CIV/APN/50/84
IN THE HIGH COURT OF LESOTHO
In the Application of
LINEO ERNESTINA MOKOTLA Applicant
V
AUPA NTOAHAE MOKOTLA 1st Respondent
NCOLA EMPLOYMENT SERVICES
(PROP) LIMITED (VEZAMAFA) 2nd Respondent
THE COMMISSIONER OF LABOUR 3rd Respondent
SOLICITOR GENERAL 4th Respondent
LESOTHO NATIONAL DEVELOPMENT
BANK 5th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 29th day of March, 1985.
On 5th March, 1985 the applicant moved this Court for an interim order, against the respondents, framed in the following terms
". That the 1st respondent Aupa Ntoahae Mokotla be immediately restrained from claiming from the offices of the 2nd respondent,
Ncola Employment Services (Prop) Limited (Vezamafa) in Maseru as well as from the offices of the third Respondent the Labour
Commissioner, funds amounting to Nine thousand, One hundred and twenty-one Rand, Forty-four cents comprising the estate of the late Khanyapa Ellies Mokotla and coming from the Vryheid (Natal) Railway Coal & Iron Company Limited in Natal in the Republic of South Africa through the Rand Mutual Assurance Company Limited pending the finalization of this application and the action which the applicant contemplates launching immediately against the First Respondent if he (first Respondent) opposes this application.
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That Ncola Employment Services (Proprietary) Limited (Vezamafa) the Sec6nd Respondent herein, be restrained and/or interdicted forthwith from paying out the abovementioned funds of M9,121.44 in its custody and control in the name of the late BORANE SYDNEY MOKOTLA to the First Respondent pending the finalization of this application and the action which the applicant contemplates-taking against the First Respondent, if he opposes this application.
That the Second Respondent Ncole Services (Proprietary) Limited be ordered to pay forthwith to the Applicant Lineo Ernestina Mokotla as the legal beneficiary and heir the funds amounting to M9,121.44 in its custody and control and in the name of the late BORANE SYDNEY MOKOTLA in the even of the First Respondent not opposing this application.
That the Third Respondent, the Labour Commissioner herein, be restrained from paying any funds
in the name of the late BORANE SYDNEY MOKOTLA that may be in his possession to the First Respondent AUPA NTOAHAE MOKOTLA pending the finalization of this application.
That the Lesotho National Development Bank the Fifth Respondent herein, be restrained or interdicted from paying to the First Respondent AUPA NTOAHAF MOKOTLA or his father SIDWELL MOKOTLA an amount of SIX THOUSAND, THREE HUNDRED AND TWENTY-THREE MALUTI TWENTY CENTS (M6,323.20) or any portion thereof that may presently be in the bank account of BORANE SYDNEY MOKOTLA pending the finalization of this application.
That the Lesotho Bank (Fifth Respondent) be ordered to pay forthwith to the Applicant
MRS. LINEO ERNESTINA MOKOTLA as the rightful legal beneficiary and heir of the late BORANE SYDNEY MOKOTLA the amount of M6,323.20 or any portion of it that may be remaining to the Credit of the late BORANE SYDNEY MOKOTLA in the event that the First Respondent Aupa Ntoahae Mokotla decides not to oppose this application.
That the First Respondent Aupa Ntoahae Mokotla be ordered to pay the costs of this application on an attorney and client scale.
That the Second, Third, Fourth and Fifth Respondents be ordered to pay ordinary costs of this application only if they oppose the applicant's application.
That the application be granted such further and/or alternative relief as the above Honourable Court deems fit."
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I granted the order in the following terms:
"That the Rule Nisi be and is hereby issued calling upon the Respondents herein to show cause, if any, on MONDAY the 26th day of March, 1984 at 9.30 a.m. or so soon thereafter as the matter may conveniently be heard why such Rule Nisi cannot be confirmed in the following terms:
That the First Respondent AUPA NTOAHAE MOKOTLA be immediately restrained from claiming from the offices of the Second Respondent NCOLA EMPLOYMENT SERVICES (PROPRIETARY) LIMITED (VEZAMAFA) in Maseru as well as from the offices of the Third Respondent the Labour Commissioner, funds amounting to NINE THOUSAND, ONE HUNDRED AND TWENTY-ONE RAND FORTY - FOUR CENTS (R9,121.44) comprisingthe estate of the late KHANYAPA ELLIAS MOKOTLA and coming from the VRYHEID (NATAL) RAILWAY COAL & IRON COMPANY LIMITED in Natal in the Republic of South Africa through the Rand Mutual Assurance Company limited pending the finalization of this application and the action which the applicant contemplates launching immediately against the -First Respondent if he (First Respondent) opposes this application.
That Ncola Employment Services (Proprietary)
Limited (Vezemafa) the Second Respondent herein, be restrained and/or interdicted forthwith from paying out the abovementioned funds of R9,121.44 in its custody and control in the name of the late BORANE SYDNEY MOKOTLA to the First Respondent pending the finalization of this application and the action which the Applicant contemplates taking against the First Respondent if he opposes this application.
in the name of the late BORANE SYDNEY MOKOTLA that may be in his possession to the First Respondent AUPA NTOAHAE MOKOTLA sending the finalization of this application.
That the Lesotho National Development Bank, the Fifth Respondent herein, be restrained or interdicted from paying to the first Respondent AUPA NTOAHAE MOKOTLA or his father SIDWEL MOKOTLA
an amount of SIX THOUSAND THREE HUNDRED AND TWENTY THREL RAND TWENTY CENTS (Rfa,525.20) or any portion thereof that may presently be in the bank account of BORANE SYDNEY MOKOTLA pending the finalization of this application.
