CIV/APN/218/97
IN THE HIGH COURT OF LESOTHO

In
the matter between:

MAPITSO
ELSINA SEMAHLA Applicant

and

RAMONATE KOENAESELE JOSEPH LEPHOLE
Respondent

JUDGMENT

Delivered by the Honourable Chief Justice Mr. Justice
J.L. Kheola on the 4^th day of January. 2000

This is an application for an order in the following
terms:

1. Interdicting Ramonate Koenaesele Joseph Lephole, the
respondent herein, from in anyway, except by due process of law,
interfering
with the applicant's rights of ownership and occupation
of or any person deriving the same from the applicant of certain
residential
premises lately the property of Mafereka Semahla, since
deceased, situate at Qoaling, Ha Seoli in the Maseru urban area.

2

2. Restraining the respondent from going onto the
premises for any

purpose whatever that detracts from the applicant's
right to the said property and, more particularly, letting out any
portions thereof
for hire and collecting its rent or interfering with
any tenants placed thereat by the applicant.

3. 
   Ejecting forthwith the respondent and all persons
   occupying the said
   premises by act or deed of the respondent from
   the same.

   
   

4. 
   Granting the applicant the costs of this application.

   
   

5. 
   Granting the applicant such further or alternative
   relieve as to this
   Honourable Court may seem just.

   
   

It is common cause that the applicant is the widow of
the late Mafereka Semahla. They lived at Levy's Nek in the district
of Leribe
where they had a home. In 1965 her late husband came to
live here in Maseru. During his stay in Maseru he lived as husband
and wife
with a certain woman who used to state that her name was
'Mateboho Alina Mokhali and she said that she was married to one
Tlhoriso
Nchepe.

3 During his stay in Maseru her husband (the deceased)
built a four roomed

house which constituted his residence, three single and
one double roomed structure let out to tenants. The applicant alleges
that
she used to collect rent of these rooms since the deceased's
death without let or hindrance. The trouble started in 1996 when the
respondent expelled all her tenants from the rooms and substituted
them with his own tenants from whom he collected rent for his
own
benefit.

The applicant alleges that the respondent is the husband
to the sister of the woman who she has averred used to live with the
deceased.
The respondent's aforesaid conduct emanates from his claim
of right based on this relationship. She respectfully submits that
this
is untenable, insupportable and merely provocative. She further
submits that the respondent is taking advantage of the fact that
she
is single and an old woman aged seventy-eight years.

In his opposing affidavit the respondent gives an
entirely different story from that of the applicant. He avers that
the woman referred
to above by the applicant was the second wife of
the deceased. Her name is 'Mateboho and her eldest son is Teboho. The
respondent
has filed supporting affidavits of people who know that
the deceased and 'Mateboho were lawfully married to each other

4 by customary law. Their marriage was blessed with
three children, namely:

1. 
   'Matseliso, a girl bom in 1963.

   
   

2. 
   Teboho, a boy bom in 1967.

   
   

3. 
   Mpho, a girl bom in 1980.

   
   

According to the respondent Teboho as the only son in
the second house of the deceased is the heir in that house. The
applicant is
the senior wife of the deceased in the first house. Her
son, Pitso, is the heir in the first house. In 1994 in CC 86/94 of
Matala
Local Court Teboho sued Pitso for ejectment from the site
which is the subject matter of the present application. That case was
decided
in favour of Teboho and Pitso was ordered to vacate the site
as it was found by the court that it was Teboho's parental home. The
court found that Pitso had his parental home at Leribe ha Nkhasi.
That is where the deceased had his home for his first house.

The judgment of Matala Local Court in CC 86/94 is
annexed to these proceedings as Annexure "A". It seems that
Pitso was
not happy with that decision and applied for review by
Chief Magistrate on the 13th September, 1994. The learned Chief
Magistrate
confirmed the decision of the President of Matala

5 Local Court. That decision is Annexure "C"
to the present proceedings.

The respondent avers that during 1995 Teboho fell ill
and authorised him (respondent) to follow up the execution of CC
86/94. Annexure
"B" is a document signed by Teboho
authorising the respondent to represent him because of ill health and
work. Annexure
"B" was made in terms of section 20 of the
Central and Local Courts Proclamation No.62 of 1938. In 1996 Teboho
passed away
leaving orphans who also appointed the respondent as
their representative in litigation. Annexure "D" is a
document made
by the orphans. He denies that he uses the rent for his
own benefit but avers that he duly passed it to the minor children.

In her supporting affidavit 'Mantsane Amelia Mokhali
avers that she is the mother of 'Mateboho who was married to the
deceased by
customary law in 1967 and that about eighteen head of
cattle were paid as "lobola". She confirms that one Charles
Mofeli
was sent to her family to engage 'Mateboho on behalf of the
deceased. She accepted the engagement but insisted that the marriage
should be solemnised in church because she was a Christian.

