C of A (CIV) 9/2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
'MAPITSO ELSINA SEMAHLA APPELLANT
RAMONATE KOENAESELE JOSEPH LEPHOLE RESPONDENT
HELD AT: MASERU
5, 14 April, 2000
CORAMR.N. LEON, J.A.
L. VAN DEN HEEVER, J.A.
G. FRIEDMAN, J.A.
VAN DEN HEEVER. JA
This is an appeal against the judgment of the learned Chief Justice in which he dismissed an application by the appellant for an interdict against the respondent, aimed at preventing him from dealing in any manner with a residential property at
Qoaling, Ha Seoli in the Maseru urban area, "lately the property of Mafereka Semahla, since deceased."
The record on appeal is hardly perfect. I complain only because such imperfections make it unnecessarily difficult for the members of this court to prepare for the hearing of a number of appeals in what is usually a strenuous session.
There is no return of service of the Notice of Motion (dated 25 June 1977) and founding affidavit. Notice of intention to oppose was given on 4 July 1997. Judgment was given in terms of the Notice of Motion on 8th September 1997. An application for rescission followed and must have been successful though the relevant order is not incorporated in the record. The application itself is. The documents in the main application were then prepared and filed, the matter argued, and on 4 January of this year the Chief Justice dismissed the appellant's application with costs.
The appellant's founding affidavit is brief. She married Mafereka Semahla (hereinafter "the deceased") by customary law in 1939. They lived at Levy's Nek in the Leribe district, where she still resides.
During about 1965 he came to work in Maseru, leaving her behind at Levy's Nek. In Maseru he lived as husband and wife with "a certain woman" (to whom I shall refer as 'Mateboho) in a four roomed house he built for them in Masem, the property identified in her Notice of Motion. She could not say when the relationship between the deceased and 'Mateboho started. It came to an end in about 1985 when 'Mateboho died. At that stage Eveline, a daughter of the appellant and the deceased, was living with them at Maseru along with her children, her marriage having failed.
In 1986 the deceased died. Since then, the appellant herself had collected and subsisted from the rental of three single and one double roomed structures that had also been erected on the property by the deceased, and let out to tenants. During about 1996, she says,
"the Respondent began interfering with my rights over the said premises by expelling the tenants and generally harassing my said daughter and her children. At one stage he also sued my son Pitso who did not live on the premises nor laid any claim thereto. 1 took the matter up with the chief of the area and various other authorities but to no avail even after the Respondent had expelled all my tenants from the said rented rooms and substituted his
own from whom he collects rent for his own benefit."
He effected building alteration to the main house where the appellant's daughter lives with her children, during June 1997,
"Thus creating an explosive situation as my daughter's eldest child is a young man of about 21 years and straining at the leash to protect his mother and siblings."
She nowhere states expressly what is the source of her own alleged rights "of ownership and occupation" which according to her Notice of Motion she seeks to protect; nor that the deceased had not been married to 'Mateboho, merely that the latter had said when allegedly taunting the appellant, that she was married to one Tlhoriso Nchepe. Nor does she expressly state that the respondent's conduct is unlawful. She does so indirectly:
"The Respondent is the husband to the sister of the woman who I have averred used to live with the deceased. To the best of my knowledge and belief the Respondent's aforesaid conduct emates (sic) from his claim of right based on this relationship. I respectfully submit that this is untenable, insupportable and purely provocative. I respectfully submit that the Respondent is
taking advantage of the fact that I am single and an old woman aged above 78 years and that my said daughter is also single. I submit that I have no other remedy but to approach this Honourable Court as I am now doing."
The Respondent's case may be summarised as follows: The deceased married 'Mateboho by Sesotho law and custom as his second wife and lived with her on the disputed site which had been allocated to the pair of them while the appellant's own home was at Levy's Nek at Leribe. A second marriage ceremony was performed in church. After the death of his sister-in-law, 'Mateboho, he himself assisted his nephew, Teboho, who was the heir, to bring up his younger brothers and sisters. Teboho was not well and working far from home, and both asked and authorised the respondent in 1995 to handle his affairs here, after Teboho himself had gone to the Matala Local Court the previous year. This was because Eveline had moved in after the death of the deceased, the appellant's son Pitso had laid claim to the site, and had ejected Teboho's siblings. The appellant then started collecting the rental from the rooms. Evidence had been led in the Local Court to establish that the deceased had married 'Mateboho, then a widow with children, by bohali and again in church by Rev. Gilbert Sibolla. Teboho had been bom (in 1967) from this marriage. The President of the court had upheld
Teboho's claim and ordered Pitso to vacate Teboho's parental home. His own was
at Leribe. This judgment had been confirmed on review by the Chief Magistrate on 13 September 1994.
The respondent annexed to his own affidavit, ones by a number of deponents who confirmed his own testimony that 'Mateboho and the deceased had been married both by customary law and thereafter in church. One had even contributed towards the bohali.
