In the matter between:
and
TSELANG LETSIKA 1st Respondent
STANDARD LESOTHO BANK (PTY) LTD 2nd Respondent
LESOTHO POST BANK 3rd Respondent
MINISTRY OF TRADE & INDUSTRY
(LPMS SECTION) 4th Respondent
ATTORNEY GENERAL 5th Respondent
Applicant in this case is requesting the Court to grant her relief in the following prayers:-
- Interdicting the first Respondent from selling, slaughtering or alienating in any manner whatsoever any animals belonging to the estate of the late Mphuthi Letsika pending finalisation of this Application.
- Interdicting the 1st Respondent and other members of his family from evicting or ejecting or interfering in any manner whatsoever with the Applicants
peaceful enjoyment of Mphuthi Letsikas estate except by due process of law.
- Interdicting the 1st Respondent from withdrawing any monies or receiving any cheques or moneys whatsoever from the 2nd, 3rd and 4th Respondents or connected to the estate of the late Mphuthi Letsika.
Restraining the 2nd, 3rd and 4th Respondents from paying out or releasing to 1st Respondent in any manner whatsoever any moneys, cheques pertaining to the estate of the late Mphuthi Letsika.
Declaring the Applicant as the lawful widow, heiress and administrator of the late Mphuthis estate.
Declaring the will made by the late Mphuthi Letsika to be valid and enforceable in law.
Ordering the 1st Respondent to return all animals, cheques, monies taken in respect of the estate of the late Mphuthi Letsika.
The facts of this case as gleaned from the record are that, the Applicant is the second wife of the deceased Mphuthi Letsika. The 1st Respondent being the grandson to the late Mphuthi Letsika. Mphuthi Letsika in his lifetime had married his 1st wife Malebohang Letsika who bore him a son Lebohang Letsika, the father of the 1st Respondent. Malebohang Letsika and his son Lebohang predeceased Mphuthi Letsika.
The late Mphuthi Letsika had contracted a customary law marriage with his 1st wife, the late Malebohang Letsika. Malebohang Letsika passed away in June 2000. The Applicant got marriage to the late Mphuthi Letsika during the subsistence of that marriage between Mphuthi and Malebohang. The Applicant was first married to Mphuthi by civil rites on the 27th January, 1997 and by custom later in the year on the 9th August 1997.
It was the Applicants case at Paragraph 10 of her affidavit, that upon her marriage to the late Mphuthi Letsika she was welcomed by the whole family and that after her husbands
death in 2007, she was clothed with the mourning cloth by the whole family. It came to her as a surprise that immediately after the removal of the mourning cloth on the 2nd August 2007, the 1st Respondent and some of the members of the family convened a meeting in her presence. It was in that meeting that the 1st Respondent was appointed heir to the estate of the late Mphuthi Letsika.
The Applicant has also attached to her papers annexure ML3(a) a fair translation which was marked ML3(b). This was a letter indicating the deceaseds wishes during his lifetime and what was to happen after his death. He had bequeathed everything to the Applicant including that which belonged to his 1st wife, the late Malebohang, animals, fields, houses, forests and money. The Applicant then has challenged the Appointment of the 1st Respondent as heir and showed that the 1st Respondent and other members of the family ignored that letter of deceaseds wishes.
Despite all what has been shown in the papers, the only issues for determination in this matter are whether the marriage between the Applicant and the deceased Mphuthi Letsika was valid. And also whether we can say there were two houses that were created when deceased so married the Applicant. And whether the customary heir can be deprived of everything from his fathers estate.
Applicant has shown that she was first married by civil rites to the deceased Mphuthi Letsika but that she was subsequent to that married by custom to the same person. She conceded that the civil rites marriage was a non-starter as it came after a customary law marriage to deceaseds first wife Malebohang. The authority for this proposition is Makata v Makata 1980 84 LAC 198 in which the Court of Appeal decided that the plain meaning and the effect of section 29 (1) of the Marriage Act 1974 was that a person married by customary law cannot marry under the Act during the subsistence of the earlier marriage or marriages.
Section 42 of the Marriage Act of 1974 recognises the customary law of Lesotho, including marriages contracted under customary law. Again section 29 (1) of the same Act prohibits a marriage under the Act by any person during the subsistence of another valid marriage contracted by him.
Section 42:-
This Act shall apply to all marriages solemnized in Lesotho save and except marriages contracted in accordance with Sesotho law and custom, and nothing herein contained shall be taken as in any manner affecting or casting doubts upon the validity of any such last mentioned marriages contracted before or after the coming into operation of this Act.
Section 29 (1):-
No person may marry who has previously been married to any other person still living unless such previous marriage has been dissolved or annulled by the sentence of a competent Court of Law.
The 1st Respondent is before this Court challenging the validity of the marriage between the Applicant and his late grand-father Mphuthi
Letsika. He is saying when the Applicant was married by civil rites there already existed a valid customary marriage between Mphuthi and his grand-mother Malebohang. But the 1st Respondent does not want to go further and say that subsequent to the civil rites marriage there followed a customary law marriage between the same parties.
