CIV/APN/130/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'M'AFUSI
MPOSHO APPLICANT

AND

MOTSEOA
MOFAMMERE 1st RESPONDENT

METROPOLITAN
LIFE LTD 2nd RESPONDENT

MINISTRY
OF COMMUNICATIONS 3rd RESPONDENT

MASTER OF
THE HIGH COURT 4th RESPONDENT

THE
ATTORNEY-GENERAL 5th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 30th April, 2007

The
applicant has approached this court on a notice of motion seeking a
rule nisi on time and date to be determined by the Honourable
Court
for an order that second and third respondents withhold moneys and
benefits as may be due to the estate of deceased Teboho
William
Mposho pending

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finalization
of the application. An order that applicant be declared sole
beneficiary to the benefits of the deceased; second and
third
respondents to release all monies and benefits to applicant; first
respondent to release to applicant deceased's passport,
death
certificate and pay slips and costs.

According
to applicant's Founding Affidavit at paragraph 9, applicant is the
biological mother of deceased Teboho William Mposho
and sometime in
about 1997 applicant observed that deceased was living with first
respondent as husband and wife in Mohale'sHoek
(paragraph 13).
Applicant had advised that the relationship between deceased and
first respondent be formalized (paragraph 14)
but had learned first
respondent was still legally married to another man (paragraph 14)
cohabitation between deceased and first
respondent never turning into
legal marriage (paragraph 15). Respondent had gone to applicant's
home advising the latter that she
was impregnated by deceased
(paragraph 16) and although a child was born in about 1998 the child
was never brought into the family
for necessary rituals (paragraph
12).

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Paragraphs
18 and 19 clearly show that the first respondent and applicant
co-operated after deceased's death.

The
application is opposed and in opposing it the first respondent has
alleged she is not assisted since she is in separation with
Tsiu
Molibeli and in any event the man she lived with is deceased
(paragraph 5). I understand the first respondent to be saying
that
she is in separation with her husband mindful of the fact that in any
event it is common cause that first respondent lived
with the
deceased while she was still married to another man. At paragraph 6
first respondent while she admits at one stage she
was married to
Tsiu Molibeli she merely says she left him and in this court's view
"left him" amounts to separation rather
than divorce. At
paragraph 6 applicant alleged after deceased's death she was
appointed by Mposho's family and the Office of the
Master of the High
Court to administer the estate on behalf of their son who is the
rightful beneficiary to deceased's estate.
I have seen annexure MSLM
2 which purports to appoint Simon Mposho as heir to the estate of the
deceased and applicant as

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administrator
of Simon's estate, I have also perused annexure MSLA 3 also
purporting to appoint Simon Liteboho/Mosebo Mposho as
heir and his
mother as guardian of his estate.

There is
evidence accepted by the first respondent that "I am a Mosotho
female adult". "--------- without a husband".

(paragraph 1 of opposing affidavit) and yet at para 3 she claims to
have separated with Tsiu Molibeli correcting herself at para
6 that
"while I admit at one stage I was married to Tsiu Molibeli, I
left him in 1996 this raising no doubt that in living
with the
deceased first respondent was still legally married to the said Tsiu
Molibeli making the child Simon Liteboho/Mosebo born
of first
respondent and the deceased Teboho Mposho born out of wedlock and
illegitimate. Illegitimate because Teboho was born of
a man unmarried
to his mother who beget Teboho during existence of marriage of
another man.

The only
question to be answered by this court is whether a married woman can
validly provide an heir to an estate of man who cohabited
with the
same married woman

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and
whether the latter can act as guardian to a son born out of wedlock.
Another question to be answered by the court is the kind
of marriage
that the first respondent and her husband Tsiu Molibeli entered into
and lastly and importantly, whether the child
Liteboho/Mosebo Mposho
is liable to be maintained by the deceased's estate. The latter
question is easily answered because if the
deceased was liable for
maintenance of Liteboho/Mosebo Mposho, it follows his estate is as
equally liable to maintain him during
his minority. Other questions
will not be answered necessary in the order in which they come.

The first
respondent having been married to Tsiu Molibeli whom she deserted and
lived with the deceased during the subsistence of
her marriage to
Tsiu Molibeli, what has to be established in the kind of marriage
that the first respondent entered into with Tsiu
Molibeli. There is
no such evidence save the fact that facts speak for themselves.
Exercising customary rites some members of Mposho
family appointed
Mosebo Simon Mposho to be heir to the estate of the late Teboho
William Mposho and the first respondent was

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appointed
guardian and administrator of the estate of the deceased Teboho
William Mposho (see annexure MSLM 2) and the appointment
was
confirmed by the Assistant Master of the High Court by his letter of
17 January, 2006 (annexure MSLM 3). The first respondent
accepted the
appointment and hence her opposition to the present application by
accepting an appointment based on Basotho law and
custom, it stands
to reason that first respondent not only associates herself with
Sesotho law and custom, but lives according
to, and practices Sesotho
law and custom whatever may have been the marriage she entered into
with Tsiu Molibeli.

