CIV/APN/94/10

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

LEJA
PPARAMENTE KENTE ….................................APPLICANT

and

MAKATLEHO
LEHLOKA (nee MOLEFI) …........1^ST
RESPONDENT

MORENA
OA MAPELENG HA MABOTE

(Mabohlokoa
Majara) …..................................2^ND
RESPONDENT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 8^th December 2010

Summary

Application for
interdict and declarator that customary law marriage between 1^st
respondent and applicant’s late son is null and void -
non-payment of bohali alone not a conclusive factor that there was
no
marriage - all requirements under custom not satisfied - the
slaughtering of a sheep on its own not proof that there was a lawful

customary law marriage – marriage declared null and void –
ancillary prayers also dismissed.

The applicant
herein seeks an order from this Court to interdict the respondents
from interfering with and alienating the assets
of the late
Lelingoana Kente, to declare the purported marriage between the
deceased and the 1^st respondent null and void, to declare
that the applicant is the lawful heir to the estate of the late
Lelingoana and to eject the
1^st respondent from the
premises of the deceased. The 1^st respondent opposes the
application.

It is the
applicant’s case as stated in his papers that his son, the late
Lelingoana Kente passed away in June 2010 and when
the Kente family
arrived at his place in Maseru to make preparations for his burial
they found the 1^st respondent present and the latter
claimed to be Lelingoana’s wife. He adds that after he buried
the deceased, he and his
other son, Sefali Kente were asked to report
to the 2^nd respondent’s office and upon their
arrival thereat the 2^nd respondent ordered them to hand
over the keys to the late Lelingoana’s spaza shop, a public
phone and the amount of M100.00
to the 1^st respondent. The
2^nd respondent also ordered them to vacate the late
Lelingoana’s house.

Further that he
the applicant, is the rightful heir and beneficiary to his late son’s
estate as he is not survived by either
a wife or a child. That the
late Lelingoana had inherited his estate the subject matter herein
from his sister, Mamojabeng Soai
in terms of a Will which will also
appoints him i.e. the applicant, as the heir upon Lelingoana’s
death and that the said
estate is excluded from any community of
property.

The applicant
avers further that the purported marriage between his late son and
the 1^st respondent is null and void because the two never
married by custom because he has never arranged for or authorized
anyone to arrange
for such a marriage and has never seen and/or met
the 1^st respondent’s parents to arrange same. Nor
were Lelingoana and the 1^st respondent married by civil
rites as the 1^st respondent was married to one Phetetso
Lehloka, since deceased, and a minor child was born of the said
marriage and is presently
living with the 1^st respondent’s
mother and is still called by the Lehloka names.

It is also the
applicant’s case that the 1^st respondent has been
dissipating the late Lelingoana’ estate and has taken the
property belonging thereto to her maiden home
and other places
unbeknown to him and that he would not be able to recover any of it
if the 1^st respondent is not interdicted as prayed.

On the other hand,
the 1^st respondent avers that she is the lawful wife of
the late Lelingoana and that the applicant knows this as she was
accepted into
the Kente family in April 2010 through the slaughtering
of a sheep in Quthing whereby she was also given the names of
‘Manrateng
and ‘Matlokoeng in the presence of
Lelingoana’s sister and other family members. This assertion is
supported by one
‘Mampheng Kente who filed a supporting
affidavit in this regard. The 1^st respondent adds that
upon his arrival at Lelingoana’s house, after the latter had
passed away, the applicant never asked
her for any proof that she is
Lelingoana’s wife because he knew her very well.

Further that she
is seven months pregnant (at least at the time this application was
launched) and that the applicant has confirmed
the birth of a baby
boy and has not denied that the boy is Lelingoana’s so that the
deceased is survived by a child. That
the 1^st respondent
has stayed with the deceased since 2008 and has contributed to the
renovations of the house and the purchase of furniture
from her
salary which she earned while she was working in the factories.

It is against this
background that the issues for the determination of this Court are
whether or not the 1^st respondent is legally married to
the late Lelingoana and whether or not the applicant is the rightful
heir to Lelingoana’s
estate.

