Semahla v Lephole (CIV/APN 218 of 97) [2000] LSCA 44 (4 January 2000)

C I V / A P N / 2 1 8 / 97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between: M A P I T SO E L S I NA S E M A H LA Applicant and R A M O N A TE K O E N A E S E LE J O S E PH L E P H O LE Respondent J U D G M E NT D e l i v e r ed by t he H o n o u r a b le C h i ef Justice M r. J u s t i ce J. L. K h e o la on t he 4th d ay of J a n u a r y. 2 0 00 T h is is an application for an order in the f o l l o w i ng t e r m s: 1. Interdicting R a m o n a te K o e n a e s e le J o s e ph L e p h o l e, the r e s p o n d e nt herein, f r om in a n y w a y, e x c e pt by d ue p r o c e ss of l a w, interfering w i th the applicant's rights of o w n e r s h ip a nd o c c u p a t i on of or a ny p e r s on deriving the s a me f r om the applicant of certain residential p r e m i s es lately the property of M a f e r e ka S e m a h l a, since d e c e a s e d, situate at Q o a l i n g, Ha Seoli in the M a s e ru u r b an area. 2. Restraining the respondent f r om going onto the premises for a ny purpose whatever that detracts f r om the applicant's right to the said property and, m o re particularly, letting out a ny portions thereof for hire and collecting its rent or interfering with a ny tenants placed thereat by the applicant. 3. Ejecting forthwith the respondent a nd all persons o c c u p y i ng the said premises by act or deed of the respondent f r om the s a m e. 4. Granting the applicant the costs of this application. 5. Granting the applicant such further or alternative relieve as to this H o n o u r a b le Court m ay s e em just. It is c o m m on cause that the applicant is the w i d ow of the late M a f e r e ka Semahla. T h ey lived at Levy's N ek in the district of Leribe w h e re they h ad a h o m e. In 1965 her late h u s b a nd c a me to live here in M a s e r u. D u r i ng his stay in M a s e ru he lived as h u s b a nd and wife with a certain w o m an w ho used to state that her n a me w as ' M a t e b o ho Alina M o k h a li and she said that she w as married to o ne Tlhoriso N c h e p e. D u r i ng his stay in M a s e ru her h u s b a nd (the deceased) built a four r o o m ed h o u se w h i ch constituted his residence, three single a nd o ne double r o o m ed structure let out to tenants. T he applicant alleges that she used to collect rent of these r o o ms since the deceased's death without let or hindrance. T he trouble started in 1 9 96 w h en the respondent expelled all her tenants f r om the r o o ms a nd substituted t h em with his o wn tenants f r om w h om he collected rent for his o wn benefit. T he applicant alleges that the respondent is the h u s b a nd to the sister of the w o m an w ho she has averred used to live with the deceased. T he respondent's aforesaid conduct e m a n a t es from his claim of right based on this relationship. S he respectfully submits that this is untenable, insupportable a nd merely provocative. S he further submits that the respondent is taking advantage of the fact that she is single and an old w o m an aged seventy-eight years. In his opposing affidavit the respondent gives an entirely different story from that of the applicant. He avers that the w o m an referred to a b o ve by the applicant w as the second wife of the deceased. H er n a me is ' M a t e b o ho a nd her eldest s on is T e b o h o. T he respondent has filed supporting affidavits of people w ho k n ow that the deceased and ' M a t e b o ho w e re lawfully married to each other by customary law. Their marriage w as blessed with three children, n a m e l y: (a) 'Matseliso, a girl b om in 1963. (b) T e b o h o, a b oy b om in 1967. (c) M p h o, a girl b om in 1980. According to the respondent T e b o ho as the only son in the second h o u se of the deceased is the heir in that house. T he applicant is the senior wife of the deceased in the first house. H er son, Pitso, is the heir in the first house. In 1 9 94 in CC 86/94 of Matala Local Court T e b o ho sued Pitso for ejectment from the site w h i ch is the subject matter