CIV/APN/24/2004
IN THE HIGH COURT OF LESOTHO
In the matter between:
MARETHABILE MASILONYANE APPLICANT
AND
'MALEHLOHONOLO MASILONYANE 1st RESPONDENT
THE EMPLOYMENT BUREAU OF AFRICA
LTD (TEBA LERIBE BRANCH) 2nd RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 12th day of August. 2005
Applicant has approached this Court for an order as follows:
1.
Dispensing with ordinary modes and periods of service on account of urgency.
2.
A Rule Nisi be issued returnable on 9th day of February, 2004 calling upon the Respondents to come and show cause if any why:-
2nd respondent shall not be interdicted and/or restrained from paying to 1st respondent death benefits accruing to late Lehlohonolo
Masilonyane pending the outcome hereof.
2nd respondent shall not be directed to pay to applicant the death benefits accruing to the late Lehlohonolo Masilonyane.
Further and/or alternative relief.
3.
That prayers 1 and 2 (a) operate with immediate effect as interim Court order.
The application was opposed. Somehow it would seem the interim order having expired it was formally revived.
The applicant in her paragraph 1 of the Founding Affidavit claims to be a widow of her late husband Lehlohonolo Masilonyane having been married according to Sesotho custom (para. 5 thereof) and according to annexure "MM1" (p.11) 5 head of cattle were paid in marriage. The certificate of marriage bears the chiefs stamp. According to para. 4 of applicants Founding Affidavit 1st respondent is applicant's mother-in-law and a child who passed away was born in the union. On deceased's death the family has met and appointed applicant as successor to the estate of her late husband (annexure "MM2") and 2nd respondent was signatory to the family decision. As applicant and her late husband did not have property of
2
their own, it would seem the family decision concerned "death benefits" only.
By annexure "2" the chief of Tsoinyane has written to the effect that Masilonyane's family was at the chiefs place regarding
1st respondent 'Malehlohonolo Masilonyane and her daughter-in-law 'Marethabilie Masilonyane concerning money which 'Marethabile's
husband wrote it in the name of his mother 'Malehlohonolo Masilonyane. 'Marethabile had pointed out since the money was not written in her name she would not accept it even when her mother-in-law offered to have it transferred into her savings book and even before the chief she refused and she refused when the chief suggested they settle their differences. The letter is dated 7 September, 2003.
According to annexure "3" dated 28 November, 2003, at the chiefs place a settlement was attempted between the applicant and 1st respondent but failed the result being that applicant ngalaed (sulked) to her home taking blankets with her. Annexures "4" is evidence that Lereko (applicant's father) took her daughter's goods to his home.
3
Annexuie "5" also dated 28 November 2003 reiterates the fact that the family appointed 'Marethabile (applicant) as to successor to the estate of her late husband and for six (6) months the family has endevoured to bring the family decision to fruition but failed because applicant's mother and father resisted this saying since the deceased had written his benefits in the name of his mother this shows deceased did not love applicant and in the result applicant would not accept benefits from a person who did not love her and it was better benefits went to the 2nd respondent whom deceased loved. The second reason was that applicant and her parents had hlahlaed (removed) all property of the marriage saying they were not unable to support their child. In fact annexure "5" is cancellation of the family's decision dated 6 June, 2003 appointing 'Marethabile (applicant) as heir to the estate of her husband.
The 1st respondent resists this application for two reasons, namely:
Although it is admitted that deceased was married'to applicant and as a result Masilonyane's family appointed as successor to her husband's estate applicant has not accepted to the family nomination and has instead ngalaed(sulked) to her maiden home taking all her effects with her.
The family renounced its decision appointing applicant as successor and has instead nominated 1st respondent as successor.
The deceased nominated 1st respondent as heir to his estate and the principle of stipulario alteri applies.
4
As for (!) above, when the family nominated applicant as heir and successor to deceased's estate, this was sheer formality because by reason of applicant being deceased's wife she was entitled to inherit deceased's estate. Whether the family can renounce and repudiate its decision is doubtful having regard to the fact that a woman married by custom on her husband dying marriage relationships are not severed in that she remains a child of the family. Family ties are only severed if the widow re-remarries though her re-marriage is dependant on bohali being returned to the deceased's husband family. But here we are not dealing with applicant's divorce or remarriage but her return to her maiden home.
