Sekhothu v Sekhothu and Others (CIV/APN/462/95)

Case No: 
CIV/APN/462/95
Media Neutral Citation: 
[2003] LSHC 54
Judgment Date: 
3 May, 2003

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CIV/APN/462/95

IN TH E HIGH COURT OF LESOTHO


In the matter between:

'MATHSETSO SEKHOTHU Applicant

and

MOKHOAETSI SEKHOTHU 1st Respondent

TOMY SEKHOTHU 2nd Respondent

PALESA SEKHOTHU 3rd Respondent

'MAMOKHOAETSI SEKHOTHU 4th Respondent


For the Applicant and

Respondents-in-re-convention : Mrs Kotelo

For the Respondents and

Applicants-in-re-convention : Mr. Mphalane


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 3rd day of May 2003


1. This was wasteful litigation in every respect. A short judgment will do justice to the whole saga of the Notice of Motion and Counter-Application. That the matter ended up by way of viva voce evidence must have proved even more costlier to the poor litigants.


2. A rule nisi was granted in terms of the prayers as in prayer 2. The whole lot having been as follows:


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" 1. (a) The forms and service in terms of the Rule of Court shall not be disposed on account of the urgency of the matter


  1. The Respondents shall not be ordered forthwith to restrain from assaulting or to assault the Applicant.


  1. Respondents shall not be restrained from evicting or attempting to evict Applicant from Applicant's marital home at Naledi Ha Tsosane.


  1. Respondents shall not be restrained from setting foot at Applicant's place of residence at Naledi Ha Tsosane.


  1. Respondents shall not be restrained from attempting to seize Applicant's two Motor Vehicles A 0933 and AE 896, except through the due process of law.


  1. Respondents shall not be restrained from laying their hands on Applicant's property at Khubetsoana and Ha Tsosane Letsatseng except through the due process of law.


  1. Respondents shall not pay costs of this Application.


  1. Applicant shall not be given further and/or alternative relief.


2. That prayers (a), (b), (c) and (d) operate with immediate effect as an Interim Order".


3. The first three (3) prayers of the counter-application had been as follows:


  1. Declaring the property of the late Alfred Motsamai Sekhothu as the property of 4th Respondent who was married legally to him.


  1. Directing the Applicant to hand over all the property, whether moveable or immovable to the 4th Respondent who is the legal wife of the late Alfred


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Motsamai Sekhothu.


  1. Declaring the civil marriage of the Applicant to the late Alfred Motsamai Sekhothu as null and void ab initio.

  2. ............................................

  3. .............................................

  4. .............................................

  5. ..............................................

  6. .............................................

  7. ..............................................".


My brother Maqutu J then granted the following orders in terms of the prayers 4, 5, and 6 of the counter-application which were framed as follows:


" 1. (a) That the Applicant be restrained to dispose off and/or alienate in any manner whatsoever; to anybody the property of the late Alfred Motsamai Sekhothu whether moveable or immovable and wherever such


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property is situated or kept.


  1. That the Deputy sheriff of this Honourable Court be authorized and empowered to take the inventory of the property of the late Alfred Motsamai Sekhothu, either moveable or immoveable wherever situated or kept and to file such inventory of the property of the late Motsamai Sekhothu, either moveable or immoveable wherever situated or kept and to file such inventory with the Registrar of this Honourable Court pending the outcome of this application.


  1. Directing the Applicant to point out and to show the Deputy sheriff the property of the late Alfred Motsamai Sekhothu, whereiver is situated or kept to enable the said Deputy sheriff to take inventory.


That order 1 .(a) (b) and (c) should operate with immediate effect."


This interim order was intended to arrest a seemingly painful situation that would have been brought by the first interim order. Unfortunately there was no proof that it was complied with. That dangerous situation that can result is often a product of interim orders which is issued without notice or without not having heard the other side.


This was a matter in which the Applicant approached the Court on an urgent basis and resultantly obtained an interim order. In opposing the application Respondents in turn as said before filed a counter-application as well and another interim order resulted.


The main issue in this case is whether the Applicant was legally married to the late Alfred Sekhothu and therefore entitled as of right to the property of the estate and on the other hand; whether the Fourth Respondent was the legal wife of the late Alfred Sekhothu and therefore entitled to inherit in the estate of the late Alfred Sekhothu.


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Applicant said she was the lawful wife of the Deceased and that they married by civil

rites on the 10th May 1982. The Fourth Respondent said she had been married by custom by the Deceased since 1964.


Due to obvious disputes of fact which could not be resolved on the papers the matter was referred for viva voce evidence. Both parties led evidence which was completed. Both cases rested. The Applicant became the first witness. She was followed by that of Adv. S. Moorosi, one Mokhoaeli Sekhothu, then the Fourth Respondent and significantly one Lebabo Tsejane who supported the Fourth Respondent's case and who testified decisively towards the way the case ended.


