CIV/APN/560/2007

IN THE
HIGH COURT OF LESOTHO

In the matter between:

‘MATIISETSO LETSIKA Applicant

and

TS’ELANG LETSIKA 1^st
Respondent

STANDARD LESOTHO BANK (PTY)
LTD 2^nd
Respondent

LESOTHO POST BANK 3^rd
Respondent

MINISTRY OF TRADE & INDUSTRY

(LPMS SECTION) 4^th
Respondent

ATTORNEY – GENERAL 5^th
Respondent

Judgment

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 18^th September,
2008.

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 1^st
Respondent and other members of his family from evicting or ejecting
or interfering in any manner whatsoever with the Applicant’s

peaceful enjoyment of Mphuthi Letsika’s estate except by due
process of law.

- Interdicting the 1^st
Respondent from withdrawing any monies or receiving any cheques or
moneys whatsoever from the 2^nd,
3^rd
and 4^th
Respondents or connected to the estate of the late Mphuthi Letsika.

• 
  Restraining the 2^nd,
  3^rd
  and 4^th
  Respondents from paying out or releasing to 1^st
  Respondent in any manner whatsoever any moneys, cheques pertaining
  to the estate of the late Mphuthi Letsika.

  
  

• 
  Restraining the 2^nd,
  3^rd
  and 4^th
  Respondents from paying out or releasing to 1^st
  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 Mphuthi’s
  estate.

  
  

• 
  Declaring the will made by the
  late Mphuthi Letsika to be valid and enforceable in law.

  
  

• 
  Ordering the 1^st
  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
1^st
Respondent being the grandson to the late Mphuthi Letsika. Mphuthi
Letsika in his lifetime had married his 1^st
wife ‘Malebohang Letsika who bore him a son Lebohang Letsika, the
father of the 1^st
Respondent. ‘Malebohang Letsika and his son Lebohang predeceased
Mphuthi Letsika.

The late Mphuthi Letsika had
contracted a customary law marriage with his 1^st
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 27^th
January, 1997 and by custom later in the year on the 9^th
August 1997.

It was the Applicant’s 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 husband’s

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 2^nd
August 2007, the 1^st
Respondent and some of the members of the family convened a meeting
in her presence. It was in that meeting that the 1^st
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 deceased’s 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 1^st
wife, the late ‘Malebohang, animals, fields, houses, forests and
money. The Applicant then has challenged the Appointment of
the 1^st
Respondent as heir and showed that the 1^st
Respondent and other members of the family ignored that letter of
deceased’s 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
father’s 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 deceased’s 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 1^st
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 1^st
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 applicant’s 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 1^st
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 deceased’s 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 husband’s 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 Applicant’s husband, Applicant went
herself and fetched her
and made her resume cohabitation with
Application’s husband.

What the Court was saying in
Leoma’s 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
father’s estate. By customary
heir here we are talking about the
1^st
Respondent, the grandson of the deceased Letsika by his late first
wife ‘Malebohang.

We have already learned that the
1^st
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 1^st
Respondent’s 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 father’s 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
1^st
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