Sebeko v Sebeko and Others (CIV/APN/286/04)

Case No: 
CIV/APN/286/04
Media Neutral Citation: 
[2004] LSHC 91
Judgment Date: 
2 August, 2004

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CIV/APN/286/04

IN THE HIGH COURT OF LESOTHO


In the matter between:


'MAMPOLOKENG SEBEKO APPLICANT

And

MOLATO SEBEKO 1st RESPONDENT

TEBA LTD 2nd RESPONDENT

LESOTHO FUNERAL SERVICES 3rd RESPONDENT


JUDGMENT


Delivered by Honourable Acting Judge Ms N. Majara on 2nd August 2004.


  1. Applicant approached the court on an urgent basis seeking relief in the following terms:-


  1. Dispensing with the ordinary rules pertaining to the modes and periods of service due to the urgency of this matter.


  1. Directing the parties to file their respective pleadings with such shortened periods as this Honourable Court shall deem fit to enable this matter to be dealt with on an urgent basis.


  1. A rule nisi be issued calling upon respondents to show cause if any on the date to be determined by the court why:-


    1. 2nd Respondent shall not be interdicted from releasing any funds belonging to applicant to 1st respondent and/or his agents;


    1. 2nd Respondent shall not be interdicted from disposing of any property and all the monies belonging to the late Nchofane James Sebeko, husband of the applicant to 1st respondent and /or his agents;


    1. 2nd Respondent shall not be directed to release all funds belonging to the late Nchofane James Sebeko to applicant;


    1. 3rd Respondent shall not be interdicted from releasing the body of the late Nchofane James Sebeko to 1st respondent and/or his agents;


    1. Respondents shall not be ordered to pay costs in the event of their opposing the matter;


    1. Any further and/or alternative relief.


  1. On the 25th June 2004, a rule nisi was duly granted and made returnable on the 2nd July 2004. On the 5th July the rule was revived and extended to the 9th July because

the Honourable Judge who had granted the interim order was not available on the original return date. On the 9th July, the matter was postponed to the 15th for hearing before me and the rule was accordingly extended. On the date of hearing the matter was postponed again at the request of both counsels for applicant and respondent respectively and the rule was accordingly extended to the 20th July 2004 for hearing and on that date, the matter was duly argued before me.


  1. The evidence of applicant was that she is the deceased's legal wife having been married to him according to customary rites and they never divorced until he passed away allegedly on the 30th May 2004. The deceased had been employed in the mines in the Republic of South Africa. According to applicant, she only learned of the deceased's death when she got to the offices of 2nd respondent, TEBA and that at the time of his death, the deceased was not staying at their common home but at some other place unbeknownst to her. 2nd respondent then showed applicant a report about her husband's death and according to this report (annexure D) her husband's beneficiary had changed from herself and to 1st respondent, the deceased's brother.


  1. Applicant also stated in her founding affidavit that prior to this latest development, her husband had named her


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as his sole beneficiary in the event that he predeceased her since there were no children born of the marriage. She attached a copy of a letter (Annexure C) that was written by her husband during his lifetime sometime in 1996 to the chief of Tsenola who is also their chief. By this letter, the deceased was informing the chief that applicant was his wife and the person responsible for their common estate during his absence. She also attached two other documents which were prepared by TEBA and in which she is referred to both as the spouse and sole beneficiary of the deceased. These were marked Annexures A & B respectively.


  1. The court noted that both documents preceded annexure D which is a report of the deceased's death. Annexure A was prepared in August 1998, annexure B in January 2004 whilst annexure D was a death report invoice prepared on the 15th June 2004. The latter is the document that purportedly changed beneficiaries of the deceased from applicant to 1st respondent. Of these three documents prepared at/or by 2nd respondent office, only the first one bears the deceased' signature, in the form of his right thumbprint.


  1. In his answering affidavit, 2nd respondent counterclaims


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that he is the sole beneficiary of the deceased since the deceased and applicant never married but had only lived together which made applicant a mere concubine. He went on to state that the deceased had been married to one 'Maelisha who has since predeceased the deceased. The basis of his challenge of applicant's marriage to the deceased was that applicant neither attached any document in her founding papers as proof of the alleged marriage nor did she indicate when she was married, who negotiated the bohali and how much bohali was paid. The respondent's basis for claiming to be the rightful beneficiary is therefore premised on his challenge of applicant's status as the deceased's wife, the fact that since there were no children born of the union, by virtue of being the eldest brother of the deceased as well as by the contents of annexure MS1. He therefore contends that he is the deceased's rightful beneficiary.


