CIV/T/142/90

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

MOHAPI
KHECHANE Plaintiff

vs

'MOTSENG
MOSUOALLE 1st Defendant

THE
REGISTRAR OF DEEDS 2nd Defendant

THE
ATTORNEY - GENERAL 3rd Defendant

Before
the Honourable Chief Justice B.P. Cullinan

For the
Plaintiff : Mr Z. Mda

For the
1st Defendant: Mr S.N. Peete

JUDGMENT

The first
defendant holds a registered certificate of title , to Site NO.260A,
Mafeteng Reserve. The plaintiff claims that he, '
as the heir to
Ramallane Khechane, a common ancestor, who originally held the site,
is entitled to the site. He seeks in part,

"(a) A declaratory order that Plaintiff is a successor in title
to the estate of the late Ramallane Khechane.

2

2. An
   order declaring that site No.260 forms part of the estate of the
   late Ramallane Khechane.

   
   

2. An
   order directing the Second Defendant to cancel the registered
   certificate of title issued in favour of First Defendant in regard

   of the"said site."

   
   

The
second and third defendants did not enter any appearance in the
proceedings and are no doubt content to abide by the order of
the
Court. The first defendant is hereafter therefore referred to as "the
defendant."

The
defendant does not claim that she holds the site by devolution. It is
her case that the site was acquired by 'Masariki Khechane,
the first
wife of Ramallane, and that 'Masariki donated the site to her. She
also maintains that the plaintiff, a descendant of
the "second
house,".is not, in any event, the heir of Ramallane. In brief
there is dispute as to the family tree, that
is, as to the "first
house" but not the "second house" thereof. I thought
it best, for case of description,
to set out the family tree, in
schematic form, that is, the version thereof of the plaintiff and his
witness Liau Khechane:

1ST HOUSE
2ND HOUSE

(Ramallane)
('Masariki) (Ramallane) (Mapule)

also known as "Dora"

(Sariki)
(Pule) (Dora)

3

'Motseng
(Defendant) (Moahloli) (Elizabeth)

Mohapi (Plaintiff)

The
plaintiff, aged 52 years, claims and testified that there was no male
heir in the first house, and indeed that the defendant
is the
illegitimate daughter of Sariki, who in turn was the daughter of
Ramallane and 'Masariki. As to the second house, the plaintiff
claims
that he is the great grand-son and heir of Ramallane, as he is the
eldest son of his father Moahloli who was the eldest
son of Pule, who
was the eldest son of Ramallane and his second wife Mapule.

The
relevant part of the plaintiff evidence is hearsay, having been
related to him by his deceased father.

The
plaintiff called one witness, his uncle Liau Khechane, aged 81 years
who is apparently a cousin of the defendant. He testified
that
Ramallane and 'Masariki had only one child, that is, Sariki, the
defendant's mother. He denied that, as the defendant had
pleaded
Ramallane and 'Masariki had another child, a son called Simon. He
maintained that the only male issue was Pule in the second
house.

Liau
testified that the defendant had been born out of wedlock, but that
her father Leseme had subsequently married Sariki. In particular,
he
testified that the alleged donation or allocation by 'Masariki to the
defendant "was not admitted",

4

as any
such donation was never agreed by the family or given any publicity .
In cross - examination he conceded that the defendant
had a brother
also named Leseme, but maintained that as her father's name was
Leseme Nkome, similarly her brother must be named
Leseme Nkome. He
denied that the defendant's brother was named Leseme Khechane. He
conceded that the defendant, unlike plaintiff,
had been born at and
had lived all her life at the site in question, and that she had
nursed the aged 'Masiriki, as old then as
the defendant, is now. That
was the position when he as a young man departed for the mines,
'Masariki subsequently dying during
his absence.

It was
put to Liau that 'Masariki had acquired the site in her own right,
while Ramallane was absent on the mines. His only reply
was that
Ramallane "wasn't in mines. He was in Orange Free State".
It was his evidence, in any event that Pule had contested
the
defendant's claim to the site, but he "became sick and died",
he said Moahloli in turn had merely left the defendant
to "guard"
the site, as he stayed in the Republic of South Africa in East London
with his family, including the plaintiff.

