CIV/APN/286/04

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MAMPOLOKENG
SEBEKO APPLICANT

And

MOLATO
SEBEKO 1st RESPONDENT

TEBA
LTD 2nd RESPONDENT

LESOTHO
FUNERAL SERVICES 3rd RESPONDENT

JUDGMENT

Delivered
by Honourable Acting Judge Ms N. Majara on 2nd August 2004.

1. Applicant
   approached the court on an urgent basis seeking relief in the
   following terms:-

   
   

2. Dispensing
   with the ordinary rules pertaining to the modes and periods of
   service due to the urgency of this matter.

   
   

3. Directing
   the parties to file their respective pleadings with such shortened
   periods as this Honourable Court shall deem fit to
   enable this
   matter to be dealt with on an urgent basis.

   
   

4. A
   rule nisi be issued calling upon respondents to show cause if any on
   the date to be determined by the court why:-

   
   

1. 2nd
   Respondent shall not be interdicted from releasing any funds
   belonging to applicant to 1st respondent and/or his agents;

   
   

2. 2nd
   Respondent shall not be interdicted from disposing of any property
   and all the monies belonging to the late Nchofane James
   Sebeko,
   husband of the applicant to 1st respondent and /or his agents;

   
   

3. 2nd
   Respondent shall not be directed to release all funds belonging to
   the late Nchofane James Sebeko to applicant;

   
   

4. 3rd
   Respondent shall not be interdicted from releasing the body of the
   late Nchofane James Sebeko to 1st respondent and/or his
   agents;

   
   

5. Respondents
   shall not be ordered to pay costs in the event of their opposing
   the matter;

   
   

6. Any
   further and/or alternative relief.

   
   

5. On
   the 25th June 2004, a rule nisi was duly granted and made returnable
   on the 2nd July 2004. On the 5th July the rule was revived
   and
   extended to the 9th July because

   
   

the Honourable Judge who had granted the interim order was not
available on the original return date. On the 9th July, the matter

was postponed to the 15th for hearing before me and the rule was
accordingly extended. On the date of hearing the matter was postponed

again at the request of both counsels for applicant and respondent
respectively and the rule was accordingly extended to the 20th
July
2004 for hearing and on that date, the matter was duly argued before
me.

6. The
   evidence of applicant was that she is the deceased's legal wife
   having been married to him according to customary rites and
   they
   never divorced until he passed away allegedly on the 30th May 2004.
   The deceased had been employed in the mines in the Republic
   of South
   Africa. According to applicant, she only learned of the deceased's
   death when she got to the offices of 2nd respondent,
   TEBA and that
   at the time of his death, the deceased was not staying at their
   common home but at some other place unbeknownst
   to her. 2nd
   respondent then showed applicant a report about her husband's death
   and according to this report (annexure D) her
   husband's beneficiary
   had changed from herself and to 1st respondent, the deceased's
   brother.

   
   

7. Applicant
   also stated in her founding affidavit that prior to this latest
   development, her husband had named her
   

   
   

3

as his sole beneficiary in the event that he predeceased her since
there were no children born of the marriage. She attached a
copy of a
letter (Annexure C) that was written by her husband during his
lifetime sometime in 1996 to the chief of Tsenola who
is also their
chief. By this letter, the deceased was informing the chief that
applicant was his wife and the person responsible
for their common
estate during his absence. She also attached two other documents
which were prepared by TEBA and in which she
is referred to both as
the spouse and sole beneficiary of the deceased. These were marked
Annexures A & B respectively.

8. The
   court noted that both documents preceded annexure D which is a
   report of the deceased's death. Annexure A was prepared in
   August
   1998, annexure B in January 2004 whilst annexure D was a death
   report invoice prepared on the 15th June 2004. The latter
   is the
   document that purportedly changed beneficiaries of the deceased from
   applicant to 1st respondent. Of these three documents
   prepared at/or
   by 2nd respondent office, only the first one bears the deceased'
   signature, in the form of his right thumbprint.