  1. In her replying papers, applicant stated that she and the deceased married in 1989 by customary rights and she lists the people who attended the meeting when the agreement was made, bohali negotiated and agreed at 10 head of cattle at the rate of R500.00 per cattle and whereby part of the bohali in the sum of R2000.00 was paid to her mother, 'Mabatho Lipoli. Present at the said meeting, amongst the deceased family's representatives.


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she names 1st respondent and one Thoethoe Sekata. Her mother filed a supporting affidavit to the fact that the deceased's family did come to her house as stated above and that her own family was represented by her son one Ntala Lipoli and herself and that the proceedings were reduced in writing. However the said document which had since then been kept by her son who was also the headman of the village could not be produced as proof since her son's house burnt down in 1996 together with the said document and all the others that were inside it. She attached a letter from the chief which confirms that the said house, together with its contents, did burn down as stated. The letter is dated the 13th July, 2004 and bears the signature and date stamp of the chief


  1. Having read the papers filed of record and having heard both sides' argument, the issues that the court had to determine on a balance of probabilities are:


    1. Whether the applicant has successfully made out her claim that she is in fact the deceased's wife and if she has;


    1. Whether she is the rightful beneficiary of the deceased, which would entail her also having burial rights, the death benefits and all the property belonging to the joint estate.


  1. On the one hand, applicant says she is the deceased's

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wife and there is no documentary proof because it is alleged to have burnt down with her uncle's house. However, there are two attached documents, annexures A & B in which applicant is referred to as the spouse and beneficiary of the deceased. These are the two documents from TEBA, deceased's former employer. The deceased has appended his signature (right thumbprint) on annexure A, which is the earlier document of the two, having been prepared sometime in 1998, and this means he was personally attesting to the contents of the document as his. Annexure B does not bear his signature and it appears to have been prepared sometime in January 2004. The explanation given for the absence of the deceased's signature on annexure B was that it just contained a repeat and/or transfer of the contents of annexure A. However, the authenticity of both documents was not challenged. The court therefore accepted them as they stood.


Applicant also attached another document, annexure C. This is a copy of a letter which was purportedly written by the deceased to the chief of Majoe-a-Litsoene in May 1996 and it bears the deceased's full names and the chiefs stamp. The contents of the letter are that the deceased is informing the chief about the status of applicant, viz, that she is his wife and the


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person responsible for their common home whenever he is absent and thereby appealing to the chief to assist her whenever she might need such assistance. Ms Mohasi challenged the authenticity of this letter, her reason being that during his lifetime, the deceased was not literate and had only learned to write his initials and therefore, could not have written the letter. There is merit in Ms Mohasi's argument. Such an inference can be drawn. However, the question is, is that the only inference that can be drawn from this factor alone, more so when taking into account the rest of the scenario in this matter? I will come back to this question at a later stage.


On the other hand, respondent's documentary evidence entails a two-paged document attached as annexure MS1. The first page is a letter of notification of the deceased's death to the Manager of TEBA, and it also states that the amount of R10000.00 for the funeral plus all monies owing to the deceased in respect of salaries should be made payable to 1st respondent as he is the sole beneficiary of the deceased having been named as such by the deceased on the 8th March 2004. The letter is dated the 15th June 2004 which is a date later than the reported date of death. It is signed by one Danie Maree who is


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referred to as the Acting Mine Manager. The second page of annexure MS1is a RSA Provident Fund form. This form names 1st respondent as the potential dependant and sole beneficiary of the deceased in the event the deceased predeceases him as has happened. It makes no mention of applicant. It is dated 8th March 2004 and it bears the deceased's two initials but does not bear his right thumbprint. However, in his answering affidavit, 1st respondent alleged that though he was not literate during his lifetime, the deceased could write his initials.


