thus upheld with costs.

A. M.
HLAJOANE

JUDGE

For
Appellant: Mr Khauoe

For
Respondent: Mr Chobokoane