   
   

9. In
   his answering affidavit, 2nd respondent counterclaims

   
   

4

that he is the sole beneficiary of the deceased since the deceased
and applicant never married but had only lived together which
made
applicant a mere concubine. He went on to state that the deceased had
been married to one 'Maelisha who has since predeceased
the deceased.
The basis of his challenge of applicant's marriage to the deceased
was that applicant neither attached any document
in her founding
papers as proof of the alleged marriage nor did she indicate when she
was married, who negotiated the bohali and
how much bohali was paid.
The respondent's basis for claiming to be the rightful beneficiary is
therefore premised on his challenge
of applicant's status as the
deceased's wife, the fact that since there were no children born of
the union, by virtue of being
the eldest brother of the deceased as
well as by the contents of annexure MS1. He therefore contends that
he is the deceased's
rightful beneficiary.

10. In
    her replying papers, applicant stated that she and the deceased
    married in 1989 by customary rights and she lists the people
    who
    attended the meeting when the agreement was made, bohali negotiated
    and agreed at 10 head of cattle at the rate of R500.00
    per cattle
    and whereby part of the bohali in the sum of R2000.00 was paid to
    her mother, 'Mabatho Lipoli. Present at the said
    meeting, amongst
    the deceased family's representatives.

    
    

5

she names 1st respondent and one Thoethoe Sekata. Her mother filed a
supporting affidavit to the fact that the deceased's family
did come
to her house as stated above and that her own family was represented
by her son one Ntala Lipoli and herself and that
the proceedings were
reduced in writing. However the said document which had since then
been kept by her son who was also the headman
of the village could
not be produced as proof since her son's house burnt down in 1996
together with the said document and all
the others that were inside
it. She attached a letter from the chief which confirms that the said
house, together with its contents,
did burn down as stated. The
letter is dated the 13th July, 2004 and bears the signature and date
stamp of the chief

11. Having
    read the papers filed of record and having heard both sides'
    argument, the issues that the court had to determine on a
    balance of
    probabilities are:

    
    

1. Whether
   the applicant has successfully made out her claim that she is in
   fact the deceased's wife and if she has;

   
   

2. Whether
   she is the rightful beneficiary of the deceased, which would entail
   her also having burial rights, the death benefits
   and all the
   property belonging to the joint estate.

   
   

12. On
    the one hand, applicant says she is the deceased's

    
    

6

wife and
there is no documentary proof because it is alleged to have burnt
down with her uncle's house. However, there are two attached

documents, annexures A & B in which applicant is referred to as
the spouse and beneficiary of the deceased. These are the two

documents from TEBA, deceased's former employer. The deceased has
appended his signature (right thumbprint) on annexure A, which
is the
earlier document of the two, having been prepared sometime in 1998,
and this means he was personally attesting to the contents
of the
document as his. Annexure B does not bear his signature and it
appears to have been prepared sometime in January 2004. The

explanation given for the absence of the deceased's signature on
annexure B was that it just contained a repeat and/or transfer
of the
contents of annexure A. However, the authenticity of both documents
was not challenged. The court therefore accepted them
as they stood.

Applicant
also attached another document, annexure C. This is a copy of a
letter which was purportedly written by the deceased to
the chief of
Majoe-a-Litsoene in May 1996 and it bears the deceased's full names
and the chiefs stamp. The contents of the letter
are that the
deceased is informing the chief about the status of applicant, viz,
that she is his wife and the

7

person
responsible for their common home whenever he is absent and thereby
appealing to the chief to assist her whenever she might
need such
assistance. Ms Mohasi challenged the authenticity of this letter, her
reason being that during his lifetime, the deceased
was not literate
and had only learned to write his initials and therefore, could not
have written the letter. There is merit in
Ms Mohasi's argument. Such
an inference can be drawn. However, the question is, is that the only
inference that can be drawn from
this factor alone, more so when
taking into account the rest of the scenario in this matter? I will
come back to this question
at a later stage.