Indeed according to Duncan's Sesotho Law and Custom p. 41 "it is of no moment whether the husband is dead or alive" for, as stated by Huggard J in Motsoene v. High Commission and Others, 1954 H.C.T.L.R.I, "when a'husband dies, the widow remains a member of the family of her deceased husband and cannot re-marry unless she obtains a divorce." What is of importance is that on a husband's death a widow remains a member of the family of her husband this equally applies to the applicant. It is claimed that applicant ngalaed taking with her household property. As for ngala custom, it is practice by which a wife goes to her
5
maiden home to seek solace from ill-treatment by her husband and it would seem the husband is to follow her and discuss the affair (Duncan pp 35-36). So ngala or sulk is not divorce for there is always a prospect of reconciliation. It would seem in the absence of her husband for all intends and purposes applicant is accountable to 1st respondent and 1st respondent has some responsibility over applicant, a responsibility overshadowing that of applicant's parents. On this basis it would seem it's in 1st respondent's interest to persuade applicant to return home. And the Court is also of the opinion that applicant should return home for she belongs to the Masilonyane's family. As for the family, I do not think that they have the right to disinherit applicant for she remains married to Masilonyane's family. Also, I have found nothing in annexure "5" above entitling 1st respondent to inherit the estate of her late son.
As for the stipulario alteri, I agree that it existed but was renounced by 1st respondent in appointing applicant as heir and successor to the estate of the late Lehlohonolo Masilonyane. In addition, 1st respondent acquiesced in the appointment of the applicant as heir to the estate of the late Lehlohonolo Masilonyane thus voluntarily surrendering her right to the applicant. I repeat, I am of strong view that in appointing applicant as heir to the estate
6
of her late son, the 1st respondent renounced the benefits of the stipulano alien and hence her solemn renunciation of interest in deceased's estate. The interest was not, in my view, revived. Indeed it is not only that interest in the stipulation was not revived, but that a condition precedent in stipulation is that the recipient must accept the stipulation for in doing so he acquires a vested right to claim the benefit and may sue for it - (see Grotius 3.3.38; Voet 2.14.12; Van der Keesel Th 510; Wessels 1754; Tradesmen's Benefit Society v. Du Preez (1887) 5 SC 269 at 278; Van der Plant v. Otto 1912 (A) 353 at 365; Mccullogh v. Ferwood Estate Ltd. 1920 AD 204 at 206, 215). As I have said it follows that prior to her acceptance 1st respondent had no vested right in deceased's estate or benefits held by the 2nd respondent. This is so because instead of accepting deceased's benefits lying with the 2nd respondent 1st respondent parted expressly and voluntarily with the benefits in favour of the applicant by means of the family decision annexure "MM2":
Evidence before me is that applicant deserted the matrimonial home or as is 1st respondent's case, she ngalaed though as I have shown above ngala custom is not divorce or severance of relations with in-laws. Ngala as authorities have it has to do with ill-treatment. There's plenty of authority to
7
the effect that women at custom are perpetual minors being minors to their own parents, their husbands, in-laws and the family in general. Indeed when deceased stipulated in favour of his mother, it was not because he did not love applicant but that he looked upon her as a minor looking upon his mother as the proper person to look after the applicant and family affairs.
As I have already shown above, unless she is a divorcee (in which case "bohali"(marriage) cattle are to be returned to her in-laws) a woman married according to Sesotho custom even after the death of her husband belongs to her in-laws as applicant does and whatever belongs to the family must be expended in the family.
Things are changing and women demand to be freed from shackles of outdated and chauvinistic customary law and since customary law is enshrined in the Constitution this Court is not about the change it!
Before corning to finality in this application, I have been puzzled by the way the record is paginated, a factor which took me quite sometime to unravel. To start with, pages are filed in an obverse order starting from the last page to the first page though there is intermingling of pages and missing
8
pages thus; 63, 62-58, 56-57; 55-51, 50-46, 63,43-44; 34-33, 36, 35, 35, 37, 42-39, 26-16, 31, 32, 32, 33, 34, 35, 35, 35, 35 15, 14, 13, 12 and 1-11; I have not experienced such disorder! Well trained staff is to be assigned to compiling and pagination of records for disorderly pagination delays judgments.
Pagination aside, the result is that deceased's benefits held by the 2nd respondent or having been released to the 1st respondent are to be released by the 2nd respondent to the applicant immediately and in case they are in 1st respondent's hands to be released to the applicant forthwith provided the applicant returns to her in-law's home at 1st respondents and expends the benefits in her in-law's homestead.
Unless within three (3) months of this judgment applicant will have returned to her in-law's home at 1st respondent's and claimed deceased benefits lying with 2nd respondent or in 1st respondent's hands, the benefits are to devolve on the 1st respondent.
As this is a family matter there will be no order as to costs.
9
G.N.mofolo
JUDGE
For the applicant: Mr. Molefi
For the Respondents: Ms. Tau-Thabane
10
CIV/A/21/04 IN THE HIGH COURT OF LESOTHO
MOJALEFA RAKOMETSI APPELLANT
SELLO RAKOMETSI 1ST RESPONDENT
HER WORSHIP MRS. MAPUTSOE 2nd RESPONDENT
THE ATTORNEY-GENERAL 3rd RESPONDENT
Delivered by the Honourable Mr. Justice G. N. Mofolo On the 12th day of August 2005.
