Lehloenya – Mokokoane v Mokokoane and Others (CIV/APN/4/04 )

Case No: 
Media Neutral Citation: 
[2004] LSHC 37
Judgment Date: 
27 February, 2004




In the matter between :













Common Law wife.........what is common law wife?

Was there a marriage between the deceased and this applicant? What is a putative marriage?

Heirship..........who is the deceased's heir?

Spoliation..........requirements thereof.........

Interdict.......... essential elements............


Minors sued unassisted..........have no locus standi......

Non-joinder of party.



This suit is essentially about the right to inherit the deceased's estate.

The applicant herein approached this court by way of an ex-parte application for mandament van spolie, interdict and decearator. In her FOUNDING AFFIDAVIT, the applicant describes herself as an adult mosotho female of HA MATALA PHASE II in the Maseru district. She claims to be the common law wife of the late KEKELETSO MOKOKOANE - 1st and 2nd respondents' son. On the 5th January, 2004 she sought and obtained a rule nisi in the following terms :-

  1. THAT the normal rules of this Honourable Court pertaining to periods and modes of service be abridged, regard being had to the urgency of this matter.

  2. THAT a rule nisi be issued, returnable on a date to be determined by this Honourable Court, calling upon respondents to show cause if any why :-


    1. 1st and 2nd respondents shall not be ordered to restore or cause to be restored omia ante the following;

(i) A certain white Toyota Hilux van bearing registration numbers A 1952;

(ii) A certain white Nissan 1400 bearing registration letters and numbers D 0062;

(iii) A certain Toyota Hilux Raider (4x4) bearing registration letters and numbers MPR 827GP;

(iv) A certain HINO truck beating registration letters and numbers A 4337;

(v) Certain business premises situate at Ha -Nelese known as TWO SISTERS;

(vi) Certain business premises situate at Khubetsoana known as MALUTI PAVERS and BRICKS;

(vii) A certain residential property situate at MATALA PHASE II, to applicant herein, currently in their possession and/ or custody;

    1. 1st and 2nd respondents shall not be ordered to deliver or cause to be delivered to applicant herein all vehicles described in (a)(1), (ii), (iii) and (iv) supra and not to deal with or dispose of them in any


manner except by due process of the law, pending finalisation of this matter.

    1. 1st and 2nd respondent shall not be restrained either personally or through their agents from removing, administering, distributing or dealing in any other manner with the movable or immovable assets and effects of the late KEKELETSO MOKOKOANE pending finalisation hereof;

    2. 1st, 2nd, 3rd, 4th, 5th and 6th respondents shall not be interdicted from interfering with applicant herein in any manner whatsoever except by due process of the law;

    3. 1st and 2nd respondents either personally or through their agents shall not be interdicted from interfering with applicant's possession, custody or control of the late KEKELETSO MOKOKOANE's assets, effects and property pending finalisation hereof;


    1. 3rd, 4th, 5th and 6th respondents shall not be ejected from the property situate at MATALA PHASE II where applicant and the late KEKELETSO MOKOKOANE used to live;

    2. Applicant's marriage to the late KEKELETSO MOKOKOANE shall not be declared putative and as thus legally binding;

    3. Applicant shall not be declared the heir to the late KEKELETSO MOKOKOANE's estate, alternatively their son TSEPE MOKOKOANE;

    1. Applicant shall not be declared curator bonis to TSEPE MOKOKOANE;

    2. 7th respondent and /or officers subordinate to him shall not be enjoined to assist the deputy sheriff in


executing this INTERIM ORDER and ensure its compliance;

    1. 1st, 2nd, 3rd, 4th, 5th and 6th respondent shall not be ordered to pay costs of this application;

    2. Applicant shall not be granted such further and/or alternative relief.

3. THAT prayers 1,2(a),(b),(c),(d),(e) and (j) supra operate with immediate effect as an interim court order.


After being served with an interim court order issued as set out above, respondents also approached this court by way of an ex-parte application and obtained a rule nisi reversing the terms of the interim court order issued against them. When pleadings were complete in both applications, they were consolidated and heard together by order of this court. Therefore there is a single judgment for both applications. At the hearing of these applications on the 27th February, 2004 that Rule nisi obtained by the applicant on the 5th


January, 2004, was discharged with costs and then I indicated that the reasons will follow. These are the reasons.


The respondents raised a number of questions of Law: (1) Locus Standi and (2) Non-Joinder


Two of the respondents (i.e. 4th and 5th respondents) are minors as clearly stated by the applicant in her FOUNDING AFFIDAVIT. They are being sued by the applicant unassisted. As minors - (Motheo Mokokoane is (16) sixteen years old, Mot'sehi Mokokoane is (14) fourteen years old) they cannot sue or be sued unassisted. The guardian must sue or be sued on behalf of the minor - Voet 2.4.4:26.7.12. Therefore a case against them must fail and it is dismissed with costs.



