IN
THE HIGH COURT OF LESOTHO

CIV/APN/208/2008

In
the matter between:

NEO
MOTAKE APPLICANT

VS

BERENG
MOQHOAI 1^ST
DEFENDANT

ASSUMPTION
R.C. CHURCH (PARISH PRIEST) 2^ND
DEFENDANT

TŠEPO
MOKOENA 3^RD
DEFENDANT

M.
K. M. 4^TH
RESPONDENT

BOLIBA 5^TH
RESPONDENT

LESOTHO
STANDARD BANK 6^TH
RESPONDENT

REGISTRAR
GENERAL 7^TH
RESPONDENT

ATTORNEY
GENERAL 8^TH
RESPONDENT

JUDGMENT

Delivered by the Honourable
Judge M. Mahase

On the 4^th
July, 2008

The applicant has
approached this court on an urgent basis seeking for the granting of
the following prayers:-

1. 
   That the ordinary
   rules of this court relating to service of process be dispensed with
   on account of the urgency hereof.

   
   

2. 
   That a rule nisi
   be hereby issued returnable on the date and time to be determined by
   this court asking the respondents to show
   cause if any; why

   
   

1. 
   The 1^st
   respondent shall not be interdicted from burying the body of
   `Matšepang Arcilia Moqhoai (born Motake) pending the finalization

   of this application.

   
   

2. 
   The 3^rd
   respondent shall not be interdicted and restrained from releasing
   the body of `Matšepang Arcilia Moqhoai (born Motake) to
   anybody
   including the 1^st
   respondent pending finalization of this application.

   
   

3. 
   The 4^th
   respondent shall not be interdicted and restrained from releasing
   funds in the account of the late `Matšepang Arcilia Moqhoai
   (born
   Motake) to anybody including the 1^st
   respondent pending finalization of this application.

   
   

4. 
   5^th
   respondent shall not be interdicted and restrained from releasing
   funds in the account of the late `Matšepang Arcilia Moqhoai
   (born
   Motake) to anybody including the 1^st
   respondent pending the finalization of this application.

   
   

5. 
   The 1^st
   respondent shall not be interdicted and restrained from removing
   household property in the house he occupied with the deceased

   pending the finalization of this application.

   
   

6. 
   The marriage
   certificate (“NM2”) shall not be declared null and void ab
   imitio
   in as much as it was fraudulently obtained.

   
   

7. 
   The applicant
   shall not be declared the heir of the late Tlontlollo Ernest Motake
   and consequently having the right to bury
   `Matšepang Arcilia
   Moqhoai (born Motake).

   
   

8. 
   The applicant
   shall not be declared the guardian of `Matšepang Arcilia Moqhoai
   (born Motake)’s children namely, Mohau Motake,
   Tšepang
   Christopher and Tšepiso.

   
   

There is a further
prayer that prayers 1, 2(a), 2(b), 2(c) 2(d) and 2(e) should operate
with immediate effect as interim orders.

The application is
being opposed by the 1^st
respondent. The rest of the other respondents have not filed any
opposing papers even though they have all been served with papers

herein.

Briefly the facts
which precipitated into the launching of this application are as
follows:-

The present
applicant and the deceased herein (`Matšepang Arcilia) are blood
brother and sister.

The applicant is
the eldest son in the family of their parents who have since died;
and whose names were Tlontlollo Ernest and `Mamotaung
Cecelia Motake.

The deceased
herein, `Matšepang Arcilia Moqhoai (born Mammeke Arcilia Motake) was
the third child in the said Motake family.

According to
papers filed herein, the deceased and 1^st
respondent have been staying together as husband and wife for about
twenty (20) years when she met her death.

Prior to their
staying together, the deceased gave birth to one Mohau who was then
brought up by the applicant as his guardian.

While the deceased
and the 1^st
respondent were staying together, they were blessed with two
children, namely Tšepang Christopher and Tšepiso. (The ages of
the
said children have not been disclosed to court in the papers herein
filed).

Be that as it may,
it is a matter of common cause that the deceased went to live with
the 1^st
respondent as husband and wife during the lifetime of hers and the
applicant’s father. Their mother had predeceased their father.

Their father is said to have died in the late 1980’s, but no exact
date of his death has been disclosed to court.

It is the
applicant’s evidence that even though the first respondent’s
family wrote to the deceased’s father informing the
Motake family
about the fact that the first respondent had taken by way of marriage
their daughter (deceased) as his wife, the
deceased’s family never
followed up the matter so that formal marriage arrangements could be
concluded. No reasons have been
spelt out why that was so.

It is his further
evidence that even his efforts in this regard after his father’s
death were in vain. Still no reasons have
been given why such an
important matter such as this one was not pursued to finality by any
of the two families herein involved.

Applicant does not
say what next formal steps he took in his capacity as an heir in his
father’s family to formalize this arrangement.

Applicant has
admitted that that has been the obtaining situation between the
deceased and the first respondent until when his sister
died on the
4^th
June 2008.

