Motloheloa Kibinye V 'Malefa Lekaka (CIV/APN/0232/2022) [2023] LSHC 83 (25 April 2023)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/0232/2022 In the matter between MOTLOHELOA WILLY KIBINE APPLICANT AND ‘MALEFA MAMPE LEKAKA 1ST RESPONDENT MASTER OF HIGH COURT OF LESOTHO 2ND RESPONDENT ATTORNEY GENERAL 3RDRESPONDENT Neutral Citation: Motloheloa Willy Kibinye v ‘Malefu Mampe Lekaka [2023] LSHC 83 Civ (25TH April 2023) CORAM HEARD DELIVERED : : : HLAELE J. 14TH DECEMBER 2022 25TH APRIL 2023 SUMMARY: Applicant’s marriage a customary marriage in terms of section 34 of the Lerotholi Laws. Respondent’s marriage not a Seantlo marriage in terms of the requirements thereof. ANNOTATIONS: CITED CASES: 1. Lebohang Valeria Seiltlheko (Lebaka) v Makoaile Seitlheko and 2 Other CIV/APN/477/2000. 2. Mafaesa v Mafaesa and Another (CIV/APN/293/82) [1983] LSCA 24 (28 March 1983). Ramaisa v. Mphulenyane CIV/APN/335/75. Khabele v Khabele JC 319/48. 3. 4. 5. Mohasa v Motoase C of A (CIV) no.6 of 2018. 6. Leoma v Leoma (C of A(CIV)No. 19 of 2003) (NULL) [2004] LSHC 61 (07 April 2004. Ntle v Khaketla, C of A (Civ)N0 3 of 1985 [1986] LSCA 1 (01 January 1986). 7. BOOKS 1. Duncan Patrick Sotho Laws and customs. p31. Morija Printing Works. 2010 Reprint. 2. WCM Maqutu. Contemporary Family Law (The Lesotho Position) p241- (The Lesotho Position). ARTICLES 1. 2. Sebastian Poulter. “Law and Population Growth in Lesotho.” 31 January 1979. National University of Lesotho. Faculty of Social Science. Staff Seminar Paper. Family Law Aspects. Alec Campbell “baNgwaketse marriage and dissolution of marriage (Conclusion).”1970 Comparative and International Law Journal of Southern Africa p 325-347 STATUES 1. Laws of Lerotholi 1903 2. Administration of Estates Proclamation no.19 of 1935 JUDGMENT HLAELE J [1] INTRODUCTION 1.1 The matter came before me as an application wherein the Applicant sought the following orders; 1. Dispensing with the ordinary Rules pertaining to the modes and periods of service in this matter. 2. That a rule nisi be issued returnable on the date and time to be determined by the Honourable court calling upon the respondents to show cause (if any) why; a) The first respondent shall not be interdicted and/ or restrained from dealing with, withdrawing and or accessing the monies held in the deceased’s account at Nedbank South Africa pending the finalization of the Application. b) The first Respondent shall not be directed and /or ordered to surrender the late Tankiso Kibinye’s bank card to his account held with Nedbank South Africa to the office of the 2nd Respondent pending finalization of this matter. c) That this Honourable court declares the marriage between the late Tankiso Kibinye and the 1st Respondent null and void ab-initio. d) Cancellation of leases held under number 12302-403,13301-1249. e) That the estate of the late Tankiso Kibinye be shared amongst his children with the late Mamotšilisi Kibinye in terms of the laws governing intestate succession in Lesotho. f) That the 1st Respondent be ejected from the residential property of the late Tankiso Kibinye and Mamotšilisi Kibinye. g) That where a dispute of fact arises, this Honourable court should order the leading of viva-voce evidence. h) Further and/or alternative relief. 3. Prayer 2(a) and (b) operate with immediate effect as interim orders. 1.2 During submissions or arguments before court by counsel, it became apparent that there is a dispute of fact in relation to certain issues. As a result, I made an order that viva voce evidence had to be led in respect of the below mentioned issues in order to make a final determination in this matter. 1.2.1 I should also mention that Applicant withdrew prayers 2(d) (e) and (f). [2] ISSUES THE COURT REFERRED TO ORAL EVIDENCE. 1. Whether there was a valid marriage between the parents of the Applicant, namely Tankiso Kibinye and Mamotselisi Kibinye. 2. Was there a seantlo marriage between Tankiso and the 1st Respondent, viz Mats’epo Kibinye (nee Lekaka) Respondent. 3. Who is the heir to the property of the late Tankiso Kibinye. [3] APPLICANT’S CASE The following are the witnesses who were called and their evidence. 3.1 PW1 was Ts’eliso Letuka whose evidence is as follows; 3.2 That he knew Motloheloa Kibinye who is the applicant in this case. His parents are ‘Mamots’elisi Kibinye (Mats’eliso Mochekele being her maiden name) and Tankiso Kibinye. Asked whether applicant’s parents were married he responded that they were since lobola cattle were driven to Mamots’elisi’s maiden home to marry her. He knew this because he was called by one Baehlakane and one Tsietsi to assist them in driving the cattle to ‘Mamotselisi’s maiden home. Baehlakane is the Applicant’s paternal grandfather, while Tsietsi is this witness’s grandfather. Tsietsi was standing in the place of the chief. Asked whether he knew as to whether Mamotselisi was welcomed in the Kibinye family and as to the name she was given in that family. He answered that he tends to forget the name due to old name. 3.3 On cross examination, Mr Lesuthu for the Respondent asked this witness whether the cattle he talked about were