Moeno v Moeno and Others (CIV/APN 365 of 96) [1996] LSHC 116 (3 December 1996)

1 C I V / A P N / 3 6 5 / 96 IN T HE H I GH C O U RT OF L E S O T HO In the matter between M O E NO M O E NO Applicant and MOIPEI M A P H O M O LO M O E NO P H A M O T SE M O E NO M A L E H L A HA M O E NO T HE P R O P R I E T O R, M A N G W A NE F U N E R AL S E R V I CE 1st Respondent 2nd Respondent 3rd Respondent 4th R e s p o n d e nt J U D G M E NT Delivered by the Honourable M r. Justice M M. Ramodibedi, Acting Judge, on 3rd day of December, 1996. On 10th October 1996 the Applicant M o e no M o e no filed an urgent application with this honourable court praying for an order couched in the following terms: 1. T he rules of Court as to form and service be dispensed with on account of the urgency of the matter. 2. A Rule Nisi be issued calling upon Respondents to s h ow cause on the day to be determined by this Honourable Court w h y: (a) (b) (c) (d) T he Applicant shall not be declared the sole heir of the deceased R O S I NA M O E NO and as such the person entitled to bury the deceased. T he first, second and third Respondent shall not be interdicted from removing and burying the deceased R O S I NA at any place save the one determined by the Applicant herein First, Second and third Respondent or any person whatsoever shall not be restrained from removing and burying the deceased R O S I NA pending the o u t c o me of this Application. Fourth Respondent shall not be restrained from releasing the b o dy of the deceased R O S I NA to any person what- soever pending the outcome of this Application. (e) First, Second and third Respondents pay costs of the Application. (f) Applicant be granted further and/or alternative relief 3. Prayers 1, 2(c) and (d) operate as Interim Order with immediate effect." T he matter c a me before me ex parte on the s a me day and after having read the papers filed of record and heard Applicant's attorney M rs Kotelo I duly granted the Rule Nisi as prayed returnable on 15th October 1996. On the latter date the matter w as again postponed to 23rd October 1 9 96 to enable M r s. Kotelo to Ale a replying affidavit. On 23rd October 1996 w h en the matter finally proceeded it b e c a me apparent to me that there w e re disputed facts which could not property be resolved on paper. I accordingly directed that oral evidence be heard on specified disputed issues which w e re identified by all concerned as follows:- (1) (2) (3) (4) (5) W ho has the duty or right to bury the deceased R O S I NA M O E NO between Applicant and First and Second Respondents? Whether the applicant is the heir to the deceased either by appointment or by descent. Whether the first Respondent's husband Lesole w as adopted by Letokoto. Whether the document Annextured " R M A 1" to the applicant's founding affidavit w as executed by the deceased R O S I NA Whether First Respondent's son is the rightful heir to the deceased R O S I N A. (6) Whether First Respondent herself is Rosina's heir. Before proceeding to examine the evidence in relation to each of the aforesaid six (6) issues it is necessary to refer to the issues which are admitted or are not strictly denied in the affidavits. T he applicant M o e no M o e no avers in paragraph 4 of his founding affidavit:- "4.1 4.2 I am the heir of the deceased R O S I NA M O E NO having been duly appointed by her as such in her lifetime. I am also the head of the M O E NO family at Ha Majane I am the son of M A I LE M O E NO and the grandson of P H I L E M ON M O E NO w ho w as the head of the M O E NO family." First Respondent's response to this allegation is contained in paragraph 4 of her founding affidavit in the following words: - "I have no knowledge of the contents hereof and do not admit the same, As will appear later on in this affidavit, the deponent herein has no personal knowledge of the contents of his founding affidavit." In view of the fact that the respondents have not filed any supporting affidavits I find that the denial raised in paragraph 4 of the answering affidavit of the first Respondent is not genuine or is no m o re than a bare denial in as m u ch as she claims no k n o w l e d ge of the contents of the founding affidavit of the Applicant M o e no M o e no on the issue. I find therefore that the respondents herein are in no better position than the respondent w as in the case of Steven M o k o ne C h o b o k o a ne v Solicitor General C of A ( C I V) N o . 