THE HIGH COURT OF LESOTHO
the matter between:
OF THE HIGH COURT 2ND
COMMANDING - BEREA 3RD
Delivered by the Honourable
Judge M. Mahase
On the 20th
customary marriage contracted during subsistence of Common Law
Marriage Legal Position of Children of
a putative marriage.
This is an
application which was filed on urgent basis. The applicant has asked
the court for orders which appear on his notice
of motion, which
orders are in the following terms:-
That the ordinary
rules relating to service and process be dispensed with on account
of urgency hereof.
2. A rule nisi be
issued returnable on the date and time to be determined by this
Honourable Court calling upon the respondents
to come and show cause
if any, why the following orders shall not be made final:
respondent or her agents from interfering with and/or removing
property belonging to the second house of `Makatiso Makoala.
b) Directing 1st
respondent to restore ante omnia the properties she has in person or
through her agents removed from the premises that form part
property of the second house of `Makatiso Makoala and these are inter
Nissan Van DTR
Toyota 2.4 Van
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Brown in colour SDN 617 GP
(serial number not known)
c) Declaring the
applicant the guardian of Kotola Makoala and Katiso Makoala both of
whom are still minors.
d) Directing the
respondent to seize a 9mm pistol issued to the late Toloane Makoala
from the 1st
respondent or whoever is in possession of same and retain it until
proper transfer of ownership of same has been effected.
3. Prayers 1 and
2(a) should have an immediate effect as interim orders.
4. Cost of suit
in the event of opposition hereof.
applicant such further and/or alternative relief as this Honourable
court deems appropriate.
The grounds for
having filed this application on urgent basis have been spelt out in
paragraphs 19, 20, 23, 24, 25 and 26 of the
In briefs, from
the reading of the above paragraphs, the 1st
respondent already forcefully removed and is selling some items
listed in paragraph 2(b) of the notice of motion to the exclusion
detriment of the minor children namely Kotola and Katiso.
The application is
being opposed by the 1st
respondents have not filed any notice opposing same. Briefly the
facts of this case are that:-
applicant and one Toloane Makoala are blood brothers.
died on the 10th
May 2008. He (Toloane) had married two wives; namely the 1st
respondent herein and one `Makatiso Makoala who has since predeceased
Out of the late
Toloane and `Makatisos marriage, three children were born; viz
namely Thotoane, Kotola and Katiso.
Thotoane has since
married, while Kotola and Katiso are still minors and are attending
school at St. Agnes High in the Berea district.
respondent is the first wife of the said Toloane Makoala and they
have only one child, a son by the names of Sechaba Makoala,
described herein the answering affidavit of the 1st
respondent as being an adult (Not a Major) who will attain
majority in no less that 3 years time. (whatever that means).
The late Toloane
had set up two houses including businesses for his two wives.
respondents) residential house is situated at Ha Phoofolo in the
Berea district. There are also some other property therein
cattle and vehicles.
wifes (late Makatisos) two residential houses and business
premises are situated at Ha Ntjabane and Mapoteng respectively
site(s) and residential sites at Mapoteng have been registered by the
late Toloane in the name of Kotola Makoala
in whose names the Form
Cs for the said sites were issued. Same have been attached herein
to the founding affidvit marked KM1
According to the
applicant, the vehicles described in the notice of motion were
allocated to the second house of `Makatiso; and
were at all material
times kept at Ha Ntjabane.
immediately after the death of the said Toloane Makoala, the 1st
respondent did nothing by way of providing for the needs of the late
Toloanes minor children. Instead she went to Mapoteng
committed the actions about which the present applicant is
complaining, to the detriment of these children.
It is a matter of
common cause that 1st
respondent even neglected and or failed to pay the school fees in
respect of the said minor children of the late Toloane.
Also a matter of
common cause is that a Good Samaritan, one `Mamosito Mosito, who has
also filed a supporting affidavit rescued
these children by paying
their school fees from money she had borrowed. All of the above
facts are stated in the founding affidavit
of the applicant herein.
has further averred that he has been appointed by the members of the
Makoala family as a guardian of the two minor
children referred to
above, born of the union between their late parents `Makatiso and
Toloane. As proof of this applicant,
he has attached annexure
KM3 herein, which annexure is the letter of appointment. It is
noted, however, that none of the
members of the said Makoala family
who have purportedly signed that letter following that alleged
appointment of applicant as a
guardian of the said minor children
have filed any affidavit in support of the applicant.
The application is
being opposed by the 1st
respondent who avers that she is the lawful wife of the late Toloane
Makoala to whom she is legally married by civil rites in
property. Attached to her answering affidavit to proof this fact,
are annexures Makoala 1 and 2; which are
copies of the marriage
register at Cana L.E.C. and a duplicate of their original marriage
It is her averment
that in the light of the contents in annexures Makoala 1and 2,
Toloane and `Makatiso illegally cohabited
and resided together as
husband and wife. She says their said union was therefore null and
She has explained
the steps she had taken to remedy the situation, which steps she
abandoned when the said `Makatiso passed away
and also because his
late husband had requested her not to proceed with that matter.
admits that Kotola and Katiso are siblings who were born out of the
unlawful cohabitation of her late husband and the
said `Makatiso who
is also late.