  1. When coming back to the question of applicant's marriage to the deceased, the court wishes to point out that in her founding affidavit, applicant omitted to substantiate her claim that she was the deceased's lawful wife resulting from a 1989 meeting whereby the two families agreed on the marriage between herself and the deceased, the amount of bohali, whereby part payment thereof was made and that this agreement was reduced down in writing. She also failed at that stage to inform the court that the said marriage document burnt down with the house of her late brother in 1996 where it had been kept. She only mentioned all of these in her replying papers after she had been challenged by 1st respondent. I wish to point out


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at this stage that this information was very vital to applicant's case and she ought to have provided it from the onset. It was bad for the applicant to have failed to do so. Ms Thabane argued that there was nothing wrong with this but the court begs to differ.


  1. True enough the burden of proof in civil matters is on a preponderance of probabilities not proof beyond a reasonable doubt. However, I firmly believe that not only is it fair-play and reasonable on the part of an applicant to put the court in the full picture from the onset, but the same should also be extended to respondent before he can ably answer applicant's claim in his answering papers. This therefore should be done in such a manner that it does not leave the court with the uncomfortable feeling that as vital as it was, it only came as an after thought and as a result of a genuine challenge from the other party and should therefore be treated with some degree of scepticism.



  1. Nevertheless, applicant's claim was substantiated by her mother in her supporting affidavit and the fact of the house having burnt down with all documents that were kept therein (the said marriage document included) was supported by a letter from the chief. The claim is therefore, probable, albeit rather belated as the court has already pointed out. As a result, the


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court has no reason to disbelieve both the applicant's mother and the person of stature such as a chief of a village unless it had been furnished with good reason why it should not accept it except for Ms Mohasi's own discomfiture of its having been filed at a later stage and the apparent coincidence of some of the events being alleged to have all conveniently happened in the same year, 1996. (She was referring here to the marriage document which is alleged to have been kept in the house that burnt down in the same year, as well as annexure C, the letter which was written to the chief informing him of applicant's status). However, the court found that these factors do not per se, form a proper basis upon which the court should necessarily question the contents of the two supporting affidavits. 1st respondent's suspicion still remains as that, not an established fact albeit, a reasonable one.


  1. In his answering affidavit, 1st respondent denies the existence of applicant's marriage to the deceased but instead, alleges that the two only lived together which made applicant only the deceased's concubine. He goes further to show that he knows his brother to have been married to one 'Maelisha who has since predeceased the deceased. However, he also stops right there without producing any further information


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or proof of any kind to support his claim. By the same analogy, if the court is supposed to believe this allegation, why has it also not been substantiated in any way? It would have been very helpful if some proof as to the existence to what 1st respondent claims to have been a lawful marriage had been put before the court. In my opinion, this is one of those bare allegations which are usually made without any basis and which do not assist the court in anyway. It therefore cannot be accepted as banal as it stands for it does not in anyway hold water.


  1. This is also compounded by the fact that in both annexures A & B, the deceased himself referred to applicant as his wife and beneficiary. This is common cause. Ms Mohasi argued that annexure B which was completed in January 2004, is merely a transfer of contents of annexure B especially because it does not bear the deceased's signature in anyway. That is probable because annexure B indeed does not bear the deceased's signature. However, in the court's opinion, the simple fact that up until January this year the information stood as it was hence why it was so reported in annexure B can only mean that it was because the deceased had not changed it. It therefore stood as it was. This factor was not challenged in


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anyway. The court therefore sees no problem why it should not accept it as authentic especially when account is taken of the fact that it bears all the standard features of annexure A except for lack of the said signature.


  1. Apart from all of this, the court has not been shown any form of attempt, by anyone, of any challenge to the deceased's marriage to applicant, at any stage during the deceased's lifetime. I therefore always find these sorts of challenges which are usually made at a stage where the deceased person is already out of the picture, very problematic indeed. True enough, in some cases the challenge may be very well grounded, but the fact of it being brought up at this late stage is intrinsically very problematic and most disturbing to say the least. Sound as it may be in deserving cases, it always leaves a lot of question marks as to its being made bona fides. This is more so because it usually only comes up where burial rights which normally go with death and other benefits are concerned. It also denies the court the benefit of having some insight as to how the deceased himself would have responded if the challenge had been made during his lifetime.

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  1. . This brings me back to the question of annexure C, the letter which the deceased purportedly wrote during his lifetime to the chief of his village, wherein he was informing the chief about applicant's relationship with him viz, his wife and custodian of his house and other property during his absence. The authenticity of this letter was put to challenge by respondent, his argument being that during his lifetime, the deceased was not literate and could neither have written nor signed the said letter.