I proceed to deal
with the first question. From her averments as contained in her
papers, the 1^st respondent does not claim to have been
married to the late Lelingoana by civil rites but by customary rites.
Normally, the first
point of reference for the determination of the
existence of this type of marriage is Section 34 (1) (a) Part II
of the Laws of Lerotholi which stipulates the requirements of a
valid customary marriage as:-

(a) Agreement
between the parties intending to marry;

(b) Agreement
between the parents of the parties or between those who stand in loco
parentis to the parties as the marriage and as to the amount of
bohali;

(C) Payment of
part or all of the bohali.

Admittedly, the
position has since been laid down that the above requirements are
neither exhaustive nor are they a comprehensive
statement of a
Sesotho customary law marriage as far back as in the case of Ramaisa
v Mphulenyane 1977 LLR 138 per the judgment
of the learned Cotran CJ (as he then was) and was
quoted with approval by the learned Ramodibedi P in ‘Mantsebo
Ramootsi & Ors v Malineo Ramootsi C of A (CIV) No. 14/08
quoted to this Court. In other words, over and above the
stated requirements, there are other elements that can be regarded as
evidencing
the intention of the two sides that there should be a
marriage. I entirely agree with these sentiments as I stated in the
case
of Manthabeleng Makaka v Makoetla Makaka
& 3 Others CIV/APN/471/2007 p 8. I
therefore accept the submission that Ms
Lesaoana made on behalf of the 1^st
respondent that the absence of payment of bohali per se
is not fatal to the validity of a customary marriage.

However, it is my
opinion that this position should be put in context in that the issue
of payment of bohali should not be looked
at in isolation of the
other requirements of a valid Sesotho customary law marriage in terms
of the Laws of Lerotholi. In the above
three quoted cases,
respectively, the facts established that the other requirements had
been met in that not only had the parties
intended to marry but both
their parents had also expressed the requisite intention and had even
agreed on the amount of bohali.
In recognizing that all sorts of
possibilities might result in the absence of the actual payment, the
Courts as well as some scholars
have clearly expressed that a
marriage should not be nullified for that reason alone.

I must however
state from the onset that while indeed Section 34 is not to be
regarded as a comprehensive statement of a Sesotho
Customary
marriage, it is the normal starting point of reference because it
undisputedly contains the main requisites that make
up such a
marriage. It does not however exclude other factors that should be
taken into account in determining whether a marriage
does in fact
exist or not. In my view, this is the point of emphasis namely, the
absence of one requirement does not automatically
translate to the
nullity of a marriage if the others have been satisfied and where
other factors evincing the intention to marry
between the two
families exist.

In other words,
where bohali has not been paid, it is important to take into
consideration not only the other two requirements but
all other
factors such as but not limited to, the slaughtering of a sheep, the
giving of the family names, performance of other
customary rituals,
the passage of time since the union took place and whether or not the
children born thereof have been accepted
into the family and been
given names inter alia.

This list is not
exhaustive and the said factors have to be taken cumulatively not in
piecemeal. However, it is my view that at
the very beginning, once
the parties have agreed that they intend to marry, the parents/family
must be involved in the process
because as opposed to a marriage by
civil rites a marriage by way of customary law does not take place
between the parties only
but actually between their families. This
fact I take judicial notice of because of its cultural notoriety.

While it has been
shown that such negotiations as well as payment or part payment of
bohali does not always take place before the
parties start to live
together as husband and wife, it is however a fact that even where
the two have eloped first, which practice
is referred to as chobeliso
in Sesotho, the first step that the man’s parents/family will
normally take is to notify the
woman’s about her presence
within their family in the case where they do not send her back to
her home and then arrangements
will be made for the two families to
meet, agree the marriage and the amount of bohali.

Hence I wish to
align myself with the sentiments of the learned W.C.M. Maqutu J.
in his work; Contemporary Family Law of Lesotho 1992 Edition,
in his discussion on the current problems that are attached to the
requirement of bohali, especially insofar as contemporary women
are
concerned. He states as follows at p110;

“…All
along the parents of their men have been promising to go and
negotiate a marriage when they have the means. Then all of a sudden

the men die in the mines or die in the army. If there is a great deal
of money which is being paid as compensation for the death
of the
deceased, the parents of the men sometimes say the women are not
married and want to lay their hands on the money. There
have been
cases where the parents of the man at first recognize the women as
wives of the deceased, but when the women refuse to
share
compensation money with them, then they allege there were never any
marriages between their sons and the women.”

