IN THE HIGH COURT OF LESOTHO
CIV/APN/22/2009
In the matter between;
LEFANTSATSA LEFANTSATSA 1ST APPLICANT
MALEFANTSATSA CLAURINA LEFANTSATSA 2ND APPLICANT
MANTHABISENG MOHANOE 3RD APPLICANT
AND
KHUBELU FASO (MATSEPANG LEFANTSATSA) 1ST RESPONDENT
THE COMMANDER, L.D.F. 2ND RESPONDENT
THE MASTER OF THE HIGH COURT 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
JUDGMENT
DELIVERED BY THE HON. MRS JUSTICE K.J. GUNI
ON 24TH DAY OF NOVEMBER 2009
This applicant in this matter is LEFANTSATSA LEFANTSATSA. He is an adult Mosotho male of LITHABANENG in MASERU. He is the first born son of the Late TŠELE LEFANTSATSA and his ex-wife – MALEFANTSATSA CLAURINA LEFANTSATSA. The late TŠELE
LEFANTSATSA was married to MALEFANTSATSA LEFANTSATSA by civil rites and in Community of property. Prior to his death the said marriage was legally dissolved. Before the dissolution of their marriage the parties separated. The late TŠELE LEFANTSATSA was a soldier during his lifetime. He was accommodated with his family at MAKOANYANE BARRACKS. His ex-wife left their matrimonial home at MAKOANYANE BARRACKS. She left the deceased with their children. At that time they had three children. The deceased brought a girl who he introduced to his children as their nanny. As such she was to take care of those children. They all lived together there at MAKOANYANE BARRACKS. At all material times that girl was know as the person who came into that family to take care of the children of the deceased. The deceased never informed the children that the status of the nanny has changed. Until his death, the children of the deceased were not aware of the change in the status of the nanny.
After their father’s death they became aware that she was now claiming to be the wife of the deceased. The applicant discovered
that his nanny was going to claim and receive from the Lesotho Defence Force the death benefits of his late father as his widow.
The 1st applicant LEFANTSATSA LEFANTSATSA caused urgent filing of this application and sought a relief in the following terms:-
Dispensing with normal rules as to form and service on account of urgency;
Giving directions as to how this matter may be disposed of expeditiously
That a Rule Nisi issue returnable on the date and time to be determine by this Honourable Court calling upon the Respondent to show cause (if any) why:-
The second and third Respondents herein shall not be interdicted forthwith from paying out death benefits arising out of the death of Tšele Lefantsatsa to the first Respondent herein pending the outcome hereof;
The first Applicant herein (Lefantsatsa Lefantsatsa) shall not be declared the sole heir at customary law of the late Tšele
Lefantsatsa;
ALTERNATIVELY to (b) above:- The first Applicant and his three siblings shall not be declared the only heirs of the late Tšele Lefantsatsa under the common law.
The second and third Respondents shall not be directed to pay out the death benefits arising out of the death of Tšele Lefantsatsa to the first Applicant herein;
ALTERNATIVELY to (d) above:-
The second and third Respondents shall not be directed to pay out the death benefits arising out of the death of Tšele Lefantsatsa to the first Applicant and his three siblings.
That prayers 1, 2 and 3 (a) operate with immediate effect as interim order of Court.
1ST APPLICANTS’S CASE
According to SESOTHO CUSTOMARY Law, every Mosotho man’s first born son is his heir. LEFANTSATSA LEFANTSATSA is the deceased TŠELE LEFANTSATSA’S first born son. As such he is his heir. The widow of the deceased has certain rights. But in this case, the deceased has no lawful widow. The 2nd applicant is a divorcee. Her civil marriage to the deceased was dissolved in 2003 – five years prior to the death of her
ex-husband. Her ex-husband is survived by three children one of whom is still a minor. All the deceased’s children must have a child’s share of their late father’s estate.
RESPONDENT’S CASE
The 1st respondent claims that she is a widow of the deceased. She avers that she was married to the deceased by custom. Her late husband’s
family and her family met in Qacha’s Nek in 2006. The families agreed that the 1st respondent and the deceased be married according to Sesotho Custom.
The claim by the 1st respondent that she is the widow of the deceased must be proved. The document which was produced to prove that those two parties were married was issued out of the office of the chief of PHAHAMENG; Morija, in the district of MASERU. According to the averment of the 1st respondent the document is not evidence of the marriage. The marriage between the deceased and the 1st respondent took place on the 18th of February 2006. The marriage did not take place at Morija. It happened in Qacha’s Nek.
THE APPLICABLE LAW
There is a dispute as to which law is applicable with regard to the proper administration of the estate of the late TŠELE LEFANTSATSA. The manner in which the deceased was married to the claimant, determines the system of law applicable. The parties may expressly choose which system of law applies to their relationship. Most of the time the courts take into account the life style of the parties even where the choice of the applicable system is expressed. The conduct of the party usual reveals whether or not the Mosotho man or woman had abandoned Sesotho customary way of life and had adopted European life style. Before court there must be evidence to prove that the particular Life Style was chosen by the parties. That evidence must be placed before the
court by the party which claims that particular life style.