On the
other hand, respondent's documentary evidence entails a two-paged
document attached as annexure MS1. The first page is a
letter of
notification of the deceased's death to the Manager of TEBA, and it
also states that the amount of R10000.00 for the
funeral plus all
monies owing to the deceased in respect of salaries should be made
payable to 1st respondent as he is the sole
beneficiary of the
deceased having been named as such by the deceased on the 8th March
2004. The letter is dated the 15th June
2004 which is a date later
than the reported date of death. It is signed by one Danie Maree who
is

8

referred
to as the Acting Mine Manager. The second page of annexure MS1is a
RSA Provident Fund form. This form names 1st respondent
as the
potential dependant and sole beneficiary of the deceased in the event
the deceased predeceases him as has happened. It makes
no mention of
applicant. It is dated 8th March 2004 and it bears the deceased's two
initials but does not bear his right thumbprint.
However, in his
answering affidavit, 1st respondent alleged that though he was not
literate during his lifetime, the deceased could
write his initials.

15. When
    coming back to the question of applicant's marriage to the deceased,
    the court wishes to point out that in her founding affidavit,

    applicant omitted to substantiate her claim that she was the
    deceased's lawful wife resulting from a 1989 meeting whereby the
    two
    families agreed on the marriage between herself and the deceased,
    the amount of bohali, whereby part payment thereof was
    made and that
    this agreement was reduced down in writing. She also failed at that
    stage to inform the court that the said marriage
    document burnt down
    with the house of her late brother in 1996 where it had been kept.
    She only mentioned all of these in her
    replying papers after she had
    been challenged by 1st respondent. I wish to point out
    

    
    

9

at this stage that this information was very vital to applicant's
case and she ought to have provided it from the onset. It was
bad for
the applicant to have failed to do so. Ms Thabane argued that there
was nothing wrong with this but the court begs to differ.

15. True
    enough the burden of proof in civil matters is on a preponderance of
    probabilities not proof beyond a reasonable doubt. However,
    I firmly
    believe that not only is it fair-play and reasonable on the part of
    an applicant to put the court in the full picture
    from the onset,
    but the same should also be extended to respondent before he can
    ably answer applicant's claim in his answering
    papers. This
    therefore should be done in such a manner that it does not leave the
    court with the uncomfortable feeling that as
    vital as it was, it
    only came as an after thought and as a result of a genuine challenge
    from the other party and should therefore
    be treated with some
    degree of scepticism.

    
    

15. Nevertheless,
    applicant's claim was substantiated by her mother in her supporting
    affidavit and the fact of the house having burnt
    down with all
    documents that were kept therein (the said marriage document
    included) was supported by a letter from the chief.
    The claim is
    therefore, probable, albeit rather belated as the court has already
    pointed out. As a result, the

    
    

10

court has no reason to disbelieve both the applicant's mother and the
person of stature such as a chief of a village unless it
had been
furnished with good reason why it should not accept it except for Ms
Mohasi's own discomfiture of its having been filed
at a later stage
and the apparent coincidence of some of the events being alleged to
have all conveniently happened in the same
year, 1996. (She was
referring here to the marriage document which is alleged to have been
kept in the house that burnt down in
the same year, as well as
annexure C, the letter which was written to the chief informing him
of applicant's status). However,
the court found that these factors
do not per se, form a proper basis upon which the court should
necessarily question the contents
of the two supporting affidavits.
1st respondent's suspicion still remains as that, not an established
fact albeit, a reasonable
one.

15. In
    his answering affidavit, 1st respondent denies the existence of
    applicant's marriage to the deceased but instead, alleges that
    the
    two only lived together which made applicant only the deceased's
    concubine. He goes further to show that he knows his brother
    to have
    been married to one 'Maelisha who has since predeceased the
    deceased. However, he also stops right there without producing
    any
    further information

    
    

11

or proof of any kind to support his claim. By the same analogy, if
the court is supposed to believe this allegation, why has it
also not
been substantiated in any way? It would have been very helpful if
some proof as to the existence to what 1st respondent
claims to have
been a lawful marriage had been put before the court. In my opinion,
this is one of those bare allegations which
are usually made without
any basis and which do not assist the court in anyway. It therefore
cannot be accepted as banal as it
stands for it does not in anyway
hold water.