It is a matter of
common cause that when she died, the deceased was employed by the 3^rd
respondent and that among others she had bank accounts with the 3^rd
and 4^th
respondents. Lastly she was residing at Majoe-a-Litšoene with the
first respondent for a period of 20 years and under the circumstances

herein alluded to above.

It is applicant’s
evidence that he got to know about the marriage status of his sister
(deceased herein) while he was in the process
of making arrangements
for her funeral. He learned at that time that the deceased and the
first respondent had in fact entered
into a civil rites marriage on
the 27^th
March 1990; and that their marriage had been solemnized at the 2^nd
respondent’s church on the said date; see “NM2” herein attached
to his founding affidavit.

He however denies
this fact on the ground that the said marriage certificate (NM2) was
fraudulently obtained by the first respondent.

It is his
allegation that even though it is shown on annexure “NM2” that
among others, parental consent was obtained by the
parties to that
marriage, that could not be so with regard to his sister because in
1990, the deceased’s father from whom such
a consent should have
been obtained had long died. He alleges further that, if anything
and in the absence of his father, such
a consent should have been
obtained from him. He disputes that that was ever done by the first
respondent nor by any member of
the first respondent’s family.

He also alleges
that the current parish priest at the 2^nd
respondent’s church from whose register he obtained that copy
“NM2”, could not find the said applicant’s parental consent

from the records kept by the church in question.

It is worth noting
that the said priest, Reverend Father Mothe has not filed any
supporting affidavit in this regard even though
he has been served
with all the papers herein this application. The applicant’s
averment in this regard is therefore unsupported
by the said priest.

This court also
observes that it is not disclosed by the applicant the form or mode
in which that consent should be. Neither is
it clear whether or not
the consent therein referred to should have been obtained from the
parents of both parties to the marriage.

The applicant has
spelt out reasons which prompted him to move this application on
urgent basis on notice to the respondents in
his certificate of
urgency filed of record. Vide paragraphs 19 up to 28 of his founding
affidavit.

The first
respondent does, on the other hand say that he and the deceased were
formally/legally married. He is adamant that annexure
NM2 herein
attached is an authentic copy reflecting the true and correct status
of his marriage to the deceased. He says such
a consent was obtained
from deceased’s father in 1987.

So what we have
now is the word of the applicant against that of the first respondent
regarding the marriage status of the deceased
and the first
respondent.

The first
respondent also alleges that the children referred to by the
applicant in his founding affidavit – at paragraph 14 were
born out
of his union with the deceased and that being a biological father of
them, he is capable of and has always looked after
and cared for
their interests, and welfare.

The first
respondent has not expressly referred to his relationship with the
child Mohau who was born out of wedlock and or put
differently, who
was not born from his union with the deceased. He has however not
disputed that the deceased had such a child
by another man.

The first
respondent also alleges that the applicant is speculating when he
alleges that he (first respondent) might misuse the
funds of the
deceased because there is no basis laid down for such speculative
averments.

Indeed, the said
averment by the applicant against the first respondent has not been
substantiated.

It is noted by
this court that indeed the applicant is blowing hot and cold as to
who exactly is or should be the heir to the deceased.
There is
nowhere in his papers where the applicant prays that any of the
children of the deceased be declared an heir to her estate,
but he
suddenly says at paragraph 27 of his founding affidavit that these
children might be deprived of their right to inherit
their mother’s
property.

In yet another
breadth, he applies for an order declaring him the guardian of the
deceased’s estate. The question is, if her
children stand to
inherit her property, why then does he apply to be appointed their
guardian? He has not specifically alleged
that these children are
minors.

The first
respondent has raised points in
limine,
and has prayed that same be upheld and this application be dismissed.
Same are as follows:-

• 
  None –
  compliance with the Provisions of Rule 8(19) which provisions are
  mandatory.

  
  

He alleges, and
correctly so in the mind of this court that the applicant has not
joined the Master of the High Court even though
the interests or
rights of minor children of the parties herein are involved. This,
he alleges is fatal to this application.

This point was
upheld by this court after having heard argument by both Counsel for
and against same.

The reason for
having so ordered being among others that other than the fact that
none of the applicant and the first respondent
would suffer any
prejudice should that be ordered; this court, being an upper guardian
of minor children, is duty bound to protect
their interests.

Also and in the
circumstances of this urgent matter, it would serve no purpose for
this court to delay the finalization of this
application for purposes
of waiting for the joinder of the Master of the High Court. It is
trite law that by its very nature,
this special plea if successfully
raised, its effect is usually to stay the action temporarily until
the necessary party has been
joined. Its effect is dilatory and it
does not go into the merits of the case. Vide – Beck’s
Theory and Principles of Pleading in Civil Actions
– by Isaacks – 5^th
Edition – page 24.

