IN THE HIGH COURT OF LESOTHO
CIV/APN/208/2008
In the matter between:
NEO MOTAKE APPLICANT
VS
BERENG MOQHOAI 1ST DEFENDANT
ASSUMPTION R.C. CHURCH (PARISH PRIEST) 2ND DEFENDANT
TEPO MOKOENA 3RD DEFENDANT
M. K. M. 4TH RESPONDENT
BOLIBA 5TH RESPONDENT
LESOTHO STANDARD BANK 6TH RESPONDENT
REGISTRAR GENERAL 7TH RESPONDENT
ATTORNEY GENERAL 8TH RESPONDENT
JUDGMENT
Delivered by the Honourable Judge M. Mahase
On the 4th July, 2008
The applicant has approached this court on an urgent basis seeking for the granting of the following prayers:-
That the ordinary rules of this court relating to service of process be dispensed with on account of the urgency hereof.
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
The 1st respondent shall not be interdicted from burying the body of `Matepang Arcilia Moqhoai (born Motake) pending the finalization
of this application.
The 3rd respondent shall not be interdicted and restrained from releasing the body of `Matepang Arcilia Moqhoai (born Motake) to anybody including the 1st respondent pending finalization of this application.
The 4th respondent shall not be interdicted and restrained from releasing funds in the account of the late `Matepang Arcilia Moqhoai (born Motake) to anybody including the 1st respondent pending finalization of this application.
5th respondent shall not be interdicted and restrained from releasing funds in the account of the late `Matepang Arcilia Moqhoai (born Motake) to anybody including the 1st respondent pending the finalization of this application.
The 1st 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.
The marriage certificate (NM2) shall not be declared null and void ab imitio in as much as it was fraudulently obtained.
The applicant shall not be declared the heir of the late Tlontlollo Ernest Motake and consequently having the right to bury `Matepang Arcilia Moqhoai (born Motake).
The applicant shall not be declared the guardian of `Matepang Arcilia Moqhoai (born Motake)s children namely, Mohau Motake, Tepang Christopher and Tepiso.
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 1st 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 (`Matepang 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, `Matepang Arcilia Moqhoai (born Mammeke Arcilia Motake) was the third child in the said Motake family.
According to papers filed herein, the deceased and 1st 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 1st respondent were staying together, they were blessed with two children, namely Tepang Christopher and Tepiso. (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 1st respondent as husband and wife during the lifetime of hers and the applicants father. Their mother had predeceased their father.
Their father is said to have died in the late 1980s, but no exact date of his death has been disclosed to court.
It is the applicants evidence that even though the first respondents family wrote to the deceaseds 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 deceaseds 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 fathers 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 fathers 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 4th June 2008.
It is a matter of common cause that when she died, the deceased was employed by the 3rd respondent and that among others she had bank accounts with the 3rd and 4th respondents. Lastly she was residing at Majoe-a-Litoene with the first respondent for a period of 20 years and under the circumstances
herein alluded to above.
It is applicants 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 27th March 1990; and that their marriage had been solemnized at the 2nd respondents 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 deceaseds 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 respondents family.
He also alleges that the current parish priest at the 2nd respondents church from whose register he obtained that copy NM2, could not find the said applicants 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 applicants 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 deceaseds 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 mothers property.
In yet another breadth, he applies for an order declaring him the guardian of the deceaseds 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 Becks Theory and Principles of Pleading in Civil Actions by Isaacks 5th Edition page 24.
In a nutshell it is the first respondents evidence that he and the deceased were legally married and had once met with the deceaseds 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 Matoanelo 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 respondents 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 applicants 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 1st 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 deceaseds 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 deceaseds
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 1st 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 1st respondents union. He also has in total disregard of the deceaseds wishes not placed any thing before court to support the
allegation that the deceased had never considered herself lawfully married to the 1st respondent.
It is not the applicants 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 1st 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, Ntloanas 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 inlimine herein raised are upheld and the applicants application is accordingly dismissed with costs.
M. MAHASE
JUDGE
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