"
CIV/APN/58/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of .

'MA-ALICE
TSILO Applicant

v

'MA-ROSINA
TSILO....... 1st Respondent

MINISTER
RESPONSIBLE FOR CHIEFTAINSHIP

AFFAIRS
........... 2nd Respondent

THE
PRINCIPAL CHIEF

OF
MATSIENG ....... 3rd Respondent

THE
SOLICITOR-GENERAL.. 4th Respondent

REASONS
FDR JUDGMENT

Filed by
the Hon. Mr. Justice B.K. Molai on the 18th day of November, 1987.

This
application has already been allowed for the following reasons

The
applicant herein had filed with the Registrar of the High Court a
notice of motion in which she moved the court for an order
framed in
the following terms.

1. An
   order for the cancellation of the gazettment of the chief or Headman
   of Tloupe Ha Tsilo, under the Principal Chief of Matsieng.

   
   

2. An
   order directing that the applicant be gazetted in the place of the
   1st Respondent.

   
   

3. An
   order for costs of this application.

   
   

4. Further
   and/or alternative relief."

   
   

The
papers were duly served on Respondents who intimated their intention
to oppose the application.

2

However,
the 2nd, 3rd and 4th Respondents subsequently withdrew their notice
of intention to oppose and only the 1st Respondent's
opposition
remained. Both the applicant and the 1st Respondent filed their
affidavits.

The facts
disclosed by the affidavits were brief, straightforward and common
cause viz. that on 20th August, 1935 the applicant
got married to one
Makhetha Tsilo by civil rites. The civil marriage between the
applicant and Makhetha Tsilo, who was the gazetted
chief of Tloupe Ha
Tsilo, was never resolved and it subsisted until the letter's death.
However, during his life time and the subsistence
of the civil
marriage the later Chief Makhetha Tsilo entered into a customary law
marriage with the 1st Respondent. This was, according
to 1st
Respondent, because applicant had deserted Chief Makhetha Tsilo since
1942.

It
transpired that following the death of Chief Makhetha Tsilo, who
apparently left no male issue, a family meeting was held to
decide on
the question of a successor to the chieftainship of Tloupe Ha Tsilo.
The family meeting took a decision that the 1st
Respondent as the
widow of the late Chief Makhetha Tailo be nominated the successor to
the chieftainship of the area. The applicant
objected to the
nomination and/ or recommendation of 1st Respondent as the successor
to the chieftainship of Tlouoe Ha Tsilo. Notwithstanding
the
applicant's objection the 1st Respondent was recommen­ded and
gazetted the chieftainess of Tlouoe Ha Tailo on the ground
that she
was the surviving wife of the late Chief Makhetha Tsilo. Wherefor the
applicant approached the court as aforesaid.

It is to
be observed that one of the consequences of a civil marriage is that
"while the marriage subsists, neither of them
(spouses) may
contract matrimony with an another person." - p. 106 of the
South African Law of Husband and Wife (4th Ed.)
by Hahlo. It follows,
follows therefore that Chief Makhetha Tsilo could not

3

legally
enter into another marriage during the subsistence of his civil
marriage with the applicant.

As it was
common cause that at the time Chief Makhetha Tsilo purported to enter
into a customary law marriage with the 1st Respondent
his civil
marriage with the applicant had not been resolved and still subsisted
there was no doubt in my mind that the purported
customary law
marriage was null and void ab initio. Granted that there was no valid
marriage, between the late Chief Makhetha Tsilo
and the 1st
Respondent it stands to reason that the 1st Respondent could not, in
law, be his wife or widow i.e. the applicant was
the only surviving
wife 01 widow of the late Chief Makhetha Tsilo.

S. 10(5)
of the Chieftainship Act No.22 of 1968 clearly provides, in part

"(5) If when an office of chief becomes vacant there is no
person who suc­ceeds ....... the only surviving wife of the

chief, or the surviving wife of the chief whom he married earliest,
succeeds to that office of chief ......"

It seemed
to me, therefore, that even if 1st Respondent were legally married as
the second wife to the late chief Makhetha Tsilo
she could not
succeed to the chieftainship of Tlouoe Ha Tsilo in preference to the
applicant who was admittedly the earliest married
wife of the late
chief. The family decision on the basis of which the 1st Respondent
was apparently recommended and gazetted to
the chieftainship of the
area was clearly a violation of the provisions of S.10(5) of the
Chieftainship Act No.22 of 196B and the
court did not consider itself
bound by such a decision.

From the
foregoing I came to the conclusion that this application ought to
succeed. It was accordingly de­clared that as she
was not legally
married to the late Chief Makhetha Tsilo, the 1st Respondent,
'Ms.Rosina Tsilo, was not and could not be a successor
to the
chieftainship of Tlouoe Ha Tsilo. On the contrary the applicant

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'Ma-Alice
Tsilo as the only surviving and legally married wife of the late
Chief Makhetha Tsilo was the rightful successor to the
chieftainship
rights of Tlouoe Ha Tsilo under the Principal Chief of Matsieng. This
being a family matter, I made no order as regards
costs.

The
decision was to be brought to the attention of the 2nd Respondent for
his necessary action regarding the rectification of the
applicant's
gazettement.

B.K.
MOLAI

JUDGE

23d
November, 1987.

or
Applicant Mr. Moorosi

For
Respondent Mr. Mambule.