She goes on to
aver that when in 1993 `Makatiso was fatally involved in a car
accident she immediately took over and raised the
said Kotola and
Katiso together with his late husband as her own children. She is
supported in this regard by her son Sechaba
Makoala. She therefore
denies that her late husband had set up a second house for a second
The applicant has
not denied that the 1st
respondent and her late husband were indeed married by civil rights
in community of property and that she (1st
respondent) has been staying with and raising the alleged minor
children of the late Toloane and `Makatiso.
It is trite that
the purported customary marriage entered into between Toloane and
`Makatiso was indeed null and void ab
In the circumstances of this case, and in the light of the undenied
facts outlined by the 1st
respondent, it is clear that if anything `Makatiso was a concubine of
the late Toloane Makoala.
What the applicant
has pleaded in his replying affidavit relating to the lawfulness or
not of the marriage between the late Toloane
and the late `Makatiso
and their properties situated at Ha Ntjabane and or Mapoteng is
irrelevant for the simple reason that this
court is convinced that
respondent has proofed on a balance of probabilities that indeed, he
is the lawful wife of the late Toloane Makoala; while the
customary marriage between Toloane and `Makatiso was null and void.
The issue of the
payment or not of the bohali cattle to the family of Tikiso is a none
respondent does not deny that the said children, Kotola and Katiso
were born out of the unlawful union of their said late parents.
also admits, and this has not been seriously challenged that she and
her late husband have been staying together with the
children after the death of `Makatiso.
It has not been
denied that when in 1993, their mother passed away, the said minor
children were only aged two years (Kotola) and
four months (Katiso),
and that 1st
respondent and her late husband have been taking care of and staying
together with these minor children from that time to date.
denial of this fact is bare. He only mentions that the said children
were raised up by their grandmother `Makhajoe
allegation is not supported by any of the Makoala family, not even by
the said children themselves nor by their
sister `Mamosito Mosito.
respondent has been supported by her own son to the effect that he
(Sechaba), Kotola and Katiso have grown up together under the
guidance of their late father (Toloane) and his mother (1st
It is his further
unchallenged averment that, they did not only grow up together but
that he regarded the said Kotola and Katiso
as his own brothers.
which are unchallenged should be accepted as being truthful and they
are so accepted.
In the light of
the fact that neither the applicant nor any of the Makoala family has
denied the above, there is no reason why this
status quo between 1st
respondent and these children should be disturbed by this court.
This is moreso in
view of the fact that none of the Makoala family, and in particular,
the applicant has disclosed to this court
as to who is presently
taking care of these minor children. The only inference that should
therefore be drawn from this is that
respondent is still staying together with and taking care of these
The applicant has
not pleaded issuably to the contents of the 1st
respondents averment that the urgency herein alleged is
self-created. This point raised in limine
is therefore upheld.
Indeed, in the
light of the aforegoing observations, the rest of the points raised
are upheld. One need not repeat same. They are contained in the 1st
respondents heads of argument.
It is the view of
this court that the 1st
respondent has proofed on a balance of probabilities that she has
always and immediately after the death of the said `Makatiso;
together with, raised and treated Kotola and Katiso as her own
children. This she did with the late biological father
of Kotola and
This has not been
denied; or put differently; the applicant has not successfully
challenged this averment. In fact and to be precise,
not deny that his late brother Toloane Makoala is the biological
father of the two minor children, Kotola and
Katiso, and that they
are born from his late brothers alleged customary marriage with
labouring under an incorrect assumption that his late brothers
customary marriage to `Makatiso was lawful. That
explains why he
regards `Makatisos house as being a second house of his late
It is trite that
any subsequent marriage entered into by a party to a subsisting
common law marriage is null and void ab
However, and this
is trite, the legal position of children born of a marriage as
subsisted between the late Toloane and `Makatiso;
which marriage is
also referred to as being putative; is not in anyway different from
that of any other legitimate child. VideH.R
Hahlo (Fifth Edition); The South African Law of Husband and Wife
It is a matter of
common cause that when `Makatiso and the late Toloane died, their
said putative marriage had not been annulled
by a competent court.
This, together with the unchallenged averments as contained in
paragraphs 7.2 and 7.3 of 1st
respondents answering affidavit is factors militating against the
granting of prayers 2(a), (b), (c), and (d) of the applicants
notice of motion.
It has already
been indicated above that in the circumstances of this case and due
regard being had to the fact that this court
is an upper guardian of
minor children; it is not in their best interests that the status quo
which obtained before their fathers
death should be disturbed or
In the premises,
respondent is ordered to continue and should be allowed to reside
with, raise, guide and maintain these minor children, Kotola
registered, used for their upkeep and welfare during their fathers
lifetime should be so reserved, and utilized
for that purpose by the
respondent without interference by applicant or any of the Makoala
This is so
ordered, and this should remain so, not unless and until there arises
some other factors warranting or calling for the
change for worst in
the life styles and welfare of these said minor children who are
entitled to benefit from their biological
fathers property as
For the foregoing
reasons, the applicants application is dismissed.
This being a
family matter, no order as to costs is made.
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