Khaka and Another v Pelesa and Others (duplicate of C027_0021) (CIV/APN/523/2004)

Case No: 
CIV/APN/523/2004
Media Neutral Citation: 
[2004] LSHC 17
Judgment Date: 
22 January, 2004

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CIV/APN/523/2004

IN THE HIGH COURT OF LESOTHO


In the matter between:

MAMOKOENIHI KHAKA 1st Applicant

MAPEO KHAKA 2nd Applicant

And

MAHLASOA PELESA 1st Respondent

MOTLOHELOA KHAKA 2nd Respondent

LERATO KHAKA 3rd Respondent

MEMBERS OF KHAKA FAMILY 4th Respondent

MKM BURIAL SOCIETY 5th Respondent

METROPOLITAN INSURANCE CO. 6th Respondent


For the Applicant : Ms Mahase

For the Respondent : Mr. Khauoe


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi On the 22nd day of January 2004


This Court has now dealt with this case for over twenty days beginning from the first day of January 2004 when I had to deliver an ex tempore judgment, it is not that in every one of the twenty days we have been in Court but the span is about twenty days from the day when we


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began to hear argument. We later led viva voce evidence. The causes for delay are many and one could have expected this to happen in a matter of this nature. One of them is the attitude of Counsel. The other is the attitude of parties themselves.


I introduce this case by saying we live in society where Basotho men behave in the way they do. And Basotho women behave in the way they do in this country. This results in a complex situation of our marriage regime in this country. It is because there is definitely something uncertain with the law governing our marriages in this country. And this is the area of the law where the legislature or parliament must step in. This is not happening.


Men conduct dual marriages and can carry on and carry on conducting other marriages. And in most cases some of these marriages are unlawful but society condones them. And even our courts have a way of going around and indirectly condoning such associations. So in the instant case had Deceased first entered into a marriage with the Second Applicant and later with the First Respondent with whom they lived until the Deceased died on the 4th December 2003.


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In addition our courts are often faced with complex situations where for example as in this case it is not primarily about the burial of the Deceased where it is also about the validity of two marriages. So that as the matter of urgency I was faced with the problem of burial of the Deceased. It was urgent that I had to decide the burial of the Deceased who had entered into an insurance scheme with the Sixth Respondent during his lifetime. But there were other incidences which were not urgent which arose concerned with the alleged marriage of the Second Applicant and marriage of the First Respondent. The right of the Second Applicant of the wife to bury Deceased and the right of his son to bury the Deceased having been agreed to by Counsel. This was with the attendant order that costs would be costs in the cause.


The question of whether the First Respondent was a lawful wife and whether she was entitled to property of the marriage and whether the child born out of the marriage of the First Respondent and the Deceased were lawful or otherwise acceptable before Court belonged to the prayer 2(b) and the declaration sought in the counter-claim.


The prayer 2(b) and the counter-application concerned the question the First Respondent's marriage was good in law. And whether the child born of that marriage is a child who can be expected to be part of the


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family of Khaka in a regular manner. In addition would be the question whether the First Respondent if she has accumulated property, that property can be expected to be lawfully hers and under her control in a regular or within a lawful marital context.


I have therefore summarised what is to be found in the notice of motion, that is starting from page two to page three of the record. This includes the prayer for payment of the final proceeds from an insurance scheme by the Sixth Respondent. I have also summarised what is to be found in counter-application of the First Respondent.


I start off to say that it is on common ground that the Second Applicant was married by civil law. It is also common cause that the First Applicant is the heir and first son of the Deceased Mr. George Khaka (Deceased). I have already summarised what in short is the dispute between the parties.


First I must mention an important background that soon after argument parties agreed that the Order for burying would be granted to the First Applicant and the Second Applicant by consent. And that was understandable even despite the fact that there was no direct prayer asking for such. And indeed I agreed that could be granted under the


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prayer for further and alternative relief. The other background is that on the first day of adjournment if not on the second day it became clear that most of the things could be agreed and settled between the parties. That did not materialise in settlement except the question of the burial of the Deceased as I have already stated.


