CIV/A/20/87
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
NQHEKU MOHAPI Appellant
and
AGNES MOTLELENG Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 20th day of May, 1988.
Appellant and Respondent were, respectively, Plaintiff and Defendant before the Maseru magistrate court where the former sued the latter for ejectment, cost of suit, further and/or alternative relief. Defendant intimated her intention to defend the action.
It is common cause from both the pleadings and evidence that prior to 9th January, 1955 defendant and one Michael Mohapi, who is now deceased, lived at Clocolan and Modderport, respectively, in the Republic of South Africa. On the day in question, 9th January, 1955, Michael Mohapi took the defendant to his home at Modderport where they lived together as husband and wife. As a result defendant gave birth to seven (7) children who were all fathered by Michael Mohapi. They were five (5) girls and two boys. The eldest boy was born on 14th September, 1963. He was, therefore, 20 years
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old in 1983 when these proceedings were instituted.
It is also common cause that in 1960 Michael Mohapi and the defendant moved from the Republic of South Africa and settled at Ha Hoohlo in Maseru - Lesotho, where they were allocated a residential site. In 1972 defendant "ngalaed" and returned to her maiden home. The reason for that was according to defendant, because she had discovered that Michael Mohapi was indulging in sexual relation with the eldest of their daughter. During her absence Michael Mohapi developed the residential site on which he lived, together with his sister 'Mamatseliso Elizabeth Mohapi who testified as P.W.2 at the trial.
It transpired that in 1983 Michael Mohapi passed away. P.W.2 then sent for the defendant who came to Ha Hoohlo for the burial. Although
P.W.2 testified that it was on her own that she sent for the defendant the appellant told the court that he had instructed P.W.2
to do so. I do not think that P.W.2 who is a woman could have sent for defendant on her own. I am inclined to believe the appellant that this was done on his instructions or approval.
It is common cause that after the burial of Michael Mohapi defendant did not immediately put on the mourning cloth. She returned to her maiden home in the Republic of South Africa and only came back to Ha Hoohlo to put on the mourning cloth some four (4) months after the burial of Michael Mohapi.
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According to the appellant and P.W.2, the reason why defendant returned to her maiden home without putting on the mourning cloth was because she was not legally married to the late Michael Mohapi. She was just his concubine and P.W. 2 allowed her to put on the mourning cloth out of sheer sympathy as she (defendant) was complaining that Michael Mohapi was haunting her for failing to put on the mourning cloth.
Defendant's story as to why she did not put on the mourning cloth immediately after the burial of Michael Mohapi was slightly different. According to her, if she had put on the mourning cloth immediately after the burial of Michael Mohapi she would not, according to Sesotho custom, be permitted to leave her home at Ha Hoohlo until the mourning cloth had been removed. She, however, had a sickly daughter who was also pregnant at her maiden home in the Republic of South Africa. Furthermore she was, at the time employed in the Republic of South Africa. If she were to put on the mourning cloth and remain at her home at Ha Hoohlo it was necessary that she should give three (3) months' notice to terminate her employment in order to receive her terminal benefits. For those reasons she was allowed to return to her maiden home in the Republic of South Africa and come back to her home at Ha Hoohlo four (4) months later to put on the mourning cloth. She did exactly that and, indeed, on her return to Ha Hoohlo four (4) months later P.W.2 duly performed the customary rituals so that she could wear the mourning cloth. Defendant denied, therefore,
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the evidence of P.W.2 and the appellant that she was allowed to put on the mourning cloth out of pity because the late Michael Mohapi was haunting her.
In my view there is sense in the defendant's story. On the other hand the story of both the appellant and P.W.2 that following the death of Michael Mohapi the defendant who was his mere concubine was allowed to wear a mourning cloth out of sympathy is simply improbable. In Sesotho custom a man's concubine would never, under any circumstances, be allowed to wear a mourning cloth following his death.
Be that as it may, it is common cause that since the time she returned to put on the mourning cloth, the defendant is living on the site that was allocated to and developed by Michael Mohapi at Ha Hoohlo. The appellant who is the younger brother of the late Michael Mohapi has now sued the defendant for relief as aforementioned on the grounds that the defendant was not lawfully married to the late Michael Mohapi and he (appellant) had been nominated the heir to the estate of Michael Mohapi. The trial court dismissed the claim and it is against that decision that the appellant lodged appeal to this court.