It will
immediately become evident that the emphasis made by the learned
author and the Courts in decided cases is on the non- payment
of
bohali where the other requirements and other factors are also shown
to exist. Where however, it is clear from the facts that
the two
families have never agreed marriage let alone the amount of bohali,
it will be very difficult for the Court to be persuaded
to find that
there was a valid Sesotho customary law marriage.

Coming back to the
facts in the present case, aside from the 1^st respondent’s
assertion that a sheep was slaughtered for her and that she was also
given names, there is no other evidence
proving that the other
requirements were ever met save for her to state that the applicant
had expressed his wish that the 1^st respondent and his
late son should not cohabit but should marry.

In addition,
nowhere does the 1^st respondent say her parents were ever
involved by way of notification from the applicant and/or other
members of the Kente family
of her presence amongst them, or that
they have ever met to agree that there should be a marriage between
her and the late Lelingoana
and on the amount of bohali. Over and
above this her own evidence in so far as the alleged slaughtering of
a sheep is concerned,
is very scanty and not very helpful to the
Court by its brevity. This is what she asserts at paragraph 11 of her
answering affidavit:-

“Further,
I am advised and believe same to be true that my marriage to
Lelingoana is not null and void as the Applicant himself accepted
me
in the Kente family through the slaughtering of a sheep (koae) in
April 2010.”

Unfortunately the
evidence does not say at whose house this slaughtering of a sheep
took place and in whose presence the ceremony
was held. ‘Mampheng’s
evidence in her supporting affidavit is stated as follows:-

“In April
2010 Lelingoana and the 1^st
respondent
arrived in Quthing with the intention to marry. The applicant gave
out his sheep for purposes of accepting the 1^st
respondent
in the family and as married to Lelingoana. Since my mother is (sic)
and
I am the 1^st
daughter
the applicant instructed me to assist with the process of accepting
the 1^st
respondent.”

By the same token,
the supporting evidence does not state at whose place this alleged
incident took place, and which other family
members were present if
any, especially because she states that she is the first daughter of
the applicant which means she has
other siblings. It is a notorious
fact of which I take judicial notice that such ceremonies involve the
entire family and not two
or three members only.

This is especially
important because in his reply to these averments the applicant
states that his home is in Mokhotlong and this
is not disputed.
Further that the alleged slaughtering of a sheep in Quthing is a
fabrication because he does not know anyone in
Quthing. The attempt
on the part of the respondents to amend this on the date of hearing
was rather belated and it is my view that
if the Court were to allow
it, it would not be fair to the applicant’s case when account
is taken of the fact that it is
this very incident that forms the
crux of the 1^st respondent’s case.

However, even if I
were to proceed on the basis or the correctness of the respondent’s
version to wit, that a sheep was slaughtered
to accept her as the
wife of the applicant’s late son in terms of the principle
enunciated in Plascon-Evans Paints (Pty) Ltd 1984 (3) SA 623,
it is my view that this factor on its own falls far short of proving
that there was a valid customary marriage between the two
families.

The evidence that
has been placed before this Court reveals that the 1^st
respondent’s family has never been involved at all in any
arrangement and/or negotiation of the purported marriage so that

there was never any form of agreement which factor undisputedly lies
at the centre of and/or is an integral ingredient of a Sesotho

customary marriage, in my opinion. I therefore accept Mr. Thulo’s
submission that a Sesotho customary law marriage cannot be concluded
by one side/family without the involvement of the other.

In addition, it is
my finding that Ms Lesaoana’s contention that I should
find that there was a valid marriage otherwise the 1^st
respondent’s parents would have demanded the return of their
daughter is based on mere speculation because the Court does
not know
whether they knew of their daughter’s whereabouts at all. What
is not in dispute in terms of the evidence that has
been placed
before me is that the two families have never met let alone negotiate
and/or agree any marriage including the amount
of bohali.