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That the Second, Third, Fourth,and Fifth Respondents be ordered to pay ordinary costs of this application only if they oppose the Applicant's application.
That prayers 1, 2, 3 and 4 inclusive operate as an Interim Order and Interdict having immediate effect."
Only the First Respondent opposed confirmation of this order. Applicant's founding affidavit disclosed that she was the wife of BORANE MOKOTLA to whom she Was married according to the Sesotho Law and Custom. Out of the marriage six children were born namely, Mookho Mokotla, a girl born in 1956, Khotonyane Mokotla, a boy born in 1959, Khanyapa Mokotla a boy born in 1963, 'Mamolemo Mokotla, a girl born in 1966, Makhalanyane Mokotla, a boy born in 1969 and 'Matselane Mokotla, a girl born in 1973.
On 12th September, 1983, Khanyapa Mokotla died in mine disaster while in the employment of the Second Respondent in the Republic of South Africa. As a result certain amounts of moneys viz. M6,323.20 and M9,121.44 became due and payable by the Second Respondent to his beneficiaries Borane Mokotla and the Applicant. The M6,323.20 was in fact paid to Borane Mokotla who deposited it with the Lesotho Bank, the Fifth Respondent, The M9,121.44, in the form of a cheque payable to Borane Mokotla, was still in the custody/or possession of the 2nd Respondent.
On 27th January, 1984, Borane Mokotla himself passed away leaving the applicant as his only legal wife. The chief of both the applicant and the First Respondent filed an affidavit in support of the applicant's averments.
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According to Applicant, First Respondent who is the son of Borane Mokotla's brother was making frantic efforts
to have himself declared the heir to the estate of Borane Mokotla so that he could withdraw the M6,323.20 deposited with the Fifth Respondent by the late Borane Mokotla and also claim the M9,121,44 still in the hands of the Second Respondent. Consequently the applicant feared that unless the Respondents were interdicted as prayed she stood to suffer irreparable financial harm.
In his answering affidavit, First Respondent conceded the Sesotho customary marriage between the applicant and his uncle Borane Mokotla. He, however, deposed that in 1973, the applicant deserted Borane Mokotla and went to live with a certain Gabriel Nthejane to whom she was married prior to her marriage with Borane Mokotla. He annexed a copy of a marriage certificate as proof that on the 12th March, 1949, the applicant and Gabriel Nthejane entered into a civil marriage in Bothaville an the Orange Free State the Republic of South Africa. The purported marriage between the applicant and Borane Mokotla during the subsistence of her civil marriage with Ntbejane was, therefore, a nullity. As applicant was not a lawful wife of Borane Mokotla, she had no claim in the Mokotla family which had appointed him as the heir to the estate of the late Borane Mokotla. Wherefore 1st Respondent prayed that the interim order be discharged with costs.
In her replying affidavit, the applicant persisted that she was the lawful wife and widow of the late Borane Mokotla. Even if she was once carried to Gabriel Nthejane,
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that marriage was dissolved prior to her subsequent marriage to her late husband.
It is important to note that applicant could not produce any court decision to substantiate her bare allegation that her previous marriage with Nthejane had been dissolved at the time she got married to Borane Mokotla. In my view, the probabilities seem to favour the First Respondent's contention that prior to her marriage with Borane Mokotla, applicant was already married to Nthejane and the marriage had not been dissolved. That being so, it must be accepted that her purported marriage to Borane Mokotla during the subsistence of her former marriage to Nthejane was a nullity. There is,however, no evidence that at the time applicant and Borane Mokotla entered into their Sesotho marriage,the latter knew that the former was still married to Nthejane. He could, therefore, have been an innocent party to the marriage.
The significance of this is that,if Borane Mokotla who apparently lived with the applicant, for many years as husband and wife, was an innocent party the purported marriage could be considered putative and the children born thereof his ligitimete children. Borane Mokotla could therefore lawfully inherent in the estate of the late Khanyapa Mokotla, his legitimate son.
If however, Borane Mokotla was aware that the applicant was, prior to their marriage, married to another man and the marriage still
subsisted, he could not claim the children born of his union with the applicant his legitimate children. He was not therefore entitled to inherit in the
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estate of the late Khanyapa Mokotla. I think it is clear from the papers placed before me that the estate over which the 1st Respondent claims to be the beneficiary is the late Khanyapa Mokotla's estate which was inherited by the late Borane Mokotla on the basis that the deceased Khanyapa Mokotla was his legitimate son. If,however,Borane Mokotla was, in law, not entitled to inherit the estate for the reason that the late Khanyapa was not his legitimate son, it goes without saying that the 1st Respondent's claim based on the ground that he was the heir to the estate of the late Borane Mokotla cannot be entertained. It must also be borne in mind that applicant and the late Borane Mokotla admittedly had their own children amongst whom there are sons of whom Khotonyane Mokotla and not the 1st Respondent is the eldest. Legitimate or not legitimate Khotonyane Mokotla and his younger brothers have in my view, a better claim to the estate than the 1st Respondent who is the son of the late Borane's brother.
If the Mokotla family did decided to appoint 1st Respondent as the heir in preference to the children of Applicant and the late Borane Mokotla this Court considers such a decision unfair in as much as it is contrary to Sesotho custom. The Court does not therefore consider itself bound by such a decision.
Having said that much, it is clear that the view that I take in the matter is that this application ought to succeed and it is accordingly
ordered. The rule is confirmed with costs as prayed.
JUDGE.
29th March, 1985.
For the Applicant . CM. Masoabi
For the Respondents. W. C.M. Maqutu.
