C of A (CIV) No 4 of 2004
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
MOKOENIHI KHAKA FIRST APPELLANT
'MAPEO KHAKA SECOND APPELLANT
and
'MAHLASOA PELESA FIRST RESPONDENT
MOTLOHELOA KHAKA SECOND RESPONDENT
LERATO KHAKA THIRD RESPONDENT
MEMBERS OF KHAKA FAMILY FOURTH RESPONDENT
MKM BURIAL SOCIETY FIFTH RESPONDENT
METROPOLITAN INSURANCE CO. SIXTH RESPONDENT
Held at Maseru on 14 October 2004.
CORAM Ramodibedi, JA
Grosskopf, JA
Smalberger, JA
JUDGMENT
SUMMARY
Husband and Wife - Void marriage ~ A customary marriage during the subsistence of a civil marriage - Essential elements of a putative
marriage- Funeral benefits.
Ramodibedi, JA
[1] This case once again highlights the ill effects of polygamy and its debilitating consequences on Basotho society. In this regard it must be said at the outset that a perception, a patently erroneous perception for that matter, continues to grow amongst some legal practitioners in this country and, so it would seem, some judges in the High Court that a man married by civil rites is legally free to marry polygamously as long as his civil marriage in question is preceded by a customary marriage with the same woman. As will be seen shortly, this misconception permeates the very essence and conduct of the instant case in the court below (Monapathi J).
[2] It is common cause that on 6 April 1974 the late George Khaka Khaka ("the deceased") married the Second Appellant by civil rites. This marriage subsisted until the deceased's sad demise on 4 December 2003. The First Appellant is admittedly the first-born son of the deceased and the Second Appellant and as such the deceased's heir.
[3] It is further common cause that in 1991 during the subsistence of the civil marriage between the Second Appellant and the deceased, the latter lived with the First Respondent as "husband and wife". They produced a boy called Mpho. It is the First Respondent's case that she married the deceased by customary rites and she is quick to allege that this was made possible by the fact that the deceased's marriage to the Second Appellant was preceded by a customary marriage between the same parties and that consequently the deceased was free to marry polygamously.
[4] Consequent upon the deceased's death on 4 December 2003 as aforesaid, the Appellants applied for an order in the High Court in the following terms:
"1. Dispensing with the ordinary notice and periods of service of this Application on the grounds of its urgency:
A RULE NISI be issued and made returnable at the date and time to be determined by this Honourable
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Court, calling upon the Respondents to show cause, if any, why the following order shall not be made final and absolute;
The lst. 2nd, 3rd and 4th Respondents shall not be ordered and directed to desist from preventing, denying and/or interfering with the Applicant's (sic) rights to bury and make arrangements for the burial of the late GEORGE KHAKA at deceased's home at SEKAMANENG pending finalisation of this Application.
The Honourable Court shall not declare that lst Respondent is not the lawful wife of the deceased and direct that she desist from holding herself out as such and from interfering and involving herself in the arrangements for the burial of deceased forthwith as aforesaid;
6th Respondent shall not be interdicted from releasing the proceeds of deceased's insurance policies to lst, 2nd, 3rd and/or 4th
Respondents pending finalisation of this Application.
5th Respondent shall not be directed to desist from releasing the body of the deceased GEORGE KHAKA to 1st, 2nd, 3rd and/or 4th Respondents in any manner whatsoever pending finalisation of this Application;
It shall not be ordered and directed that 1st, 2nd, 3rd and 4th Respondents release to Applicants documents relating to the deceased
in annexure "MK2" attached herein.
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Applicants shall not be granted such further and/or alternative relief.
1st 2nd and 3rd Respondents shall not be ordered to pay costs of this Application.
That prayers 1 (a), (c), (d) and (e) operate with immediate effect as an interim order."