The proceedings then became a veritable bulk of the exhibits before Court ("C" "D" and "E"). This I will come to later in the judgment The exhibits included "A" a Form "C" for a site at Majoe-a-litsoene in favour of 'Matiisetso Sekhothu (Applicant). There was another Form "C" of the same area in favour of the same person (Exhibit "B"). The other exhibit was a file from the magistrates Court of Maseru's case number cc 1150/84 put in by the Clerk of Court by Adv. S Moorosi who had represented the Fourth Respondent against the late Alfred. This included the proceedings in which the latter had sought to set aside a writ of execution and suspension of attachment of property emanating from that suit for maintenance. Fourth Respondent relied mostly on the contents of the file to prove that Alfred was married to her on a balance of probabilities. The evidence had become not too involved but coupled with the vociferous cross


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examination to the two Counsel the proceedings were a testing and emotional trip.

It is useful first to illustrate the Fourth Respondent's position by reference to the contents of the affidavits in CC 1150/84. Through this she wanted to persuade this Court that Alfred could not have been validly married to the Applicant nor that she was rightful wife of Deceased. In the order in which the process were found in the file of cc 1150/84 and explained in the testimony Adv. Moorosi they were as follows:


Firstly, was the answering affidavit of Alfred dated the 12th October 1989. This answering affidavit was in response to an application for increase of maintenance of the Fourth Respondent against Alfred. It was further to the effect that the original application was unsuccessfully contested. Firstly, Defendant (AD Paragraph 2, 3, 4 and 5 of founding affidavit) denied that the Plaintiff (Applicant) is his wife because he is married to Merriam Sekhothu (born Lebina). That he was married to the Meriam Sekhothu by civil rites on the 10th May 1982. In that regard a marriage certificate was annexed thereto and marked "A".


The late Alfred further deposed in the affidavit (in cc 1150/84) that he paid only six head of cattle for having seduced Applicant. Applicant's parent has refused


".....(where) we entered into a Basotho customary marriage when I was in Quthing."


He added that it is false that in 1964 "we entered into a marriage". The affidavit goes on to say how the Fourth Respondent refused when invited to enter into a civil marriage by


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Deceased. In addition the paternity of one child out of the four of the union is denied.


Furthermore that Alfred was ordered to maintain Fourth Respondent because he was already maintaining children which he never stopped to do. And finally that the civil marriage to Applicant had not originally been brought to the Court's attention. This is in the context of Alfred having unsuccessfully opposed the original maintenance application. See Defendants plea ("MS 1") (MS 2) to summons and in particular MS 1.


It is true that in 1995 when a writ of Execution had been served against Alfred for failure to pay maintenance he had in his opposing echoed the same grounds upon which he opposed the variation of the maintenance order. It was that he had always maintained his children. He did not suggest that the Fourth Respondent was not his wife. In addition he stated that although the writ was being issued the variation proceedings had not been completed.


What Mr. Mphalane for the Fourth Respondent thought should persuade the Court that probabilities are that, despite Alfred's denial, there was a marriage by custom between Alfred and Fourth Respondent because this was Alfred own admission in paragraph 3 and 4 of his (Defendant's) plea to the Fourth Respondent summons for maintenance. It was that he (Alfred) was married to Fourth Respondent (Plaintiff) by Sesotho custom. Alfred further stated that except that the Fourth Respondent had deserted in 1979 Alfred had continued to maintain the Fourth Respondent (as his wife) together with the children.


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Adv. Moorosi (PW 2) who was then in the office of the Chief Legal Aid Counsel

handled the original maintenance case on behalf of the Fourth Respondent. According to Adv. Moorosi, indeed this is born out by the response in the reply by the Defendant (Alfred) the only dispute was that he (Alfred) had been maintaining his children and his wife adequately. There was no denial that the Fourth Respondent was not his wife. I found no reason to disbelieve the witness in that Alfred's alleged denial, of the marriage to Fourth Respondent, as can be reasonably inferred, was just an afterthought.


As it has been common cause Applicant's various prayers are based on the fact that she was married by civil rights to Alfred. It was this fact that Alfred conceded that he had not originally disclosed in a maintenance suit filed by the Fourth Respondent against him. This was clear from the testimony of Adv. Moorosi.


Once Mrs Kotelo, for the Applicant, conceded that she found it difficult to challenge the fact that the Applicant was originally married to Tefo Tsejane, at the time Applicant was married civilly to the late Alfred Motsamai Sekhothu First Respondent's husband (who will hereinafter be called "Alfred" for convenience) that no doubt was the death knell of the application. Refer to the evidence of Lebabo Tsejane. The effect was quite contrary to the Applicant's position which had been that the Court should, in the end, make a finding that the marriage between the Deceased and the Applicant was valid on the ground that the marriage was a putative one.