impounded. This witness answered that the cattle were for lobola. The witness was also asked as to how many people they had left at home when they were driving those cattle to ‘Mamotselisi’s marital home. He answered that they left quite a number of people at home as there were people who were drinking beer which was intended to accompany the cattle. This witness’s cross examination focused more on the following questions: one (1) whether the cattle which the witness says he assisted in driving to Mamotselisi’s marital home had bewys, two (2) whether Mamotselisi already had a child before he got married to Tankiso and three (3) whether Mamotselisi got married again after her separation with Tankiso. In response to the first question the witness answered that the cattle did have the bewys although such bewys were not in his hands but those of the people who had requested his assistance. On the second question, the witness answered that Mamotselisi did not have a child that she bore before her marriage to Tankiso. But it became apparent when the applicant’s other witnesses were giving evidence that indeed Mamotselisi did have one child before she got married to Tankiso. His response to the third question was that Mamotselisi never married again. 3.3.1 The importance of this evidence is that it talks to the issue of payment of Lobola. The laws of Lerotholi put this at the center of the validity of a marriage. 3.4 PW2 was Nkolotsane Ts’usi Kibinye whose evidence was that his father and the applicant’s grandfather were siblings. He knew the applicant’s mother as Mamotselisi who was married to Tankiso. This witness however mentioned that he was not part of marriage negotiations between Mamotselisi and Tankiso. He initially heard of their marriage through his father who on one occasion told him that he was going to Matukeng to marry Tankiso. When his father returned from Matukeng he told him that everything went well and that he was accompanied by Tankiso and the witness’s uncle (who is Tankiso’s father), as well as one Nthako. He testified further that Tankiso and Mamotselisi had three (3) children who are Bokang, Rebone and Motloheloa. Mamotselisi was already late as well as Tankiso who had died three (3) months prior to the day this witness was giving evidence. He also testified that ‘Mamotselisi was buried at Tsoapo-le-Bolila where she and Tankiso had migrated to from Matukeng. His evidence was further that he knew Malefa Lekaka also known as Matsepo Kibinye. He knew her as someone who stayed with Tankiso, however he did not know the capacity of their staying together as they never got married. Malefa began staying with Tankiso after Tankiso had separated with ‘Mamotselisi. 3.5 This witness’s cross examination centered around the question whether Mamotselisi was a second wife to Tankiso as well as whether the first wife had any children. The witness responded that indeed Mamotselisi was a second wife since Tankiso married Mamotselisi after his first wife had died. The first wife had one child and she was a girl named Tebello. Asked whether Mamotselisi got married again after she separated with Tankiso. The answer was in the negative. 3.6 PW3 was Mpakopako Mochekele who was ‘Mamotselisi’s younger brother. His evidence was that he was still a young man and herdboy when Mamotselisi got married. On the day she got married, he gotten home from grazing the cattle. He found two (2) cattle in his family kraal. He knew these cattle as they were from the same village. But he did not know the reason they were in his parent’s kraal. He was then informed by his uncle Khetho Mochekele that those cattle were for ‘Mamotselisi’s lobola. 3.7 This witness’s cross examination focused more on whether ‘Mamotselisi had a child before she got married to Tankiso. Also and whether she also had other children. The response was that she indeed had a child by the name of Liepollo Mochekele who was born before her marriage to Tankiso. She also had a fourth child named Mots’ets’e. This witness denied that Mots’etse’ is the child that ‘Mamotselisi bore in the alleged second marriage. He denied this because he neither knew of ‘Mamotselisi’s separation from Tankiso nor her second marriage. 3.8 The Applicant then closed its case. The Respondent’s side opened its case by calling upon the 1st Respondent as the only witness to her case. [4] RESPONDENT’S CASE The 1st Respondent’s testimony went thus; 4.1 That she is the wife of Tankiso. Her biological sister ‘Malerato Kibinye was married to Tankiso as a first wife. However, she died in the 70s and after her death Tankiso married another wife by the name ‘Mamotselisi Kibinye. ‘Mamotselisi got separated from Tankiso and went to stay with another man whose name this witness does not know. Mamotselisi and this man bore a child named Mots’ets’e. The 1st Respondent proceeded to testify that she eloped with Tankiso in 1995. This was after her father and Tankiso’s father communicated and she was then told to go and raise her sister’s children under seantlo marriage. In their communication, her father and Tankiso’s father agreed that no lobola cattle will