[5] Not to be outdone, the First Respondent not only opposed the Appellants' application but also filed a notice termed "Counterclaim/Application" for an order in the following terms:
"1. That her (First Respondent's) marriage be declared as valid and/or putative in the circumstances;
That MPHO the son of the deceased and 1st Respondent be declared as an (sic) legitimate son of the deceased;
That the aforesaid son, who is a minor with the assistance of lst Respondent be declared the rightful person to bury the deceased;
That the 1st Respondent acting on behalf of the minor MPHO be granted such further and/or alternative relief;
That the Applicants in the main (sic) be ordered to pay costs of this application.
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That the Application (sic) in the Counter-claim be granted such further and/or alternative relief.
[6] It remains to be noted at this stage that when the matter came before Monapathi J on the extended return day, the Respondents conceded the Appellants' right to bury the deceased and this was duly made an order of court. The parties must obviously be commended for this mature approach, albeit an approach resorted to rather belatedly. This Court has warned often enough against the use of corpses as pawns or test cases for disputes over inheritance of deceased's estates. See in this regard Ntloana and Another v Rafiri C of A (CIV) No. 42 of 2000 (unreported).
[7] Monapathi J's order in relation to the dispute as fully set out above may be summarized with reference to what he says on page 22 of his judgment:
"I have allowed prayer 2(a) as amended to say that these Applicants are the right people to bury the deceased. I have said
about prayer (b) that I make no declaration, I decide that the proceeds of the insurance that they must go to the First Respondent.
I confirm the order that the First Applicant and the Second Applicant must bun the deceased. None of the prayers in the counter-application
are allowed because my decision has been that an order of absolution is returned. I am not able to decide on the balance of probabilities
that the two marriages did take place on the evidence available."
[8] The Appellants have now appealed to this Court primarily on the ground that the learned Judge a quo erred in ordering absolution from the instance instead of declaring the purported marriage between the deceased and the First Respondent null and void ab initio. The order directing that the proceeds of the deceased's insurance policies accrue to the First Respondent is also challenged on appeal before us.
[9] In determining the issues that arise in this appeal as reflected in the preceding paragraph, it is no doubt convenient to start with an examination of the learned Judge a quo's approach to the matter. In this context it is necessary to have regard to what he. states on page 6 of his judgment. Therein he expresses himself in part as follows:
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"Having disposed on (sic) that (the learned Judge a quo was here referring to the question of the right to bury the deceased) what remained was the question of the existence of the customary marriage between the deceased and the Second Applicant on the one hand. And proof of the marriage between the Deceased and the First Respondent on the other hand."
The learned Judge a quo then continues in the following terms;-
"The legal issues had become very clear in this respect. It is because Counsel agreed that if there was a pre-existing customary
marriage between the Second Applicant and Deceased then the Deceased would have lawfully contracted a customary'' marriage between himself and the First Respondent. But if the situation was such the Deceased and the Second Applicant had contracted a civil marriage before any customary law marriage (if ever the latter existed), then the Deceased's marriage with First Respondent would be null and void."
[10] There can be no doubt in my view that the learned Judge a quo's approach as reflected in the above quotations stems from the
misconception referred to in paragraph [1] that a man who marries his wife by customary rites and thereafter enters into a civil marriage with the same woman is thereafter legally free to marry polygamously. I should like to say at once that this proposition has
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this Court accepted the view expressed by Jacobs CJ in Zola v Zola 1971-73 LLR 286.
In my view the law must therefore now be considered as settled. It is clearly in the nature of a civil marriage that it cannot subsist side by side with a customary marriage. For the avoidance of doubt I conclude, therefore, that all those cases which hold a contrary view must now be considered as having been wrongly decided.
[12] In the light of the aforegoing considerations it follows inexorably in my judgment that the learned Judge a quo's approach was erroneous. He needlessly went into a laborious and costly time-wasting exercise of determining the two purported "customary" marriages notwithstanding the fact that the Second Appellant was admittedly married to the deceased by civil rites. A marriage certificate in that regard was attached to the Second Appellant's founding papers as Annexure "MK". It was never contested. Nor did the Respondents contest the fact that the purported marriage between
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the First Respondent and the deceased was subsequent to the latter's civil marriage with the Second Appellant. In these circumstances there was sufficient material, in my view, for the court a quo to have declared the First Respondent's purported customary marriage to the deceased null and void without the calling of oral evidence. The only issue that was fit for oral evidence was the question of the purported customary marriage between the First Respondent and the deceased and whether it was a putative marriage. The cardinal question here would be whether the First Respondent knew about the pre-existing civil marriage between the Second Appellant and the deceased and whether she was aware of the legal impediments that civil marriage posed to her own purported customary marriage.
