IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:

 

CIV/APN/204/09

 

 

SEOEHLA MOLAPO                                                                         APPLICANT

 

AND

 

ANACLETA MAMOHALE MOHALE                                              1^ST RESPONDENT

LABOUR COMMISSIONER                                                                        2^ND RESPONDENT

MINISTRY OF LABOUR                                                                  3^RD RESPONDENT

THE MASTER OF HIGH COURT                                                     4^TH RESPONDENT

THE ATTORNEY GENERAL                                                                        5^TH RESPONDENT

 

 

JUDGMENT

 

DELIVERED  BY THE  HONOURABLE  MRS  JUSTICE  K.J. GUNI

ON THE 18^TH  DAY  OF  MARCH   2011

 

 

HISTORICAL BACKGROUND

 

The applicant in this matter is SEOEHLA MOLAPO, a Mosotho widower of MOHALALITOE, MASERU CITYin MASERU DISTRICT.  The 1^st respondent is the applicant’s mother-in-law – ANACLETA MAMOHALE MOHALE.  The 2^nd respondent is the Labour Commissioner.  The 3^rd respondent is the Ministry of Employment.   The 4^th respondent is the Master of THE HIGH COURT.

These applicant is seeking an order of this court – directing the 2^nd respondent to release to him an amount of twenty thousand Maloti [M20,000-00].  He claims that this money was bequeathed to him – [the applicant] by the late MASENTLE ALICE MOLAPO– who was the daughter of the 1^st respondent.

 

FACTS OF THE CASE

This applicant and the late MASENTLE ALICE MOLAPOwere married civilly and in community of property on the 18^th January 1992.  The copy of their Marriage Certificate [‘Annexure A’ is attached to the Founding affidavit as part of evidence that establishes this fact of their marriage].  The applicant’s wife MASENTLE ALICE MOLAPOis now late.  There is no allegation of how and when she died.  But it is in the common cause that she is late.  During her lifetime, the deceased was employed by LESOTHO ELECTRICITY CORPORATION [LEC].  She left instructions with her employer that when she dies, her terminal benefits must be divided into two equal portions and each portion be given to her husband the applicant herein and her son who presently is in the care and custody of the 1^st respondent.

 

The deceased’s minor son is supported and maintained by the 1^st respondent.  On this fact, the two parties, applicant and the 1^st respondent agree.  It is worth mentioning at this stage that only the 1^st respondent is opposing the granting of this application.  The rest of the respondents have not filed any papers.  Therefore it can safely be assumed that they are ready to accept any decision arrived at by this court in this matter.  I shall outline the 1^st respondent’s case at the later stage.

 

It is in the common cause, that at the time of her death, the deceased and the applicant were no longer living together as husband and wife.  They had been separated for a period in excess of ten years.  The applicant had sued the deceased for divorce.  Applicant claims, according to his counsel, that his late wife could not live with the divorce.    She was totally and completely opposed to the divorce action.  Consequently the parties opted for a legal separation.  It is therefore a matter of common cause that the parties according to the counsel for applicant – Mr Metsing lived apart from each other in terms of the court order of separation.  This appears to be the lesser of the two evils [divorce, separation] and the late ‘MASENTLE ALICE MOLAPO could and in fact did live with.

In his Founding Affidavit, the applicant claims that sometime in 1998, he and the deceased had a dispute.  The cause of the dispute was the birth or presence of the son.  As a result of that dispute he lodged a case against her.  This dispute is explained by the counsel for the applicant, as the cause of an action for divorce which the deceased was totally opposed to.  The deceased had this minor child out of wedlock.   It is our ancient convention in this Kingdom and in fact all over the world that children should be born in wedlock.  Children are the expected and accepted product of marriage.   Marriage is primarily for procreation. The applicant wanted to divorce his wife because he did not recognize himself as the father of the said child despite the fact that this child was born during the subsistence of their marriage, even prior to their separation.  She refused to be divorced.  This applicant relented and opted for a legal separation.  That is why the parties lived apart from each other for over ten years prior to the deceased’s untimely death.

 

During this period of legal separation the deceased was apparently back at her parental home.  It is her mother – the 1^st respondent herein who took care of her and her son, when she returned home from a broken marriage.  Her son – being rejected by her husband – this applicant herein, belongs to the deceased.  An illegitimate child in any law [customary or received law – Roman Dutch Law] in this Kingdom belongs to the mother’s clan or family.  After the death of the deceased, the family of MOHALE, the deceased’s family appointed the mother of the deceased as the guardian of the deceased’s minor son.  The deceased’s mother – 1^st respondent herein, is the guardian and the custodian of the deceased’s minor son.  She is the one who has been taking care of that minor child.

 

Although the deceased and the applicant lived apart in terms of the order of separation, they were not divorced.  Their civil marriage and its consequences as regards their proprietary rights were still intact at the time of her death.  That is why this applicant describes himself as a widower rather than a divorcee.  It is in recognition of the loss of his wife through death.