Thus the decision
of the Court in the case of Koko T. Deke v ‘Maqhoai M. Qhoai
& Ors CIV/APN/162/87 (unreported) quoted to this Court
namely, that the fact of non-payment of bohali did not mean the Court
would be prepared to find that there
was no marriage agreement is not
applicable to the present case. As I have already stated non-payment
of bohali on its own does
not necessarily nullify a marriage where an
agreement was clearly made. The evidence herein is that not only was
there never such
an agreement, but the two families have never met
and/or held any negotiations in that regard. It is for these reasons
that this
case is also distinguishable from Makaka (supra),
Ramaisa (supra) and Ramootsi (supra) respectively.

It is also my
opinion that to accept that the mere slaughtering of a sheep on its
own is satisfactory proof of a Sesotho customary
law marriage would
be tantamount to making light of and undermining the regime and to
allowing every kind of arrangement to be
interpreted as a valid
marriage which is in my view untenable because it would create even
more problems of interpretation than
is already the case.

It is for these
reasons that I find that the applicant has successfully made out his
case that there was no valid marriage between
his late son and the
1^st respondent herein.

I now turn to deal
with the issue whether the applicant is the rightful heir to the
deceased’s estate.

From the facts it
has been established that the deceased Lelingoana inherited his
estate from his late sister ‘Mashai Soai
in terms of her last
Will and testament annexed to the pleadings. This is common cause.
The relevant clause for the determination
of this issue is paragraph
4 thereof which reads:-

“In the
event that my said brother is deceased before assuming his
inheritance and receiving payment of any amounts which could have

become due to the beneficiary in evection:

4.1 The
inheritance of that particular beneficiary shall revert back to the
composite estate and is hereby bequeathed to my father
LEJA
PARAMANET KENTE, or his heir.

4.2 If however,
any of such deceased beneficiary (sic) shall have a child or
children of its own or they shall be entitled to representation to
the inheritance which otherwise could have
been enjoyed by its (sic)
or their such predeceased parent by order of priority as aforesaid
under clauses 2 and 4.1 respectively.”

With regard to the
above quoted contents, the applicant avers as follows at paragraph 10
of his founding affidavit:-

“I verily
aver that in terms of Basotho laws and customs I am the rightful heir
and beneficiary of my late son’s estate because
he is not
survived by any child as he was not yet married.”

In her opposing
affidavit the 1^st respondent responds as follows at
paragraphs 9 and 10 respectively in parts and insofar as is relevant
to this particular issue:-

“Save
to admit that the applicant’s son was not survived by any son;
I deny that the said son was not married, as he had married me and
deny that the applicant is the heir and beneficiary to the
son’s
estate.

I further state
that I am 7 months pregnant with Lelingoana’s child.”
(emphasis mine)

The applicant
replies as follows:-

“Contents
therein are noted save to deny that the late Lelingoana is survivied
by any child who could be his lawful heir. I wish
to take this
honourbale court into confidence that as of the 29^th
July
a (sic)
was
advised and believe same to be true that the 1^st
respondent
has actually given birth to a baby boy and that such birth was normal
and not premature even after the respondent alleges
that she was “7
months pregnant” with my said son’ child!”

The meaning as
gleaned from the above quoted passages is that the paternity of the
child is disputed by the applicant. I have already
found that there
was no valid marriage between the late Lelingoana and the 1^st
respondent which means that that the said child was consequently born
out of wedlock. According to the Basotho law and custom where
a woman
is validly married to her husband there is a rebuttable presumption
that the husband is the biological father of the child
in terms of
the adage; “Mosali ea nyetsoeng ha a tsoale sekhaupane’
loosely translated as “A married woman does not beget an
illegitimate child.” See Maqutu (op cit) p 229-230
when quoting the judgment of the learned Molai J in the case of
‘Mamualle Chabaseoele v Sekese Chabaseoele 1981 LLR.

In casu,
not only is the 1^st respondent not the legal wife of the
deceased, but the applicant is in fact denying that the child was
sired by his son. This in
turn poses the problem of proof for this
Court on whether or not the child was fathered by the deceased. In my
view, matters would
be easier for the Court if paternity herein was
not being challenged because in terms of the Will of ‘Mashai,
as quoted above,
the child of the deceased stands to inherit and the
Will is silent on whether it refers to a child born within a marriage
or out
of wedlock. Thus, if paternity was not disputed, I would be
prepared to find that even if he was born out of wedlock, the child

stands to inherit.

However, as the
situation stands, I am unable to so find in the absence of clear
proof that the child was indeed fathered by the
applicant’s
deceased son. The 1^st respondent has not successfully
shown that under these circumstances the child was fathered by the
deceased.

