Makhaba v Ratlou (CIV/APN/81/2003 )

Case No: 
CIV/APN/81/2003
Media Neutral Citation: 
[2003] LSHC 43
Judgment Date: 
10 April, 2003

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CIV/APN/81/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

'MABATLOKOA MAKHABA Applicant

and

MAUREEN RATLOU 1st Respondent

LESOTHO FUNERAL SERVICES (MASERU) 2nd Respondent

THE MANAGING DIRECTOR

IMPERIAL FLEET SERVICES 3rd Respondent


For Applicant : Adv. M.C. Mosae

For Respondents : Adv. P.R. Thulo


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi on the 10th day of April 2003


Being repetitive is one of the hallmarks of this judgment which was delivered ex tempore on the above date.


This was an application whose prayers are clearly shown on pages 1-3 of the record. It had originally most to do with the burial of Lira Alexis "Sono" Makhaba. It also concerned the Applicant's claim that she is a heir to the estate of the Deceased and specifically about certain death benefits being a fund at the


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Imperial Fleet Services Company (Imperial).


The said fund at Imperial is evidenced by an appointment document allegedly made by the Deceased which is more clearly on page fifty eight (58) of the record. The appointment will be inquired into further in the judgment. That benefit is described in the document as a "Fund": Imperial Pension and Provident Fund. It is for payment of benefits on death of employees of Imperial. There is no dispute that the Deceased was an employee of Imperial. Although the fund at Imperial is specified the general impression is that the Applicant wants to benefit from the whole estate of the Deceased. I thought it would only naturally follow if she succeeds in the application


The record of this proceedings has become very bulky and adds up to about eighty (80) pages. This is explainable due to the fact that the record consists of the application itself and the application for rescission. The background is therefore there was a final order granted previously. After that order the First Respondent applied for rescission. Mr. Thulo conceded that the effect was that the final order was rescinded. He submitted that there was a rescission of the order. I do not want to go into that save to say that there was an agreement between the parties that the Applicant should bury the Deceased on her own expenses. This had the effect of settling the prayer on burial rights.


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What remained therefore was this aspect of the inheritance and the beneficiary issue. Generally, as a basis, the same facts (although it is arguable) about right of burial rights would be applicable in the application that was argued which is about the death benefits. In that regard, according to the Applicant case, central is the issue as to who was the rightful wife of the Deceased. It is because the Applicant says her marriage has been a marriage by Sesotho custom in 1991 whereas the First Respondent says her marriage was a civil marriage contracted on the 17th December 1999. It is noteworthy that the First Respondent had another leg or argument as to why she was entitled to the funds of Imperial specifically.


The central problem in this case is whether there are sufficient facts to prove that there was a customary Sesotho marriage. And secondly whether the document about the appointment of a beneficiary, which I have spoken about, is sufficient evidence upon which to decide that an appointment has effectively been made.


Both Mr. Thulo and Mr. Mosae advanced various criticisms against this aspect of the appointment of a beneficiary. In addition Mr. Mosae sought to find fault with the Respondents' marriage certificate that is annexed to these proceedings. This marriage certificate is to be found on page thirty five (35) of


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the record and is annexed as marked "NM 1".


Firstly he says that if the Deceased was previously married by custom he could not have been referred to as a bachelor in the marriage certificate.


Secondly, one strangely enough, as it has been submitted by Mr. Mosae, the Deceased is referred to in the certificate as Sono Monyane Makhaba. He says that Monyane is the name of other brother of the Deceased. Sono is a nickname. The Deceased's common names of Sera and Alexis are not found in this certificate. Counsel wants to speak of the anomaly as having been a deliberate misinterpretation of some kind. And that there should have been irregularities such as that alleged misinterpretation for which in the Marriage Act of 1974 attracts some penalties.


I would conclude that there may be some doubts concerning the marriage certificate. But I find it difficult to conclude that this person who married Maureen Ratlou (the First Respondent) on the 17th December 1999 was not the Deceased unless there is direct evidence which controverts what is contained in the marriage certificate. I did not hear Mr. Mosae to say that this person who married this lady on this date was not the Deceased. Fortunately J should not make a decision about that now.


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What is important to me is that the normal arguments that are adopted when marriages are disputed in this country were advanced. In that regard Mr. Thulo advanced certain challenges. He made two submissions. Firstly, that there has never been any valid and lawful customary marriage between the Applicant and the Deceased in the absence of proof of relevant essentials. On the other hand, the First Respondent, as submitted, was properly married to the Deceased who was not married at the time of marriage.


Mr. Thulo further says the First Respondent that is this lady who was married by civil rites, was the one who was properly married to the Deceased. He says this marriage is valid inasmuch as there has never been any previous marriage. That we must be reminded that by that marriage which he says does not exist is meant that alleged previous marriage by custom of the Applicant and the Deceased.


Thirdly Mr. Thulo submits that all the evidence brought to prove the existence of the marriage between Applicant and the Deceased was only framed after the Deceased's death. For that reason it is unreliable to say the least.


Mr. Thulo went on to say that Applicant has failed to provide the Court with the evidence of the payment of 'bohali' and other essentials of Sesotho


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custom in respect of her marriage with the Deceased.