  1. This argument is probable, especially when the court takes into account the fact that in his other document the deceased has appended his signature in the form of a thumbprint. This is usually done by illiterate persons, unless it is otherwise specifically required as a formality. There is therefore, merit in respondent's argument. Yet, in another document, annexure MS1, which has been annexed by 1st respondent whose authenticity or otherwise I am coming to deal with shortly, the deceased's signature was now in the form of two of his initials, J.N. Ms Thabane challenged the authenticity of this document on the basis that the deceased was illiterate and therefore could not have appended his initials on it. Ms Mohasi rightly pointed out that they agree with this fact, that is, the illiteracy


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of the deceased hence why they also were challenging the contents of annexure C, safe to add that the deceased had however learned to write his initials.


  1. Given the above scenario, the court feels that since both sides were agreed that the deceased was illiterate, admission of contents of this questionable letter would be unfounded. True enough, the letter could have been written by another person per the deceased's instructions, but neither this submission, nor any other plausible explanation was made to the court. Therefore, bearing this factor in mind, coupled with the fact that the deceased did not append any of his two uncontested signatures as they appear in the other two documents which have been placed before the court, the court finds it difficult to accept annexure C as an authentic document. I am therefore going to disregard it. But be that as it may, as I had already mentioned, the court has found no reason to disregard the other evidence which has been put before it that is, applicant's replying affidavit, her mother's supporting affidavit, the chiefs letter and annexures A & B respectively.


  1. It is therefore, in the light of the above reasons that the court feels that on a balance of probabilities, the


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issue of whether applicant has indeed satisfied the court that she was as a matter of fact, the deceased's wife as per the customary law requirements, has been made out. This means that she is also the lawful heir of the deceased. Consequently, she should not be stripped of her legitimate right to bury the deceased and to inherit all the property belonging to their joint estate. The legal position of the widow being the rightful heir in the absence of male issue is stated in, Duncan, Sotho Laws and Customs 1960 p 12 in the following words;


"LINE OF SUCCESSION. If there is no male heir, and no widow, (my underlining) then, it was laid down in Mokhejane v. Seisa, J.C. 115/50, (sic) the parents, if alive, inherit. If they were not alive, then the elder brother, or failing him, his widow, (my underlining)


See also Tseola & Ano. V. Maqutu & Ano. 1976 (2)

S.A. p 418 where Munnik C.J. held that;


"public policy and a sense of what was right dictated that, in a dispute of this nature, the widow's wishes where she is an heir should prevail and it was her duty and right to bury her deceased husband where she pleased, subject to the limitation that excessive expenses were not to be incurred in attending to the funeral"


  1. However, this factor notwithstanding, my sense of what is morally right as a Mosotho, coupled with the


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fact that this is usually how things are done according to Sesotho custom, dictates that the widow still has the duty to exercise this right in consultation with the rest of the deceased's family. This feeling was also conveyed in Mputi v Mputi CIV/APN 265/04 by my brother Justice J.T.M. Moiloa at paragraph 9 of his reasons for judgment where he had this to say;


"In my view the heir to the deceased has a right and a duty to bury the deceased. In the present case the widow is both heir to the deceased as well as a person with a prior right and duty to bury the deceased in cooperation with the deceased's familu. "(my underlining}


In that case, the dispute was between the deceased's heirs that is, the widow, and the deceased's mother respectively. See also W.C.M. Maqutu, Contemporary Family Law of Lesotho 1992 p 184 where he had this to say on the customary law of succession where a widow is the heir:


"The failure to spell out the limits of a widow's powers in Basotho customary (sic) where she is heiress has allowed childless widows to sometimes abuse their powers. She is supposed to have the natural advisers of her husband's male relatives, but these days she rarely seeks it. Many widows have acted to the prejudice of their potential heirs."


  1. However, although the court has found that applicant has succeeded in making out her case that she was


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deceased's wife until he passed away in May 2004, and therefore the rightful heir with burial rights, this case does not end there. There is the other question of annexure MS1 which is before the court. This is the document that changes the deceased' beneficiary from applicant to 1st respondent and which forms the backbone of 1st respondent's claim to the burial rights and the attaching benefits.


