CIV/APN/305/92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MALIPOLELO
LYLLIAN MAHANETSA Applicant

vs

KOMELLO
MAHANETSA 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

THE
COMMISSIONER (R.L.D.F.) 3rd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 28th day of June
1994

The First
Respondent is the only one who opposes the prayers for declaring the
Applicant the sole widow of the late Pali Paul Mahanetsa,
that all
terminal benefits of the estate of the late Pali Paul Mahanetsa be
paid to the Applicant and directing the First Respondent
to desist
forthwith from interfering in any way with the estate of the late
Pali Paul Mahanetsa. One clear indication of what would
exercise the
mind of the Court is this statement contained in paragraph four of
the Applicant's Replying Affidavit which goes:

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"It is significant that the 1st Respondent does not want to
acknowledge me even as he sees a copy of the official marriage

certificate. 1st Respondent has not obtained the affidavit of the
said MOTSELISI nor has he annexed any marriage certificate in
support
of his allegations which I submit are false and 1st respondent is put
to the proof thereof." (my underlining)

It is
important to note that in support of the existence and the validity
of the Applicant's marriage to the late Pali Paul Mahanetsa
the
Applicant has obtained the affidavit of G. Tseetsa who was present
and a witness to the said marriage of the Applicant and
the deceased.

On the
6th June 1994 when the matter was placed before me Mr. Molete for the
First Respondent indicated that perhaps the matter
could not be dealt
with on the papers without the aid of viva/a voce evidence. Mr.
Mathafeng for the Applicant also agreed with
Mr. Molete'x
observation. No aspect or issue of the dispute was spelled out as
requiring ventilation by way of viva voce evidence.
It was on that
note that the matter was postponed to the 8th June, 1994.

On the
8th June 1994 Counsels appeared as before. The matter could not
proceed for the reason of being crowded out by

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other
matters. Hut then it was clear that the parties were not ready to
bring in evidence as agreed previously. I there and then
indicated to
the Counsels that question of the Applicant's marriage to the
deceased PALI PAUL MAHANETSA was the central issue to
the resolution
of the dispute. It did not matter at that stage, in my judgment, what
the probabilities were on the other issues
but the First Respondent
had to satisfy me that the marriage of the Applicant to the deceased
by civil rites on 13th September
1982 (as born out by an annexed copy
of the marriage certificate) did not exist or was a nullity. (see
section 35 of Marriage Act
No, 10 of 1974 and the comments of the
learned author D. Zeffert in the 4th edition of South African Law of
Evidence at page 620
under section 2 (a) proof of marriage
generally), I also ordered that Mr. Molete (if he so wished) should
file additional affidavits
on any question, including these ones that
came out in the First Respondent's Affidavit. The questions were
firstly, that the deceased
had been married to one Motselisi
Mahanetsa (born Koeshe) and secondly that "to the best of my
knowledge and belief the Applicant
is Madaniel Shata and
daughter-in-law of Daniel Shata of Qacha's Nek whom he knew
personally," as stated by the First Respondent.
The First
Respondent is the deceased's father.

It is
important to note that at no time was the evidence of Motselisi
Mahanetsa (the alleged other wife of the deceased) made

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available.
Furthermore, nothing was brought forward of the Applicant's
relationship with the Shata family except what was later
revealed in
an Order of Court to be referred to later in the judgment. This is
important because the suggestion had been made of
the possibility of
the Applicant being married to the Shata family and the Mahanetsa
family probably at the same time. Equally
important would have been
an answer as to when was the Applicant married to this member of the
Shata family whose name had not
been mentioned in the First
Respondent's affidavit. If the Applicant was indeed married to a
member of the Shata family and if
such marriage proceeded this one to
the deceased Paul Pali Mahanetsa it meant that the Applicant has been
engaged in polyandry
and that this marriage to Pali Paul Mahanetsa
would be null and void. (See section 29(1) of Marriage Act No, 10 of
1974 and learned
author (section 29 (1) of Marriage Act No. 10 of
1974 and learned author (as he then was) W.C.M, Maqutu in
contemporary Family
law of Lesotho on pages 94-95 under 9.4
polyandry) But then the Court Order in case number CIV/T/206/80
eventually answered most
of the questions.

It was in
the above circumstances that on the morning of the 27th June 1994
despite the protestation of Mr. Mathafeng for the Applicant,
I again
adjourned the matter to the afternoon. I had hoped, in all fairness,
that there would be some evidence in support of the
other aspects or
issues which would amount to a

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defence
in favour of the First Respondent. It is significant to note that at
that juncture Mr. Molete had already conceded that
he had failed to
find anything that could invalidate the Applicant's said civil
marriage. Anything that came near to being a matter
of interest was
an order of Court in case number CIV/T/206/80 being in the matter
between Morongoe Albertina Shata (born Mohapi)
against Victor Felleng
Shata. The order was issued by the Chief Justice Mr. T. S. Cotran (as
he then was) that:

"1, An order condoning Plaintiff's adultery, be and is hereby
condoned.

2. (a)
   That (a) and (b) is hereby granted;

   
   

2. Plaintiff
   is awarded custody of the minor children of the marriage;

   
   

2. Defendant
   is ordered to maintain children of the marriage at the rate of
   R15.00 per child per month;

   
   

2. Defendant
   forfeits all benefits arising out of the marriage;

   
   

2. Costs
   of suit awarded to Plaintiff."

   
   

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This
Order of Court was exhibited later in the afternoon. One of the
prayers granted had been for the dissolution of the parties'

marriage. It is clear that the order was made quite before the 13th
September 1982, when on the mentioned date the Applicant and
the late
Paul Pali Mahanetsa contracted their marriage. The dissolved marriage
could not have any effect on the Applicant's marriage
with Paul Pali
Mahanetsa. This is even assuming that the Applicant is in fact
MORONGOE ALBERTINA SHATA.

In the
absence of any evidence to disprove the salient facts entitling the
Applicant to the relief sought, the First Respondent's
Counsel
conceded, most wisely, that he could not carry the matter any
further, I therefore found for the Applicant on the balance
of
probabilities, In this decision I have considered this array of
uncontroverted facts and all the circumstances of the case,
which
show in a way that leaves no doubt, that the deceased was Applicant's
husband by law, (see Selamolele vs Makhado 1988(2)
SA 372 at 375D-E)

I made
the orders that:

1. The
   Applicant is declared the sole widow of the late Pali Paul
   Mahanetsa.

   
   

2. The
   Third Respondent is directed to pay all the

   
   

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terminal benefits of the late Paul Pali Mahanetsa to the Applicant,

3. The
   First Respondent is directed forthwith to desist in anyway from
   interfering with the estate of the late PALI PAUL MAHANETSA.

   
   

4. Each
   party shall pay its own costs.

   
   

T.
MONAPATHI

JUDGE

28th
June, 1994

For the
Applicant : Mr. Mathafeng

For the
1st Respondent : Mr. Molete