In a nutshell it
is the first respondent’s evidence that he and the deceased were
legally married and had once met with the deceased’s
family over
payment of lobola/bohali cattle wherein it was agreed that he will
pay bohali cattle when he had the means to do so.
It is his story
that this was based on the Sesotho custom that monyala ka peli o
nyala oa hae (a man marries a woman by whatever
means he can afford
provided the two families have agreed about marriage).

He however has not
disclosed to court when that meeting was held nor does he say who of
the said members of the two families had
attended that meeting,
neither does he state whether or not this was a written agreement,
and if so, why he has not annexed a copy
of same to his papers.

He has not been
supported in this regard by any of his family members who had
attended the said meeting. Neither has he annexed
a copy of either
the minutes and or that of the said agreement to his papers. This
should have been done, moreso since this fact
is being denied by the
applicant.

The supporting
affidavit of his own sister, one Matšoanelo Makena herein filed to
the effect that a sheep was slaughtered to welcome
the deceased as a
daughter in law in the Moqhoai family and that that was done after
consultation and agreement between the two
families about the
marriage between the deceased and her brother does not advance the
first respondent’s case any further.

It is not her
allegation that she has personal knowledge of same by virtue of the
fact that she was part of those people who had
attended the said
meeting. She is also silent as to the dates or period when that
occurred. In other words, hers is a bare allegation.
Her source of
this fact or information has not been disclosed to this court. This
has therefore not enabled the applicant to
plead to it issuably.

It is observed
that the first respondent has admitted most of the allegations raised
by the applicant and which allegations have
a direct bearing on the
issues herein raised and which negatively affected or disproof issues
that he and the deceased were legally
married when the deceased died.
These are in particular paragraphs 9,10,12,13,14,16,18,20,21,22,23
and 25 of the applicant’s
founding affidavit. He has for instance
not denied that annexure “NM2” is fraudulent for the reasons
stated by the applicant
at paragraph 23 of same.

It is further
noted that the applicant alleges that he was never consulted by the
respondent when he purportedly entered into this
alleged marriage
with the deceased.

This has not been
denied by the 1^st
respondent in his opposing papers. However, that notwithstanding, it
is a matter of common cause that the applicant is not the
father of
the deceased, nor is he the heir to the deceased’s estate. The
applicant has averred in his founding affidavit that
he is the eldest
son in the family of his father and an heir therein. He has however
in prayer 2(g) applied for court to declare
him an heir of his late
father. Why then, if indeed he is such an heir does he now apply in
this application to be declared an
heir to his late father?

One must hastily
point out that on the basis of the case of NTLOANA
AND ANOTHER V RAFIRI C of
a
(CIV) No42 OF 2000
(LAC 2000 – 2004, page 281) this court can not and should not be
called upon to determine issues of heirship to the deceased’s

estate.

Indeed, this issue
should in normal circumstances be determined by the family concerned
before this court is asked to intervene.

The Court of
Appeal has in this case, condemned “rash actions concerning
succession and inheritance masquerading as burial disputes”.
This
court is not about to entertain this kind of a prayer, for reasons
therein stated in the above cited case. In any case,
from evidence
herein contained in the papers now before court, the deceased and the
1^st
respondent were married lawfully ex facie annexure “NM2”.
Besides that, they have been staying together as husband and wife
for
twenty (20) years and the applicant knew about this fact but he took
no legal steps to remedy whatever illegality with their
marriage
which he now complains about only after the death of his own sister.
This he does in total disregard of the rights and
interests of the
children born from the deceased and 1^st
respondent’s union. He also has in total disregard of the
deceased’s wishes not placed any thing before court to support the

allegation that the deceased had never considered herself lawfully
married to the 1^st
respondent.

It is not the
applicant’s evidence that there is anything by way of documentary
evidence written by deceased prior to her death
entitling him to the
right to bury her in exclusion of the 1^st
respondent and his family.

Neither has
applicant disclosed to court whether or not the deceased was still
cohabiting or staying together with the first respondent
when she met
her death.

In fact, and to be
precise, the fact that the deceased and the first respondent were
living/cohabiting together when the deceased
died has not been
disputed by the applicant.

This explains why
the first respondent has alleged as he has done in paragraphs 5 and 6
of his heads of argument that the applicant
has not disputed the
marriage of the deceased to the first respondent for over 20 (twenty)
years until when the deceased died while
they were still living
together as husband and wife.

Indeed, it is
expressly clear from the parties’ conduct that the deceased
regarded first respondent as her husband. Anything
to the contrary,
and an unsubstantiated view would create the most abnormal and
bizarre results, which would be divorced from equity
and public
policy. Vide, Ntloana’s case (supra).

For the foregoing
reasons, and regard being had to the principle laid down by the Court
of Appeal of Lesotho, this court has come
to the conclusion that the
applicant has failed to make any important allegations supported
either by law or otherwise to sustain
his case.

The said points in
limine
herein raised are upheld and the applicant’s application is
accordingly dismissed with costs.

M.
MAHASE

JUDGE