Khabo and Another v Khabo and Another (CIV/APN 475 of 2017) [2019] LSHC 9 (10 October 2019)

IN THE HIGH couRT oF,LESoTHo cIv/APN/475t2017 In ttre matter between: ,MAHLALELE HLALELE KTIABO KIIABO And 'MATAU KHABO MAIPATO KHABO lST APPLICANT 2ND APPLICANT 1ST RESPONDEhIT 2M RESPoNDENT i l i I JUDGMBNT Coram: His Honour Justice Keketso Moahloli Ex tempore: 13 December 20lg Written reasons: 10 October 2019 -2- Moahloli J INTRODUCTION tU This is an opposed application for mandament van spolie, whereby the Applicants are seeking the following reliefs: -t- '(b/ Resn.ol(nts be^directu! b igilttl and/or slverally restore possess-ion of the following numerated items of propefty a;d the keys pertaining tiereto to the Applicani - omnia ante; (, Doubre snrey residentiir torr" ,;;rrh"r-;rrh ,u i;i;;;; tiia prop"rry c o mp art mentali ze d a s foll ow s : Groundfloor: 2 garoges, rcitchen, sitting room, dining room, bed room, lst floor: 2 bed rooms, study room, two showers and toilet. (ii) Three roomed house with a, its househord prooern (iii) Documentation rangingfrom b,ank cari,'ir7r"irlo"oarmic certificates, driver,s ticense bank cards, !" eppiliont's husband;;;;i;;;;d mine clock card, brue card. (v) White corolla Motor'iehicle 2006 make. (c) Respondents be restrained and interdicte{fr?* interfering,w!! Applicants, possessory rights by continuing to occu,ry the premrsis r.efeyed * i, irri" I @) and/or by segtng ony of the properties mentioned thereat other than by d";p;;";;r:;;rr, (d) That Respondenx b7 lirected;;;y cos';f this opptirition jointry and/or severagy onry in the event of contesting this same. r-7 _?_ Alternatively Q) ln Appticant be d.ecryl!the owner,1rn, irt orrty mentioned at 1 (b) above. (fl Respondents be eiectedfrom tlr" prrriir"s mentioned at I (b) above. (s) 2'd Appticant be'dectaiei ,;;;;;;;;te-vehicte ,ufrirrali'ot para r (iv) above. be orderea n io,i"tiy onan, ,rlunriiry ,r*r, ihe vehicti irii"*a at I (iv) to 9r\;;,i::;:ts (i) Respondents be ordered to puy nine hundred thousand (Mg00,000.00) for violation of Apdicant's privacy and impairmi"i oy iigrity. (j) Respondents be ordered to pay "rii "|tni, Application. (k) Appricant be grantedfurther and/or arternative rerief, ,, APPLICANTS'CASE -3- [2] In her founding affidavit 'Mahlalele avers that she was married to late Francis Joseph Khabo during 1991 in terms of sesotho law and custom and in community ofproperty' Thty were blessed with two male childrerl namely Hlalele Khabo (born 9 January 1992) and Motseki Khabo (born on 14 Apr, 2000). They had since accumulated a lot of fixed and movable property, including a developed residential site situated at MatSaneng in the Mafeteng urban area in the district of Mafeteng, fwo other undeveloped sites situated at Matsaneng and Matholeng in the dishict of Mafeteng, plus a white corolla motorvehicle of 2006 make. [3] 'Ma]rlalele attests that her husband was shot by a stranger on the 21,r April, z0l. and police investigations are still ongoing. During her whole mourning period before the burial of her husband she was endlessly subjected to some unremitting violent outbursts of temper, and insults by her in laws. she was accused of being a witch and of having killed her own husband. she was arso t}reatened with death in particular by 1o Respondent (,Matau). [4] 'Mahlalele avers that her husband was buried on the 10tr June, zolTwhile she was forcefully evicted like a dog from the residential house refered to at paragraph 1 b (i) and (ii) of the Notice of Motion on the l lth June, zolTby ln Respondent in -4- concert with other members of the extended family. she says she was kicked out of the house with only the clothes on her body. [5] she claims that she has since heard rumours that 'Matau is the process of selring the vehicle mentioned above at a valueless price. on the 2lrt December, she saw a stranger and 'Matau in the premises mentioned atparagraph 1 (b) inspecting the said vehicle at lengh' This had augmented her fear that 'Matau may selr some of the movables to her prejudice. [6J 'Mahlalele maintains that she has always been in peaceful and undisturbed possession of the properties referred to in her Notice of Motion since 1996 until the lltr June' 2or7 when she was forcibly evicted from the premises. Following her eviction she tried all means to have the said properties restored to her but with no success' Amongst other things, she foiggered some mediation processes and was a paty to some settlement negotiations with Respondents before the Mafeteng police Peace and Reconciliation Departmen! the Principal chief of Mafeteng and before the Master of the High Court, to no avail. [7] 'Mahlalele attests that she has since requested 'Matau to at least release her academic certificates and herhusband's bank cards but 'Matau instead threatened to rather burn them to hell' 'Mahlalele says that she has never given up herpossessory rights over the said properfy and had always communicated her assertion of rights to the Respondents. -5- RESPONDENTS, CASE [8] lu Respondent ('Matau) in her answering afifidavit avers that she is the mother of the late Tau Francis Joseph Khabo (the deceased) who died on 21$ April ,2017 after being shot died outside his house by a hired assassin. Her late husban4 Dyke Khabo passed away many years ago. They were married according to sesotho raw and custom on the ls December, 1954;out of their said marriage four (a) children were born' The deceased was their only male child and an heir to their estate. The 2nd