Fourthly, having failed to prove the existence of the customary marriage between the Applicant and the Deceased that the Applicant cannot succeed to the estate of the Deceased because the Deceased died without having a valid will or any will at all.

When the Deceased died, according to the First Respondent's case, he had appointed the First Respondent as his beneficiary. It is this appointment by Imperial that was made by the Deceased which overrides all other claims because the Deceased was empowered to appoint whoever he liked on the principle of "contract for the benefit of a third party". This being the principle of the Law of Contract which is called, in lawyers language, stipulatio alteri.


The meaning of the above principle can be seen in practice. The example is where a man works in the mines. He leaves a wife and children in this country. When he is at work he is asked by his employer to show who he appoints as a beneficiary, in terms of insurance law, when he dies.


What Basotho men will do on the above example is to make an appointment of a girl friend or what he calls a second wife or concubine. This


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is what they do. The law now says that fund will be given to a person who had been appointed who is not necessarily his wife or heir. It is because that fund does not go according to the law of inheritance but according to the law of contract. That one can appoint whoever one likes. That is why in this case it was argued that the Applicant should benefit from the fund of the Imperial on this principle. And it is said she must inherit regardless of whether her marriage was good or bad.


With regard to the marriage of the First Respondent to the Deceased we were reminded according to Mr. Mosae's argument that this marriage was invalid because it was contracted while the other one existed. So that this marriage is invalid because if one contracts a civil marriage according to this argument, there should not have been any other marriage existing between the Deceased and the Applicant.


Both these Counsel's argument are good in law but we have got a problem. The problem is whether there is sufficient evidence on which the Court can decide for either party. That the Applicant 'Mabatlokoa has got a right to inherit or the First Respondent Maureen Ratlou has got a right to inherit on the basis of the appointment by Deceased. There are some special problems.


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Let me start with the appointment made by the Deceased of the funds from Imperial. Indeed Maelelloang Maureen Makhaba has been appointed in this document of appointment on page 58. There are additional appointments in the document of Elelloang Makhaba and Getrude Makhaba the family children. The address of the Deceased and of the appointees is Semphetenyane in Maseru. The dates of birth of the First Respondent and his two children are shown. It is specified in the document that the other one was the wife of the Deceased and the others are children of the Deceased.


Various arguments have advanced in attacking this appointment instrument Predominantly I find that there are two substantial deficiencies in this document. It is undated. None of the witnesses tell us when it was made. These are two substantial problems. Since this document has no date it may even go to the extent attracting another argument. It is whether this is a document at all because every document must be signed and dated. It would have been better if someone told us when this document was made. This is a substantial problem which this Court, in the interest of justice, cannot just dismiss this document or reject it as invalid. Inasmuch as the Managing Director of the Imperial had been cited he may be accepting that there was an appointment of some kind. He has not been made to depose or testify. Consequently he may be in agreement nor does he refute that there was such a


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document. But it was important to know when the document was made and

under what circumstances.


When the question of the validity of these marriages has been settled it may be that the validity of the said appointment document from Imperial will not be important but it is difficult to arrive at the situation when we have regard to the existence the alleged Sesotho customary marriage. I do not go to the extent of deciding whether there is a doubt or whether there is no doubt. It is because in this kind of proceedings one has to decide on the balance of probabilities. In order to do so there must be sufficient evidence to decide for this side or decide for the opposite side.


Let me come to the question of that Sesotho customary marriage. And in doing so I am first looking at annexure "A" a document dated the 14th February 2003 and another annexure called "B" on page 12 of the record. 1 have remarked that document similarly dated the 14th February 2003 is similarly intended to prove that there was a Sesotho customary marriage.


On the face of the two said documents there are initial problems. They are in reality not evidence of an agreement of 'bohali'. They are merely documents that show that "in the past" there was such an agreement. I will record both of


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them as they are. The first one starts off:


"Your Honour,"


Here as a family of Makhaba, swear that Sera Sono Makhaba is fully wedded to Mabatlokoa Makhaba and the deceased and that wife have two children. And we certify that their mariage commenced in 1991. We swear that these are our children. And that the law should protect them. We shall thank the hand of the law.

The author is Machepha Makhaba for the family.


Witnesses


'Mapaki Makhaba

Pompo Lelingoana Machepha

Mary Makhaba

Thabo Makhaba"


What is interesting is that this document does not tell us when in 1991 the marriage was contracted. Where? And who were present? How many cattle were paid? Whether it was "tse maoto a mane" (real cattle) or money. And I repeat who were present when the marriage was contracted. It is because this is the kind evidence that is expected from a document that seeks to evidence a marriage by custom.


I now move to annexure "C" which is at page 12 and dated that date of the 14th February 2003 while it is more complicated but it has the same effect as that annexure "A". It reads:


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"Your Honour,


Here we certify a marriage that is between Alexis Sera Sono Makhaba and Lieketsent Pitso the daughter of Seeiso 'Motsi. Sera is the second son of one Machepha Makhaba and 'Mapaka Makhaba. It was agreed about their marriage in 1991 and the two cattle were agreed upon being part of bohali. The other cattle was made by the sum of M400.00."


