CIV/A/24/83

IN THE
HIGH COURT OF LESOTHO

In the
Matter of

PARAMENTE
N. MOLOMO Appellant

v.

'MAMPOI S
MOLOMO Respondent

JUDGMENT

Delivered
by the Hon Acting Mr. JusticeD S. Levy on the 11th day of June, 1985.

This
matter began in 1979 when an action was insti­tuted by the
appellant in the Central Court for an order that he was, as
the
younger brother, the right­ful successor to the chieftainship of
certain Chief Seatile He cited as the defendant in that
action the
present Respondent 'Mampoi Molomo on the grounds that she contended,
contrary to his claim, that she as the surviving
customary wife of
Chief Seatile was Chief-tainess in his place and that she acted as
such as regent for their minor son.

There is
no doubt whatsoever that a union existed between Respondent and the
late Chief which led to the birth of five children
or at any rate, of
four daughters recognised by all the parties and of the fifth child,
a son, about whose legitimacy some doubt
has been expressed I must at
once make it clear that in the absence of the joinder of that child
in his own right as a party in
these proceedings, I would not for one
moment consider his illegitimacy as being part of the issues in this
case. Whether or not
he is a legitimate child of the customary union
of the Respondent and the late Chief will be a matter for
determination in another
action if one is to be instituted. But in
these proceedings, I will pay no

2

attention
to any evidence that has been alluded to even though in the most
indirect fashion,in regard to the legitimacy or otherwise
of that
child.

The sole
question before me, therefore, is whether the Respondent is the
survivor of a customary union between her and Chief Seatile.
In the
action which commen-ced these proceedings, the appellant who claims
for him­self the right to inherit the chieftainship,
presented
himself as the younger brother of the late chief and as such entitled
to succeed in his place should there have been
no customary union
between the late chief and the Respondent. This was accepted
apparently by the parties to the dispute and so
his claim would then
succeed in the event that there was no customary union between the
Respondent and Chief Seatile.

It would
seem to me that the onus in this matter was properly placed upon the
shoulders of the Respondent of her contention that
she is the widow
of a customary union with the Chief I agree with this approach for
the reason that it would otherwise be incumbent
upon the ap­pellant
to prove a negative, that is, that she is not the customary wife of
the late chief Further, because of
the considerable time that has
elapsed since this union commenced and the institution of the action
that led to this appeal, so
many of the witnesses have died, that it
would certainly, if justice is to be done between the parties,
require proof by the Respondent
of her con­tention.

In
support of her contention, the Respondent, through her representative
at the trial produced as exhibits in the case a number
of documents
recording proceedings instituted in various Courts by the late Chief
and from which the trial Court was asked to draw
the inference that
there was in fact an admission by the late chief contained in these
documents of a customary union between the
late Chief and the
Respondent.

3

Some
argument was addressed to me based upon the common law as
administered in South Africa, which would tend to the view that the

existence of a union of conside­rable standing in terms of years
between a man and a woman would lead to an inference that
their union
was a legal one, that is, that it arose in consequence of civil rites
duly performed according to the requirements
of the law of the
country. Cases such as Fitzgerald v Green 1911 E.D.L. 458 are
instances of an inference being drawn by the court
from evidence of a
long standing union that there must have been a lawful union
following on a proper marriage between the parties.

I am
satisfied, however, that in Lesotho no such inference is possible
since it would be displaced by the fact that the status of

concubinage is a recognised feature of family life in this country.
It is recognised that a man may take to himself a customary
wife and
at the same time indulge himself in the maintenance of one or more
concubines in his family. It is true that a man married
by civil
rites may not thereafter enter into a customary marriage, but where
there is only a customary marriage there certainly
can be a
concubinage and where there is neither, then even more so is a
con­cubinage permissible and recognised by the institutions
of
family law in Lesotho.

The fact,
therefore, that the union between the Respondent and the late chief
continued for many years does not permit of any inference
to be drawn
from that fact as to the existence or otherwise of a customary
marriage between them.