 

APPLICANT’S CASE

It is this applicant’s averments that he was married by civil rites and in community of the property and of profit and loss with the deceased person.  At the time of her untimely death, although legally separated, they were still a husband and wife.  His late wife, prior to her death, gave instructions to her employers, that her terminal benefits at the time of her death, should be divided equally between her husband and her son.  Because they were married by civil rites and in community of property, this applicant alleges that the estate of his late wife must be administered in terms of ADMINISTRATION OF ESTATE PROCLAMATION 19 OF 1935. 

 

The relevant portions of this proclamation, to the matter under consideration reads as follows:-

“3. This Proclamation shall not apply –

 (b)    to the estates of Africans which shall continue to be administered in accordance with the prevailing African law and custom of the Territory:  Provided that such law and custom shall not apply to the estates of Africans who have been shown to the satisfaction of the Master to have abandoned tribal custom and adopted a European mode of life, and who, if married, have married under European law.”[My underlining]

 

1^ST RESPONDENT’S CASE

 

The 1^st respondent has raised the following points in limine:

POINTS INLIMINE

   3.1    This matter is replete with foreseeable disputes of fact and consequently cannot be decided on affidavits alone.  Applicant should have proceeded by way of an action.

       3.2    Applicant has, in contravention of the Rules of Court, filed an open Notice of Motion not stating the precise date when the application would be moved.

      3.3     Applicant is by law not entitled and has lost all right to the claim sought by virtue of the length of time he was separated from his late spouse, being a period of ten years.

      3.4     Applicant’s claim is premature.  Applicant’s late spouse’s whole estate should first be dealt with in terms of the procedures laid down in the 1935 Administration of Deceased Estates Proclamation to enable, among others, applicant’s late spouse’s heirs to benefit.

      3.5     Applicant has served 1^st respondent with incomplete papers thereby preventing 1^st respondent from ably pleading to the issues raised.  1^st respondent has not been served with the annexures alluded to in applicant’s founding affidavit

 

On the first point in limine the 1^st respondent seems to alleged that there is dispute or that there is likelihood of dispute of fact.  She does not show which fact is likely to be disputed.  The perusal of papers filed of record clearly indicate to me that this matter is determinable on its papers.  The 1^st respondent on this first point in limine merely alleges that there is dispute without indicating the alleged dispute.  There is nothing filed of record which needs to be resolved by oral evidence.  This court is able and will determine this matter on the affidavits filed of record.  The dispute must exist ….  It must be a real and genuine dispute not imaginary.  PLASCON – EVANS PAINTS V VAN RIEBEECK PAINTS 1984 (3) SA 620.  In terms of the rules the court may, by an application by one of the parties order that viva voce evidence be led.  There has been no such an application.  In terms of rule 8 (14) HIGH COURT RULES 1980, the court may make such order as to it seems appropriate with the view to ensuring a just and expeditious decision.

 

The 1^st respondent claims that long period of separation terminates the marriage.  As a result the party has lost of rights even to claim property specifically bequeathed to him.  This proposition has never been heard of.  There is no authority indicated to support such a proposition.  The only factor which has an automatic power to dissolve marriage is the death of one of the parties to the marriage.  The marriage and its legal consequences, except the sharing of bed, remain intact if the parties are only separated.  It became clear from the Founding Affidavit that the applicant instituted an action – presumably to divorce his wife – the deceased, who resisted.  According to this applicant that action was never brought to finality.  The parties opted for legal separation.  Legal separation afforded the parties the right to deny each other conjugal rights and nothing further.  The parties’ proprietary property rights are not affected if they can be proved.  The bequeathed property is identifiable.  It can be determined without dissolution and/or distribution of the deceased’s estate.

 

The other points of law raised are procedural.  The 1^st respondent has at paragraph 2 of the so called “Opposing Affidavit” specifically alleged that she read and understood the affidavit of SEOEHLA MOLAPOand has responded accordingly paragraph by paragraph.  How did she manage this fit if she was not served with all the papers?  She further criticizes the nature of the application filed.  Why does she do that?  Because she has the opportunity to see and peruse the application.  It cannot be correct that the applicant has served the 1^st respondent with incomplete papers – preventing her from ably pleading to the issues.

 

POWER TO TESTATE

In terms of our law every Mosotho has a power to make A WILL.  SECTION 5 LAW OF INHERITANCE ACT 26 OF 1873.  There are no issues raised as regards the deceased person’s competence to make a will.  The deceased person in our present case has not disposed off all her estate by will.  She has only left instructions with her employer in order that the said employer deals appropriately with her terminal benefits in case of death. Her estate is therefore partially interstate.

 

The application is granted as prayed.

 

 

 

K. J. GUNI

JUDGE

 

 

 

 

 

For Applicant:     Mr Metsing

For Respondents: Messrs Mosae & Mabula