The second point of Law taken is that of Non-Joinder. Any party whose rights are likely to be adversely affected by the determination of this matter, is an interested party and must be joint in this proceedings ........ MALUTI PAVERS AND BRICKS is a registered company. This is not denied. As such it is a separate and distinct person with its own Locus Standi, Some of these items of moveable property, which this applicant by the interim court order under consideration took possession of, belong to this MALUTI PAVERS AND BRICKS company. It is in the interest of the said company that it is joined in this proceedings as a necessary party. Amalgamated Engineering Union vs Minister of Labour - 1949 (3) SA 637 (A) MALUTI PAVERS AND BRICKS has a direct and substantial interest in the proceedings that will make final the interim court order giving its property to this applicant. For failing to join the said company as a party in this proceedings this application must fail.



The applicant alleges that she and the late KEKELETSO MOKOKOANE met and fell in love in the beginning of 1993. In September of the same year she and the deceased, with the intention to marry eloped to the deceased's parents' home. There they took occupation of one of the rooms set aside for lodgers on the residential premises of the deceased's parents. Applicant claims that


the deceased reported the fact of their elopment to his parents. She added that the deceased's father - 1st respondent herein, in turn reported the same to her father at his workplace. This is strange but the applicant's father confirms it and claims to have been informed of the elopment of the deceased and this applicant at work and in the presence of his workmate. This becomes even more queer. Private family matters such as this are not discussed at work places and in public Laws of Lerotholi, Part 1.


The deceased's mother - 2nd respondent herein, is alleged to have been away attending a funeral of unnamed deceased person when her son eloped with this applicant. She returned after three days. When she was informed of her late son's elopement with this applicant she became very angry. With whom was she angry? Why was she angry? For how long was she angry? There are no answers to these questions. The source of anger may safely be assume to be the information regarding the said elopement. But why? ! have no answer. No answer can be found in the papers filed by this applicant.



The applicant goes on to claim that she and the deceased lived together for two weeks at the residence of 1st and 2nd respondents. The atmosphere was normal. How normal when this applicant has not yet disclosed how and when did the 2nd respondent's anger subside or end?

To her surprise, out of the blue, after that two week's stay with the respondents, came a command from them, that if their late son wants to live with them, he must leave the applicant and not to marry her. Two members of the Mokokoane family i.e. MOTHUSI and KATISO escorted the applicant back to her home. According to the applicant, these two men told her that they have been instructed by 1st and 2nd respondents to take her to her home but there will be arrangements subsequently for the marriage to take place. No formal marriage talks ever took place. The deceased telephoned this applicant and promised to fetch her back. He made good on his word that evening after the telephone conversation. Presumably the two returned to the 1st and 2nd respondents' home. According to the applicant though they (she and the deceased) intended to live together there, the 2nd


respondent was not going to let that happen. It is the applicant's case that the 2nd respondent made her life there with the deceased unbearable.


In pursuance of their alleged desire to leave together the deceased and this applicant left the 1st and 2nd respondents' home. They went elsewhere, to live in peace together. The applicant herself makes this very averment false? As her story unfolds, it shows that she in fact returned to her own "maiden home". Why she had just said they left the 2nd respondent's home to live in peace together elsewhere. There is no reason or explanation given for their living apart at this stage. But in fact they lived apart. She claims to have made regular visits even stayed over for weekends at the 1st and 2nd respondents' home where the deceased resided. Deceased visited her every day at her maiden home, so she continues. This senario obtained until 2000. It is clear that the deceased and the applicant were not living together.


It was after this year 2000 that the deceased finished building his own house at MATALA PHASE II. The applicant claims that she and the deceased lived together thereat. Her relationship with the 1st respondent improved to the extent that the 2nd respondent promised to accept her as her daughter-in-law. She even proposed to name her "MAMASHAILA MOKOKOANE". But of course that was never to be. There is nowhere in her papers where she shows this court that she was ever accepted as a daughter-in-law and named as such. The duration of the deceased and applicant's life together is not specified. It does not appear to have been continuos. It is made up of weeks and days, weekends at various times over a decade.


When the deceased became seriously ill and needed medical treatment, he sought and found the same in Gauteng in the Republic of South Africa. According to the applicant the deceased went there alone while she went to her maiden home for fear of being left alone at their "matrimonial home".