  1. Ms Mohasi submitted that as per annexure MS1, 1st respondent is the rightful heir and beneficiary to the deceased's Provident Fund. In response, Ms Thabane contended that this document is not authentic due to the fact that applicant is challenging the deceased's signature, the initials J N, but in the event the court finds it to be authentic, applicant being the heir, should be given a share of it. Ms Thabane's argument was based on the fact that as per Basotho laws and custom, the heir may not be deprived of the greater part of the joint estate. See, Duncan, supra pl5.


  1. As I have already pointed out, both sides agree that the deceased was illiterate. However, in his founding affidavit, 1st respondent stated that even though this was the case, the deceased had learned to write his initials, hence why he had appended his signature


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thus. Although a prior document, annexure A, was signed with the deceased's thumbprint, the court found 1st respondent's contention to be reasonably possible true and because it was not satisfactorily challenged, I cannot find any reason why I should not believe it. I therefore accept MS1 as an authentic document whose contents the court should take into consideration in coming to a proper decision.


  1. In light of the above reasons, the question that the court now has to determine is whether as per annexure MS1, 1st respondent is the sole beneficiary of the Provident Fund. In considering this question, the court looked at various authorities on the customary law position of inheritance vis a vis the doctrine of stipulatio alteri (contract for the benefit of a third party).


  1. As already shown, in Duncan, supra, the legal position as per our customary law is stated as was also submitted by Ms Thabane viz, a customary heir should not be disinherited of more than a half share of the joint estate. If this matter ended there, the court would not have any difficulty in finding that even if respondent should take the proceeds of the Provident fund as per annexure MS1, in the event that the court


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finds that the deceased has not left any other property, which upon evaluation, is found to make up less than half of the joint estate, 1st respondent should share the proceeds with applicant as per our customary law position. However, the court still had to properly look at the position encapsulated within the doctrine of stipulatio alteri.


  1. In the case of V. M. Khaphe v TEBA & Another 1991-1992 LLR and LB pl6, at p 25, in determining the widow's rights vis-a-vis those of a beneficiary within a contract of this nature, Kheola J. (as he then was) had this to say;


"The appellant has established a stipulatio alteri (contract for the benefit of a third party) between the son and the insurance company: See e.g. Croce v. Croce 1940 TPD 251. The institution being part of stipulatio alteri, by virtue of the Roman Dutch Law, also forms part of the law of Lesotho. The contract is to the effect that she is entitled to accept the benefit of this contract and the evidence is that she has in fact done so. Her rights there­fore flow from contract (sic) and the M6,000 has nothing to do with the deceased estate. For these reasons the appeal succeeded."


  1. Counsel for applicant in that case, Mr Maqutu (as he then was) had submitted that the South African statutory clause from which the contract flowed was void in so far as it was contra bonos

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mores. I must say I agree with this feeling. The above stated position does not sit well with me. It leaves me with the sinking feeling that each time things go wrong in the matrimonial home, in spite of having shared a life together, a malicious spouse might unilaterally go and enter into or change an existing contract of this nature just to spite the other spouse. Unfortunately, this position is going to negatively affect a lot of innocent spouses, especially defenceless and more often than not, unemployed widows much more than it will probably disadvantage men.


  1. However, it would appear that on the basis of the above precedent and others, the court's hands are tied. This unfortunate legal position has been unequivocally stated and unless and until it is reversed, a lot of rightful heirs and/or other dependants in some cases are going to needlessly suffer. True enough, there may be situations where a spouse will resort to this arrangement due to a number of unfortunate circumstances within the matrimonial home such as for instance, where one spouse has maliciously and/or constructively deserted him/her etc. However, as I have already said, it is highly likely to be abused by some.


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  1. In light of the above, it would appear that 1st respondent ought to be awarded the M10, 000 being the amount that is payable as per the contractual terms stipulated within the contents of annexure MS1.


  1. For these reasons, the order I make is as follows:-


        1. The application is granted in so far as burial rights and the deceased's joint estate are concerned.


        1. The deceased's body is to be awarded to applicant and she will also inherit all the property and monies belonging to the joint estate.


        1. 1st respondent is granted the amount payable as per annexure MS 1 only.


        1. 3rd respondent is to release the body of the deceased to applicant.


        1. This being a family dispute, each party should bear its own costs.


N. Majara:

acting judge


For Applicant: Ms Thabane

For Respondent: Ms Mohasi