Although he conceded that in 1955 his brother, Michael Mohapi, took defendant to his home at Modderport in the Republic of South Africa where they lived as husband and wife, the appellant denied that there was any customary law marriage entered into. According to
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him, the appellant was, in 1955, about 14 years old. He was playing in the house when defendant's father came and tried to discuss with his father about the marriage between Michael Mohapi and the defendant. His father strongly objected to any marriage between the defendant and Michael Mohapi. No cattle were ever paid as bohali.
However, the testimony of the defendant was that following her elopment with Michael Mohapi the parents of either party met at her home and agreed on her marriage with Michael Mohapi. The quantum of bohali was fixed as twelve (12) head of cattle and the family of Mohapi actually paid eight (8) head of cattle as part thereof.
The evidence of defendant was corroborated by that of D.W.2, Moholi Motsamai, who told the court that he was defendant's maternal uncle. In 1955 he was living on the same stand with defendant's late parents at Clocolan. He was present when the late Khotso, the father of Michael Mohapi came to defendant's father and discussed the marriage between the defendant and Michael Mohapi. It was agreed that the parties to the marriage should marry each other. The bohali was fixed as twelve (12) head of cattle of which eight (8) were actually paid by Khotso Mohapi who was issued with certificate to that effect. That was, to some extent, confirmed by D.W.3, Mabote Namane, the Reserve Headman in Maseru who told the court that in 1968 he was authorised to expel women of loose morals from the
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Maseru reserve. He went from house to house demanding evidence of women living in Maseru township that they were lawfully residing in the township. He remembered coming to the house where the late Michael Mohapi lived with the defendant. He was shown a paper on which it was certified that Mohapi had paid eight (8) head of cattle as bohali for the marriage of the defendant. The paper bore the stamp impression of the Municipality of Clocolan. He was satisfied that the defendant was married to Michael Mohapi and she was, therefore, lawfully residing with him in Maseru township.
Although the appellant disputed the marriage between the defendant and the late Michael Mohapi there was, in my view, overwhelming evidence that they did enter into customary law marriage or what is commonly called "Bantu Customary Union" in the Republic of South Africa. The problem is, however, that according to the law of that country customary law marriage or"Bantu Customary Union" is not recognised as a legal marriage - see the South Africa Law of Husband and Wife by H.R.Hahlo (4th ED) pp. 39 - 40.
I agree that the defendant may not have entered into a legally recognised marriage with Michael Mohapi according to the Law of the Republic of South Africa. It is, however, to be observed that as Hahlo puts it at page 41 op. cit. succession to property "in a Bantu Customary Union ........ devolves according to Bantu Law and Custom ......." That being so there can be
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no doubt that even according to the Law of the Republic of South Africa the question whether or not the defendant is entitled to live on the site that was admittedly allocated to the late Michael Mohapi with whom she was married according to customary law or "Bantu Customary Union" must be determined according to the customary law of Michael Mohapi. It is not disputed that Michael Mohapi was a Mosotho. That being so, the customary law as stated in the Laws of Lerotholi is applicable in this case and the question whether or not the defendant is entitled to live on the site, the subject matter of this dispute, must be answered in the affirmative on the understand, of course, that her eldest son who is still a minor is the heir on whose behalf she will administer this property in accordance with the provisions of S.12 of Part I of the Laws of Lerotholi.
Granted that at the time of his death the late Michael Mohapi had male issue born of his customary law marriage or "union" with the defendant. I am convinced that the Mohapi family's decision (If any at all) nominating the appellant as the heir to his estate was wrong.According to Sesotho customary law as stated in the laws of Lerotholi the male issue of a man is his their (S.11 (1) of Part I of the Laws of Lerotholi). The eldest male child born of the customary marriage or "union" between the defendant and Michael Mohapi should have been nominated as the heir. This court does not consider itself bound by the family of Mohapi's decision which was obviously wrong in as much as it did not comply with the provisions of S.S 11 and 12 of Part I
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of the Laws of Lerotholi.
In the result, I come to the conclusion that this appeal ought not to succeed and it is accordingly dismissed with costs.
B.K. MOLAI
JUDGE
13th May, 1988.
For Appellant : Mr. Pheko
For Respondent : Mr. Pitso