In this
respect he conceded that he had attended a family meeting in 1982,
concerning the alleged donation, but claimed that the
meeting had
failed due to non-attendance of the principal parties. An agreed
document was placed before the court, recording a
family meeting at
Mafeteng on 3rd April, 1982, attended by Liau Khechane, and also
Mojalefa Khechane, Monyane

5

Khechane,
Khechane Khechane and the defendant. The document is signed by the
latter four persons but not by Liau. The document indicates
that the
plaintiff "did not care to be present at the meeting, even
though he was still around."

Liau is
recorded on the document as having said that "I know the site in
dispute to be Pule Khechane's according to his statement."

Monyane is recorded as having said however that Ramallane had lived
and died at "Jarefanteng" (sic) , and that the site

belonged to 'Masariki and that Pule "when he arrived from
Jarefanteng where he has a site" had initially lived with
'Masariki, who eventually, on his marriage, allowed him "to live
at the site in dispute, but the site being 'Masariki's, that
is,
without she allocating the site to him. She even lent him a field. He
lived there until his death.”

Khechane
Khachane is recorded as having confirmed what Monyane had said,
adding that Moahloli had lived and died in East London
where Mohapi
also lived. The deft is then recorded as having stated inter alia
that the site at which she lived was donated to
her by 'Masariki. I
shall return to the defendant's statement. Suffice it for the moment
to say that it is then recorded that Liau
was asked "if he
disputed what had been said according to his statement." He was,
however, "unable to dispute or
erase the matter." The
record then read:

6

"For these reasons the Khechane family sitting on a date
mentioned made a decision that the site in dispute by the ones
mentioned
above, belongs to 'Motseng Masualle only, and Mohapi
Khechane should remove his hands from there."

The
record of the meeting of course is hearsay as to what Liau Monyane
and Khechane said. I do not see that any question of a declaration
as
to pedigue arises at the contents concern devolution and not pedigue
and there is no clear evidence that Monyane Khechane is
deceased.
Liau Khechane and apparently Khechane Khechane being very much alive.
Liau concedes however that he attended a meeting
also attended by
Monyane and Khechane (but not Mojalefa). The document is at least a
record of the decision of the family in the
matter, a decision which
in view of the fact that Liau did not sign, or was not asked to sign
thereon, did not find Liau's approval.

To return
to the aspect of pedigue, it is Liau;s evidence, therefore, that the
family tree of the first house schematically looks
like this:

FIRST
HOUSE

(Ramallane) ('Masariki) '

(Seriki) (Leseme Nkome)

Motseng Leseme Nkome

7

The deft
gave evidence and called a witness. It proves convenient, for ease of
comparison, to first set out schematically her version
of the family
tree of the first house:

FIRST
HOUSE

(Ramallane) ('Masariki)

Sariki (Simon) (Maleseme)

'Motseng Leseme Motlatsi Tsepo

The
defendant, aged 91 years, testified that, contrary to the plaitiff's
evidence, Ramallane had not lived with his second wife
Mapule another
house on Site 260A, but had lived with Mapule at her home in
Jaggersfoncein in the Republic of South Africa and
further that
Mapule had never visited Lesotho. Indeed she testified that she (the
defendant) had never met Ramallane, and that
he had neglected '
Masariki, particularly in her old age, staying with Mapule in
Jaggersfontein. Both Ramallane and Mapule preduceased
'Masariki, the
latter serviving, apparently to a very old age, until 1932.

The
defendant testified that Ramallane and 'Masariki had not one, but two
children, namely Sariki and Simon, the latter being the
younger.
Sariki was not her mother, but her aunt. Her

8

father
was not Leseme Nkome, but Simon Khechane, who married Meleseme. Simon
and Maleseme had four children, namely Motseng, the
defendant, who
was the eldest child, followed by three sons Leseme, Motlatsi and
Tsepo.