In his supporting affidavit Charles Dabende Mofeli avers
that the deceased

6 was his cousin. In 1967 the deceased married 'Mateboho
by Sesotho law and

custom. He was personally present and thirteen head of
cattle were paid as "lobola". In 1968 the deceased and
'Mateboho
were allocated a residential site at Maseru Lower Seoli. He
avers that he knows that as a matter of fact because he used to stay
with the deceased and 'Mateboho. The said site was allocated to them
by Chief Jobo Seoli Matsoso.

In her supporting affidavit 'Matsoso Margaret Lephole
avers that during 1967 her sister 'Mateboho married the deceased. At
the time
of his death the deceased had already paid eighteen head of
cattle as "lobola".

The last supporting affidavit is made by one Matsoele
Matsoele who avers that the deceased is his brother-in-law as he is
married
to his sister 'Malikhapha. He knows as a matter of fact that
the deceased married Mateboho and paid eighteen cattle as "lobola".
He even contributed an amount of five hundred maloti for his
marriage.

In her replying affidavit the applicant avers that she
is unable to deny that her late husband paid "bohali" for
'Mateboho.
What she does submit is that such purported "bohali"
could not result in any marriage whatsoever inasmuch as when

7 it was allegedly paid "Mateboho was still
lawfully married to one Tlhoriso

Nchepe.

The last concession made by the applicant that she is
not in a position to deny that her late husband paid "bohali"
for
the marriage of'Mateboho settles this matter. Her late husband
was a polygamist with two wives. The applicant was the senior wife
whose home was in Leribe. 'Mateboho was the second or junior wife
with her home at Seoli's here in Maseru. The applicant's submission
that the "bohali" that was paid by her late husband for the
marriage of 'Mateboho could not result in a marriage inasmuch
as when
it was paid 'Mateboho was still married to one Tlhoriso Nchepe is
without any substance. The applicant has failed to call
Tlhoriso
Nchepe as her witness to prove that 'Mateboho was his wife at the
relevant time when the deceased purported to pay "bohali"
for her marriage. This is the second time that the applicant has
failed to call Tlhoriso Nchepe as her witness. On page 49 of the
record in CC 86/94 the Local Court President remarked that her heir
(Pitso) failed to call this star or very vital witness in his
case.
The evidence by the respondent and his witnesses is to the effect
that 'Mateboho was still unmarried when the deceased married
her. It
is their evidence that she already had some children when the
deceased married her but he took her together with them. Teboho
and
Mpho were bom after the marriage. What is of

8 utmost importance is whether there was a valid
marriage between the deceased and

'Mateboho. I have found that there was a valid customary
marriage between them and that the applicant has failed to prove any
marriage
between 'Mateboho and Tlhoriso Nchepe.

Another aspect of this case which is causing me some
serious concern is the fact that as long ago as 1994 the two widows
of the deceased
already had heirs who were already majors. Teboho is
the son of 'Mateboho. He instituted an action against Pitso who is
the son of
the applicant. He wanted to have him ejected from the same
site which is the subject matter of the present application. The case
is CC 86/94 which is Annexure "A". Teboho won the case and
Pitso was ejected. The Chief Magistrate confirmed that judgment
on
review.

There has been no appeal against that review order. The
applicant has changed the forum and has come to the High Court to
have the
respondent ejected from the said site. His son Pitso is
still alive and is her lawful heir who lost a similar case against
Teboho.
What is clear from the record is that the marriage of
'Mateboho was found to be a lawful one. How can the applicant again
raise the
question of the validity of "Mateboho's marriage again
when her heir has already lost that case? It can be argued that the
case
is not res judicata because the

9 applicant and respondent are different parties. I
agree with that. However Pitso

is the applicant's heir and has already lost the case in
which the validity of 'Mateboho's marriage was well canvassed and was
found
to be in order. The respondent is merely a representative of
the minor children of 'Mateboho.

The locus stand: of the applicant also arises in this
application. Section 11 (1) of the Laws of Lerotholi provides:

"(1) The heir in Basotholand shall be the first
male child of the first married wife, and if there is no male in the
first house
then the first bom male child of the next wife married in
succession shall be the heir.

(2) If there is no male issue in any house the senior
widow shall be the heir, but according to the custom she is expected
to consult
the relatives of her deceased husband who are her proper
advisers."

The applicant's heir is Pitso and therefore she has no
locus standi to have brought this application. Her heir was
previously sued
by Teboho and was ejected from the said'premises.

10 In the result the application is dismissed with
costs.

J.L. KHEOLA
CHIEF JUSTICE

4th January, 2000

For Applicant - Mr. Sello
For Respondent - Mr.
Mafantiri