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C OF A
(CIV) NO.31 OF 1994

IN THE
LESOTHO COURT OF APPEAL

In the
matter between

KOMELLO
MAHANETSA Appellant

and

MALIPOLELO
LYLIAN MAHANETSA Respondent

HELD
AT:MASERU

CORAM:

Mahomed
F.

Steyn
J.A.

Browde
J.A.

JUDGMENT

Mahomed
P.

The
respondent in this appeal was the successful applicant in the Court a
quo, in which she sought an order declaring that she was
the sole
widow of the late PALI PAUL MAHANETSA ("the deceased") and
directing the Commissioner R.L.D.F. (the employer
of the deceased) to
pay all the "terminal benefits" of the deceased, to her as
the sole widow.

Neither
the Commissioner (R.L.D.,F) nor the Attorney General who were cited
as respondents opposed the relief prayed for by

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the
applicant in the Court a quo. Only the appellant in this appeal, (who
was the first respondent in the Court a quo) opposed the
application.
His ground of opposition was that the deceased (his son) , was not
married to the respondent but to one Motselisi
Mahanetsa (MOTSELISI).
He also alleged that the applicant was not Malipolelo Mahanetsa but
MADANIEL SHATA and that she was the
daughter-in-law of one DANIEL
SHATA. These allegations were denied by the respondent.

In
support of her claim that she was married to the deceased the
respondent produced some formidable evidence. This included a
marriage certificate signed by the District Commissioner and issued
in terms of Section 16 of Proclamation No.7 of 1911. This certificate

reflects a marriage solemnized on the 13th of September 1982 between
the deceased and MORONGOE LYLIAN MASIKE which the respondent
said was
her name before the marriage. The certificate was correctly treated
by the Court a quo as prlma facie proof of the marriage.
The only
attack that was made on this certificate on behalf of the appellant
was that the writing thereon which referred to the
deceased was not
the signature of the deceased and was different from the signature of
the deceased on bis passport. This attack
is based, however, on a
fallacy. It assumes that the writing which incorporates the name of
the deceased on the certificate purports
to be his signature. It does
not.

The prima
facie case produced by the certificate is supported not only by the
respondent's own evidence, but also by

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one G.
TSEETSA who deposes under oath that he was present when the marriage
was contracted and that he appeared before the marriage
officer at
Leribe as a witness to the marriage between the deceased and the
respondent.

The
respondent also supported her claim by other documentary and
circumstantial evidence. This included an insurance policy in which

the deceased is reflected as the assured and the respondent as
co-assured. The respondent is reflected, as having the surname of
her
husband and her maiden name as MASIKE. Reliance is also placed on a
savings' account opened by the deceased on behalf of FLORINA,
who is,
according to the respondent, the daughter of the deceased and the
respondent.

The
answer of the appellant to the strong prima facie established by the
respondent on this evidence, is very weak and speculative.
He
produces no document to support his claim that the respondent was
married to any person other than the deceased, or that the
deceased
was married to any person other than the respondent, or that if any
such other marriages existed they were not dissolved
before the
marriage entered into between the respondent and the deceased on the
13th of September 1982. Nor does he produce any
affidavit from
MOTSELISI who he says was married to the deceased or from DANIEL
SHATA who he says is the real father-in-law of
respondent or from any
other member of the SHATA family to support the averment that the
respondent was married to a SHATA.

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The
stubborn denial by the appellant that the respondent is who she says
that she is, that she was indeed married to the deceased,
that the
parties appeared before a marriage officer to solemnize the marriage
on the 13th of September 1982, that this marriage
was witnessed by a
person who knew the parties, that there was a child born of this
marriage called FLORINA and that the deceased
helped in the support
of this child, is unsupported by any cogent evidence or
circumstances. I am not persuaded that the "dispute"

manifested by these denials is a bona fide dispute at all.

If there
was indeed a bona fide dispute on the relevant issues, I would have
expected the appellant to tender viva voce evidence
in support of his
averments and to ask for an opportunity to test the averments made by
the respondent in cross-examination. Notwithstanding
an invitation
from the Court a quo, the appellant's legal representative made no
such application to lead viva voce evidence and
he indicated that he
could take the matter no further. The Court a quo was, in these
circumstances, entitled to grant to the respondent
the relief she
claimed.

Counsel
for the appellant, quite properly and understandably conceded that he
had difficulty in attacking the judgment of the Court
a quo, on these
facts.

In my
view the appeal is without merit. X order that the appeal be
dismissed with costs.

I.
MAHOMED

PRESIDENT
OF COURT

OF APPEAL

I agree

JUDGE OF
APPEAL

I agree

J. BROWDE

JUDGE OF
APPEAL

Dated at
Maseru this 13TH day of January, 1995.