It
remains to consider the documentary evidence that is contained in the
record. The first is an exhibit that was handed in by the
appellant,
which was exhibit "A", and is a judgment of a Criminal
Court in respect of a charge brought against the late
Chief for

failing
to comply with the requirements of section 3 of Order 29 of 1971,
that is, for the maintenance of his

4

four
daughters who are all the issue of his union with the Respondent.
There is no mention in this judgement of the son, that is,
the fifth
child as alleged by the Respondent, and there is no mention of
herself as being entitled to maintenance. The significance
attaching
to this judgment is that there was no order made in respect of
maintenance of the Respondent or of the son who she alleges
is the
fifth child. The argument was that this disposes of any contention
that she was the customary wife since as such she would
have been
entitled to main­tenance and that it also disposes of any
contention that the boy was the chief's child since there
is no
mention of his requirement of maintenance. However, I dm unable to
regard this judgment as being proof of the absence of
a customary
marriage or of an admission of illegitimacy of the younger son. As to
the latter point, I have already stated my view
that I will not in
these proceedings consider any allegation of illegitimacy.

But that
is quite separate from the question whether there was a customary
union between the late chief and the Respondent. As to
that, I am
equally satisfied that there are a number of inferences which could
be drawn from the failure of Respondent to claim
maintenance on her
own behalf. One, of course, is that she was not entitled in law to
such maintenance, but equally powerful is
the inference that she was
self-supporting. At that time, it is common cause, she was living
apart from the Chief in Maseru and
if she was employed here then she
would have been in a position to maintain herself and so not be
entitled to any maintenance.
I am unable, there­fore to infer
from this document that it contains any proof of the absence of a
customary union between
the parties.

I turn
now to consider the documents which were handed in by the
Respondent's representative. The first of these, exhibit "8"

dated the 17th May, 1975, is the record by the Clerk of the Court of
Mohale's Hoek of an action instituted against the late Chief
by
Lebaka Liname, in which the plaintiff claimed eleven (11) head

5

of tattle
being the balance of bohali allegedly owing to the plaintiff and
arising out of the marriage of the late Chief to the
Respondent. The
signature of the late Chief is appended to a statement of his
con­tention on the dispute and it reads

"I have no denial on the dispute of eleven beasts which remain
in the bohali."

That
statement signed by the late chief clearly amounts to an admission by
him that bohali was payable by him and that eleven head
of cattle
were still owing out of that bohali. We are not told in this document
how much in toto the bohali amounted to, but it
certainly would
appear to satisfy the requirements of section 34(1) of the Laws of
Lerotholi in regard to the requirement of a
customary marriage that
the bohali must be agreed and a part thereof paid.

It is
clear from this admission by the Chief that a part of bohali had been
paid and that there were eleven beasts remaining, and
judgment was
given against the late Chief at the instance of the head of the
Res­pondent's family for the eleven head of cattle
being the
balance of bohali This record is, as well, signed by the Court
President and there is all the hallmark of authenticity
In the
judgment which was pronounced on the 24th of November, the Court
President said that the Respondent announced that he did
not deny the
dispute against him and he was ordered to pay eleven head of cattle
being the balance of bohali including setsiba
and molisana with costs

So we
have not only a judgment of the Court in an action for the balance of
bohali brought against the late Chief but he signed
an admission in
those proceedings that there was such an agreement in regard to
bohali and that part thereof that had been paid
and that he was
liable for the balance.

I find
this admission in writing by the late Chief to be strong evidence of
the existence of a customary

6

marriage
between the late Chief and the Respondent.

Another
document handed in by the Respondent's representative, which is
Exhibit "3" in those procee­dings, is the
record of a
divorce action in respect of a customary marriage and for custody of
children in which the plaintiff was the late Chief
and which was
apparently brought against the Respondent. That action was struck off
the roll because of the illness of the plaintiff
and it is apparent
from the evidence that he died subsequently of the illness with which
he was then beset So in the closing stages
of his life, the late
Chief, so convinced was he of the existence of a customary marriage
between himself and the Respondent, that
he brought an action for
divorce against her in the usual manner in a Court having
jurisdiction. That also amounts to substantial
proof as an admission
by the late Chief of the existence of such a marriage.

A further
document that was relied upon by the Respondent in those proceedings
was the transcribed and translated statement by the
appellant at an
administrative enquiry held by the Chief of the District where the
late Chief held his authority The record of
the finding by the Chief
of the District shows that the issue was whether the Respondent was
in fact the survivor of a customary
marriage with the late Chief. The
statement by the appellant contained in those proceedings amounted to
an apologia by him for
having previously doubted the right of the
Respondent to the chieftainship or her contention that she was the
widow of their customary
union.