This in turn
brings me to the last issue namely, whether the 1^st
respondent should be given a share of the estate for the reason that
she had undisputedly been cohabiting with the deceased Lelingoana
up
till the time of his death. In her submissions on this point, Ms
Lesaoana asked the Court to presume that there was a universal
partnership between the applicant and the 1^st respondent
because they lived together as husband and wife and that their
combined property is to be shared equally between them
on the
strength of the sentiments expressed by the late Kheola J (as he then
was) in Adolphina ‘Maleemisa Ramothello v Wilson Tichere
Ramothello CIV/T/727/86 p.5 (unreported).

Ms Lesaoana
added that it is the 1^st respondent’s case that when
she stayed together with the applicant’s son the latter did not
have much furniture and
at that time she worked in the factories and
urged him that they contribute and buy some furniture and renovate
the house and that
they installed electricity. That the 1^st
respondent later resigned from work as they intended to open small
businesses whish they did namely, a spaza shop, public phone).

Further that they had a bona fide intention of entering into a
marriage and she contributed towards the purchase of the property
in
the form of money and later in the form of labour. Unfortunately,
most of Ms Lesaoana’s submissions are not contained in
the 1^st respondent’s opposing affidavit i.e. the
purported contributions towards the estate. They thus constitute
inadmissible evidence
given by her from the bar and I cannot admit
them. In this regard the 1^st respondent briefly made the
following assertions at paragraph 13:-

“Besides,
the property in that house belongs to me and Lelingoana as we bought
it together before our marriage as we had been staying
together from
2008.”

In terms of the
Will that bequeathed the property to the late Lelingoana that is, at
paragraph 2 thereof it is stated as follows:-

“

1. 
   I direct that
   the above named brother LELINGOANA NEXSON KENTE shall be entitled to
   all of my assets, in full shares of the proceeds
   thereof including
   public phones, my insurance policies NUMBER 00247401986, scheme code
   6005469, membership number 4956, policy
   number 4221846112.

   
   

2. 
   My two
   vehicles as follows: Jetta motor car registration number A5511 and
   Toyota Hiace Combi registration number AW700,

   
   

3. 
   My Residential
   Site and house and any other improvements at Mapeleng in the Maseru
   District, registered on 27^th June 1994 under lease Number
   1274-1504 and Deed of Transfer number 25652 in the Deeds Registry
   Office.”

   
   

The above contents
reveal that the deceased Lelingoana inherited most if not all the
property in question in the present case from
the late ‘Mashai
but for some furnishings in the house.

In her averments,
the 1^st respondent does not say anything about having made
any improvements on the house that was undisputedly bequeathed to the
deceased,
the electrification thereof, and the other businesses that
her counsel talked about in her submissions.

On top of that,
annexure TAL 1 which ex facie is made up of copies of
receipts from the Lesotho Electricity Corporation has simply been
attached by the 1^st respondent without any averments that
speak to its contents, not to mention that all those receipts bear
the names of the deceased
Lelingoana Kente. The other receipts
reflect purchase of items ranging in the prices of M100.00,
M228.00 (times 2) for paint, M6,000.00 for a room divider,
M450.00 for a coffee table, M215.00 for an unnamed item
which was ex facie purchased from Khubetsoana Hardware.

By the same token,
all of them bear the names of the deceased, Lelingoana Kente. If
anything, it is my view that the annexure shows
that the items
reflected therein were bought by the deceased during his lifetime. I
therefore cannot even assume that he had gotten
the money from the
1^st respondent in the absence of any conclusive proof.

In the light of
the above, it is my finding that the contribution that the 1^st
respondent might have made by way of payment for some furniture items
is minimal if any, to can lead me to find that she has successfully

made out a case that there was a universal partnership between the
two of them as stated in the submissions that were made on her

behalf. I accordingly reject it.

It is for all the
foregoing reasons that I find in favour of the applicant and grant
him the application in terms of prayers 1.
a, b, c, d, e and f in the
Notice of Motion and costs of suit against the 1^st
respondent.

N.
MAJARA

JUDGE

For
the applicant : Mr. Thulo

For
the 1^st respondent : Ms Lesaoana