15 of 1984 in which A a r on JA had this to say- "In motion proceedings, it is not an adequate answer to say "I put the applicant to the proof thereof " T he affidavit m a de by the appellant constitutes contains not only his allegations but also his evidence, and if this evidence is not contraverted or explained, it will usually be accepted by the Court. In other w o r ds the affidavit itself constitutes proof, and no further proof is necessary. T he position is different w h e re pleadings are filed; these contain no evidence, and the evidence will be led later at a trial. An admission by defendant will obviate the need for plaintiff to call evidence. B ut there is also r o om for o ne party to plead that he has no k n o w l e d ge of an allegation m a de by the other party, and that he does not admit it; in this w a y, he requires the other party to prove his allegation by evidence at the trial. B ut this is not competent in motion proceedings, and as there has been no denial, the matter must be approached on the basis that these allegations by appellant are proved." I respectfully agree. See also Tsele M o h o s h e la v Officer C o m m a n d i ng T h a ba T s e ka Police and Another C r V / A P N / 2 / 95 (unreported). It is significant that paragraphs 5 - 7 of the founding affidavit of the Applicant Moeno Moeno were admitted without any reservations. Those paragraphs were as follows: - "5.1 The deceased R O S I NA M O E NO is my aunt she was the wife of L E T O K O TO (also known as Monnamoholo) who was my uncle 5.2 L E T O K O TO is the grandson of T U T U B A LA who was the younger brother of my grandfather PHILIMON. 6. L E T O K O TO had two wives namely ' M A K H E T H O L LO & R O S I NA 'Makhethollo had a son who died at the mines leaving no male heir or any heir at all. The second wife R O S I NA did not bear any children. 7. First Respondent is the wife of the deceased L E S O LE M O E NO who was a nephew (mochand) in the M O E NO family." The court was informed at the commencement of the matter on 23rd October, 1996 that the applicant Moeno Moeno was hospitalised due to illness. Mrs. Kotelo then called P W1 Ts'oanyane Moeno to testify on all the aforesaid issues except issue number (4) relating to the document Annexture " R M A 1" It was the evidence of P W1 Ts'oanyane Moeno that he is aged 59 years, He knows the litigants before court and that he is closely related to them. The Applicant Moeno Moeno comes from the senior house. He was unchallenged in his evidence of the Moeno family tree and that the applicant Moeno Moeno "stands solely responsible for the family of Letokoto" from which the deceased R O S I NA came. This is because Letokoto had no son and therefore had no male heir. He had been married to two wives namely 'Makhethollo and the deceased Rosina. It is c o m m on cause that 'Makhethollo had a son who, as earlier stated, died at the mines leaving no male heir and that the deceased Rosina did not bear any children. P W1 Ts'oanyane M o e no was also unchallenged in his evidence that Letokoto's first wife 'Makhethollo herself died somewhere in Johannesburg. It is further c o m m on cause that Letokoto had a sister by the name of 'Manyaole w ho was unmarried. She gave birth to Erst Respondent's husband the late Lesole. It is therefore c o m m on cause that the said Lesole was illegitimate and that he was born a nephew in the M o e no family. Letokoto was clearly Lesole's maternal uncle. This indeed is c o m m on cause. In fact in his cross examination of P W1 Mr. Pheko for the respondents expressly conceded that Lesole was illegitimate. The cross examination went something like this:- "Q: Because he (Lesole) was not a legitimate issue of his father - in other words he was an illegitimate child. A: Lesole was definitely illegitimate." I have no hesitation therefore in coming to the conclusion that the said Lesole was an illegitimate child in the M o e no Family. In my judgment an illegitimate child has no legal right to inherit from his maternal uncle. He can only inherit from his o wn mother herself and nothing more unless he can show that he was lawfully adopted by his mother's parental family. As I understand respondents' defence in this matter it is exactly that, namely that Lesole was adopted by his maternal uncle Letokoto and the late Rosina. I shall return to this aspect later. It is the evidence of P W1 Ts'oanyane Moeno that all the time during his lifetime the said Lesole was treated by the M o e no family as a nephew even though he was brought up by Letokoto. In like manner the Moeno family treats first Respondent as a nephew. P W1 Ts'oanyane M o e no denies respondents' allegation that Letokoto ever adopted Lesole as his son. He is not specifically challenged in his evidence that the deceased Rosina expressed a wish in his presence that the applicant M o e no M o e no should bury her. As I see it the cross examination by Mr. Pheko for the respondents was confined to showing