I need not and I must not divulge the contents of what was agreed upon during discussions about the said intention to settle. But I am certain that if the attitude of the First Respondent the Second and the Third Respondent carried the day this matter could have been long settled. I am not trying to take sides but to state an observation not on mature reflection but that has been apparent all along. In the context where it is revealed during discussion that a family has a history of misunderstanding and where the Court and Counsel became hopeless and could not contribute positively because they are disabled by the parties' attitude. Not that I am blaming the members of the family. But I would sympathise because they find themselves in that situation which was exacerbated by the death of the Deceased.


These proceedings reveal that the documentation and processes is quite bulky. The certificate of urgency and all affidavits themselves run up to eighty pages. With the counter-application clearly these


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proceedings run up to more than ninety pages. The result is that the paper work had become complex enough. And on to this proceedings Counsel eventually filed two sets of heads of argument. There was a reason for that. As said before the dispute no longer revolved around a determination as to who has got the right to bury.


Having disposed on that what remained was the question of the existence of the customary marriage between the Deceased and the Second Applicant on the one hand. And proof of the marriage between the Deceased and the First Respondent on the other hand. And an additional issue about the proceeds of funeral policy contracted by and between the Deceased and the Sixth Respondent the Metropolitan Insurance Company. We are to decide as to who must get the funeral policy proceeds from this insurance policy. Because in the main the First Respondent says she is the one entitled to the proceeds. And the First and Second Applicant are saying because they must bury the Deceased they are entitled to the proceeds from that policy.


The legal issues had become very clear in this respect. It is because Counsel agreed that if there was a pre-existing customary marriage between the Second Applicant and Deceased then the Deceased would have lawfully contracted a customary marriage between himself


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and the First Respondent. But if the situation was such the Deceased and the Second Applicant had contracted a civil marriage before any customary law marriage (if ever the latter existed), then the Deceased's marriage with the First Respondent would be null and void.


I was burdened with the situation where Counsel had to argue on the basis of the evidence in the affidavits in the proceeding before Court. I became convinced that I would not have been able to resolve the question of the customary marriages between the Deceased and the Second Applicant on the one hand and the customary marriage between the Deceased and the First Respondent on the other hand. So that it was by way of oral evidence and, by way of examination of witnesses that I could be able to test if these marriages in fact took place.


It was resolved that the Respondents and those in support of Respondents have the onus of proving the existence of the marriages. It is because the Applicant could not be expected to prove the negative that the marriages do not exist. And if I became satisfied that the evidence was sufficient I would declare that the marriages did lawfully exist. But if I found that there was not enough evidence I would declare that it had not been proved or if the evidence is insufficient I would say these marriages have not been proved as a matter of fact. And I have already


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stated what the result of proving the existence of the customary marriage between the Deceased and the Second Applicant will mean in law, and how it will affect the other alleged marriage, which is the second customary marriage between the First Respondent and the Deceased.


We have agreed, I repeat that the Respondents bore the onus to prove the existence of those alleged customary marriages. In making the decision that I would made I would bear in mind the difficulties of seeking to prove the existence of these marriages in application proceedings. The background is that while the main problem was that of burial. These other prayers were added on to what ought to be the main prayer.


Due to the urgency of the matter and the short notices one could clearly see the strain on Counsel who had to get as much evidence as possible within the brief time allowed. And hence the shortcomings which followed in the evidence led. The main task of the Court had been to look into probabilities.


