Khoeli v Khoeli (C of A (CIV) 17 of 10) [2011] LSCA 11 (20 April 2011)

IN THE COURT OF APPEAL OF LESOTHO C OF A (CIV) 17/10 In the matter between:- ‘MAK’HANO KHOELI APPELLANT ‘MASEMELA KHOELI RESPONDENT and CORAM: RAMODIBEDI, P SCOTT, JA MAJARA, JA HEARD: 11 April 2011 DELIVERED: 20 April 2011 SUMMARY Dispute of fact in motion proceedings as to the existence of a valid customary marriage – on appeal matter remitted for the hearing of oral evidence before a different judge JUDGMENT SCOTT, JA [1] This is an appeal against an order granted by Monapathi J on 11 June 2010. It appears that after hearing argument from both sides the learned judge delivered an ex tempore judgment which was not recorded. Subsequently, on 14 July 2010 an order was issued by the registrar. At the commencement of the hearing of the appeal we were handed a judgment dated 4 August 2010. It appears that neither counsel was aware of the judgment until shortly before the hearing. Needless to say, the absence of the judgment when reading the record of the proceedings was a cause of inconvenience for the judges of this Court. [2] The appellant is the mother of the late K’hano Khoeli who died on 19 August 2009. The respondent, a former domestic servant of the deceased, claims to have married him according to customary law shortly before his death. This is denied by the appellant. During his lifetime the deceased was a member of the Mineworkers Provident Fund which appears to have been administered in Lesotho by Teba Limited. The respondent contends that as the deceased’s widow she is entitled to the benefits payable by the fund upon the death of the deceased. The main issue is accordingly whether the respondent and the deceased were married. [3] The proceedings giving rise to the present appeal were initiated by way of an urgent application brought ex parte by the respondent. The appellant was the first respondent. The second and third respondents were respectively Teba Limited and Lesotho Funeral Services. Neither is a party to this appeal. [4] The relief which was sought and granted on 10 September 2009 was a rule nisi calling on the appellant and Teba to show cause why: a) they should not be directed to restore ante omnia the “Teba Bank Savings books No. 519060 and 3298662” to the respondent; b) the respondent should not be declared to be the rightful widow of the late K’hano Khoeli with full rights to determine the burial of her late husband; c) Teba should not be restrained and interdicted from making payments out of the Provident Fund “pending the outcome of this application and the determination by the administrator of the Provident Fund in the Republic of South Africa of who is the rightful person to receive the same”; d) the appellant and Teba should not be directed to pay the costs of the application. [5] In her founding affidavit the respondent said that she had begun working in April 2009 as a domestic servant for the deceased. She cared for him and his mother who, as I have said, is the appellant. She said that on 20 June 2009 she and the deceased agreed to marry. When the appellant heard of this she caused a commotion, hurling insults at the respondent. She said the matter went to the chief who reprimanded the appellant. Nonetheless, on 4 July 2009, the appellant herself performed the bride welcoming ritual and slaughtered a sheep, the skin of which the respondent was made to wear according to the custom of the Khoeli family. She said that previously on 25 June 2009 she had been made to wear a long dress in the presence of family members. Because her parents were deceased, a relative, Ms ‘Matikanelo Khotso, stood in for her parents. The latter, in a supporting affidavit, confirmed that the respondent’s parents were dead and said that for this reason it was agreed with the deceased (who was a widower and hence a major) that there was no reason for the latter to pay “bohali”. In a further supporting affidavit, Mr. Leponesa Mathinyane, a cousin of the deceased, said that he was present at the bride’s welcoming party (koae) when she was given the name “’Masemela Khoeli”. He said that the entire ceremony was conducted by the appellant, his wife and himself. [6] Shortly thereafter, on 10 July 2009, the deceased was taken ill. He died in hospital on 19 August 2009. [7] The respondent said that thereafter the family met to “introduce” the deceased’s heir. Some members of the family did not accept that she was the wife of the deceased and refused to sign a document to that effect. She said that the appellant, however, acknowledged that she, the respondent, was the deceased’s wife. The respondent also annexed to her affidavit a letter dated 26 August 2009 (annexure A) written by ‘Mathakane Molapo, the chief of Khanyane, introducing the respondent to the principal chief of Leribe as the widow and heir of the deceased. [8] The respondent said that on 28 August 2009 she took the letter, annexure A, and two Teba Bank Books to the office of Teba and presented them to Mr. Ts’ilo. However, the latter retained them, saying they had been stolen. According to the