15. This
    is also compounded by the fact that in both annexures A & B, the
    deceased himself referred to applicant as his wife and
    beneficiary.
    This is common cause. Ms Mohasi argued that annexure B which was
    completed in January 2004, is merely a transfer
    of contents of
    annexure B especially because it does not bear the deceased's
    signature in anyway. That is probable because annexure
    B indeed does
    not bear the deceased's signature. However, in the court's opinion,
    the simple fact that up until January this
    year the information
    stood as it was hence why it was so reported in annexure B can only
    mean that it was because the deceased
    had not changed it. It
    therefore stood as it was. This factor was not challenged in

    
    

12

anyway. The court therefore sees no problem why it should not accept
it as authentic especially when account is taken of the fact
that it
bears all the standard features of annexure A except for lack of the
said signature.

15. Apart
    from all of this, the court has not been shown any form of attempt,
    by anyone, of any challenge to the deceased's marriage
    to applicant,
    at any stage during the deceased's lifetime. I therefore always find
    these sorts of challenges which are usually
    made at a stage where
    the deceased person is already out of the picture, very problematic
    indeed. True enough, in some cases
    the challenge may be very well
    grounded, but the fact of it being brought up at this late stage is
    intrinsically very problematic
    and most disturbing to say the least.
    Sound as it may be in deserving cases, it always leaves a lot of
    question marks as to its
    being made bona fides. This is more so
    because it usually only comes up where burial rights which normally
    go with death and
    other benefits are concerned. It also denies the
    court the benefit of having some insight as to how the deceased
    himself would
    have responded if the challenge had been made during
    his lifetime.

    
    

13

15. .
    This brings me back to the question of annexure C, the letter which
    the deceased purportedly wrote during his lifetime to the
    chief of
    his village, wherein he was informing the chief about applicant's
    relationship with him viz, his wife and custodian
    of his house and
    other property during his absence. The authenticity of this letter
    was put to challenge by respondent, his argument
    being that during
    his lifetime, the deceased was not literate and could neither have
    written nor signed the said letter.

    
    

15. This
    argument is probable, especially when the court takes into account
    the fact that in his other document the deceased has appended
    his
    signature in the form of a thumbprint. This is usually done by
    illiterate persons, unless it is otherwise specifically required
    as
    a formality. There is therefore, merit in respondent's argument.
    Yet, in another document, annexure MS1, which has been annexed
    by
    1st respondent whose authenticity or otherwise I am coming to deal
    with shortly, the deceased's signature was now in the form
    of two of
    his initials, J.N. Ms Thabane challenged the authenticity of this
    document on the basis that the deceased was illiterate
    and therefore
    could not have appended his initials on it. Ms Mohasi rightly
    pointed out that they agree with this fact, that
    is, the illiteracy

    
    

14

of the deceased hence why they also were challenging the contents of
annexure C, safe to add that the deceased had however learned
to
write his initials.

15. Given
    the above scenario, the court feels that since both sides were
    agreed that the deceased was illiterate, admission of contents
    of
    this questionable letter would be unfounded. True enough, the letter
    could have been written by another person per the deceased's

    instructions, but neither this submission, nor any other plausible
    explanation was made to the court. Therefore, bearing this
    factor in
    mind, coupled with the fact that the deceased did not append any of
    his two uncontested signatures as they appear in
    the other two
    documents which have been placed before the court, the court finds
    it difficult to accept annexure C as an authentic
    document. I am
    therefore going to disregard it. But be that as it may, as I had
    already mentioned, the court has found no reason
    to disregard the
    other evidence which has been put before it that is, applicant's
    replying affidavit, her mother's supporting
    affidavit, the chiefs
    letter and annexures A & B respectively.