As to the
site in question the defendant testified that she remained unmarried
so as to care for the ageing 'Masariki. She was very
fond of the old
lady "and she of me", she said. In recognition of her care
of 'Masariki, who had acquired Site 260A by
custom in the absence of
Ramallane in the Republic, 'Masariki donated the said site to her.
Before her death the old lady "called
the Reserve Chief and said
she was about to die and wanted to give me something." The Chief
did not come to 'Masariki, but
sent three Messengers, namely Ramarou,
Jonas Pitsa and Michael Lichaba. Two members of the Khechane family,
namely Mpoko Khechane
and Pule, were also in attendance. The disputed
site had four houses thereon. In the presence of the defendant and
the five witnesses,
'Masariki donated the site with the four houses
to the defendant as a gift.

The
defendant testified that subsequently she married and went to the
matrimonial home for one month (Liau had said fourteen months)
.
Before departure, she had refused to give the keys to Pule. On her
return she found no one on the site. Pule had nonetheless
disputed
the defendant's claim to the site, but had subsequently abandoned his
claim because "he was one of the witnesses",
she said. She
denied that Pule, who was then adult and married, had abandoned his
claim because of ill health,

9

testifying
that he lived for many years thereafter, before he ultimately became
ill and died in the 1950s, aged at least 60 years.
For that matter,
even though her brother Leseme was the second male issue in the first
house, and was therefore the heir (his father
Simon having
predeceased 'Masariki}, he did not contest his sister's claim :
neither for that matter did her brothers Motlatsi
and Tsepo.

The
defendant testified that Moahloli, Pule's son, who had moved to East
London, where he married and where Mohapi was born, had
sought
possession of the keys of the site when she had married, but she had
declined to hand them over. It seems therefore that
after 'Masariki's
death in 1932, no claim in respect of the site was instituted in the
courts until the present proceedings, that
is, a lapse of time
extending over some 58 years.

The
defendant's witness was her nephew, Lebusa Khechane, aged 42 years.
He testified that he was the son of Tsepo, who was the defendant's

youngest blood brother and that his father's blood brothers were
Leseme and Motlatsi. Both Leseme and Tsepo had passed away. He
had
not met his grandfather, as he had passed away before he was born,
but his father had told him that his name was Simon. He
had been
reared at Matelile, some 46 kilometres from Site 2 60A. Subsequently
he lived at Leribe, where he had acquired a site,
being a Sergeant in
the Army.

10

It was
put to him that he knew little of site 260A but he claimed that "I
knew the place well as my grandfather and grandmother
were there and
when the schools were closed I used to pay them a visit". It;
may be that the word "them" was there
used to describe the
witness' relatives in general but that strains the meaning of the
word in the context used. On the face of
it, the witness contradicted
himself, in that earlier he testified that his grandfather had died
before he was born, as it will
be remembered than the defendant had
testified that Simon had predeceased his aged mother 'Masariki, that
is, before 1932. It may
be that the witness referred only to visiting
his grandmother, but the point is that he never mentioned, and was
never asked, the
name of his grandmother. The particular evidence
cannot be completely true, that is, as to visiting the witness'
grandfather. The
question is, was he telling the truth when he spoke
of the relationships within his family tree? He was briefly cross -
examined
on such relationships, and I have to say that the witness
was adamant as to the truth of his evidence.

On the
issue of credibility, the defendant was cross -examined on the
contents of the record of the family meeting held in 1982.
In it she
is recorded as having commenced her address to the meeting with the
following sentence:

"M'e 'M'asariki had only one child and that is me".

11

Mr Mda
submits that chat sentence shatters the defendant's credibility. The
defendant denied ever having uttered the statement,
but then at the
age of 91, I hardly think she could remember something uttered in
1982. Taken at its face value, the statement
does not make sense, as
'Masariki, it seems, was some 50 to 60 years older than the defandant
and could hardly therefore be the
defandant's mother. If by the word
'child' the defendant meant "child and grandchild", then
the statement would not coincide
with her evidence. The statement,
however, has to be read in context. Subsequently the defendant stated
at the meeting.

"None of ' Masariki's children know as to where her grave is or
as to how she was buried."