It is
correct, as contended by Mr. Mda for the appellant, that he did not
in that statement admit having been told by his late brother,
the
Chief, that there was in fact a customary union between him and the
Res­pondent, but he conceded that his brother had withheld
from
him the information that there was such a marriage. What he in fact
said was that his brother did not tell him that he had
been sued for
bohali cattle and for the main­tenance of his wife and children.
He said that he had only

7

stumbled
upon this divorce summons after his death and that the action was cut
short by illness when it would otherwise have proceeded.
That, of
course, amounts to an admission by the appellant of the proof
contained in the action for bohali by the Respondent's family
and the
action instituted by the late chief for divorce in the customary
union with the respondent,and indeed amounts to an acceptance
by him
of the view which I share, that these two documents contain proof
under the hand of the late Chief himself, that there was
such a
customary union.

Together
with the transcription of the appellant's statement at that hearing
by the District Chief, there is a record, being exhibit
"5"
which is the finding of the Chief of the District on that complaint
and from which it appears that in fact it was
the appellant himself
who had complained that the respondent had seized the right to the
chieftainship with the accord of some
members of the family of the
late Chief, while other members supported the appointment of the
appellant as such. It is apparent
from the judgment of the District
Chief that the question in issue was the identical one before me now
and that is whether there
was a customary marriage or not.

I do not
place reliance upon the finding of the

District
Chief other than to find the circumstances under which the complaint
was brought by the appellant, but I do rely upon the
admission by the
appellant that both the divorce action and the bohali action amounted
to admissions by the late Chief of the existence
of a customary
marriage.

There
remains the fact that the respondent gave no evidence at the trial
which has led to this appeal. Normally one would have expected
the
surviving party to a marriage where the issue of the validity of the
marriage is before the Court to give evidence of her know­ledge

of the facts from which it is contended that such a lawful marriage
existed. The failure of the respondent to give evidence ordinarily

would be a most important factor from which an inference could well
be drawn, that she did not give evidence because she feared
that her

8

evidence
would not advance her case and that she would therefore not expose
herself to cross-examination. But it has come to my
notice and I have
been confirmed in the view I have formed by counsel at the bar, that
very frequently the parties to a suit in
District Courts and Central
Courts, on application to the Judicial Officer presiding, are
permitted to be represented by a relative
who makes con­tentions
on behalf of that party and who gives evidence under oath of his
knowledge of the events, whether hearsay
or not. It is apparent from
the evidence given by the representative for the respondent that he
may well have spoken of matters
about which he had only hearsay
knowledge, and in that event, such evidence should be disregarded as
I do indeed disregard it.
But it nevertheless remains a fact that the
acceptance of this representative by the Judicial Officer offsets
sompletely any inference
that could have been drawn against the
Respondent by reason of her failure personally to give evi­dence
It must be accepted
that she would have regarded her representative
as speaking on her behalf and that the evidence given by him was to
be regarded
as her own evidence amongst which is included the
statement that she was married by Lesotho Customary Law to the late
Chief

So while
this practice of representatives giving evidence is to be deprecated,
I am unable to draw any inference adverse to the
respondent from her
failure to give evidence personally.

On this
latter point, I have been informed by counsel at the bar that certain
Judicial Officers in the Subordinate Courts have taken
different
views about the admissibility of this sort of evidence by
represen­tatives, some would allow it, while others would
not,
and that there would appear to be no uniform practice in this regard.

In my
view, it is a matter of substantive law whether or not hearsay
evidence of this nature should

9

be
admitted as the direct evidence of a party. I am satisfied that it is
hearsay evidence and it remains such so long as the representative

does not speak of his own knowledge of events, and so long as such
knowledge is not derived from hearsay. I think that it should
be
recognized in the Subordinate Courts to which I refer, that is, the
local and Central Courts and the Judicial Commissioner's
Court, that
evidence by such representatives is not acceptable and should be
disregarded and that in the trial Courts, it should
not be allowed
Nor should the parties be allowed to fall under the misapprehension
that such evidence is acceptable on their behalf.

However,
treating the matter in the light of the practice as it now exists, I
am satisfied that I can draw no adverse inference
against the
respondent. In these circumstances, therefore, I am satisfied that
the respondent has adequately discharged the onus
of proof upon her
on a balance of probabilities that she is the survivor of a customary
union between herself and the late Chief
Seatile and that the appeal
should be dismissed with costs.

D.S. LEVY

ACTING
JUDGE,

11th
June, 1985.

For
Appellant Mr M. Matsau,

For
Respondent Mr. A.P S Mda.