that this witness had not mentioned this fact in his affidavit. It was never put to him that he was not telling the truth as such. For my part I wish to state that 1 saw this witness P W1 as he gave evidence and watched his demeanor in the witness box. He gave his evidence in a straightforward manner and impressed me as a truthful witness, Then there was the evidence of P W2 Chief Ramakau Sekhonyana which was to the effect that the letter Annexture " R M A 1" to the Applicant's founding affidavit was brought to him by the late Rosina Moeno. He is unchallenged on this aspect and that his o wn signature appears in the said letter. I am therefore satisfied that this letter came from the deceased Rosina M o e no herself. It is true P W2 stated that he was not familiar with Rosina's hand writing but I do not see that that particular issue detracts from the fact that the letter was brought to the witness by the deceased herself That letter reads:- "Moeno Family I hereby allocate my estate (lefa) to M o e no Moeno. The estate runs from the flats/flat roofed rooms including the kraals up to the garden above Lethoko's also the field at Koaring and the field at Sekoting next to Tenane's. All those things I bequeath to Moeno/ are Moeno's because he supported me as though he were my son." I And it significant that Mr. Pheko put the following question to P W1 Ts'oanyane M o e no with the obvious reference to the said letter Annexture "RMA1":- "Q: I want to suggest to you that if Rosina knew applicant as the heir she would not have left written instructions to say I am leaving Moeno this and that, A: As far as I know she has left Moeno as her heir." A close look at this question has left me in no doubt that Mr. Pheko was actually conceding that the deceased Rosina executed the said letter Annexture " R M A 1 ". Indeed Mr. Pheko put the issue of Rosina's writing of Annexture " R M A 1" beyond question when he later put the following question to P W1 :- "Q: I am saying she (Rosina) did so because she knew if she hadn't said so that property would not be Moeno's but the heir's. A: It belongs to the heir who is Moeno." In the circumstances I am satisfied on a balance of probabilities therefore that the document " R M A 1" to applicant's founding affidavit was executed by the deceased Rosina. The evidence of P W3 'Mafrank Gladys Moeno was to the effect that she is the wife of the younger brother of the applicant namely one Lethoko Moeno. She testified that the handwriting on the letters annextures " R M A 1" and " R M A 2" in applicant's founding affidavit was that of the deceased Rosina Moeno. According to her she knew the hand writing because she used to see the deceased write adding "I was always with Rosina every time she was writing." The latter used to work in the church writing cards and baptismal certificates of children at the Anglican Church at Masite. She was also the holder of the prayer in the village and was a leader. P W2 herself was a messenger "delivering whatever documents she (Rosina) had written to the church." She w o r k ed with the deceased Rosina for about 3 -4 years T he last witness for the Applicant w as P W4 M o s h e no M o e no w ho is applicant's younger brother. His evidence w as that the deceased Rosina in her lifetime elected to be helped by the Applicant M o e no M o e no by ploughing her fields and feeding her. It w as P W 4 's unchallenged evidence that he k n ew Letokoto quite well. He also k n ew Lesole and that the latter w as calling Letokoto his maternal uncle. As earlier stated this is c o m m on cause, Letokoto and his wife the late Rosina called Lesole their n e p h ew (mochana). According to P W4 the first respondent in this matter is therefore a " n e p h e w" in the M o e no family. He confirms that the applicant M o e no M o e no is the head of the M o e no family at Ha "Majane w h e re the deceased Rosina lived. He denied the suggestion put to him in cross examination that Letokoto had adopted Lesole. After P W4 had completed his evidence M r s. Kotelo informed the court that the applicant M o e no M o e no had sadly passed a w ay at hospital. She then m o v ed for substitution of M o e no M o e no by his eldest son and heir M a s h e a ne M o e no in this matter. M r. P h e ko had no objection and the application for substitution w as accordingly granted M r s. Kotelo then closed applicant's case, It is significant that the first respondent elected not to give evidence in this matter despite the fact that she attended the proceedings daily without fail. She has thus avoided cross examination on the allegations she m a de in her answering affidavit. T he third Respondent 'Malehlaha Celina M o e no gave evidence as D