The first witness called was Mr. Motloheloa Khaka the Second Respondent and the brother of the Deceased. He testified in connection with the first customary marriage. He testified that he knew about


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negotiations of the marriage of the Deceased and the Second Applicant he knew that at one time there were such negotiations. He said he even contributed two cattle towards bohali. He was later informed that the discussion or negotiation did take place. He knew that it was sometime before he himself got married. And he said he was certain that it was before the Deceased and the Second Applicant got into a civil marriage. And he spoke about the years 1971 and 1973 or thereabout. And he spoke a date in January or February I am was able to recall. That date in any even preceded the date of the civil ceremony as he testified. The real danger in the evidence is that substantially, (about marriage negotiations) it is hearsay that he testified to.


It could even be that Mr. Khaka the witness is telling the truth when he said he made that contribution of two head of cattle. It could even be that he made a mistake that it was after the civil ceremony between the Deceased and the Second Applicant. But speaking about his evidence alone and in itself reveals two things which worry me. Mr. Khaka is not able to say he himself participated in the proceedings. No witness testified in that regard. The greatest part of his evidence constitutes what he was told. And most importantly Mr Khaka does not tell us how many cattle in all (even if for the time being) were paid for bohali at that time and what was the balance. And as between the year


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1977 and the year that he mentioned nothing as to what remained as balance of the bohali. The significance of the year 1977 is that there was evidence that at the time there were yet other negotiations. The significance of the year 1988 as will be seen hereinafter is that there was yet another suggestion that there were yet other negotiations during that year.


I have already expressed my worries about the evidence regarding the occurrences of the year that Mr. Khaka speaks about and the totality that evidence, having alluded to certain problems. One of the problems that Mr. Khaka would have to answer if properly challenged was that, if there had been a "chobeliso" between his brother and his sister-in-law. As to how they spoke about cattle for "chobeliso" at the negotiations. In particular what was agreed about the "chobeliso" aspect. But the witness was not present. He was not involved in the agreements.


I consider and I am in favour of a theory that every bohali is twenty head of cattle is a presumption of the law. And after ten head of cattle then there is "tlhabiso" ceremony according to Sesotho law. But I have already told my worries about the evidence of Mr. Khaka standing as it does.


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I become further worried about Mr Khaka's evidence furthermore that then in 1983 there was another sat of negotiations and this agreement about what happened on the 13th August 1983 at Ha Moiloa which reads as follows:


"As a representatives of Toka Richard Moiloa we have accepted an amount of M60.00 (Sixty Maloti) as a seventh cow of the bohali of a daughter of Toka Moila 'Mapeo Moiloa." (My emphasis)


The seventh cow suggests that the other six have already been delivered. And then, as I observed from the document on the side of Toka Moiloa, were four gentlemen who are stated in this exhibit "A" of the family of the said all of them are Moiloa. I suspect one of them is the Second Applicant 'Mapeo's father or an uncle. But they belong to her family or what is important is that they were on the side of the Second Applicant. On the side of 'm'e 'Makhaka (the Deceased's Mother) is two gentlemen Motsoaosele and Lebone latter being the gentleman that the witness Mr. Khaka spoke about. And who is said to have participated not only on this occasion but on the other negotiations.


Taking exhibit "A" in isolation is this observation. It suggest that there was a prior occasion when the families sat and negotiated this marriage because this money in the some of M60.00 (Sixty Maloti) is a "top up" of the seventh cow. The only one worry is that it does not speak


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of or about the time the first negotiations, particularly as to when they took place. Because main question is whether they took place before the civil marriage or after. Because if I understood the case of Second Applicant it was that at some time there was negotiations over customary marriage but it was after her civil marriage ceremony to the Deceased. That is what she said.


If one is to concede for argument's sake that must have been before the civil marriage but then there is a problem which is brought about by yet another document about which Mr. Khaka was challenged. It is ID "1" dated the 9th July 1977. It says :


"I have accepted six head of cattle form 'Makhaka Khaka the seventh cow has to be topped up with about sixty Maloti. This is a bohali for a daughter of Toka Moiloa abd Mamothusi Moiloa." (My emphasis)


The witnesses on the part of Moiloa family are T©epo Moiloa Mabeleng Moiloa, Letlotlo Mabeleng. Witnesses on the part of Khaka family are Mokete Motsoasele. Mothusi Moiloa has signed. One Mabeleng Moiloa has also signed. There is also a writing by Davit Kheleli. We do not know it comes about but it is there.