[13] As matters turned out the learned Judge a quo heard oral evidence from which it emerged that the Respondents were unable to prove the existence of the alleged customary marriage between the Second Appellant and the deceased. The Second Respondent's evidence with regard to such customary marriage was in my view
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correctly disbelieved by the learned Judge a quo and there is no challenge to that finding.
[14] In so far as the purported customary marriage between the First Respondent and the deceased was concerned, the Respondents relied on a memorandum of agreement Annexure "MK1" which had, for that matter, been produced by the Appellants themselves and attached to their founding papers. It is dated 26 September 1999 and is ostensibly an agreement between the deceased and the First Respondent's mother. Although it is in Sesotho language, the official translation appearing on page 11 of the record reveals that it admittedly records the marriage in part in the following terms:
"Here is agreement of 'Mathabiso Pelesa and Khaka Khaka for 'Mathabiso's daughter who is married by Khaka called 'Mahlasoa Pelesa Khaka has tendered six cattle (6) he is not paying he is marrying."
[15] In his judgment the learned Judge a quo was highly critical of the memorandum of agreement Annexure "MK1" mainly on the
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ground that it recorded "events of the past" and that this was an "unusual practice". He then condemned the Annexure in the following words: "I am bound to say that it does not satisfy me. it leaves a lot of doubt." For some unexplained reason he relied on the following unofficial translation:
"This is an agreement between 'Mathabiso Pelesa and Khaka Khaka in relation to the daughter of 'Mathabiso Pelasa (sic) who had been married to Khaka named Mahlasoa Pelesa. Khaka has paid six heard (sic) of cattle. He is not paying but he is marrying". (Emphasis supplied by the learned Judge a quo).
[16] As is obvious from these two translations, one is written in the present tense while the other is in the past. In my view nothing turns on this difference in the absence of any suggestion as to fraud. An agreement recording an event is an agreement notwithstanding the tense in which it is written. The intention of the parties in the agreement was clearly to record the existence of the customary
marriage in question and the quantum of 'bohali' paid as at that stage. It is in my view a complete binding agreement between them. I
consider, however, that it would be safer to stay with the abovementioned official translation referred to in paragraph [14] above.
[17] In somewhat of an anticlimax, the learned Judge a quo said this:
"In the context of where this evidence does not satisfy me. I do not think it is in the interest of justice to make a finding and declaration that this marriage did not take place. But it is safer as previously said to say that there be an order for absolution."
Although, with respect to the learned Judge a quo, the statement quoted above is by no means a model of lucidity, he did hold, by analogy at least, and correctly so in my view, that the customary marriage between the First Respondent and the deceased did take place after all. Once that is so, his order for absolution is with respect incomprehensible to me. Perhaps it stems from the fact that he failed to attach due weight to the memorandum of agreement Annexure "MK1" recording the existence of the customary marriage in question.
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[18] It is hardly necessary to say that the onus of proof in a civil case, as here, is one that must be discharged on a balance of probabilities if the claimant is to succeed (see the leading case of Pillar v Krishna and Another 1946 AD 946). In casu, I would say that the Respondents succeeded, in my view, in discharging such onus based on the following factors:
The memorandum of agreement Annexure "MK1" in itself amounted to proof of the existence of a customary marriage between the First Respondent and the deceased. The authenticity of this document was not challenged. After all, it bore the chief's date stamp and, as indicated above, was produced by the Appellants themselves.
On page 16 of his judgment (record page 102) the learned Judge a quo himself actually made a crucial finding that the memorandum of agreement Annexure "MK.1"
"reflected that there had been such a marriage."
It is not seriously denied that the First Respondent has been accepted into the deceased's family. Customary rituals in that regard were observed.
The First Respondent and the deceased admittedly lived together as husband and wife for twelve (12) years.