That
sentence indicates that 'Masariki had more than one child. It was the
defendant's evidence however that 'Masariki's second
child Simon had
predeceased 'Masariki, so that it seems only Sariki had survived her,
if at all. The word ' children' there used
can only have been used
therefore to cover children, grandchildren and possibly great
grandchildren. I see no reason why the word
' child' was not used in
the same sense in the first statement above. That statement taken in
context, and in the context of the
defendants evidence, can only mean
that having for many years without aid from others, at great
sacrifice, (to the extent of postponing
her (the defendant's)
marriage by some ten

12

years or
more), cared for 'Masariki, neglected by her husband, the defendant
considered herself to be the only caring and dutiful
child (or
grandchild or great-grandchild) that 'Masariki had, and that the
other 'children' were so uncaring that they had not
attended
'Masariki's funeral. That, I believe, is the only reasonable
construction which can be placed upon the defendant's first
statement
above. In brief I am not satisfied that her credibility has suffered
thereby.

The
defendant is in possession of a certificate of litle to the site in
question. Attached thereto is a certificate of the allocation
of the
site by the Principal Chief on 25th January, 1968. The allocation is
expressed to have been effected under "sections
88 and 93 of the
Basutoland (Constitution) Order in Council 1965". It seems chat
reference was intended to sections 88 and
93 of the Constitution of
Basutoland (1965) scheduled to the Basutoland Order 1965. In any
event, the latter Order was revoked
by the Lesotho Independence
Order, 1966 so that the form of allocation used by the Principal
Chief was out of date. Nonetheless
the provisions of the relevant
1965 sections were repeated in secitons 93 and 9 8 of the
Constitution of Lesotho (1966), the salient
point being chat under
the latter section the Principal Chief was obliged in making the
allocation (in an urban area) to consult
the local government
authority concerned. Nonetheless, as Mr Mda submits the certificate
of allocation is not conclusive proof
of the defendant's claim to the
site. Neither for that matter is the certificate of title, though as

13

the
learned authors of Silberberg and Schoeman's The Law of Property 3 Ed
(1992) observe at pl07 it is "strong" evidence
of title.

As to the
donation or allocation in question, the maxim donatio non praesumitur
applies. The defendant testified that the donation
was recorded or
rather that

"There was something that was written down. She ('Masariki)
wrote down that that house was a gift. From there she wrote that
my
brother (presumably Leseme) shouidn't fight against me about that
site because it was my gift. I was given the whole site together
with
four houses."

The
further particulars of her plea supplied by the defendant indicates
that the document "evidencing this donation has subsequently
got
lost and has not been traceable despite all diligent searches" .
The donation or allocation was a remuneratory one and
may also be
said to have been effected mortis causa, so that to some extent the
defendant's evidence is fortified thereby. Liau
Khechane conceded
that a donation may take place under customary law and indeed that it
need not be in writing, and there is the
defendant's evidence of
publicity before five witnesses, including three representatives of
the Principal Chief and two of the
family, including the first male
issue of the second house.

14

Mr Mda
submits that even accepting the defendant's evidence, that is, that
'Masariki acquired the site in her own right, the site
would
nonetheless form pare of the matrimonial estate: thus 'Masariki, as a
widow, would under section 14 {2) of the Laws of Lerotholi
only have
the use of Site 260A and could not therefore donate or allocate the
site. I observe that section 14 (2) speaks of "property

allocated to her (the widows) house." I doubt if it could be
said that Site 260A was allocated to the first house in the present

case. Furthermore, section 14 (2) contains a proviso to the effect
that "no widow may dispose of any of the property (so allocated

to her house} without the prior consent of her guardian", which
indicates that allocation or donation by the widow is permissible
in
such circumstances. In this respect the evidence of the defendant
indicates that, inasmuch as her eldest brother Leseme, then
adult and
married and hence the heir and guardian of 'Masariki, had not
contested the donation or allocation, he had consented
thereto.
Again, Mr Mda refers to work by Professor Poulter at pp3ll/312,
whenin the requirements of an allocation are contained.
If the
evidence of the defendant is to be accepted in this case, I however
consider that such requirements were met.