W 1. S he got married into M o e n o 's family in 1958. She conceded that the applicant M o e no M o e no c a me from the senior house. It w as her evidence that Lesole w as the son of Letokoto. I And that her evidence in this respect is totally in conflict with the admitted evidence in this matter namely that Lesole w as the son of Letokoto's sister I have c o me to the conclusion therefore that D W1 was lying and/or deliberately trying to mislead the court on this issue. According to DW1 Lesole w as regarded by the M o e no family as the child of the family of Letokoto. T he latter and his wife Rosina also regarded him as their son. According to her Lesole w as not illegitimate. Well I have no hesitation in coming to the conclusion that D W1 lied to this court. Lesole was clearly illegitimate. DW1 further testified that the deceased Rosina was illiterate. She stayed with her for m o re than 5 years and during all that time she had never seen her write. According to her P W3 'Mafrank Gladys M o e no w as chosen as Rosina's secretary precisely because the latter w as illiterate. D W1 'Malehlaha M o e no did not impress me as a truthful witness. She w as evasive in her answers to direct questions. I got the impression that she w as all out to mislead the court as m u ch as she could. P W3 'Mafrank Gladys M o e no w as on the other hand impressive as a witness. Consequently I prefer her version to that of D W1 particularly on the question of the literacy of the deceased Rosina. I find it highly unlikely that the latter could have been chosen to lead the village for so m a ny years if she w as illiterate. Then there w as the evidence of the second Respondent Phamotse M o e no w ho gave evidence as D W 2. He told the court that he is aged 64 years. It means therefore that he w as b om in 1932. He conceded that first respondent's husband Lesole w as a nephew in the M o e no family. He however sought to impress upon the court that Letokoto adopted Lesole at his birth in 1942 because Letokoto and his wife Rosina had no children. I And that in 1942 D W2 Phamotse M o e no was only 10 years old. I therefore find it most improbable that a child of 10 years could get to know about adoption of another child. In any event I have taken note of the fact that DW1 Phamotse M o e no claims he was absent when such adoption took place. He was out in the veld herding animals. It is obvious to me therefore that his evidene that Letokoto adopted Lesole is nothing more than hearsay. In the circumstances therefore I reject it as not only inadmissible but also false. In coming to this conclusion I have drawn comfort from the fact that respondent's claim that Lesole was adopted by Letokoto remains unsubstantiated. It is my considered view that if such claim was true witnesses from the M o e no family could have been forthcoming on the issue. In my judgment the evidential burden is on the respondents to prove their allegation that first respondent's husband Lesole was adopted by Rosina's husband Letokoto. They have failed dismally to discharge the onus. I have also taken into account the fact that DW1 Phamotse M o e no has made a very poor impression on me as a witness. For instance he initially denied that Lesole himself had a sister but his lie in that respect was soon exposed by the following cross examination by Mrs. Kotelo: "Q: Lesole has a sister? A: He doesn't have a sister. Q W ho is "Mampe? A: I want to withdraw that statement, Lesole has a sister w ho is called 'Mampe," D W1 Phamotse M o e no later sought to contradict P W1 Ts'oanyane M o e no by denying that Letokoto w as buried by his wife Rosina and that even the coffin w as bought by her. D W1 insisted that the coffin w as bought by Lesole. He w as then asked:- " Q: Did you accompany Lesole to the place where the coffin w as bought? A: Yes. Q: Y ou are telling this court a terrible untruth - where did you accompany him? In shops where coffins are being bought. Where? A: Q: A: We bought the coffin at the shops at B us Stop I forget the n a me of the shop. We bought the coffin at the shop at the mortuary right here. Court: Where? A: This Lesotho Funeral Service (indicating to a building adjacent to the High Court). Court: Is that the B us Stop? A: N o" As I observed D W1 Phamotse M o e no give evidence I gained the impression that he w as not a truthful witness. In the circumstances I have accordingly c o me to the conclusion that neither first Respondent 'Maphomolo Moipei M o e no nor her son is the rightful heir to the deceased Rosina M o e no in as m u ch as first Respondent's late husband Lesole w as never legally adopted by Rosina's husband Letokoto. In fact I find that in 1942 when Lesole was born both Letokoto