On the question of the validity of the marriage between the late Mphuthi Letsika and the Applicant the Court finds that, because the civil rites marriage as rightly pointed out by the applicants counsel was a non-starter as null and void ab initio the subsequent customary marriage by the deceased to the applicant during the subsistence of the customary marriage of deceased Mphuthi to Malebohang, was therefore valid. This is because our Basotho custom recognises more than one customary law marriage. A man does not under Sesotho custom commit adultery when he enters into more than one such marriage. But common law does not recognise any other marriage during the subsistence of a civil rites marriage.
Coming now to the question of whether or not it could be said that the deceased Mphuthi when he so married the Applicant was creating a second house, the answer is yes. This was so because when the deceased so married the Applicant his first wife Malebohang was still alive. Under the Lesotho custom and the Laws of Lerotholi a man is free to marry as many wives as he can afford provided all such marriages are under custom. In so marrying more than one wife, he is creating a house for each of his wives. Each house will be having a house and property allocated to it.
The supporting affidavit to the opposing affidavit by the 1st Respondent clearly shows that the Applicant was married to the deceased Mphuthi Letsika by both civil and customary marriages and
that bohali was paid for the Applicant. The civil marriage came first and customary law marriage followed later. They confirm that Applicant was married during the subsistence of the customary marriage by the deceased Mphuthi Letsika to Malebohang Letsika.
The supporting affidavit confirmed what the Applicant alleged in her papers that the deceaseds first wife, Malebohang, had a long mental illness before she passed away. She had occasional memory loss.
As already stated above, when a man marries more than one wife customarily he is considered as having created many houses. Each wife will be allocated her own house and property such as fields, animals and household property. The first male issue in each house will be the heir in that house in which he is born. The wife in each house after their husbands death will only inherit that which belonged to her house. We even have a saying in Sesotho that, malapa ha a jane. Meaning one house cannot inherit what belongs to another house.
In Leoma v Leoma 1999 2001 LLR 842 the deceased had married many wives. The Applicant was the first wife and the Respondent the second wife. In law, the marriage to the Respondent ought to have been declared invalid as when she was married the deceased was already married to the Applicant by civil rites. What the Court said was that since the Applicant had herself abducted the Respondent and had all along from the time the Respondent got into their family, caused her (Respondent) into believing that she was customarily married to their husband she could not later be allowed to deny that customary marriage to the prejudice of the Respondent when it suited her.
The Applicant had administered customary traditional rituals for admitting the Respondent as a junior wife of her husband. The Respondent had further added that, even when she had run away from Applicants husband, Applicant went herself and fetched her and made her resume cohabitation with Applications husband.
What the Court was saying in Leomas case was that the deceased husband had created a second house by marrying the Respondent. So that the Respondent was entitled to inherit from the estate of the deceased as their husband. From the above I find that when the deceased Mphuthi Letsika married the Applicant, he created a second house.
Coming now to the last point of whether the customary heir can be deprived of everything from his fathers estate. By customary heir here we are talking about the 1st Respondent, the grandson of the deceased Letsika by his late first wife Malebohang.
We have already learned that the 1st Respondent remained as the head of the family in the first house of the deceased Mphuthi Letsika after the death of his father Lebohang. He thus became the heir in that house. The Applicant cannot be heard to be disputing the marriage between the deceased Mphuthi Letsika and the late Malebohang Letsika as his first wife when she herself in her founding affidavit mentioned that the deceased Mphuthi Letsika was married to the late Malebohang Letsika who passed away in June 2000.
There is Annexure TL attached to the 1st Respondents opposing affidavit. It is supposed to be a letter written by the chief of Mokhotlong to confirm that the deceased
Malebohang was married to the deceased Mphuthi Letsika. The letter was written some months after the death of the deceased
Mphuthi Letsika. But I am not going to attach any weight to that letter because as already stated above the Applicant herself has confirmed that in her founding papers, at Paragraph 9 of her founding affidavit. This was also confirmed by one Foloko Mei in his supporting affidavit.
The Applicant herself has attached annexure ML3(a) and its translation Annexure ML3(b) to her founding affidavit. It is a letter purporting to have been written by the deceased Mphuthi Lesika in his lifetime allocating all his property to the Applicant. The letter has allocated everything to the Applicant including the property belonging to his first house by Malebohang.
But since it has already been said that the deceased Mphuthi Letsika married his two wives Malebohang and the Applicant by custom, thus creating two houses, the Laws of Lerotholi would apply to the affairs of that family. Section 14 (1) of the Laws of Lerotholi allows a man during his lifetime to allot his property amongst his various houses.
That section does not end there but goes further to say:
provided the heir according to Basotho custom has not been deprived of the greater part of his fathers estate.
The deceased Mphuthi Letsika in his letter of allocation seems to have given everything to his second wife, the Applicant, thus depriving the heir in the first house, the 1st Respondent, of everything. The Applicant has also in her prayers asked the court to declare her as the heiress and administrator of the estate of the late Mphuthi Letsika without leaving anything out for the first house.
The Applicant can therefore not succeed in her claim in depriving the heir in the first house of everything, even that which belonged to that house in contravention of the provisions of section 14 (1) of the Laws of Lerotholi.
Under the circumstances of this case the Application is dismissed. This being a family matter I would not wish to disturb the peace between the two houses, I make no order as to costs, but that each party bears its own costs.
A. M. HLAJOANE
JUDGE
For Applicant: Mr Mokobocho
For Respondents: Mr Letsika