be paid as fifteen (15) cattle had already been paid for her sister ‘Malerato Kibinye’s lobola. They later solemnized their marriage and got a marriage certificate. She lived with Tankiso as wife and husband till his death. It is the 1st Respondent’s evidence that after ‘Mamotselisi’s death she persuaded her husband Tankiso to burry ‘Mamotselisi as she was his wife. She also did not want ‘Mamotselisi’s children to get angry at her. ‘Mamotselisi was therefore buried at Tsoapo-le-Bolila by Tankiso. In cross examination, it became evident that the 1st Respondent does not have any document evidencing her customary marriage to Tankiso as she testified that she did not know whether there was any document written after his father and Tankiso’s father agreed about her marriage to Tankiso. Asked how old her sister’s child when she got married under seantlo. It became evident that Tebello was already a major by then as she was twenty-three (23) years old. It was established by this witness that this was in 1995. The cross examination also elicited that the 1st Respondent went to Tankiso’s home in 1995 to help in the preparation of Tebello’s marriage ceremony as Tebello was getting married that weekend. It showed therefore that the 1st Respondent did not leave her home during that time to get married to Tankiso but to help in preparation of Tebello’s marriage ceremony. [5] THE LAW 5.1 It is trite law that customary law has these requirements in terms of Lerotholi laws section 34.1 It reads Section 34 (1) of Part II of the Laws of Lerotholi states: "A marriage .... shall be deemed completed when: a) b) c) there is agreement between the parties to the marriage; there is agreement between the parents of the parties or between those who stand in loco parentis to the parties as to the marriage and as to the amount of the bohali; and there is payment of the part of the bohali" 1 Lebohang Valeria Seiltlheko (Lebaka) v Makoaile Seitlheko and 2 others CIV/APN/477/2000. 5.2 The court takes cognizance of the fact that these requirements are not comprehensive.2 5.3 The issue therefore which this court has to determine is whether there is evidence before this court that proves on a balance of probabilities that there was compliance with these requirements in the alleged marriage between the late Tankiso Kibinye and Mamotselisi Kibinye who are the parents of the Applicant. The reason this court has to make this determination is this; the heirship of the Applicant depends on him being the legitimate son of the late Tankiso Kibinye and Mamotselisi Kibinye. His legitimacy will also entitle him to other rights that may arise as a reason of being the son of the deceased couple. 5.4 In order to prove the existence of the customary marriage and to prove compliance with Section 34 of the Lerotholi laws, the PW1 and PW2’s evidence becomes pertinent. PW1 shows that as a shepherd he was told to take two cattle to the family of Mochekele. His evidence is corroborated by the evidence of PW3 who the brother to Mamotselisi Kibinye is (and by marriage relation the brother-in-law of Tankiso Kibinye) who confirms that when he came home after having taken livestock to the fields, he found cattle in the family kraal and upon inquiry, he was told that they had come to the family as lobola for his sister’s hand in marriage to Tankiso Kibinye. 5.5 The evidence of these two witnesses, tallies very well with attachment MWK1 to the founding affidavit3 which is a letter signed by both parties evidencing an agreement of marriage between the families of Kibinye and Mochekele. From the above facts and evidence we see compliance to the effect that the parties to the marriage agreed to the marriage. There being proof that despite being close neighbors Mamotselisi actually left her home and went to live with her husband. There is also 2 Mafaesa v Mafaesa and Another (CIV/APN/293/82) [1983] LSCA 24 (28 March 1983); also see Ramaisa v. Mphulenyane CIV/APN/335/75. 3 MWK1 to the founding affidavit pg evidence of payment of lobola from the two witnesses, one proving movement of cattle from the groom’s home and the other their arrival at the bride’s home. 5.6 There is also evidence that Mamotselisi left the matrimonial home. Further that it may be that during her departure she had an adulterous relationship and gave birth to another child. This was however not a bone of contention which this court had to make a determination on. What is important however is that there is no recording of a divorce. In fact, what this court heard from the respondent when she was giving oral evidence is that Mamotselisi’s burial was undertaken by her husband. 5.7 The Respondent wanted to take credit for ensuring that her husband buried Mamotselisi. What is of relevance is that there had been no divorce. Hence her burial was the responsibility of Tankiso her husband. 