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Applicant testified and what became important and decisive with her testimony

and even under cross-examination was that the Applicant had been married to one Tefo Tsejana by custom and at a time when she had already entered into a civil marriage with the late Alfred. The previous marriage had not been dissolved.


There became a serious doubt when facts were revealed in the Applicant's testimony .Uas to how she met the late Alfred. She said under cross-examination she was still a school girl and Alfred even helped her to pay school fees. Indeed I could only conclude that Applicant lied on this aspect although Mr. Mphalane had submitted that due to the fact that the Applicant has lied on an important issue the Court cannot believe all her evidence and that should be disregarded in its entirety. Counsel referred me to South African Law of Evidence, 4th Edition LN Hoffman and D Zeffert, at page 601 where the learned authors state that:


"If a litigant give a completely false evidence, her story will be discarded and the some adverse inference may be drawn as if he had given no evidence at all. If he lies about particular incident the Court may infer that there is something about it which he wishes to hide, and this may add an element of suspicion to the fact which were previously neutral."


In the present case a big lie has come out in the direction of a denial by Applicant that she had been married to the late Tefo Tsejane when he contracted a purportedly entered civil marriage with the late Alfred. It needed no saying that this was devastating in the sense that Applicant did not discredit the testimony about her previous marriage.


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I agreed with respect that in Lesotho a woman cannot marry two or more men (polyandry) even if it happens in other parts of the worlds. But men are allowed to marry as many women as they can afford as long as such marriages are by customary law. In Masupha v Masupha 1977 LLR 55 at page 58 it is correctly said that:


"In Sesotho custom a woman cannot validly have two husbands until customary marriage has been dissolved, it remain in force. Polyandry is not recognized in Sesotho custom."


It was therefore correctly submitted that the Applicant could not validly marry the late Alfred while her first customary marriage was still in force.


I agreed further that Applicant could not have any rights to the property which belonged to the late Alfred as everything which has been shown as belonging to the marital regime and not proved to belong to Applicant belongs to the First Applicant and his children. In particular the property in 1(c) and in 1(e) were proved by Applicant's own admission to belong to Alfred. I cannot go to the extent of condoning that some other property e.g. in prayer 1(d) and 1(f). I agreed with Mr. Kotelo that as against Applicant's statements there were no real challenges about her acquisition of property. She put it at the level that it was not canvassed. To that extent the order about property which still belongs to Applicant are justified except if there was hard evidence to the contrary.


I would find on a balance of probabilities that the Fourth Respondent was married


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to the late Alfred by custom. This she testified to and confirmed under cross examination of Adv. Moorosi who was shown the letter exhibited before the Magistrate Court in a maintenance claim and in the pleading wherein the late Alfred admitted that Fourth Respondent was his customary wife. The late Alfred would have been bound by the pleadings. In any event it goes toward indicating probabilities in favour of the Fourth Respondent on this point. See in that regard The South African Law of Evidence (supra) at page 428 where the learned author pronounce that:


"A fact is admitted on the record when it has been admitted is the pleadings or orally at the trial by the party or his representative."


A point might have been taken that the pleadings belonged to other or different proceedings. That may be so but together with other evidence it indicates strong probabilities.


I was persuaded that together with above the late Alfred married the Fourth Respondent as his wife, and provided a home for her and the children. I accepted Mr Mphalane's submission that although Alfred may have denied in subsequent proceedings that he was not legally married to the Fourth Respondent it were merely to trump up a defence or to fight the case. His previous conduct is significant and has been taken into account by this Court.


That the Fourth Respondent may have 'ngalaed' as she said and left the late Alfred


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cannot in law mean that he became divorced or the Fourth Responded was no longer his wife. Mofokeng J in dealing with a similar situation in Masupha v Masupha 1977 LLR 54 at page 58 had this to say that:


"Moreover, a lengthy absence of one of the parties to a customary does not give rise to a presumption that the customary marriage has been dissolved."


I come to a conclusion that things that had to do with the tension and the conduct of the Respondent either during preparations towards the burial of the deceased and the moves by the Respondents to want to reject the Applicant from the properties were threats which cannot strictly speaking be said to assaults. They were threats intended to assert what the Respondents may have or did perceive to be their rights to their father's property. I conclude that they did threaten to take or occupy the properties and to that extent an interdict was properly sought with respect to certain properties but not to all of them.


The application only partly succeeds to extent that:


  1. Prayer 1(b) is discharged - Re: residence (marital home) at Naledi.

  2. prayer (c) is confirmed - re: Threats to assault

  3. prayer 1(d) is confirmed - Re: residence at Ha Tsosane

  4. prayer 1(e) is discharge - Re: Two vehicles.

  5. prayer 1(f) is confirmed - Re: Property at Khubetsoana and Ha Tsosane.


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All parties are to pay their own costs. This was a kind of a family dispute


T.MONAPATHI

JUDGE

3rd May 2004