But as I
see it, all of that concerns the validity of the defendant's
title.That aspect is, however secondary. What is of primary

importance is the validity of the plaintiff's claim. He cannot
succeed in this case unless he can prove, and the onus is clearly

upon him that his claim is superior, and that he is

15

the heir
to the estate of Ramallane. As Mr Peete succinctly put it, "the
only way Mohapi can get at the site is to remove Simon
from the
scene." If it is the case that the plaintiff is not the heir to
the estate, then thereafter it falls to the true
heir, if he so
wishes, to challenge the title of the defendant.

The
matter then turns solely on the issue of pedigue, which ultimately
gives rise to an issue of credibility. The evidence of the
plaintiff
and that of Lebusa Khechane is largely hearsay, but is nonetheless
admissible as to general reputation, or as to any
oral declaration by
a deceased relative solely as to pedigree and not the devolution of
the site. Ultimately the case turns on
the direct evidence of Liau
Khechane and the defendant. I have to say that, if anything,
considering the age of both witnesses,
the defendant fared better
under cross - examination. The defendant is ten years older than Liau
and has lived all her life on
the site, Liau having lived elsewhere
and spent some time on the mines, so that her recollection of matters
is probably more extensive.

As to the
plaintiff's declaration, and indeed Liau's evidence, the plaintiff
pleaded that the defendant was the illegitimate daughter
of Sariki.
When questioned by the Court in the matter, Liau agreed that as in
his evidence, Leseme subsequently married Sariki,
the defendant was
therefore legitimate. To have aliened illegitimacy therefore was, as
Mr Peete submits, malicious, and I have
little doubt that it was

16

done in
order to thereby hopefully, impugn the defendant's title. I have to
say that, in any event, Liau being ten years younger
than the
defendant, Liau's evidence as to illegitimacy was completely hearsay.

Then
there is the inordinate delay in bringing these proceedings. By all
accounts, Pule did initially contest the defendant' s title,
but, his
residence at the site not being contested, it seems that his claim
was based on such residence: if it was the case that
he was the heir
to Ramallane's estate then it is likely he would have contested the
donation or allocation on the basis that the
site, as Mr Mda
submitted, fell within the matrimonial estate and the donation or
allocation had been effected without his consent.
As it was, I was
satisfied that, on the defendants evidence, which was not shaken,
that he lived until the 1950s without approaching
the courts in the
matter. There is then a further delay of over thirty years and a
total delay of almost sixty years in bringing
these proceedings. To
consider only the aspect of registration of title, there is a delay
of twenty-one years in seeking to impugn
the defendant's title. Such
delay possibly gives rise to the inference that it was considered
that delay might best serve the plaintiff's
interests. There is no
doubt that, at the age of 91 years, the defendant's memory must be
dulled, but as she herself emphatically
exclaimed, "Even if you
are old you cannot forget the person from whom you are born."

17

Another
aspect which puts me on inquiry, is the insufficiency of information
contained in the plaintiff's declaration. The operative
part thereof
reads as follows:

"4. 4.1 Plaintiff is the great grand-son of the late Ramallane
Khechane and his late wife Masariki Khechane who was the owner
of
rights petaining to a certain developed site, described as Site No.
260 Mafeteng Reserve in the district of Mafeteng .

4.2 Plaintiff is a successor in title to the estate of the said
Ramallane Khechane according to Basotho Law and Custom in that:

4.2.1 Ramailane Khechane first male issue was the late Pule Khechane
whose wife was the late Dora Khechane; the latter's first
male issue
was the late Moahloli Khechane who got married to the late Elizabeth
Khechane and their first male issue is Plaintiff.

5. Defendant
   is the grand daughter of the late Ramallane Khechane in that she is
   an illegitimate daughter of the late Sariki Leseme
   (born Khechane)
   who was the daughter of Ramallane Khechane."

   
   

18

There is
no mention there of any first house or second house or indeed of a
first wife or second wife. The reference in paragraph
4.2.1 to "Dora
Khechane" (Mapule Khechane was also known as "Dora")
can only be, in to context, a reference
to Pule's wife Dora,
Moahloli's wife's name (Elizabeth) being similarly stated. In brief,
the plaintiff was apparently unaware
of his own pedigree and in
particular the' identity of his own great grandmother. The
defendant's plea served to enlighten him.
It read in part:

"2. AD PARAGRAPH 4

The Defendant denies the allegations in this paragraph and alleges
that though the Plaintiff is the great grand-son of the late

RAMALLANE KHECHANE, the Plaintiff's grand-mother is DORA KHECHANE,
the second wife of Ramallane and he is ' not the successor in
title
to the estate of Ramallane. The first male issue of Ramallane was
SIMON KHECHANE, PULE KHECHANE being the some of DORA and
his son was
MOAHLOLI KHECHANE the father of the Plaintiff.