This ID 1 brings about a bigger problem. Indeed it seems to be consistent with exhibit "A", inasmuch as it speaks about the seventh cow.


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But it is not consistent with the evidence of Mr. Motloheloa Khaka about the events before the civil marriage. Because according to Mr. Khaka there were two occasions when there were negotiations. It was before the civil marriage of his sister-in-law, it was before April 1974 and then came the second negations in the exhibit "A".


Then there is however a great doubt as whether he is telling the truth when he is shown ID "1". Because ID 1 suggests by implication that there were three sets of negotiations. Not two in the way Mr. Khaka suggested. So that obviously I would have a doubt about the evidence of Mr. Khaka. His evidence is not satisfactory about whether in fact there was negotiations before 1974 i.e. before the civil marriage.


There is this inferential problem about ID "1". Can we safely say that ID 1 indicates that there were two sets of negotiations between the families and that was in August 1983 and in July, 1977. There is yet another problem. It is about the evidential value of ID "1"


Supposing ID "1" has a value can we safely say that there is evidence to controvert what Mr. Khaka had said in the sense of evidence that speaks for ID "1". Because it might be that in fact ID1 exists but


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can we safely say it says the truth of what it contains. I am excluding the fact that I have already doubted the evidence of Mr. Khaka.


That is my worry. ID "1" is worrisome in the sense that it does not make me to conclude that as a matter of prove there were negotiations on these date. Although Mr. Khaka had denied that he did know ID1. he was not in the law admitting that the negotiations happened.


These difficulties illustrate the problem that the two sides had in order to prove the two marriages in the result that although the Respondent bore the onus his evidence is doubtful. We cannot safely conclude the Applicants are telling truth about what actually happened. The result is that I make an order for absolution. This aspect is dismissed. But if the Respondents want to prove this marriage they are allowed to institute other proceedings. That is why I am saying this aspect is dismissed. I cannot decide on this evidence before me. I am not able to reach a conclusion through the evidence put before Court.


I now come to the aspect of the alleged customary marriage First Respondent and the Deceased as testified to by First Respondent hereof. The set of circumstances to which she testified was that they started living together with the Deceased in 1991. Her hand had already been


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asked for in 1990. She was taken to the Deceased's home by way of customary ritual and she was given a "koae" sheep. And all customary ceremonies were carried out indicating that she was accepted as wife of the Deceased.


First Respondent continued to say that she came to know that bohali cattle were negotiated for but she was not a party to the negotiations. She was informed of that by her mother. Therefore she knew that there had been such negotiations completed as she was informed. She was later informed that cattle were paid for "bohali" and the agreement was reduced in writing in 1999. She had not known that the Deceased had previously been married. She got to know about this prior marriage after 1995 that the Deceased was indeed a married man. She ended up knowing that the Deceased must have been civilly married because she knew about the Court summons which she received. Her testimony included her knowledge that she was informed that her husband had in fact been "hlalaed". The use of the Sesotho word is significant. When questioned the First Respondent came to accept that it meant that the Deceased and the Second Applicant could have divorced but not by order of Court. This is strange.


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The suggestion about the word "hlalaed" could also be that First Respondent came to know that her husband was married by custom. That is why she safely referred her self as the second wife of the Deceased. She suggested in a paper that even the Second Applicant accepted her as a wife of her husband. Indeed a memorandum (MN "1") of the marriage, which was executed years after the alleged bohali, (in 1999) was put before court. It reflected that there had been such a marriage. Barring a date stamp of the 26th September 1999 it reads as follows: -


"This is an agreement between 'Mathabiso Pelesa and Khaka Khaka in relation to the daughter of 'Mathabiso Pelasa who had been married to Khaka named Mahlasoa Pelesa. Khaka has paid six heard of cattle. He is not paving but he is marrying", (my emphasis)


I am highlighting expression which are in the present tense while the past tense. I would not disregard this easily.