The practice of being alone at the times of serious illness, was established by the deceased who at the beginning took the applicant to her maiden home according to this applicant. But later stopped when the applicant continued the routing on her own. This was an extraordinary behaviour for a husband and wife. At times of need the deceased elected to be alone in applicant's own words as she was taken away to her own home everytime the deceased was seriously ill.


When the husband became well again the parties came together Their so called marriage was not in sickness and health. Contrary to this notorious marriage vow. They appear to have been married and entertained the feeling of togetherness only when the deceased was well. This is another strange feature of the so called "common law wife". Even though the applicant could not be seen near the sick husband - assisting or watching over him, the applicant avers that she was however in full control of the business from her own "maiden home". Their matrimonial home was placed by her late husband in the care and custody of the security guard he engaged.




Applicant avers that at all material times prior to 1st and 2nd respondents' unlawful and unwarranted actions she enjoyed peaceful undisturbed possession of all the property she claims.


The deceased's parents - 1st and 2nd respondents have taken control over the property of their late son. They want to take possession of their late son's property that is presently in her possession. They are denying that applicant is their daughter-in-law. She wants to enjoy the legacy left by the deceased especially for the benefit of the minor child.

3. DECLARATOR.......

The applicant claims that although there were no talks held to arrange marriage she eloped, therefore she should be declared married because:-

1 - She and deceased lived together as husband and wife.

2 - They have a child together.

3 - 2nd respondent promised to name her as a daughter-in-law.



For a greater part of the respondents' case is a denial of almost all the averment made in the applicant's FOUNDING AFFIDAVIT. Sometimes bare denial of substantiated and supported averments, is not enough. The averments, made in the FOUNDING AFFIDAVIT are not substantiated nor supported by any evidence. The burden of proof rests on the applicant, for all the allegations she has made.


Elopement of this applicant and the deceased, with the intention to be married, is denied. 1st and 2nd respondents admit that the applicant visited their late son. Sometimes the applicant stayed over the weekend clandestinely. 2nd respondent avers that when she noticed that her late son and this applicant were together in her backyard, she confronted her late son about his intentions regarding their behaviour. The deceased made it clear to her that he was not prepared to marry this applicant, because he had discovered that she has a child with another man. Apparently that made this applicant not acceptable to be married. As an adult mosotho male the deceased had the right of freedom to contract the marriage without the consent of his parents. It is further denied that at some stage although the


respondents did not welcome the applicant into their family, they were warming up and the 2nd respondent in particular promised to accept and name the applicant as a daughter-in-law.


Living together as husband and wife by the deceased and this applicant is also vehemently denied. Even though 1st and 2nd respondents admit that at times the applicant visited their late son and perhaps stayed there with him over the weekend, they emphatically deny that they lived together. It is averred by the 2nd respondent that even at the time their late son lived at his own house at MATALA PHASE II, he was alone because he had expelled this applicant.


Each time the deceased became so seriously ill to necessitate seeking medical treatment outside the country, he left the running of his business in his mother's control. So was the care and custody of his home. There was no time wen the business or the house were left in the care and custody of this applicant. This to some certain extent has been admitted by the applicant who avers that she went to her own home everytime the deceased got seriously ill.




It is the finding of this court that this applicant and the deceased did not elope with intention to be married or at all, as alleged. Marriage arrangements are not conducted at places of work and in public. It is a very private affair which involves close members of the families. In Sesotho custom, tradition or practice, the parents of the boy who has eloped with a girl, go to the girl's home to notify her parents of that fact. The respondents deny ever going to the applicant's parents to inform them of the elopement. The applicant's father further avers that he directed the deceased's father to come to his home, where it was proper to discuss such matters as I may add. But the 1st respondent never went. He even denies ever going to the applicant's father's office to inform him of the alleged elopement. It is probable that it is not true that 1st respondent went to the applicant's father at his work. It is in the common cause that the applicant was escorted back to her home by two male relatives of the deceased on the instructions of the 1st and 2nd respondents, the reasons for the escort and the return of the applicant differ according to the parties. It is the respondents' case that the applicant refused to return to her


home. She claimed to be afraid of her father hence the need to provide her with an escort. According to the applicant she was provided with an escort because there was going to be a talk about arrangements for them to marry. Applicant further claims there were no such arrangements for them to marry. If there were no arrangements made for the marriage, how can there be a marriage? According to her own father, the applicant was first returned like that. Whatever he understood by that. Up until the death of deceased there were no arrangements for the applicant and the deceased to marry, nor sentiments to that effect expressed.


According to this applicant, she feared to remain at the deceased's house at MATALA PHASE II where they both allegedly resided, if and when the deceased was ill. The deceased also feared leaving her alone there when he went for medical treatment. Therefore they established a practice whereby the applicant took off for her own home each time the deceased became ill enough to seek medical treatment outside the country.