The respondent denied that he himself laid any claim to the disputed site or any proceeds from it. He had acted solely in the interests first of Teboho, as requested, and after his death during 1986, of Teboho's son Thabo and (named) siblings. He annexed a document dated-stamped 8 July 1997 by the Chief of Ha Seoli, in which those siblings confirm that they accept and welcome his conduct.
The appellant's replying affidavit is again brief. She denied that the disputed site had been allocated to the deceased and 'Mateboho jointly. She denied emphatically that Teboho and his alleged siblings were children of the deceased: he and his sister Matseliso were fathered by Tlhoriso Nchepe who was 'Mateboho's
husband, and Mpho is Matseliso's daughter, not her sibling. Even if these were the children of the deceased, "the Respondent would have no business interfering in matters which concern the Semahla family."
In the fourth and final paragraph of her affidavit she says:
"I am unable to deny that my late husband paid bohali for 'Mateboho. What I do submit is that such purported bohali could not result in any marriage whatsoever in as much as when it was allegedly paid 'Mateboho was still lawfully married to the said Tlhoriso Nchepe."
On these papers I can find no fault with the approach of the court a quo in dismissing the appellant's application. There was not an iota of evidence produced in support of her allegation, originally illogical: that 'Mateboho had taunted appellant by making a statement adverse to 'Mateboho's own interests; which grew to the bald allegation in reply just quoted. The learned Chief Justice accepted that 'Mateboho had been a second wife of the deceased. The appellant's son and heir, Pitso, had lost the case in which the validity of 'Mateboho's marriage had been well canvassed and found to be in order, In terms of sec.11 (1) of the Laws of Lerotholi the appellant had no locus standi in the matter - that is, so as to enable her to bring the same issue to be determined once more in a different forum.
Before us Mr. Sello argued that the court a quo had erred in taking no cognisance of what he said was the appellant's challenge to the locus standi of the respondent. It bears repeating that the application was brought on the basis that the respondent was enriching himself at the expense of the appellant and her children. Only in her answering affidavit is a negative postulated, (that the respondent was interfering in matters which did not concern him) with no positive suggestion as to who should in fact or in law represent the minor children and grandchild of 'Mateboho. Mr. Sello could, in argument, give no suggestion as to what member of the deceased's family should have shouldered such responsibility. Certainly not the appellant and/or her son Pitso, who had tried to take for themselves what prima facie was due to 'Mateboho's descendants. Nor could he refer us to any authority that under circumstances such as revealed in these papers, a good Samaritan, negotiorum gestor. call him what you will, would not be permitted to represent orphans and advance their interests in the courts of this country.
He then nailed his colours solely to the mast of Section 5 of Order 6 of 1992 which amends the 1979 Land Act. He annexed a copy of this 1992 Order to his heads of argument. The relevant section reads:
"5. Section 8 of the Principal Act is amended,
Amendment (a) in subsection (!) by inserting after the word 'occupy' of section 8 the following words: 'or to allow another person to ofA17of use'. 1979
by deleting subsection (2) and substituting the following subsection:
'(2) Notwithstanding subsection (1), where an allottee of land dies, the interest of that allottee passes to,
where there is a widow - the widow is given the same rights in relation to the land as her deceased husband but in the case of re-marriage the land shall not form part of any community property and, where a widow re-marries, on the widow's death, title shall pass to the person referred to in paragraph (c);
where there is no widow- a person designated by the deceased allottee;
where paragraphs (a) and (b) do not apply - a person nominated as the heir of the deceased allottee by the surviving members of the deceased allottee's family; or (d) in any other case - the State, and the Chairman of the relevant Allocating Authority shall record in his register the passing of that title.' (c) in subsection (3) by deleting 'a surviving spouse or';
in subsection (3) by adding the following words after the word 'decease' 'whether such title is registrable or not'."
He argued that since 'Mateboho had predeceased the deceased, and there was no suggestion that the deceased had designated a person to whom his interest in the Maseru property was to pass, at best subsection (2) (c) applied. The family of the
deceased had however not nominated those whom the respondent purported to be protecting who consequently in fact had no rights to protect; the statute overriding customary law and/or the Laws of Lerotholi.
This contention was not one that had been mooted in the application. Obviously if it were a good law point, that would not matter. What Mr. Sello omitted to mention was that in the 1979 Land Act itself, the section which was amended in 1992 (long after rights had or had not vested on the death of the deceased in 1986) falls in Part II. That commences with section 7 which expressly provides that "This Part applies only to land in rural areas." It is unnecessary to set out the entire Section 8 and particularly 8(2) in its unamended form. The appellant herself makes it clear that the stand in question is a residential one in the Maseru urban area. Cadit quaestio.
In my view there is no merit in the appeal, which is dismissed with costs. Delivered at Maseru this 13th day of April 2000.
L. VAN DEN HEEVER
JUDGE OF APPEAL
R. N. LEON
JUDGE OF APPEAL
JUDGE OF APPEAL