Monaheng v Monaheng and Others (CIV/APN/193/1999)

Case No: 
CIV/APN/193/1999
Media Neutral Citation: 
[2004] LSHC 100
Judgment Date: 
20 August, 2004

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CIV/APN/193/1999

IN THE HIGH COURT OF LESOTHO

In the matter between:-

'MASENUKU MONAHENG APPLICANT

and

'MANTSOAKI MONAHENG 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT

ATTORNEY-GENERAL 3rd RESPONDENT

RULING

Delivered by the Honourable Mrs Justice A.M. Hlajoane

on 20th August. 2004.

In this Application the Applicant is asking the Court to stop the 2nd Respondent from paying to 1st Respondent or anybody the terminal benefits of the late Liau Monaheng kept in the 2nd Respondent's custody. Applicant also asks the Court to order and direct that such benefits be divided equally between her son Khotso Monaheng and 1st Respondent's four children.

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It would at this stage be important to explain the relationship of both the applicant and the 1st Respondent to the deceased Liau Monaheng as appeared on the papers filed of record.

Applicant claimed to be the wife to the deceased married by civil rites in October 1991, and has annexed a copy of the marriage certificate. The 1st Respondent on the other hand also claimed to be the wife to the deceased, married according to custom prior to the alleged marriage to the Applicant.

The 1st Respondent opposed the Application but before filing his answering papers raised a special plea of lis pendens. Her grounds for that point of law being that there were proceedings pending before this Court in CIV/APN/415/2003 for determining whether there was any marriage between deceased and the Applicant, and also claiming the release of some documents by the lst Respondent.

I had occasion to have a glance at the prayers sought in that CIV/APN/415/2003. Other than the prayer for dispensing with the normal periods and mode of service in that Application, Applicant also asked for release of the deceased's death certificate, his passport, and mortuary acceptance receipt. She asked for all these in order to enable her to claim funds from the Insurance companies in preparation for the

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deceased's burial. She referred to the deceased as her husband.

The requisites of a plea of lis pendens are that the actions must be between the same parties, on the same cause of action and in respect of the same subject matter. A plea of lis pendens would be a good one when all these three requirements are present. (Herbstein & Van Winsen, The Civil Practice of the Superior Court in South Africa, 2nd Edition at 261-262.)

In my view, though the two actions were between the same parties, there was a difference in the relief claimed. Of significance also is the point that the issue of validity of both marriages, the Applicant and first Respondent, was common to both actions. In the circumstances therefore, the plea of lis pendens would be a good one. But, the Court having regard to the balance of convenience and equity still has a discretion to exercise.

The issue of the exercise of discretion became even clear in the case of Geldenhuys v Kotze 1964 (2) S.A 168. In the exercise of such discretion, though there has been no explanation why CIV/APN/415/2003 was not proceeded with or withdrawn, it would seem that the relief claimed in that case was overtaken by events as the deceased had already been laid to rest. The documents that were asked

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for were for claiming from Applicant's Insurance Policies in preparation for the burial. But in the present case Applicant claimed that her son should also be given a share in the deceased's terminal benefits from his employer.

First Respondent's counsel also rightly pointed out that the court had a discretion to exercise in considering whether or not to allow the special plea, Osman v Hector 1933 CPD 503. Because the relief claimed in CIV/APN/415/2003 has been overtaken by events, the burial of the deceased, I find therefore that the balance of convenience and of equity is in favour of allowing this case to proceed.

The special plea raised by the first Respondent fails. It is therefore dismissed, and the Respondent is granted leave to file his answering papers within time stipulated by the Rules of Court, from the date of this ruling.

A. M. HLAJOANE JUDGE

For Applicant: Mr Mokoko

For Respondents: Mr Mapetja