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CIV/APN/94/10
IN THE HIGH COURT OF LESOTHO
In the matter between:-
LEJA PPARAMENTE KENTE ….................................APPLICANT
and
MAKATLEHO LEHLOKA (nee MOLEFI) …........1ST RESPONDENT
MORENA OA MAPELENG HA MABOTE
(Mabohlokoa Majara) …..................................2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 8th December 2010
Summary
Application for interdict and declarator that customary law marriage between 1st 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 1st respondent null and void, to declare that the applicant is the lawful heir to the estate of the late Lelingoana and to eject the 1st respondent from the premises of the deceased. The 1st 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 1st 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 2nd respondent’s office and upon their arrival thereat the 2nd 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 1st respondent. The 2nd 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 1st 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 1st respondent’s parents to arrange same. Nor were Lelingoana and the 1st respondent married by civil rites as the 1st 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 1st respondent’s mother and is still called by the Lehloka names.
It is also the applicant’s case that the 1st 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 1st respondent is not interdicted as prayed.
On the other hand, the 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 1st respondent and his late son should not cohabit but should marry.
In addition, nowhere does the 1st 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 1st respondent arrived in Quthing with the intention to marry. The applicant gave out his sheep for purposes of accepting the 1st respondent in the family and as married to Lelingoana. Since my mother is (sic) and I am the 1st daughter the applicant instructed me to assist with the process of accepting the 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 29th July a (sic) was advised and believe same to be true that the 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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 1st 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:-
“
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.
My two vehicles as follows: Jetta motor car registration number A5511 and Toyota Hiace Combi registration number AW700,
My Residential Site and house and any other improvements at Mapeleng in the Maseru District, registered on 27th 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 1st 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 1st 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 1st respondent in the absence of any conclusive proof.
In the light of the above, it is my finding that the contribution that the 1st 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 1st respondent.
N. MAJARA
JUDGE
For the applicant : Mr. Thulo
For the 1st respondent : Ms Lesaoana