[19] A salutary principle requires to be stated at this juncture. It is that, as upper guardians of minor children, both the High Court and this Court will, in principle, generally be reluctant to bastardize children except in the clearest of cases showing factual absence of second marriages during the subsistence of civil marriages or absence of evidence to show that such second marriages, if any, are putative.
[20] It is a matter of regret then that the learned Judge a quo failed to define the issues as set out in paragraph [12] above namely whether the First Respondent knew about the pre-existing civil marriage between the Second Appellant and the deceased and if so whether she was aware of the legal impediments that civil marriage posed to her
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own purported customary marriage. As a result, the parties did not address themselves to these material issues and it seems just,
therefore, that they should be given an opportunity to do so. See Leoma v Leoma & Another C of A (CIV) No. 29 of 2000. Rafiri & Another v Rafiri C of A (CIV) No. 42 of 2000.
[21 ] The claim relating to payment of deceased's funeral benefits can quickly be disposed of as it poses no real difficulties. It is common cause that during his lifetime the deceased entered into a group insurance scheme with Metropolitan in terms of Annexure "MK4". In view of the importance of this Annexure in the determination of this matter, it is no doubt convenient to attach it to this judgment as I hereby do for ease of reference.
[22] As is self-evident from Annexure "MK4" the participants covered therein were the deceased himself as a member, the deceased's spouse (admittedly First Respondent), children and parents as well as an extended family member referred to as M.H.
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Khaka. The benefits covered were the following: funeral benefit, accident benefit and life benefit.
[23] In dealing with this aspect of the case the learned judge a quo said this in his judgment:
"That in the papers the First Respondent was reflected as beneficiary had not been disputed" (my own emphasis).
With respect to the learned Judge a quo, it is precisely at this point that he got it completely wrong. This was a bad error on his part which inevitably led him to a wrong decision. As is self-evident from Annexure "MK4", nowhere does the annexure say that M Khaka (First Respondent) is the beneficiary. This word is simply not used at all. On the contrary, her name only appears as someone who is covered under family funeral benefits. She is not, for that matter, the only one so covered as shown above.
[24] Having incorrectly held that the First Respondent was reflected as a beneficiary, the learned Judge a quo then reasoned that the case of Ramahata v Ramahata 1985-1989 LAC 184 applied. He characterized Annexure "MK4" as a contract for the benefit of a third party, namely the First Respondent. In my view, nothing can be further from the truth. The nature and scheme of the contract as reflected in Annexure "MK.4" was clearly to cover the funeral expenses of the members mentioned therein including the deceased himself. Viewed in that context the funeral benefits in question were clearly intended for the deceased's estate to be utilized at his funeral.
It must always be borne in mind that in Ramahata's case the deceased had nominated the appellant (admittedly not his lawful wife) as his death beneficiary. That is not the case here and it follows that Ramahata's case is distinguishable from the present case. It was thus wrongly applied.
[25] It follows that the appeal succeeds. In the result the following order is made:
(!) The appeal is upheld with costs.
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The order of the court a quo granting absolution from the instance in respect of the customary marriage between the First Respondent and the deceased is set aside and replaced with the following order:
"The customary marriage between the First Respondent and the deceased is hereby declared null and void."
The question whether the marriage between the First Respondent and the deceased was putative or not is referred to oral evidence and determination thereof by the court a quo.
In making a determination under (2) above the court a quo must determine whether the First Respondent knew about the pre-existing
civil marriage between the deceased and the Second Appellant and whether she was aware of the legal impediments that civil marriage
posed to her own customary marriage.
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The court a quo's order that the deceased's funeral benefits accrue to the First Respondent is set aside and replaced with the following order:
"The deceased's funeral benefits accrue to the deceased's estate and shall be held by the First Applicant as heir."
M.M. Ramodibedi
JUDGE OF APPEAL
I agree:
F.H. Grosskopf
JW Smalberger
Delivered at Maseru this 20th day of October 2004.
For Appellants: Adv. M. Mahase-Ramatabooe
For Respondents: Mr. K.T. Khauoe