Respondent is one of her said children. [9] 'Matau attests that 'Ma]rlalele started cohabiting with the deceased as a couple in L992 until 2013 when 'Mahlalele left the deceased place at Matsaneng. when they started to cohabit 'Mahlalele was highly expectant. shortly thereafter she gave birth to a male child called Hlalele Khabo (2"d Applicant). It has always been common cause that the ratter was not authored by the deceased. [10] 'Matau maintains that 'Mahlalele was never legally married to her late son. she says that to the best of her knowledge and recollection their relationship was one of concubinage. [11] 'Matau attests that afterthe death ofthe deceased, . Mahlalele suddenly emerged and passed herself of as the legal wife of the deceased when she is not. ,Matau and the Khabo family buried her late son on the 10th June, 2otT.,Mahlalele was never made to wear mourning clothes because she was not a widow. -5- [12] 'Matau maintains that she is the heiress to the deceased estate by operation of law and she was nominated as such by the family council on the l1ft June, 20t7. she refers this Honourable court to the family council,s resolution annexed to her affrdavit. DISCUSSION [13] This case is not about who is legally entitled to inherit the deceased,s estate, but merely about whether 'Mahlalele was unlawfully dispossessed of the estate by 'Matau and Maipato through "serf-herp,, (that is to say, by taking the raw into their own hands and exercising "power" which they do not have, without following proper legal procedure). [14] I therefore have to merely factually investigate whether at the time of the alleged dispossession: (i) 'Mahlalele was in actual fact in peaceful and undisturbed control of the estate; and (ii) the estate was unlawfully taken from her control by ,Matau without her consent or acquiescence. -7- [15J At the start of the hearing Applicant's counsel emphasized that in this hearing they are only going to pursue to prayers relating to spoliatio& and not the reliefs and issues prayed in the alternative. [16] 'Mahlalele avers that she was in peaceful and undisturbed possession of the residential properties from 1996 until 11 June, 2[l7when she was forcibly evioted from them by ,Mataur. llTl'Matau on the contrary, while admitting that 'Mahlalele cohabited with the deceased as a couple from lggz,alleges that 'Mahlalele left the residential properties at Matsaneng in 2oL3 when the couple separate4 and the deceased derivered her remaining personal effects to her parents, homez. [18] I found there to be a real, material and very significant dispute of fact, having an important bearing on whether 'Mahlalele was despoiled of her property on 11 June' zAfi as she alleges or not. Hence I took the unusual but legally permissible step [in terms ofRule 8 (14)] of calling the two to give oral evidence on the specified issue with a view to resolving this dispute of fact. unfortunately their evidence and cross-examination did not assist the court in this regard. [19] As 'Mahlalele must have anticipated that ,Matau would resist her claim for spoliation' I do not understand why her counsel did not make effons to fortify her 1 Founding Affidavit, paras 4.5 'Answering Affidavit, paras 4.3, 6.7,6.2.1 evidence with corroborative affidavits of say, her neighbours (to support her assertion that she was in possession until her husband,s funerar n zor,)and the independent third parties she claims that she roped in to mediate the dispute [viz. the police, the principal Chief and the Masters, officel. -8- [20] As matters stand' it is her word against that of ,Matau. And according to the Plascon-Evans rule3 where in mofion proceedings disputes of fact arise on the affidavits' a final order can be granted only if the facts averred in the appricant,s affidavits' which have been admitted by the respondent, together with the facts alleged by the latter' justify such order . In casuthey do not, and the Respondents, version must prevail' I do not agree with applicants, counsel,s contention that "Respondents' version consists of bald, hollow, fanciful and untenable denials safely rejectable on paper.,, [21] Neither do I agree with applicants' counsers invocation of the so-calred presumption of continuance of possession. I endorse the view that such so-cared presumptions of fact are not rules of law, but merely inferential reasoning. kr my view this particular "presumption" is singularly unhelpful in the evaluation of the evidence' Each case must be considered on its own merits. The mere fact that 'Mahlalele resided at this property from lgg6does not give rise to an inference that 3Plascon'EvansPaintsLtdvl/an,Rie.bpeckpaints(pty)Ltd19g4(3)sA623(A). 3ll il li?l ill:.1i::::il;#1up$ i;"l e#i,fiTi;ffiH j*, +,r Endorsedbyourapexcourtin,inter ,, 1 2; M N M co n s tru cti o n co ( pty) Ltd v -9- she continued to reside there beyond 2013. This so-called presumption cannot affect the incidence of the burden of proofl. [22] rn the result r, on 13 December 2018, delivered art ex temporejudgment dismissing the application for spoliation with no order as to costs, and undertook to furnish reasons for my judgment later. JUDGE Appearances: Adv. F. Sehapi for the Applicants Adv. Z. MdaKC for the Respondents 4 See Zeffertt & Paizes, The south African Law of Evidence. 3d Ed zo:.2 Lexis Nexis at p 193 where it is said: "Because everything depends on th" f..tioilhlinaiviauat case, the presumption of continuance hardly deserves the dignity of being stated as a rule.,,