CIV/T/462/84

IN THE
HIGH COURT OP LESOTHO

In the
matter of:

'MALEBOHANG
MARY MAKHERA Plaintiff

V

MELIDA
'MAMASHEANE MAKHERA 1st Defendant

(born
Lekoane)

LABOUR
COMMISSIONER 2nd Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 17th day of November,
1988

The
plaintiff brought this action in order to obtain the following two
orders:

1. That
   the first defendant be ordered to desist from holding herself as the
   heir to the late Lebohang's estate;

   
   

2. The
   second defendant be ordered to release the compensation amounting to
   about M13,700 to the plaintiff.

   
   

The
plaintiff (PW1) was the mother of the late Edgar Lebohang Makhera who
was formerly an employee of the Lesotho National Bus Service

Corporation. He died on 29 April 1984. Apparently the second
defendant, the Labour Commissioner, is holding compensation amounting

to M13,700 to be paid to the deceased's heir, although this fact was
not proved in Court;

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but it
appears to be common ground.

The first
defendant (DW1) claimed to be the wife of the deceased Lebohang and
so entitled to the compensation. The plaintiff denied
that any
marriage had taken place and asserted that the family of the deceased
had met and appointed the plaintiff to be his heir.
Thus issue was
joined.

The
plaintiff started the matter off by filing an application in this
Court (CIV/APN/89/84) in August 1984 for a rule nisi worded
in the
same way as the present summons (above). I have perused that file and
the record shows that.: on 17 August 1984 a rule nisi
was granted and
then there were numerous postponements and extensions of the rule
until 30 August 1985 when it was extended to
2 December 1985 (i.e.
for over three months). Nothing further is on the record. The rule
was not confirmed and it appears to have
lapsed. However, when the
rule was first granted the Court ordered the applicant to issue a
summons and this was done in the present
case on 19 September 1984.
As I said, the claim made in it is the same as that made in the
earlier application.

It is
common ground that in February 1980, the deceased Lebohang abducted
the first defendant 'Mamasheane, a school­teacher,
from her
sister's home at Borokhoaneng in North Maseru. He took her to the
home of his unmarried mother, the plaintiff, at Qoaling.
The
plaintiff slaughtered a sheep after their arrival. The first
defendant was already seven months pregnant when she arrived and
she
gave birth to a son on 6 March 1980. The plaintiff named the child
Mamasheane

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as her
grandson. The child and the first defendant stayed with the plaintiff
for some months and then the first defendant obtained
a teaching job
at St Mark's Mofoka.

In
September 1980 'Muso Lekoane, the father of the first defendant,
brought an action in the Thabana-Morena Local Court (CC 738/80)

against the plaintiff claiming "six head of cattle for the
abduction" of his daughter. The plaintiff paid four head of

cattle. This was for abduction, not for seduction as the plaintiff
stated in this Court (see annexure 'A').

In April
1984 Lebohang died and his employers, the LNBS Corporation sent a
message to the plaintiff's home for the first defendant
to go to the
Labour Office and collect the compensation due to her. The plaintiff
sent someone to the school to inform the first
defendant and she went
to the Labour Office. But the plaintiff also contacted the Labour
Office and objected to the payment being
made to the first defendant.
The application already referred to (above) was then filed in this
Court, followed by the summons
in this case.

In this
Court the plaintiff agreed that she accepted the first defendant into
her home and family as a daughter-in-law, that she
slaughtered a
sheep, gave the baby a name as her grandson, and gave the first
defendant a mourning cloth on the death of Lebohang.
But the
plaintiff insisted that, in spite of all this, the first defendant
was never married or regarded as being married to Lebohang
because
there had been no meeting with the first defendant's parents to make

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the
necessary arrangements i.e., obtaining the agreement of both parties'
parents and agreeing on the bohali to be paid. The plaintiff's

witness, her brother Lisema Makhera (PW2), supported her on this
point and said that there had never been a meeting of the two

families.

The
plaintiff agreed that the first defendant was also known as
'Mamasheane, the same as the baby, but she added that people merely

called her by that name and it was not actually given to her by the
plaintiff or the family. However, her brother Lisema (PW2)

contradicted her and stated that the Makhera family definitely
received the first defendant as a daughter-in-law and they gave
her
the name of 'Mamasheane.

The
plaintiff agreed that the custom is that a sheep is only slaughtered
for a daughter-in-law and not for a mere concubine, and
that this is
done after the formalities of marriage have been completed. In spite
of that she also insisted that such formalities
had not been
completed and that there was no marriage because there had been no
meeting of the families. The plaintiff's brother,
Lisema (PW2),
stated that the purpose of the custom of slaughtering a beast is to
receive a daughter-in-law and he agreed that
he was there when the
sheep was slaughtered for the first defendant.

The
plaintiff asserted that a mourning cloth could be given to be worn
whether or not there had been a valid marriage. Again her
own
witness, Lisema (PW2), disagreed with her. In cross-examination he
stated that he agreed that

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it is the
custom that a woman can only wear a mourning cloth for the man to
whom she is married. He added that they gave her a mourning
cloth
because they were still expecting her parents to come and meet them.
This was four years after the abduction and his assertion
thus seems
to be unlikely in the circumstances.