This is another problem of MK "1". It does not tell us when this negotiations actually took place. It might as well be that it is a memorandum of an event that took place well in the past. In that case it would be consistent with the evidence of the witness. But if it is recorded in the way suggested by that statement "He is not paying but he is marrying" ("ha a lefe u oa nyala") it may or may


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not have recorded an event taking place in September, 1999. That is at the time when the document was executed.


If the witness was challenged, mind you she was absent, she would have to explain whether it was real cattle or money cattle that were deliverd as bohali. But that is the witness who was not present. This is the witness who was given a report. But the initial problem, which worries me is that, the memorandum, is substantially written in the manner suggesting events of the past. This is an unusual practice. It is because a marriage is recorded on the day or around the time when it is negotiated. The unfortunate thing is that no witnesses were brought who vouch for what took place. I am bound to say that it does not satisfy me. It leaves a lot of doubt. And this is a doubt that belongs to things that could have been safely clarified by one of the witnesses who was present. May be all of them are dead. I recall that there was no explanation about their absence.


In the context of where this evidence does not satisfy me, I do not think it is in the interest of justice to make a finding and declaration that this marriage did not take place. But it is safer as previously said to say that there be an order for absolution. That is the parties can come again to seek and prove this marriage. This takes care of the fact that I am also


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not able to allow the counterclaim. I merely say that it is dismissed by way of an absolution. So that the First Respondent is given an opportunity to prove that Deceased married her under the circumstances that she will fully testify to in the future and further seek to declare the marriage as putative. That is the fate of the application.


What remains last is the aspect of the funeral benefits. This part of the proceedings or the application has to do with a prayer that seeks for payment of funeral proceeds by the Sixth Respondent (insurance house) to the Second Applicant or the Second Applicant as I have said in my summary.


I had to call on my own steam in the interest of justice the evidence of the lady Mrs Mohapi from the insurance company. I thought her evidence was going to be very useful. It was not very useful only to the extent that she gave three stories or versions. One of the stories was that one who is appointed by a deceased person as a beneficiary is a spouse who must bury deceased. On the one hand Mrs Mohapi says if there is a dispute about he who must receive the proceeds then the matter will be sent over as an estate matter which calls upon the family to decide. And then the family will have to sit and resolve as to who is legitimate beneficiary.


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The witness painted another scenario which is that where the beneficiary is difficult to find or is unavailable or he or she is not ready to accept the proceeds then the matter can be sent into the estate where the family will have to sit and resolve. The suggestion being the family will resolve the issue according to custom or its decision that A should now benefit if B is unable to benefit.


One of the picture or version that Mrs Mohapi paints is that the one who is appointed by the Deceased in the insurance contract becomes the beneficiary as a matter of the policy and rules of the Sixth Respondent. I have said her evidence was complementary and useful to the extent that the law in a decided case has already taken care of situations. The evidence would therefore have persuaded me. It is in the case of M RAMAHATA v T RAMAHATA 1985-1990 LLR 507/LAC (1985-89) 184, which says a contract of insurance can be a contract for the benefit of a third party or the third person. First person being the insurer or insurance company, the second person be the insured person who pays a premium and the third person being some other person who is appointed a beneficiary.


