IN THE HIGH COURT OF LESOTHO
CIV/APN/153/2010
In the matter between:-
‘MAKHAUTA AGNES MOTSEKO APPLICANT
AND
THABANG MOTSEKO 1ST RESPONDENT
‘MAKHAUTA MOTSEKO 2ND RESPONDENT
MOTLALENTOA MOTSEKO 3RD RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice M. Mahase
On the 13th June, 2011
Civil Procedure – Application/motion proceedings – Applicant seeking a declaratory order as heiress of the estate of her late father – father having died intestate – father having married by civil rites during the subsistence of a former customary rites marriage – consequences flowing there-from such a marriage.
The applicant has approached this Court by way of motion proceedings on notice seeking the following prayers:
1. (a) That she be declared the heiress to the estate of her late father Khauta Motseko, which estate comprises of the property tabulated in annexure “A” attached to this application.
(b) Costs of suit in the event of opposition.
(d) Further and or alternative relief
The application is opposed. The respondents have raised points of law or points in limine in opposition to the application. I will refer and deal with same in due course. I will firstly summarize the facts which gave rise to this application. Most, if not all such facts are of common cause; and they are as follows:
The father of applicant; Khauta Motseko first married one ‘Mantsoaki Motseko by customary rites (Sesotho customary marriage) sometime in 1979. The exact date of this has not been disclosed.
Subsequent to that marriage, and still in subsistence of his first customary marriage, Khauta Motseko contracted a civil rites marriage in community of property with one ‘Mamokone Motseko on the 23rd March 1991; to wit see annexure “B” attached to the applicant’s founding affidavit.
The applicant, ‘Makhauta Agnes Motseko (presumably named after her paternal grandmother – 2nd respondent) was born of the marriage of her late father Khauta and ‘Mamokone.
That in 1991, when applicant’s father contracted a civil rites marriage with applicant’s mother, he (Khauta) pronounced himself to her as a bachelor.
- However, at that time in 1991, Khauta already had three children, by his first wife (Mantsoaki). The names of those children are:- ‘Mamathe, Nthakoana and Malehlohonolo (‘Malucky).
- Applicant’s father and mother were legally divorced in 2002 by this honourable Court. Vide annexures “C” and “D” herein.
- Applicant’s father then passed on, on the 11th February 2011.
- Applicant has since become aware that her biological father, Khauta Motseko was married to ‘Mantsoaki Motseko by Sesotho custom. This is not disputed.
- It is also not disputed that applicant’s divorced mother is still alive.
- Also undisputed is the fact that after Khauta’s alleged divorce, he married one ‘Maserabele who has since passed on.
It is undisputed, further that the applicant has since got to know that her father’s first wife (her stepmother) is still alive, so also that there are three children born of the marriage of her late father and her stepmother; she has to date not applied for the joinder of any of them in the instant proceedings. This she has failed to do even after she has come to know that family members of her late father have appointed ‘Mantsoaki as heir to her late father’s estate.
Put differently, applicant has failed to join the said ‘Mantsoaki as an interested and necessary party who will definitely be affected by the outcome of this application. ‘Mantsoaki is not only an interested party herein but she has a substantial interest in the outcome of this case.
This non joinder of ‘Mantsoaki in this application is alone a ground upon which this application stands to be dismissed. When on the 6th April 2011, the applicant filed her heads of argument and or when same were field in this Court on her behalf, she already knew about the said ‘Mantsoaki and her relationship with her late father. Whether or not she was none of the people who had occupied her late father’s house immediately after her father’s funeral is inconsequential.
This now brings me to the issue that the marriage between the applicant’s father and her mother, ‘Mamokone was or is a putative one. This, the plaintiff alleges even though there is more than ample evidence that the marriage to her parents was preceded by a valid customary marriage between her father and ‘Mantsoaki. She knew also, immediately after her father’s funeral that the said customary marriage between her father and ‘Mantsoaki was still in subsistence when her mother; ‘Mamokone purportedly married her father by a civil rites marriage. She has not challenged the contents of the respondents’ affidavit that in fact the said customary marriage between her father and ‘Mantsoaki was a valid customary marriage. Neither has she challenged the validity or truthfulness of documentary evidence showing that indeed some head of cattle were paid by her father’s parents as bohali for the marriage of ‘Mantsoaki to her father.
I note also that, applicant came to court after she had knowledge of ‘Mantsoaki’s valid customary marriage to her father and after ‘Mantsoaki was appointed as heir to her husband’s estate by his family members; the respondents herein.
The applicant has also not challenged nor has she asked the Court to set aside the appointment of ‘Mantsoaki as heiress to her father’s estate. The supporting affidavit of applicant’s mother has not advanced the applicant’s case any further. She has not furnished any evidence to negative the allegation that in fact she was the cause of ‘Mantsoaki’s demise and that she knew then when she joined her alleged husband at Thaba-Chitja in Morija that Khauta had a lawfully wedded wife and some three children.
In fact the alleged marriage between applicant’s father and mother (‘Mamokone) offends against the provisions of section 29 (1) of the Marriage Act No. 10 of 1974, which provides that:
“No person may marry who has previously been married to any other person still living unless such previousmarriage has been dissolved or annulled by the sentence of a competent court of law.
(My underlining)
See also: ‘Manthabiseng Ntloana and One v. ‘Mabatho Rafiri, C. of A (CIV) No. 24 of 2000.
It is settled, that, and there is a plethora of authorities and pronouncements by our Court of Appeal to the effect that a civil marriage cannot subsist side by side with a customary marriage. See also other authoritative cases from our jurisdiction in this regard, herein cited at paragraph 5.4 pp 5 and 6 of the 2nd and 3rd respondent’s head.
There is no doubt in the mind of this court that:-
- Applicant’s mother, ‘Mamokone has not been candid to both this Court and to her own daughter about her unlawful marriage to applicant’s father.
- Applicant has also deliberately not been candid to this Court about her knowledge of the existence of ‘Mantsoaki and her children who have also been fathered by her alleged father Khauta, long before applicant was born.
- She has not been candid to this Court and she withheld and or deliberately failed to inform this Court in her founding papers that when she rushed to court as she did, she already had knowledge that the Motseko family had appointed ‘Mantsoaki as heir to her late husband’s estate.
For the foregoing reasons, and regard being had to the prevailing circumstances of this case, this Court has come to the conclusion that:-
(i) The marriage of applicant’s mother, to Khauta Motseko is not and cannot be declared putative. It was invalid ab initio.
(ii) ‘Mantsoaki, Khauta’s first wife, has correctly and lawfully been appointed as heiress to the estate of the late Khauta Motseko, by the Motseko family.
The applicant has not even challenged the right of that Motseko family to appoint ‘Mantsoaki as heiress – correctly so in the view of this Court.
Indeed, the right to nominate the heir is the prerogative of the family in question and not that of the Court(s) of law – vide Moteane v. Moteane, LLR-LB 1997 – 1998, page 43 at 48.
Courts of law will, of course be resorted to as a last resort by the dissatisfied persons.
It follows therefore from the above that the applicant’s application should and is therefore dismissed with costs.
M. Mahase
Judge
For applicant - Mr. T.J. Mokoko
For 2nd and 3rd respondents - Mr. V.M. Mokaloba
No appearance for 1st respondent