respondent the latter handed them over to the appellant. [9] In her answering affidavit, filed on 21 September 2009, the appellant denied that the deceased had married the respondent and pointed to the absence of any written “agreement of marriage”. She denied having caused a commotion and the intervention of the villagers. More importantly, she denied having participated in any of the alleged rituals. She said she had no knowledge of annexure A, the letter dated 26 August 2009 written by the chief of Khanyane introducing the respondent as the deceased’s widow. Significantly, she annexed to her affidavit a letter marked MK1, written by the same chief on 24 August 2009 requesting Teba to release money to the appellant to enable her to bury her son. She also annexed a copy of a letter marked MK2, dated 24 August 2009 signed by members of the Khoeli family in which the appellant was introduced as the deceased’s heir. This letter bore the stamp of the same chief. I shall have something to say about it later. The appellant’s answer was accompanied by affidavits of family members denying that the respondent had been given the name “Masemela Khoeli” and saying that had there been a marriage they would have known about it. [10] In reply the respondent annexed the affidavit of ‘Mathakane Molapo, the chief of Khanyane in the district of Leribe and the author of annexures A and MK1 referred to above. She said that on 24 August 2009 the family of Khoeli had brought the letter MK 2 to her requesting that she confirm the appointment of the appellant as heir. She noticed, however, that the signatures on the letter did not include that of the respondent whom she knew to be the wife of the deceased. Being suspicious, she wrote a note at the “end of the document” to the effect that although she placed her stamp on the document she was aware that the name of the deceased’s wife did not appear on the document. She later learned that the endorsement she made on the letter does not appear on MK 2 and had been deleted. [11] By the time the replying affidavit was filed the deceased had been dead for more than a month. Good sense prevailed and by agreement between the parties an order was made on 24 September 2009 by Monapathi J to the following effect: 1) The respondent was permitted to bury the deceased in collaboration with the Khoeli family; 2) Teba was directed to release an amount of M10 000 jointly to the respondent and the appellant to be used towards the burial of the deceased; 3) Both the respondent and the applicant were to keep records of their expenditure; 4) The prayers (a), (b), (c) and (d) referred to in paragraph 4 above were deferred for later determination. [12] There was subsequently an exchange of supplementary affidavits from which the following emerged. At some stage after the issue of the order of 24 September 2009 the appellant called at the office of Teba for the release of the M10 000 referred to in that order. Teba refused to release the money. On 28 September 2009 the appellant’s attorneys wrote to Teba threatening the manager with arrest for contempt in the event of Teba’s continued refusal to comply with the order. In response Teba handed the entire amount standing to the credit of the deceased, viz M52 691.65, to the attorneys. Its reason for doing so was apparently that it had closed the account after being notified of the death of the deceased. The appellant’s attorneys then inexplicably deducted M4 300 in respect of their fees and “erroneously” released the balance of M48 391.65 to the appellant. On 1 October 2009 the appellant returned the sum of M48 000 to her attorneys, retaining without authority to do so the sum of M391.65 allegedly “used for transportation”. The attorneys in turn released to her the sum of M15 000 which they said they did so in terms of an agreement with a member of the chambers of respondent’s counsel. In a letter dated 5 October 2009 respondent’s counsel recorded that the member of his chambers referred to denied the alleged agreement. The letter continued:- “We are unable to follow the logic behind deduction of fees and the alleged transportation fees from the amount which is disputed. We record that the only expenditure allowed by the order of Court was M10 000 for funeral expenses. We totally distance ourselves from this arrangement which we respectfully submit is unlawful”. [13] The Order granted by Monapathi J and issued on 14 July 2010 simply confirmed paragraphs (a) to (d) of the rule nisi granted on 10 September 2009 and summarized in paragraph 4 above. Paragraphs (a) and (c) were academic, as was the reference in paragraph (b) to the respondent’s right to bury the deceased. By the time the order was granted the deceased had long since been buried and the money standing to the credit of the deceased in the Provident Fund - or more accurately the balance – had found its way into the trust account of the appellant’s attorneys. The orders that were relevant were (b), to the extent that it contained a declaration that the respondent was the rightful widow of the deceased, and (d) which directed the appellant to pay the costs of the application. The appeal was accordingly directed at paragraphs (b) and (d) of the order. [14] In his written judgment Monapathi J noted that the appellant produced no evidence to contradict the respondent’s evidence that she and the deceased had agreed to marry. But the only person still living who could give direct evidence as to the agreement would be the respondent herself. Whether there was such an agreement or not accordingly had to be determined by having regard to what the judge referred to as collateral matters such as the bride welcoming ritual, the giving of “koae” and the wearing of a special bridal dress. If it were to be found that those events did not occur no credence could be given to the respondent’s evidence as to the alleged agreement. On the other hand, had “bohali” been paid the issue of whether there was a marriage or not would have been put beyond doubt. But here, too, reliance is sought to be placed on an agreement with the deceased who of course is no longer able to deny or confirm it. The learned judge categorized the appellant’s evidence as no more than a bare denial. I cannot agree. The appellant expressly denied that the alleged rituals had taken place and more particularly that she had participated in them, as alleged by the respondent and others. It is furthermore clear from the respondent’s own affidavit that there were members of the Khoeli family who refused to accept that there had been a marriage. It is true, as the judge remarked, that there would appear to be no reason why a witness such as Leponesa Mathinyane, whose affidavit was filed in support of the respondent, would lie about such a serious matter. But this line of reasoning is no doubt valid when viva voce evidence has been led with cross examination. It is, however, a dangerous line to follow in circumstances such as the present when what has been placed before the Court are versions on affidavit which are so mutually destructive as to indicate – to put it bluntly – that perjury has been committed one or more of the deponents. [15] Also a cause for concern is the affidavit of the chief of Khanyane, ‘Mathakane Molapo. If what she says regarding the endorsement she wrote on the letter, MK 2, is accepted, it would follow that someone must have attempted to mislead the Court by making a false copy of the original. However, at the hearing of the appeal we were shown the original. It is a single-paged document (identical to the copy, MK 2) with enough room at the foot of the page for adding the endorsement alleged. Yet there is no such endorsement on the original. [16] Another feature of her affidavit which calls for some explanation is the apparent conflict between, on the one hand, annexure A which is a letter in which she introduced the respondent to the principal chief of Leribe as the deceased’s widow and heir and, on the other hand, annexure MK 1 which is a letter addressed to Teba in which she requested the latter to release money to the appellant so as to enable her to bury the deceased. [17] In all the circumstances I am satisfied that the dispute of fact on the papers regarding the alleged marriage of the respondent is such as to have required the Court a quo to direct that oral evidence be heard on the issue as contemplated in Rule 8 (14). [18] The following order is made: (1) The appeal is upheld; (2) The order in terms of prayers (a), (b), (c) and (d) of the notice of motion granted in favour of the respondent is set aside; (3) The matter is remitted to the Court a quo for the hearing before a different judge of oral evidence on the issue of whether the late K’hano Khoeli and the respondent entered into a valid customary marriage. For the purpose of the hearing of oral evidence the following shall apply: i) Neither party shall be entitled to call any witness who did not make an affidavit in the motion proceedings unless there has been served on the other party at least 14 days before the date appointed for the hearing a signed statement by the witness wherein the evidence in chief to be given by such witness is set out; ii) In the event of a party intending to call as a witness a person to give evidence on matters not raised in the affidavit of such person in the motion proceedings, a signed statement wherein the additional evidence in chief of such person is set out shall be served on the other party at least 14 days before the date appointed for the hearing, failing which such evidence shall not be admitted; iii) Discovery on oath of all relevant documents shall be made within 21 days of a party being requested by the other party to make discovery. (4) There shall be no order as to costs. (5) The registrar of the High Court is directed to give the matter preference on the High Court roll. __________________________ D. G. SCOTT JUSTICE OF APPEAL I agree: __________________________ M. M. RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL I agree: __________________________ N. MAJARA JUSTICE OF APPEAL For Appellant: Mr. P. T. Nteso For the Respondent: Adv S. Ratau