    
    

15. It
    is therefore, in the light of the above reasons that the court feels
    that on a balance of probabilities, the

    
    

15

issue of whether applicant has indeed satisfied the court that she
was as a matter of fact, the deceased's wife as per the customary
law
requirements, has been made out. This means that she is also the
lawful heir of the deceased. Consequently, she should not
be stripped
of her legitimate right to bury the deceased and to inherit all the
property belonging to their joint estate. The legal
position of the
widow being the rightful heir in the absence of male issue is stated
in, Duncan, Sotho Laws and Customs 1960 p
12 in the following words;

"LINE OF SUCCESSION. If there is no male heir, and no widow, (my
underlining) then, it was laid down in Mokhejane v. Seisa,
J.C.
115/50, (sic) the parents, if alive, inherit. If they were not alive,
then the elder brother, or failing him, his widow, (my
underlining)

See also
Tseola & Ano. V. Maqutu & Ano. 1976 (2)

S.A. p
418 where Munnik C.J. held that;

"public policy and a sense of what was right dictated that, in a
dispute of this nature, the widow's wishes where she is an
heir
should prevail and it was her duty and right to bury her deceased
husband where she pleased, subject to the limitation that
excessive
expenses were not to be incurred in attending to the funeral"

15. However,
    this factor notwithstanding, my sense of what is morally right as a
    Mosotho, coupled with the

    
    

16

fact that
this is usually how things are done according to Sesotho custom,
dictates that the widow still has the duty to exercise
this right in
consultation with the rest of the deceased's family. This feeling was
also conveyed in Mputi v Mputi CIV/APN 265/04
by my brother Justice
J.T.M. Moiloa at paragraph 9 of his reasons for judgment where he had
this to say;

"In my view the heir to the deceased has a right and a duty to
bury the deceased. In the present case the widow is both heir
to the
deceased as well as a person with a prior right and duty to bury the
deceased in cooperation with the deceased's familu.
"(my
underlining}

In that
case, the dispute was between the deceased's heirs that is, the
widow, and the deceased's mother respectively. See also
W.C.M.
Maqutu, Contemporary Family Law of Lesotho 1992 p 184 where he had
this to say on the customary law of succession where
a widow is the
heir:

"The failure to spell out the limits of a widow's powers in
Basotho customary (sic) where she is heiress has allowed childless

widows to sometimes abuse their powers. She is supposed to have the
natural advisers of her husband's male relatives, but these
days she
rarely seeks it. Many widows have acted to the prejudice of their
potential heirs."

15. However,
    although the court has found that applicant has succeeded in making
    out her case that she was

    
    

17

deceased's wife until he passed away in May 2004, and therefore the
rightful heir with burial rights, this case does not end there.
There
is the other question of annexure MS1 which is before the court. This
is the document that changes the deceased' beneficiary
from applicant
to 1st respondent and which forms the backbone of 1st respondent's
claim to the burial rights and the attaching
benefits.

15. Ms
    Mohasi submitted that as per annexure MS1, 1st respondent is the
    rightful heir and beneficiary to the deceased's Provident
    Fund. In
    response, Ms Thabane contended that this document is not authentic
    due to the fact that applicant is challenging the
    deceased's
    signature, the initials J N, but in the event the court finds it to
    be authentic, applicant being the heir, should
    be given a share of
    it. Ms Thabane's argument was based on the fact that as per Basotho
    laws and custom, the heir may not be
    deprived of the greater part of
    the joint estate. See, Duncan, supra pl5.

    
    

15. As I
    have already pointed out, both sides agree that the deceased was
    illiterate. However, in his founding affidavit, 1st respondent

    stated that even though this was the case, the deceased had learned
    to write his initials, hence why he had appended his signature

    
    

18

thus. Although a prior document, annexure A, was signed with the
deceased's thumbprint, the court found 1st respondent's contention
to
be reasonably possible true and because it was not satisfactorily
challenged, I cannot find any reason why I should not believe
it. I
therefore accept MS1 as an authentic document whose contents the
court should take into consideration in coming to a proper
decision.