This is an appeal from the Resident Magistrate's Court, Maseru.
After hearing evidence the Court found for the plaintiff Sello Rakometsi It is against this finding that the appellant has appealed to this Court.
Appellant's grounds of appeal read as follows:-
The learned magistrate erred in reaching the decision that the matter at the Land Tribunal was not pursuit, (to read, I think, pursued) as that matter is still pending therein.
The learned magistrate erred saying the defendant failed to honour a warrant of ejectment that was granted as such warrant was obtained through default judgement which was rescinded by the final court order granted on the 8th day of December, 1995 as per annexure "LM2 " hereto attached and is self-explanatory.
The learned magistrate erred in concluding that the authenticity of the letter that was written by the deceased 'Mamahlomola Rakometsi
allocating site which is in dispute to the defendant falls away only because it was made before a chief of Ha Molipa not the chief of Ha Thamae where the site is situated. As the Land Amendment Act does not require that the designation by the deceased should have been made before the chief, that is the Act does not mention the chief at all.
The learned magistrate further erred in ignoring the designation that was made by the deceased Makalo Rakometsi to the defendant in relation to another disputed site as the designation this time was made before the chief of Thamae where the site is allocated.
The learned magistrate erred in ignoring the fact that the letter designating the plaintiff as heir over the disputed sites was signed by non-members of Rakometsi's family as it was signed by people bearing Tsatsanyane's surname.
Before going into these grounds of appeal I am desirous of recapitulating evidence tendered before the court a quo.
P.W.I the plaintiff testified that defendant is his aunt's son and defendant is his cousin while he (plaintiff) is the only surviving relative and that defendant and his mother give him problems. And while, according to
the plaintiff defendant's mother was married defendant was illegitimate assuming his mother's surname. The plaintiff handed in Exhibit "A" being a notice by Urban Land Committee, Maseru. He has said Maseru City Council confirmed his right of occupation per Exhibit "B".
Exh. "B" is a Sesotho version and regrettably it has not been translated. That these documents have to be translated need no emphasis except to say how remiss counsel responsible can be sometimes. Nevertheless I am a Mosotho well read and fluent in Sesotho and since those responsible have not translated the document my version cannot but stand. There is a problem in the Index to the proceedings. Another problem is that there are two indices to these proceedings and I wonder why this was necessary except causing unnecessary confusion. Thus in the first index dated 21 October, 2004 exhibits "A", "B" and "F" are on pages 82, 83 and 84 respectively but as I have said there's no exhibit "A" on page 82 and on page 83 is what appears to be Exh. "E" though this can be allowed to pass as Exh "B" and on page 84 appears annexure "B".
It is a hopeless mess defying resolution. The other undated Index shows Exhibits "A", "B", "IDA" and "F" as well as annexure "B" but no pages are given. Notwithstanding these errors though, a letter on page 83 of the proceedings
confirms 'Mamahlomola having allotted Mojalefa (defendant) where Mojalefa has built and the latter is witnessed to by Clement Rakometsi, Solly Pakiso Rakometsi and Letebele Daniel Rakometsi countersigned by Chief 'Nena to the effect, translated, "I know those who have signed hereunder (sgd. P. G. 'Nena). Of course P.W.2 Potso 'Nena gave evidence saying "I don't know Mojalefa Rakometsi. While the chief appears to acknowledged his signature, he testified "the date stamp was misused by Rakometsi family who were my subjects at Kolonyama —."
In cross-examination regarding his signature and date stamp the chief replied: "they were both stolen and forged," and I may mention it is the reason the learned magistrate in her judgment found "but checking the authenticity of the letter that was written makes such evidence fall away." The learned magistrate for reason best known to her was very terse in her judgment. What the court a quo meant was that the authenticity of Rakometsi's letter was not authentic and it was rejected. Indeed it was not authentic for as P.W.2 testified, there was theft and forgery. Actually, the chief disclaimed the letter claiming his stamp had been stolen. In other words that the transaction was fraudulent quite apart from the fact that the chief of Molipa, Kolonyama in the Leribe district has no authority over
property falling under the chief of Thamae in the Maseru district. Whatever the case, there is nothing stopping subjects from approaching their chief regarding their personal problems for intervention as this may be good for evidential purposes especially where a gift or a decision is made concerning a subject for there are such public events requiring witnessing by a chief.