It is said in the "certificate". There are these two families on both sides who signed. There is a family of the bride and the family of the bridegroom and four witnesses on one side and two on the other side. Interestingly there is again this lady called 'Mapaka Makhaba. She has made a supporting affidavit at page 10 of the record. When she speaks about this marriage on her supporting affidavit she merely says:


" I am applicant's mother-in-law. Applicant was customarily married to my son Alexis Sono Makhaba. See annexure "C" and their marriage subsisted until the death of my son."


This is the only thing that she says about the marriage while she had the opportunity to inform us about those things and circumstances I said they are required to be stated in a Sesotho customary marriage setting. Those aspects that go to establish Sesotho customary marriage. That paragraph 3 is repeated at page 49 in a similar economy of words. There is nothing about the circumstances of customary marriage.


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I will now go back to annexure "C". As said before it is written in 2003 while speaks about a marriage occurred in 1991, It does not tell us where the marriage was contracted, who were present except that it speaks about negotiations that resulted in payment of two cattle; "ho thehoa bohali ka likhomo tse peli". Most unusually it does not go further to tell us whether it was living cattle or it was just sounding in money. If it was evidence of a contract Sesotho customary marriage that occurred in 1991 not only would it have a date of that time when the agreement was reached. It would have the ample details such as the place, the balance of cattle remaining including witnesses who were present when the agreement was reached.


Often a certificate recording a Sesotho marriage will speak about scale (sekepele) of bohali. One of them would speak about the scale in that one must pay so much amount of cattle at the end of it all. If one has paid three or two cattle this must translate into whether what one has given over is bohali cattle sounding in money or actual living cattle. Almost invariably a letter of agreement will have a date stamp impression of the chief of that place which may even be made a few days after the date of agreement but there will invariably be a date stamp impression of the local chief.


It might perhaps be that one of the marriages is good but the Court does


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not have evidence which might well be available in testimony of the fact that that there was a valid Sesotho customary marriage. A relevant witness when called must say that he was present or he must say that he knew people who were present and he saw them come and negotiate the marriage. This is not overly difficult. For example, a bride or a girl whose marriage is being negotiated may not be present when the actual negotiations took place. But if it however comes to a push she will testify that on a certain day there were these people from her husband's side who arrived at her father's place. On their side it was so and so and on the side of my father's family was so and so. She will say she knows that there were negotiations and such that bohali was paid to her father and she was even accordingly informed that a number of cattle were paid. This clearly borders on an obvious hearsay but this is the evidence that Court may rely on because it is this circumstances if believed of what in the nature of definitively happened on that day.


The above example is in direct contrast to those who speak in annexure "A" and annexure "B". They cannot persuade with that what kind of evidence that they give. They recite events of ten years before. They expect this Court to rely on their evidence without being sufficiently forthcoming about their knowledge. It was sufficient if one of them just woke up and said "I was personally present." So and so was also present. Somebody else was present


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one the side of the girl and on the side of the bridegroom. This kind of bohali was agreed upon. It was sufficient if a single witness testified so. Some of the people who signed on the annexures A or B may have been very young in 1991. It is not something that could be easily ignored. All in all there is need for oral evidence on the aspect that I have spoken about. If this customary marriage is good it might end up that that civil marriage was bad.


The above is a summary of the aspects which show that this Court does not have evidence, about solution of this problem, on which it can decide. This does not mean that a decision is reached that this application be disallowed or any defence is good. I am not able to reach a decision that this application be allowed. What I do is to come to a finding that this matter must be referred to oral evidence on those issues which I have spoken about including the appointment made by Imperial. Then the Court that hears the evidence which is led and which is tested will be able to make a final decision.


That question about the Imperial appointment document may end up it being regarded as a good appointment. But one would have been satisfied if there was an official even on affidavit, saying that he knows that this appointment was made. Now what we have is the letter of appointment coming from the lawyer purportedly signed by the Deceased which he attaches to the


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affidavit. The legal representative is not a witnesses and he will not tell us under what circumstances this appointment resulted. An affidavit from Imperial should have been filed. The absence of the proper evidence resulted in the numerous challenges that were made against this document.


Still on the appointment this Court is not saying this is unlawful document or a fraudulent one. But what is underlined is that a lot of evidence is required to prove the document. It can even stress that there are these funds available or a specific amount.

The Court was however not told how much is it through any evidence from Imperial. If this was clear the Court could even direct that this money be kept by the Registrar in an interest bearing account where it will earn interest so either side which wins will find the funds well kept. I am not able to make such an order now.


Briefly I have indicated aspects for which there is need for oral evidence because the order that I hereby make is that this matter must be sent for oral evidence.


It is unfortunate that it has been costly for the parties to meet the requirement. I wish this could have been avoided but it is unfortunate that this has not happened. 1 will order that costs be costs in the cause in this proceedings


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as completed. As for now the matter is sent back for trial.


Counsel will take a bit of time to explain this to their clients. They must find time to do that.


T. Monapathi

Judge