IN
THE HIGH COURT OF LESOTHO

CIV/APN/22/2009

In
the matter between;

LEFANTSATSA
LEFANTSATSA 1^ST
APPLICANT

MALEFANTSATSA
CLAURINA LEFANTSATSA 2^ND
APPLICANT

MANTHABISENG
MOHANOE 3^RD
APPLICANT

AND

KHUBELU
FASO (MATSEPANG LEFANTSATSA) 1^ST
RESPONDENT

THE
COMMANDER, L.D.F. 2^ND
RESPONDENT

THE
MASTER OF THE HIGH COURT 3^RD
RESPONDENT

THE
ATTORNEY GENERAL 4^TH
RESPONDENT

JUDGMENT

DELIVERED
BY THE HON. MRS JUSTICE K.J. GUNI

ON
24^TH
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
1^st
applicant LEFANTSATSA LEFANTSATSA caused urgent filing of this
application and sought a relief in the following terms:-

1. Dispensing
   with normal rules as to form and service on account of urgency;

   
   

2. Giving
   directions as to how this matter may be disposed of expeditiously

   
   

3. 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:-

   
   

1. 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;

   
   

2. The
   first Applicant herein (Lefantsatsa Lefantsatsa) shall not be
   declared the sole heir at customary law of the late Tšele

   Lefantsatsa;

   
   

3. 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.

   
   

4. 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;

   
   

5. ALTERNATIVELY
   to (d) above:-

   
   

6. 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.

   
   

4. That
   prayers 1, 2 and 3 (a) operate with immediate effect as interim
   order of Court.

   
   

1^ST
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 2^nd
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 1^st
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 1^st
respondent and the deceased be married according to Sesotho Custom.

The claim by the 1^st
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
1^st
respondent
the document is not evidence of the marriage. The marriage between
the deceased and the 1^st
respondent took place on the 18^th
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 1^st
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 1^st
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 1^st
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. 1^st
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 1^st
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 1^st
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 1^st
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 1^st
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