The document on page 83 of the record of proceedings purported to be something other than what it really is and there is an element of imitation (see Drayer 1967 (4) SA 614 (E) 618 B-C, also Banur Investments (Pty) Ltd, 1970 (3) SA 767 at 772 D. It has also been
held a forged document most commonly tells a lie as to the person who made it or authorized its making - see Mead v Young (1970) 2 Leach 775; re: Cooper (1882) 20 CLD 611; R v Hudson (1943) 14B 458. The so-called Exh. "B" appearing on p.83 of the record of proceedings was authorized by the defendant/appellant. The learned magistrate although not in so many words rejected the document as this court does.
It is to be understood the so-called Exh. "B" appearing on p.83 purported to confer on defendant/appellant 'Mamahlomola's property where defendant/appellant has built. If the latter built on the site innocently
believing he is a member of the family, there was no need for him to cheat afterall even illegitimate children in the absence of real heir's inherit. Question is, since appellant/defendant has improved not withstanding his incapacity to inherit, can he be removed?
It also behoves the Court to consider annexure "B" on page 84 of the record of proceedings otherwise dubbed Exh. "B" in the Index. Makalo Rakometsi according to plaintiff's evidence is plaintiffs great uncle being elder brother of plaintiff's father.
Plaintiff claims he is Makalo Rakometsi's heir by virtue of being the only male issue to Makalo and Nako (his father). Plaintiff says he is heir according to custom. A close reading of Makalo's letter on p.84 of the Record of Proceedings does not speak of heir or succession. Notably though, the document is witnessed by members of
Rakometsi's family. Makalo claims in his letter to the chief of Thamae's:
"— Here is my story, to inform you of the place where I run a cafe 'Khoikhotha cafe.' Because of my long illness, I find myself bound to publish my story before you chief. For having been out of work for a long time, material which built this cafe the money I obtained from Mojalefa Rakometsi and in trying to raise money to pay him I am confronted with infirmities and it has seemed to me best to write this letter chief."
By his letter Makalo has given the entire plot where the cafe stands surrendering both the Form C and Title Deed to the appellant/defendant by reason of his indebtedness to appellant/defendant. Makalo has said he owes
defendant and it seems it's common cause that this is so. If so, defendant is entitled to the property not because of succession but by reason of Makalo owing him. Take it from me, in this country so-called heir's and successors are louts, lazy and idle creatures hoping to strike it rich on their father's and uncle's death. If not, why was it necessary for defendant to support Makalo when the latter should have been supposed by plaintiff? The curse of Esau stays with us. And yet, in our custom, "mojalefa" is one who eats and pays. What has Sello Rakometsi the plaintiff paid to earn? Defendant is entitled to the property of Makalo to the extend of Makalo's indebtedness to him and can only be removed if his debt is paid. The magistrate though appears to have treated the claims globally when she should have treated them singly and individually.
I have said notwithstanding that defendant is guilty of forgery and misrepresentation of facts arising from the so-called Exh."A"
on p.83, since the defendant has developed the property, question is whether this regardless he can be deprived of the property. At second thoughts though, I am of the view that because defendant attempted to deceive and cheat to acquire rights in 'Mamahlomola's property, he has forfeited all rights to the property for misrepresentation of the true facts.
I have also perused the Urban Committee's finding in July, '97 and find that it was to the effect that Makalo's sites be passed to Sello Rakometsi the plaintiftf/respondent.
Regarding grounds of appeal I have referred to above, in 1st ground of appeal, it appears to me that matter lying with the Urban Committee was not pursued in that judgment of the Urban Committee was not challenged:
As for the 2nd ground of appeal, I agree that judgment obtained by default was rescinded and hence the judgment in CC 470/1992. As for the 3 ground of appeal, it's not a question of before whom the representation was made regarding Mamahlomola's allocation, but that the document purporting to allocate was false based on misrepresentation and forgery.
Concerning the 4th ground of appeal, I have said in my judgment above that the allocation of site where the cafe stands was made by Makalo in consideration of his indebtedness to defendant/appellant. It was Makalo's representation that in his lifetime defendant supported him and not being at ease with his conscience in failing to pay off defendant he had decided that
where the cafe stands and all that goes with it be surrendered to defendant/appellant as he did, indeed, surrender both the Form "C" and Title Deed to defendant. I have said this has nothing to do with succession as the relationship between Makalo and defendant was one of debtor and creditor.
I am not aware that plaintiff took defendant to task about Makalo having surrendered his property by reason of owing defendant. All that plaintiff is claiming is that he is heir to his father and great uncle Makalo by custom.
As for the fifth ground of appeal, it was not contended that plaintiff is heir to estates of both his father and uncle Makalo.
In the result, sites in dispute are the property of the plaintiff as heir to the estates of both his father and his uncle Makalo except the property on which a cafe stands as this site and all that goes with it is the property of the defendant by reason of the said Makalo being indebted to the defendant.
As both the defendant and plaintiff have succeeded and failed, there will be no order as to costs.
For the appellant: Mr. Mosito
For the respondent: Mr. Phafene