RAMAHATA'S case (supra) propounds that it need not be ones wife who benefits. It need not be ones heir who shall benefit, because it


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does not go according to the laws of succession. It is just that person who is appointed. That is why some of the workers (as the story goes) from the mines of the Republic of South Africa, as an example, from Welkom or elsewhere come to stay or sojourn at Thibella or at other locations in Maseru or other towns. A particular gentleman sees a lady to whom he becomes attracted and they agree that they become man and wife. The lady is then appointed as a beneficiary by the gentleman in a insurance policy such as the one in dispute. It is however revealed afterwards after the gentleman's death that he is not in fact a lawful husband of the lady. And the law will say according to the principle in RAMAHATA'S case (supra) that it does not matter that this man has appointed the lady who is not in fact his lawful wife. In the language of lawyer that contract for a third party is called a stipulatio alteri. It is a contract for the benefit of the third person. It does not matter whether the deceased is related to that person (beneficiary) or by succession. He is entitled to benefit.


The witness from the Sixth Respondent has assisted the Court in that as she testified this benefit could only be given to somebody who is appointed by the Deceased in his contract papers. That in the papers the First Respondent was reflected as beneficiary had not been disputed. One of the papers was the certificate which was exhibited or attached to the papers.


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The person who is shown in the certificate attached to the papers is the First Respondent. She must have been the person who is appointed by the deceased in the application paper. To that extent the witness Mrs Mohapi has been helpful. The Court was not told that it is a different person not M. Khaka (First Respondent) who was born in 1965 (as the certificate shows) and it happens to be the first Respondent who was appointed. The question is whether the court can declare otherwise than to say that it must be the person who the deceased has appointed. Obviously not on any ground.


The rules of the insurance house have a very useful statement about their policy. It says a spouse means legal wife/ wife of the member or such other person residing with the member who would normally be so regarded by the community provided the spouse is the person indicated on the prescribed application form. So that this takes care of any other problem that would arise.


That policy of the Sixth Respondent is what the law says and this policy is consistent with what this court will declare following from that case of RAMAHATA (supra) I therefore do not have any problem to declare that as regards who the beneficiary is in terms of the Sixth


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Respondent's form where there is reference to a spouse and benefits that would be given to a spouse who is the First Respondent. She may not be Deceased's lawful wife but that is unimportant. The crucial factor is that the person to benefit must have been appointed by the Deceased.


Maybe the other court will find otherwise next time but the question about the benefits of the insurance has been taken care of by the law. I decide that there will be no order as to costs. These litigants are one family. The Sixth Respondent has chosen to abide by the Court's decision.


I have allowed prayer 2(a) as amended to say that these Applicants are the right people to bury the deceased. I have said about prayer (b) that I make no declaration, I decide that the proceeds of the insurance that they must go to the First Respondent. I confirm the order that the First Applicant and the Second Applicant must bury the deceased. None of the prayers in the counter-application are allowed because my decision has been that an order of absolution is returned. I am not able to decide on the balance of probabilities that the two marriages did take place on the evidence available.


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I may merely emphasise this case is an example of experience of the courts which is called into action by the nature of how our women folk and men-folk behave in this country. Men understand in this country that they can marry as many times as they like. The behaviour of our people is to seek to condone such marriages and give so many excuses, and our women-folk are kind of ladies who accept propositions by men who are men not boys and pretend that those are boys not men. The results can be disastrous sometimes unless the law of this country pronounces that unconditionally men can marry as many wives as they like. It must be clear so that even the meek and kind can get into the action and marry. The law is very complicated and it seems to allow something that it doesn't allow because parliament is not responding to a problem. It says that the courts must resolve the problems. It is difficult without clear-cut legislative parameters.


The other problem is that of lawyers who combine other prayers with prayers for burial. The latter is always urgent. I am saying they put in and combine so many prayers or claims when real claim is about burial. When the most important thing is the burial of the deceased. The result is that the courts may not be able to deal with every problem adequately because in sufficient evidence is brought due to time constraints.


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One important lesson to lawyers and litigants, and this case being an example, they must seriously get into process of seeking to amicably settle cases. If they are earnest in their attitude they can easily persuade clients and save costs and the court's time.


T. MONAPATHI

JUDGE

22nd January 2004