" 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.
An order for the cancellation of the gazettment of the chief or Headman of Tloupe Ha Tsilo, under the Principal Chief of Matsieng.
An order directing that the applicant be gazetted in the place of the 1st Respondent.
An order for costs of this application.
Further and/or alternative relief."
The papers were duly served on Respondents who intimated their intention to oppose the application.
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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
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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.