of the present application. That case w as decided in favour of T e b o ho and Pitso w as ordered to vacate the site as it w as found by the court that it w as Teboho's parental h o m e. T he court found that Pitso had his parental h o me at Leribe ha Nkhasi. That is w h e re the deceased had his h o me for his first house. T he j u d g m e nt of Matala Local Court in CC 86/94 is a n n e x ed to these proceedings as A n n e x u re " A ". It s e e ms that Pitso w as not h a p py with that decision and applied for review by Chief Magistrate on the 13th September, 1994. T he learned Chief Magistrate confirmed the decision of the President of Matala L o c al Court. T h at decision is A n n e x u re " C" to the present proceedings. T he respondent avers that during 1 9 95 T e b o ho fell ill a nd authorised h im (respondent) to follow up the execution of CC 86/94. A n n e x u re " B" is a d o c u m e nt signed by T e b o ho authorising the respondent to represent h im b e c a u se of ill health a nd w o r k. A n n e x u re " B" w as m a de in terms of section 20 of the Central a nd Local Courts Proclamation N o . 62 of 1 9 3 8. In 1 9 96 T e b o ho passed a w ay leaving o r p h a ns w ho also appointed the respondent as their representative in litigation. A n n e x u re " D" is a d o c u m e nt m a de by the orphans. He denies that he uses the rent for his o wn benefit but avers that he duly p a s s ed it to the m i n or children. In her supporting affidavit ' M a n t s a ne A m e l ia M o k h a li avers that she is the m o t h er of ' M a t e b o ho w ho w as married to the deceased by c u s t o m a ry l aw in 1 9 67 a nd that about eighteen h e ad of cattle w e re paid as "lobola". S he confirms that o ne Charles Mofeli w as sent to her family to e n g a ge ' M a t e b o ho on behalf of the deceased. S he accepted the e n g a g e m e nt but insisted that the marriage should be solemnised in church because she w as a Christian. In his supporting affidavit Charles D a b e n de M o f e li avers that the d e c e a s ed w as his cousin. In 1 9 67 the d e c e a s ed married ' M a t e b o ho by S e s o t ho l aw a nd c u s t o m. He w as personally present a nd thirteen h e ad of cattle w e re paid as "lobola". In 1 9 68 the d e c e a s ed a nd ' M a t e b o ho w e re allocated a residential site at M a s e ru L o w er Seoli. He avers that he k n o ws that as a matter of fact b e c a u se he u s ed to stay with the d e c e a s ed a nd ' M a t e b o h o. T he said site w as allocated to t h em by C h i ef J o bo Seoli M a t s o s o. In her supporting affidavit ' M a t s o so M a r g a r et L e p h o le avers that during 1 9 67 her sister ' M a t e b o ho married the deceased. At the t i me of his death the d e c e a s ed h ad already paid eighteen h e ad of cattle as "lobola". T he last supporting affidavit is m a de by o ne M a t s o e le M a t s o e le w ho avers that the d e c e a s ed is his brother-in-law as he is married to his sister ' M a l i k h a p h a. He k n o ws as a matter of fact that the deceased married M a t e b o ho a nd paid eighteen cattle as "lobola". He e v en contributed an a m o u nt of five h u n d r ed maloti for his marriage. In her replying affidavit the applicant avers that she is u n a b le to d e ny that her late h u s b a nd paid "bohali" for ' M a t e b o h o. W h at s he d o es s u b m it is that s u ch purported "bohali" could not result in a ny marriage w h a t s o e v er i n a s m u ch as w h en it w as allegedly paid " M a t e b o ho w as still lawfully married to o ne Tlhoriso N c h e p e. T he last concession m a de by the applicant that she is not in a position to deny that her late h u s b a nd paid "bohali" for the marriage o f ' M a t e b o ho settles this matter. H er late h u s b a nd w as a polygamist with t wo wives. T he applicant w as the senior wife w h o se h o me w as in Leribe. ' M a t e b o ho w as the second or junior wife with her h o me at Seoli's here in M a s e r u. T he applicant's submission that the "bohali" that w as paid by her late h u s b a nd for the