15. In
    light of the above reasons, the question that the court now has to
    determine is whether as per annexure MS1, 1st respondent
    is the sole
    beneficiary of the Provident Fund. In considering this question, the
    court looked at various authorities on the customary
    law position of
    inheritance vis a vis the doctrine of stipulatio alteri (contract
    for the benefit of a third party).

    
    

15. As
    already shown, in Duncan, supra, the legal position as per our
    customary law is stated as was also submitted by Ms Thabane
    viz, a
    customary heir should not be disinherited of more than a half share
    of the joint estate. If this matter ended there, the
    court would not
    have any difficulty in finding that even if respondent should take
    the proceeds of the Provident fund as per
    annexure MS1, in the event
    that the court

    
    

19

finds that the deceased has not left any other property, which upon
evaluation, is found to make up less than half of the joint
estate,
1st respondent should share the proceeds with applicant as per our
customary law position. However, the court still had
to properly look
at the position encapsulated within the doctrine of stipulatio
alteri.

15. In
    the case of V. M. Khaphe v TEBA & Another 1991-1992 LLR and LB
    pl6, at p 25, in determining the widow's rights vis-a-vis
    those of a
    beneficiary within a contract of this nature, Kheola J. (as he then
    was) had this to say;

    
    

"The appellant has established a stipulatio alteri (contract for
the benefit of a third party) between the son and the insurance

company: See e.g. Croce v. Croce 1940 TPD 251. The institution being
part of stipulatio alteri, by virtue of the Roman Dutch Law,
also
forms part of the law of Lesotho. The contract is to the effect that
she is entitled to accept the benefit of this contract
and the
evidence is that she has in fact done so. Her rights there­fore
flow from contract (sic) and the M6,000 has nothing
to do with the
deceased estate. For these reasons the appeal succeeded."

15. Counsel
    for applicant in that case, Mr Maqutu (as he then was) had submitted
    that the South African statutory clause from which
    the contract
    flowed was void in so far as it was contra bonos

    
    

20

mores. I must say I agree with this feeling. The above stated
position does not sit well with me. It leaves me with the sinking

feeling that each time things go wrong in the matrimonial home, in
spite of having shared a life together, a malicious spouse might

unilaterally go and enter into or change an existing contract of this
nature just to spite the other spouse. Unfortunately, this
position
is going to negatively affect a lot of innocent spouses, especially
defenceless and more often than not, unemployed widows
much more than
it will probably disadvantage men.

15. However,
    it would appear that on the basis of the above precedent and others,
    the court's hands are tied. This unfortunate legal
    position has been
    unequivocally stated and unless and until it is reversed, a lot of
    rightful heirs and/or other dependants in
    some cases are going to
    needlessly suffer. True enough, there may be situations where a
    spouse will resort to this arrangement
    due to a number of
    unfortunate circumstances within the matrimonial home such as for
    instance, where one spouse has maliciously
    and/or constructively
    deserted him/her etc. However, as I have already said, it is highly
    likely to be abused by some.

    
    

21

15. In
    light of the above, it would appear that 1st respondent ought to be
    awarded the M10, 000 being the amount that is payable as
    per the
    contractual terms stipulated within the contents of annexure MS1.

    
    

15. For
    these reasons, the order I make is as follows:-

    
    

1. The
   application is granted in so far as burial rights and the
   deceased's joint estate are concerned.

   
   

2. The
   deceased's body is to be awarded to applicant and she will also
   inherit all the property and monies belonging to the
   joint
   estate.

   
   

3. 1st
   respondent is granted the amount payable as per annexure MS 1
   only.

   
   

4. 3rd
   respondent is to release the body of the deceased to applicant.

   
   

5. This
   being a family dispute, each party should bear its own costs.
   

   
   

N.
Majara:

acting
judge

For
Applicant: Ms Thabane

For
Respondent: Ms Mohasi