and Rosina were in their prime as far as child bearing age was concerned D W1 Phamotse M o e no concedes that Letokoto was 32 years while Rosina was 23 years then. He further concedes that the couple was "still expecting children." I accordingly reject as false therefore the suggestion that Letokoto and Rosina adopted Lesole as their heir simply because they had no children at that stage. I am satisfied from the evidence before me that Letokoto brought up Lesole not because he had adopted him as his son but simply because the latter was a child of his sister. I find that this is exactly a situation envisaged by Sebastian Poulter: Family L aw and Litigation in Basotho Society at page 238 wherein the learned author states as follows: - "It is not sufficient to show that the deceased brought up the child and treated him as his own, for instance by paying the expenses of his circumcision or compensation for his delicts or bohali on his marriage. These are equivocal acts and may represent no more than kindness and it is a very frequent occurrence for children to be reared by their uncles or grandparents or other relatives without the permanent transfer of parental rights or duties. This latter practice is often found convenient for personal or economic reasons and serves to cement family relationships; it is only temporary and the child may be recalled at any time by its parents." This statement commends itself to me. Mr. Pheko submits that if Letokoto's first wife 'Makhethollo is still alive then she is Letokoto's heir. The difficulty with this submission is that, as earlier stated, P W1 Ts'oanyane M o e no was not challenged in his evidence that 'Makhethollo passed away somewhere in Johannesburg. In the circumstances I accept the evidence of P W1 on this issue and reject that of D W1 and D W2 as false. In the result therefore I have c o me to the conclusion that the applicant is the rightful heir to the deceased Rosina M o e no by descent and by being the nearest senior male related to the deceased by blood and that consequently he has the duty or right to bury the deceased. I d r aw comfort from the statement of Sebastian Poulter (supra) at p 231 - 2 32 to the following effect: - "If the deceased died without any male issue there is no heir stricto sensu, unless o ne is born posthumously through the kenelo system or otherwise and, even so, such a son m ay not necessarily gain recognition today as the heir. Next, in descending order of precedence c o me the people listed below, if any person within the appropriate category is alive at the deceased's death he or she succeeds to the estate in preference to those in subordinate categories: (1) T he deceased's w i d ow in terms of section 11(2) of Part I of the L a ws of Lerotholi, (2) the deceased's father; (3) the deceased' s grandfather; (4) the deceased's brother, in the following order of precedence - (a) (b) (c) the eldest brother in the deceased's o wn house; the eldest brother in his father's senior house; d o wn through the order of houses from senior to junior; within any house the eldest in age taking precedence over younger m e m b e r s. Where any brother has died before the deceased, leaving male issue alive, such a son will inherit in his place. Similarly in the absence of a son, that brother's widow will take. (5) The nearest male related to the deceased by blood " I feel it must also be recorded that a sense of what is right tells me it would be against public policy to let the deceased be buried by an illegitimate nephew in preference to family members. This court is not prepared to be part of such a novel situation in Sesotho law and custom. See Lebohane Sello v 'Mamotlatsi Semamola and 2 others CIV/APN/319/96 (unreported). In the circumstances I confirmed the Rule in terms of prayers 1 (a) and (b) of the Notice of Motion. For the avoidance of doubt the order of court shall read as follows: - (a) The applicant Masheane M o e no is hereby declared the sole heir of the deceased Rosina M o e no and as such the person entitled to bury the deceased. (b) The first, second and third Respondents are hereby interdicted from removing and burying the deceased Rosina M o e no at any place save the one determined by the Applicant Masheane M o e no (c) In exercising his right of burial of the deceased as aforesaid the Applicant Masheane M o e no shall act in consultation with first Respondent in order to bring about a decent burial to the deceased but the Applicant Masheane M o e no shall however have the final say in the event of a dispute arising therein. (d) First, second and third Respondents shall pay costs of this application. ACTING JUDGE Mrs. Kotelo For Applicant: For Respondents: Mr. Pheko.