There is no evidence to show this court that the families of LEFANTSATSA and FASO met anywhere at anytime and agreed that the deceased and the 1st respondent be married. According to the customary law, an agreement between the parties and their families constitutes Sesotho customary law marriage.
There is no evidence of agreement to marry between the two parties. There is no evidence that the two families agreed on a number of cattle for lobola.
There is no evidence that the deceased and the 1st respondent agreed to marry.
There is no evidence whatsoever, establishing the essential elements of the Sesotho Customary law marriage. LAWS OF LEROTHOLI PART II.
Where there is no evidence of agreement between the parties, and where there is no evidence of agreement on a number of cattle for “bohali” there is no Sesotho Customary Marriage.
The party who is not legally married to the deceased cannot be the deceased’s lawful widow.
There were a number of points in limine which were raised and argued by Mr Tsoeunyane. The first point was lack of urgency in the matter. In July 2008 the LESOTHO Defence
Force released to the 1st respondent, monies which were intended to cover burial expenses. There had been meetings held by the family and the parties attended
or were aware. Parties attended the Master of the High Court’s meetings where they were informed how the deceased’s estate will be put together and then distributed as appropriate. 1st applicant in all those instances had indicated that he will take the matter to court. It is the argument of the respondent that taking the matter to court does not have to be urgently. Mr Tsoeunyane submitted that the matter is not urgent. Therefore it was wrong to approach this court in this circumstances by way of urgent application. This point of law was not well taken. There is urgency. Payments have been made and the money used. Payment of terminal benefit to the heir was imminent. The applicant is the heir. The indication made by the payer of such benefits were that the widow of the deceased has put in her claim to receive those benefits. There is no widow of the deceased. Therefore the applicant had to quickly stop the purported payment of the death
benefits to the person who is not the widow nor the heir of the deceased. He feared that once the payment is made to a wrong payee,
it was going to be a long, and difficult and most definitely expensive and uncertain way of recovering those benefits. Therefore
there was a genuine need to move urgently this application.
The second point taken was that there is a dispute of facts. The dispute of fact was alleged to be grave and material. That grave and material dispute could not be decided on affidavits alone. The applicant was alleged to have been aware of such dispute of facts and likely consequences but nethertheless proceeded in the manner he chose. The dispute regards the existence of alleged customary marriage between the deceased and the 1st respondent.
There were many others so called points in limine. At the beginning of the hearing an application was made to lead viva voce evidence to resolve the dispute regarding existence of customary law marriage between the deceased and the 1st respondent. That application was not opposed. It was granted. The order was to turn the motion proceedings into trial. The respondent was ordered to lead evidence to prove the alleged customary law marriage. Mr Tsoeunyane declined to call witnesses to prove the marriage. He in fact indicated that he does not want to take any part in the trial.
The applicant testified before court to the effect that when the 1st respondent came to their home where they lived with their late father after the departure of their mother, she was introduced to the children as their nanny. There was no time when their father informed them that the status of the nanny has changed. So when he died they still regarded the 1st respondent as their nanny. She was never introduced as the deceased’s wife. I have already pointed out earlier on that
there is no evidence of marriage between the parties. All other so-called points in limine were not materially relevant to the issue under consideration. They were not only badly taken, but they were irrelevant. They must all fail and be dismissed with costs.
The process of turning the motion proceedings into trial, strips or removes the special features of the motion proceedings and takes on the features of a trial. Therefore there is no requirement to determine the points in limine first before proceeding with the trial especially when the so called points in limine if determined, cannot dispose off the matter. Even if the point in limine were well taken and had succeeded, the applicant could still proceed but in a normal way in terms of the rules. ’Mamatete Morienyane v Nqosa Morienyane and others CIV/APN/311/04, Peete Nkoebe Peete and M & C Holdings (Pty) Ltd formerly M & C Construction (Pty) Ltd. CIV/APN/485/99. When the motion proceedings are turned into trial, the affidavits filed of record become trial pleadings e.g. they stand in the place of summons and plea. If there is a need to file additional papers, request may be made to court to make an appropriate order. There was no need to file additional papers in this case. We proceeded expeditiously by way of a trial.
In conclusion prayers 3 (a) (b) and (d) are granted. The applicant is the customary law heir of the deceased. All other dependants such as minor children of the deceased are entitled to a child’s share.
The death benefits of TŠELE LEFANTSATSA must be paid to his customary law heir Lefantsatsa Lefantsatsa.
K.J. GUNI
JUDGE
For Applicant - Mr Mohau
For Respondents – Mr Tsoeunyane