marriage of ' M a t e b o ho could not result in a marriage inasmuch as w h en it w as paid ' M a t e b o ho w as still married to o ne Tlhoriso N c h e pe is without a ny substance. T he applicant has failed to call Tlhoriso N c h e pe as her witness to prove that ' M a t e b o ho w as his wife at the relevant time w h en the deceased purported to pay "bohali" for her marriage. This is the second time that the applicant has failed to call Tlhoriso N c h e pe as her witness. On p a ge 49 of the record in CC 86/94 the Local Court President remarked that her heir (Pitso) failed to call this star or very vital witness in his case. T he evidence by the respondent and his witnesses is to the effect that ' M a t e b o ho w as still unmarried w h en the deceased married her. It is their evidence that she already had s o me children w h en the deceased married her but he took her together with them. T e b o ho and M p ho were b om after the marriage. W h at is of u t m o st i m p o r t a n ce is w h e t h er there w as a valid marriage b e t w e en the d e c e a s ed a nd ' M a t e b o h o. I h a ve f o u nd that there w as a valid c u s t o m a ry marriage b e t w e en t h em a nd that the applicant h as failed to p r o ve a ny marriage b e t w e en ' M a t e b o ho a nd Tlhoriso N c h e p e. A n o t h er aspect of this case w h i ch is causing me s o me serious c o n c e rn is the fact that as long a go as 1 9 94 the t wo w i d o ws of the d e c e a s ed already h ad heirs w ho w e re already majors. T e b o ho is the s on of ' M a t e b o h o. He instituted an action against Pitso w ho is the s on of the applicant. He w a n t ed to h a ve h im ejected f r om the s a me site w h i ch is the subject matter of the present application. T he case is CC 8 6 / 94 w h i ch is A n n e x u re " A ". T e b o ho w on the case a nd Pitso w as ejected. T he C h i ef Magistrate c o n f i r m ed that j u d g m e nt on review. T h e re h as b e en no appeal against that r e v i ew order. T he applicant h as c h a n g ed the f o r um a nd has c o me to the H i gh C o u rt to h a ve the r e s p o n d e nt ejected f r om the said site. H is s on Pitso is still alive a nd is her lawful heir w ho lost a similar case against T e b o h o. W h at is clear f r om the record is that the m a r r i a ge of ' M a t e b o ho w as f o u nd to be a lawful o n e. H ow c an the applicant again raise the question of the validity of " M a t e b o h o 's marriage again w h en her heir has already lost that case? It c an be argued that the case is not res judicata b e c a u se the a p p l i c a nt a nd r e s p o n d e nt are different parties. I a g r ee w i th that. H o w e v er Pitso is t he applicant's heir a nd h as a l r e a dy lost the c a se in w h i ch the validity of ' M a t e b o h o 's m a r r i a ge w as w e ll c a n v a s s ed a nd w as f o u nd to be in o r d e r. T he r e s p o n d e nt is m e r e ly a representative of the m i n or children of ' M a t e b o h o. T he l o c us s t a n d: of the applicant also arises in this application. S e c t i on 11 ( 1) of t he L a ws of Lerotholi p r o v i d e s: " ( 1) T he heir in B a s o t h o l a nd shall be the first m a le child of the first m a r r i ed w i f e, a nd if there is no m a le in the first h o u se t h en the first b om m a le child of the n e xt w i fe m a r r i ed in s u c c e s s i on shall be the heir. ( 2) If there is no m a le issue in a ny h o u se the senior w i d ow shall be the heir, b ut a c c o r d i ng to the c u s t om s he is e x p e c t ed to c o n s u lt the relatives of h er d e c e a s ed h u s b a nd w ho are h er p r o p er advisers." T he applicant's heir is Pitso a nd therefore s he h as no l o c us s t a n di to h a ve b r o u g ht this application. H er heir w as p r e v i o u s ly s u ed by T e b o ho a nd w as ejected f r om the said'premises. In t he result t he a p p l i c a t i on is d i s m i s s ed w i th costs. J. L. K H E O LA C H I EF J U S T I CE 4th J a n u a r y, 2 0 00 F or A p p l i c a nt - M r. Sello F or R e s p o n d e nt - M r. M a f a n t i ri