Having
regard to the fact that first respondent admitted she was married to
Tsiu Molibeli and left him (deserted), she is guilty
of false
representation to have called herself Miss Motseoa Amelia Mofammere
before the Assistant Master of the High Court (annexure
MSLM 3) for
she in fact remains Mrs Tsiu Molibeli in the absence of evidence that
she was divorced from the said Tsiu Molibeli.
I must now hasten to
discount the veracity of annexure 1, 2 and 3. Annexure 1 is Simon's

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baptism
certificate. Because Simon's mother was then not lawfully married to
Teboho Mposho, Simon cannot assume William Teboho Mposho's
surname
nor can Amelia (Motseoa) do so. First respondent is also guilty of
duplicity and falsehood in one breath calling herself
Mposho and in
another Mofammere while in fact she is and remains Mrs Tsiu Molibeli.
The same goes for annexure "MSLM 2"
for in law Mosebo Simon
is not and cannot assume the surname Mposho for reasons stated above.
It is also doubtful whether, at the
time of appointing Mosebo as heir
to the estate of the late William women (signatories) were in Sesotho
law capable of instituting
heirs. If annexure MSLM 1 and 2 are
invalid and of no legal force or effect, it follows that annexure 3
follows suit.

Both in
the received law (Roman Dutch) and Sesotho law and custom, a mother
cannot beget a bastard in that in relation to married
women, there is
no illegitimate child. At Sesotho law and custom a married woman
cannot bear an illegitimate child during the subsistence
of the
marriage for all the children born during the subsistence of a
marriage belong

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to their
father as would Mosebo the child born during the subsistence of
marriage between the first respondent and Tsiu Molibeli.
Several
cases have come before our courts touching on the status of
illegitimate children as to succession and courts have found
where a
child X is born to Y and S during the subsistence of W's marriage to
Z, X cannot inherit from Y while marriage between
Y and Z subsists.
In other cases as where Y and Z are married options become
complicated but not the instant case where there is
no marriage
between the first respondent and the deceased Teboho Mposho, first
respondent's marriage, instead, subsisting between
herself and Tsiu
Molibeli.

I was
involved in the Judicial Commissioner's Court as counsel for the
respondent Lepoqo Molapo v Khosi Molapo, 1971 LLR 289 and
also on
appeal to the High Court as Mr. Ramolefe's assistant. It was an
emotionally changed case in which the Judicial Commissioner
was not
with it and lost it on the nebulous belief that because the
respondent was named Khosi (chief), this symbolized Lelingoana's

approval of Khosi as

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his
successors although Khosi's mother had been chased away from
Lelingoana's home by Lelingoana, Khosi having been born by another

man other Lelingoana according to evidence at the Central Court,
evidence which the President of the Central Court believed.

In Lepoqo
Molapo v Khosi Molapo above the respondent sued the appellant; it
appeared respondent's mother was married to one chief
Motsarapane
who, for some reason, expelled respondent's mother and Lelingoana,
appellant's grandfather, was persuaded to live with
respondent's
mother out of which cohabitation respondent's sister was born by
another man prompting Lelingoana to chase away respondent.
It was as
a result of evidence tendered in the Central Court that the court
considering the respondent to be an adulterine child
rejected his
claim to succession and on appeal the Judicial Commissioner as I
indicated above found for the respondent. On appeal
the High Court
per Jacobs CJ as he then was overturned the Judicial Commissioner's
judgment re-instating the Central Court's judgment
to the effect that

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where a
bride was rejected by her husband and placed to live with her
husband's brother, there was no valid marriage between the
bride and
husband's brother and children born of the bride had no valid claim
to succeed to a chieftainship held by the husband's
brother. In the
instant case first respondent separated with her husband Tsiu
Molibeli living with the deceased Teboho William
Mposho there being
no valid marriage between them and it follows children (child) born
of the first respondent and the deceased
Teboho William Mposho have
(has) no claim to succeed to the estate of the deceased Teboho
aforesaid. And so it was in Chona v Chona
(CIV/APN/77/82 unreported)
where a woman in desertion returning with a child born out of wedlock
claimed succession to chieftainship.
The court found the child was
clearly illegitimate and unable to succeed to the chieftainship.

It would
then seem, the Sesotho law and custom crystallized, is to the effect
that a child born of a married woman by another man
other than her
husband and while she is in desertion, cannot inherit from his
biological father not

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married
to his mother for the reason that the child is clearly adulterine.

In the
result the application succeeds to the effect that the estate of the
late Teboho William Mposho comprising movable and immovable
property
is the. sole property of his unmarried mother the applicant. I have
elsewhere said in as much as Mosebo Simon is, in law,
entitled to
support by his late father Teboho Mposho, he is also entitled to
support from the late Teboho's estate. The court has
come to this
finding exercising its power as upper guardian of all minors and to
do what's best in the interest of Simon Mosebo.

As to the
manner and means of Mosebo's support, it is suggested that the
applicant, first respondent as guardian of Mosebo appear
before this
court on a day suitable to the parties to fix the amount of
maintenance or support. The reason for this is that as
upper guardian
of all minors, this court is loath to leave minor's support to chance
or to settle him with unnecessary costs in
the event there is no
agreement

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between
the young Mosebo and applicant. There will be no order as to costs.

G.N.MOFOLO

JUDGE

For the
Applicant : Mr. Thulo

For 1st
Respondent : Mr. Makhera

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