3. AD
   PARAGRAPH 5

   
   

The Defendant admits that she is the grand daughter of the late
Ramallane Khechane but denies she is illegitimate, her father being

Simon Khechane, Sariki being her aunt, who was married to one 'Mifi
but they later separated and she came back into her maiden
household
of Khechane."

19

In view
of the use of the words "great grand-son" in paragraph 2
above, I consider it was intended to refer to Dora (Mapule)
Khechane
as the plaintiff's great grandmohter, that is, "the second wife
of Ramallane." The plaintiff thereafter sought
and was given
further particulars. He sought particulars as to Simon Khechane,
namely the house in which he was born, his male
issue if any the
latter's name and that of his wife and children if any, the name of
the defendant's mother, and details of the
donation of the defendant.
Under rule 25 (1) of the High Court Rules the purpose of further
particulars is stated to be that of
enabling a party to plead to any
pleading delivered to him, and specifically in the case of a
defendant's plea, to enable a plaintiff
to replicate thereto. Under
rule 24 (3) the non­delivery of a replication does not amount to
an admission of the allegations
in a plea. Nonetheless, in view of
the further particulars, supplied in detail by the defendant, one
would have expected, as Mr
Peete submits, that the plaintiff would
have replicated thereto.

In
particular I observe that one of the further particulars sought by
the defendant was, "Who was Ramallane's first wife?"
The
defendant had stated the identity of the second wife. The plaintiff
had himself referred in his declaration to 'Masariki and
one is left
with the impression, when one considers the declaration, that the
plaintiff was not so much seeking to establish the
defendant's
position as to pleadings, but to ascertain for himself where
'Masariki fitted into the scheme of things. That then
can hardly
engender any confidence in his or

20

his
witness' denial of -he existence of Simon Khechane.

More
importantly, as I have said, Liau insisted that Sariki's husband was
named Leseme Nkome and that, if the defendant had a brother
also
named Leseme, his name must then be Leseme Nkome. In this respect the
evidence of Lebusa Khechane corroborates that of the
defendant. It is
corroborative of course as to the existence or Simon, as he learnt of
that from his deceased father: so also is
the plaintiff's evidence
corroborative of Liau's evidence, inasmuch as his deceased father
informed him that the defendant was
the daughter of Sariki. The

importance
of Lebusa Khechane's evidence, however, is that he testified that he
has a father and two uncles, Tsepo, Leseme and Motlatsi,
presumably
all named, as he is, Khechane. The defendant supplied further
particulars even as to Leseme's wife and children namely
'Machabo
Khechane (wife), and children Simon (junior) Khechane, Khechaner
Khechane (possibly the 'Secretary' to the meeting held
in 1982) and
Thuso Khechane. No replication was had to the defendant' s plea. As I
have said. More importantly still, Liau never
explained how it was
that if the defendant's father was named Nkome, she herself bore the
maiden name Khechane, a fact which is
evident from the record of the
1982 meeting where her name is srated to be " 'Motseng Masualle
(born Khechane)" and which
indeed she signed " 'Motseng
Khechane."

21

Suffice
it to say Therefore that I prefer the evidence of and for the
defendant to that of and for the plaintiff. I am satisfied
therefore
that the defendant is the daughter of Simon Khechane and that Simon,
as the first male issue in the first house, was
Ramallanes heir.
Consequently the present heir is to be found among Simon's
descendants in Ramallane's first house. The plaintiff
cannot be the
heir to the estate and cannot prove any better title than that of the
defendant. The plaintiff s claim is therefore
dismissed with costs to
the defendant.

Dated
this 15th Day of June, 1995.

B.P.
CULLINAN

(B.P.
CULLINAN)

CHIEF
JUSTICE