This alleged practice is not only queer but in fact the deceased according to his parents was not living with this applicant. He had long expelled her from his house if at all she ever lived there. It sounds pretty ridiculous that at the time of his most need, the applicant as the so called "common law wife", would not be there for him. By August, 2003, when the deceased went to Gauteng for medical attention, he left the running of his business in the hands of his own mother - 2nd respondent herein. The care and custody of his home was also left by the deceased under his own mother. It is most probable that the deceased left his assets - house and business with his mother as the person who nursed and assisted him in those hard times of need. The applicant in her papers is totally ignorant of when and how the people she found in that house moved in. How come the security guard allegedly placed there, does not appear to have prevented the intruders from occupying her alleged home? How come she was not even informed timeously by the guard that there are intruders. It is most probable that she had not been living there for quite sometime having been expelled by the deceased. It is a finding of this court that the applicant did not live with the deceased prior to his untimely death.



Were the applicant and the deceased a husband and wife? It is the finding in this court that they were not. I have rejected the applicant's claim that she and the deceased eloped. It has also been established that they did not live together. What is a "common law wife"? No authority has been placed before me to convince me what this so called "common taw wife" is. In this jurisdiction this "common law wife" phenomenon is unknown. There is always the first time for everything. Could this be the first time for the introduction of this so called "common law wife". No, I do not agree.


The term "common law" is used in several senses in legal literature. In WILLE'S PRINCIPLES OF SOUTH AFRICAN LAW, eighth edition, page 1 - 4, the term is given the meaning of non-statutory law. In this Kingdom the term "common law" is very often used synonymously with ROMAN-DUTCH LAW because there is a dual system of law operating in relation to the law of marriage of this Kingdom. Depending on their choice of law, parties may marry in terms of SESOTHO CUSTOMARY LAW or civil law generally


referred to as common law. There is no allegation or proof that this applicant was married by civil rites or even married at all. There was no marriage between this applicant and the deceased.


For the parties to claim that their marriage be declared putative, there must, first of all be a marriage ceremony performed for the purpose of marrying the two parties who must be totally ignorant on any legal impediments to the intended marriage. H R. Hahlo, South African Law of Husband and Wife. No such ceremony was alleged to have taken place between the deceased and this applicant. It is in the common cause that no ceremony of any kind purporting to join them in marriage has ever been conducted. Ex-parte Sooba and Others : In Re Estate Pillay 1948(1) S.A. 873.




The applicant claims the heirship on the grounds that she eloped with the deceased. She does not say on which law she basis her claim. According to the Sesotho customary law, the eldest son is the heir Laws of Lerotholi Part 1 . The applicant claims heirship for herself. She cannot just claim to be the deceased's heir on the grounds of elopement even if that was established. The widow of the deceased with or without a male issue may inherit the use of the property of her late husband, during her lifetime. Laws of Lerotholi Part 1. The applicant is not the widow of the deceased and she does not claim to be one. Her desire to take over the property of the deceased seems to be based purely on greed. If there is a minor child born of the relationship between her and the deceased she can sue the estate for maintenance - not claim to be the heir herself for that reason.



If a person has been deprived of possession by violence, fraud, stealth or some other illicit method, he or she may obtain from the court a mandate van spolie - commanding the dispossessor to restore the possession to him or her. It is material for the applicant to establish that she was despoiled by the respondents. Voet 43.17.7: Haupt's Executors v De Villiers (1848) 3 Monz 341. Parker v Mobil Oil of South Africa (Pty) Ltd. 1979 (4) SA 250 NC at 255. The present applicant claimed to have left the so called matrimonial home because her "husband" was seriously ill and needed medical attention outside the country where he also wanted to go alone -leaving their home under security guard. The respondent deny despoiling her. It appeared that the applicant had long parted with her lover. She was not in possession of the deceased's property. The deceased himself left his mother in possession of his property because it was his mother who was nursing him during his illness. She could not have been dispoiled. In those circumstances applicant is not dispoiled.



There are elements that must be established by the applicant in order to succeed to obtain an interdict. First of all the applicant must establish that she had a clear right. The applicant as shown in the judgment had no such right. Secondly, she should have shown this court, that she is likely or has already suffered irreparable harm. There is no harm that was shown to be likely or has occurred already. The occupiers of the deceased's house were placed there by the 2nd respondent who has been left with the care and custody of the property. Setloqela v Setloqela 1914 AD 221 at 227.

As indicated on the 27th February, 2004, this application is dismissed with costs.



For Applicant : Mr. Mpaka

For Respondents : Mr. Sethathi