The
plaintiff denied that the first defendant lived with her during the
years 1980-1984. Both the plaintiff and Lisema (PW2) said
that the
first defendant lived there for less than a year. The plaintiff said
that her son Lebohang lived with her during that
time and that the
first defendant remained at her maiden home. In actual fact the
deceased Lebohang was not living at home but
working out of Maseru
with the LNBSC; and the first defendant was not at her maiden home
but living and working at the Morero Primary
School at St Mark's
mission throughout the period in question.

After
Lebohang's death in 1984 the Makhera family heard of the compensation
payment due and they met to appoint an heir. Both the
plaintiff and
her brother Lisema (PW2) said that they attended the meeting. Also at
the meeting was their uncle, Moeketsi Makhera.
He afterwards wrote to
the Chief of Qoaling (annexure 'B') to inform him that the family had
appointed "'Mapokane 'Mamakatere
Makhera" to be the heir.
The plaintiff claimed that this referred to her by name yet she sued
as 'Malebohang Mary Makhera
and gave that as her name in Court when
she testified. The first two names are quite different and when she
was questioned about
this, she insisted that all of the names
mentioned were hers. However, in my opinion, if a plaintiff relies in
Court on a document

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purporting
to name her in it in support of her claim, then obviously she ought
to sue and to testify in that same name or, at least,
when doing so
right at the start state one name and add "also known as"
the other name. Instead nothing was said at all
about the difference
and it was only explained when the Court brought up and queried the
matter during the trial. Counsel must
be much more careful and
precise about such matters.

The first
defendant asserted that when she arrived with Lebohang at his
mother's home in February 1980, they were married according
to custom
and that the Makhera family were well aware of this and they treated
them as being married in every respect. Hence the
acceptance and
naming of their baby as well as the first defendant; the slaughtering
of a sheep and later the giving to her of
a mourning cloth. In
addition she said that the child stayed with his grandmother, the
plaintiff, and that the first defendant
spent all her school
vacations with the plaintiff up to the time of Lebohang's death in
1984. She added that Lebohang visited her
at St Mark's whenever he
was off duty, contrary to what the plaintiff had said. According to
her the Makhera family and everyone
else treated her as being the
wife of Lebohang for those four years and she lived with them in
harmony and friendship.

It was
only after Lebohang died and the family dis­covered that a large
sum of money in compensation was due to be paid to her
that they
proceeded to disown her and to claim that the marriage had never
existed and that she was thus not entitled to the money.

7

However,
in addition to her claim that she was married by custom she also
stated that they were married by the church on 18 March
1981. She put
in a marriage certificate (exhibit 'A') to this effect and called a
priest, Father Patrick Ntebele (DW2), to confirm
it, which he did.
The marriage certificate shows that Edgar Makhera, aged 24, married
Melida Lekhoane, aged 21, at 5t Mark's Roman
Catholic Church on that
date in front of two witnesses. All the necessary signatures are
there and so are the 25 cents revenue
stamps. The register number is
shown on the certificate as 3/81 whereas in the actual parish
register produced in Court (but not
retained) the same entry was
recorded but it was shown as no.4/81. Father Patrick explained that
this was a clerical error by his
secretary and 4/81 was the correct
number and I accept that.

The other
objection to the certificate by plaintiff's counsel was that section
35(2) of the Marriage Act 1974 was not complied with.
This
sub-section required that:

A duplicate original of the register of every marriage duly stamped
with revenue stamps to the value of twenty-five cents shall
be
transmitted to the Registrar of Marriages within one month after the
solemnization of the marriage, and all such duplicates
shall be
carefully preserved in his office.

This
omission was admitted by Father Patrick who explained that he was
first satisfied that a customary marriage already existed
and that
the church marriage was additional to it for social purposes and so
as to bless the

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customary
marriage. He added that the first defendant was teaching at the
church school and they preferred the staff who were married
either to
be married by the church or, at least, to have the church's blessing
to a customary marriage. In the latter case, which
also applied here,
he said he did not normally forwarded a copy of the certificate to
the Registrar at the Law Office.

The
provisions in the above sub-section clearly apply to "every"
marriage and a copy of the certificate should have been
sent to the
Registrar. But that is a matter of later procedure only. As regards
the validity of the marriage there is no doubt
that, according to
section 35(3) of the Act, a copy of the entry in the register
certified by the marriage officer, i.e., a marriage
certificate such
as exhibit 'A', is "legal proof of the due solemnization of the
marriage" in the absence of evidence
to the contrary.

Section
28 of the Act is concerned with the ages of the parties to a
marriage. Father Patrick stated that he checked their agres
and he
was satisfied that Lebohang was 24 and the first defendant was 21.
They were both of full age and so able to consent to
the marriage.

Section
17 of the Act provides that there may (not must) be publication of
the banns and Father Patrick stated that he complied
with this
requirement by making an entry in the register which which he keeps
especially for that purpose and which is kept all
the time displayed
to the view of the public and anyone interested (see section 17(1)
(b).)

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Section
30(2) of the Act provides that:

A marriage officer shall solemnize any marriage in a church or other
building used for religious service, or in a public office
or private
dwelling-house, with open doors and in the presence of the parties
them­selves and at least two competent witnesses.

Father
Patrick (DW2) testified that he conducted the marriage ceremony in
the church office, which is part of the church and also
a public
office. There were two witnesses present who afterwards signed the
register: Father Patrick described the ceremony performed
by him,
which was in accor­dance with section 31 of the Act. For
instance, he asked each of them if he/she would take the other
as
his/her lawful wife/husband. He added that, although his main
intention was to bless what he considered to be an existing lawful

customary marriage, he agreed that the ceremony which he performed
was the same as that normally conducted in the church itself
except
for the fact that no mass followed the ceremony conducted in the
church office since its main aim was only to bless an existing

customary marriage. But the presence or absence of a following mass
would not affect the legality of the ceremony itself for it
is not a
requirement of the Marriage Act. Father Patrick also agreed that the
ceremony which he performed could thus stand by itself
as a lawful
marriage whatever the legitimacy of the prior customary marriage. I
would agree with that view.

In my
opinion the requirements of the Act with regard

10

to the
performance of a lawful marriage were complied with substantially.
Thus, whether or not the alleged customary marriage was
proper and
legal, the couple were duly married by the priest on 18 March 19 81.

Miss
Mofolo for the first defendant pointed out that it is very difficult
for a woman to prove that a customary marriage has taken
place when
the husband's family choose to deny all knowledge of it. But, in this
case, she submitted that the plaintiff's conduct
should be taken into
account especially as both the plaintiff and her witness, Lisema
(PW2), claimed that they had a good knowledge
of Sesotho customs.

The three
main requirements are that the parties should agree to marry, that
the families agree to it and that the amount of bohali
is fixed and
agreed. On the first point the first defendant stated that the
deceased and she agreed to marry and I find that there
was no
evidence to the contrary. On the other two points there is a lack of
evidence. The plaintiff and her witness repeatedly
stated that they
called for a meeting of the families but it never took place. The
first defendant insisted that her father did
meet with the plaintiff
and her family but, as she did not attend the actual meeting,she
could not say what took place or what
was agreed.

With
regard to the conduct of the plaintiff and her brother Lisema (PW2),
both of them admitted that they received the first defendant
as a
daughter-in-law when she was brought to their home by Lebohang.
Lisema added that they gave her the name of 'Mamasheane, though
the
plaintiff denied this

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rather
unconvincingly. They also slaughtered a sheep which they admitted was
the custom when receiving a daughter-in-law. This is
done after the
marriage formalities have been completed. The plaintiff also admitted
that she had regarded her as Lebohang's wife.

The first
defendant stayed at the plaintiff's home and, when her child was
born, the plaintiff named him Mamasheane, as an indication
that the
baby was her grandson. Afterwards, when she was able to return to her
work as a school teacher, the first defendant said
that she spent all
her school vacations at the plaintiff's home. Lebohang, meanwhile,
continued to visit the first defendant at
her place of work where the
couple were regarded by the priest Father Patrick as being married to
each other both before and after
the 1981 ceremony. This situation
went on until Lebohang's death four years later.

The first
defendant then returned to the plaintiff's home where she was given a
mourning cloth by the plaintiff. Lisema (PW2) agreed
that the custom
was that a woman can only wear a mourning cloth for the man she was
married to.

In my
opinion all these matters of customary conduct point in only one
direction, that is a clear acceptance by the plaintiff and
her family
that the first defendant was married to Lebohang. In addition, the
denials by the plaintiff and Lisema, to the effect
that no family
meetings took place and that nothing was ever agreed, were given in a
shifty and evasive manner which I found to
be most unconvincing.
Con­sequently I find that on the balance of probabilities there
was sufficient evidence of a customary
marriage between the deceased
Lebohang and the first defendant.

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Thus the
two were married by custom in 1980 and by the church in 1981. Either
of these marriages would be sufficient alone to justify
the first
defendant's legitimate claim to be the lawful wife of the deceased
Lebohang. It follows therefore that she would be entitled
to receive
payment of any compen­sation due to the estate of Lebohang. There
was no evidence from the deceased's employers
that he had made any
other dis­position of such compensation due and there would
therefore appear to be nothing to prevent
her now from receiving it
from the second defendant.

In the
circumstances I find that the claim of the plaintiff, the deceased's
mother, that she is entitled to receive the compensation,
is not
supported by the evidence. Accordingly the plaintiff's claim is
dismissed with costs to the first defendant. The second
defendant
should pay the compensation due to the first defendant forthwith.

P. A. P.
J. ALLEN

JUDGE

17
November 1988

Mr Pitso
for the plaintiff

Ms Mofolo
for the first defendant