5.8 I therefore find there is proof on a balance of probabilities that Mamotselisi and Tankiso were husband and wife. I further find that the Applicant is a product of this marriage. He is the third-born child of this couple. [6] THE FIRST RESPONDENT’S MARRIAGE 6.1 The allegation that was placed before this court by Mr. Lesuthu relating to the marriage of the 1st Respondent and the deceased Tankiso is that they entered into a seantlo marriage. This being the case, it was argued on her behalf that she is a legitimate wife of Tankiso under customary law. It was argued that since hers was a seantlo, she literally stepped into her sister’s shoes and assumed the role of the first wife to Tankiso. I must be quick to mention that it is common cause that the late Tankiso was married to the 1st Respondent’s sister by customary rights. That she (the sister) has since passed away. The Applicant’s mother was thus the 2nd customary wife of Tankiso. This is then the reason why the 1st respondent was of the view that since she was married in terms of seantlo, she had ascended into her sister’s position and assumed the rank of senior wife or house. 6.2 From this argument, the court was faced with the task of determining: i. Was there seantlo marriage? ii. If so, did it promote the 1st Responded to being the senior wife by virtue of literally stepping into her sister’s shoes. In order to determine this, the court will venture into the provisions of the law. 6.3 SEANTLO MARRIAGES The premise which this court commences is that it recognizes Seantlo as a valid customary marriage. For this, I rely on the dictum in Ntle v Khaketla4 where it was said: “Lesotho customary law will not be condemned or not applied on the ground that it is repugnant to justice and morality merely because it is different from and does not accord with concepts of morality or justice under Roman Dutch Law. It is implicit that where two systems of law exist, each of them may be based on different principles or concepts of justice…” Regarding what Constitutes Seantlo Duncan writes; “If a wife dies before children are born there can be no claim for restoration of the dowry cattle, but if she has a sister living and her parents may, if she consents, let him have her for half the original number [of cattle]. Without her consent, the husband has no legal claim.5” 4 Ntle v Khaketla41985-1990 LLR 213-@217) 5 Duncan Patrick Sotho Laws and customs. P31. Morija Printing Works. 2010. Reprint. (My emphasis) The questions that follow seantlo are normally, the hierarchy of the wives, the payment of Lobola the heirship and hierarchy of the children of different houses. 6.4 In the case of Khabele v Khabele,6 Chief Maama Lechesa who was an expert witness said: “The custom… is still extant today… a woman is married seantlo by payment of ten head of cattle and she takes the place of her deceased sister… seantlo invariably applies to the first house (he had never come across cases where it applied to other lesser houses) …seantlo is entirely a question of agreement and plan and … the father of the deceased first wife is in no way bound or obliged to agree to his junior daughter going as wife.” 6.5 On seantlo, Maqutu7 writes “In African custom it used to be possible for a childless woman to request her husband to marry another woman to bear children for her. Such a woman did not have a separate house. The children she bore were deemed to have been born by the childless woman. This woman who was married exclusively to bear children had no status that was distinct from that of the childless woman. She was simply her womb.” 6.6 Adding to this chorus, Poulter, who is credited with early publications on Sesotho custom writes; “Where a wife died before she had produced any children the husband might ask her family to give him her sister in marriage in her place. Such a marriage was known by the name of seantlo and it would seem that no further bohali was payable for the new wife because the first payment had not achieved its major purpose. 8” (My emphasis) 6 Khabele v Khabele JC 319/48.qouted from Duncan above 7 WCM Maqutu Contemporary Family Law p241-242. 8 Sebastian Poulter. “Law and Population Growth in Lesotho.” 31 January 1979. National University of Lesotho. Faculty Of Social Sciences. Staff Seminar Paper. Family Law Aspects. 6.7 A similar trend is seen in other southern African tribes as noted in this article by Campbell who notes: “What is perhaps more common, is that when a man's wife dies without bearing him any male children, he may ask his late wife’s father or guardian for her sister. If the sister's guardian, her mother's brother and she herself consent to the union, she then enters the house of the man's first wife for the purpose of bearing children in substitution for her deceased sister. The man is under no obligation to transfer bogadi for her, though he may do so if he wishes. However, should he transfer bogadi for her, she becomes a full wife in her own right and there is no seantlo relationship. Under the seantlo custom there is no obligation on the parents of the deceased wife to provide a substitute. 9” (My emphasis) 6.8 A common thread that runs through these writings by renowned authors or evidence given by experts in custom (although some it was in lower courts), is this that the marriage of Seantlo was to: a. do away with childlessness b. to cover up barrenness c. to prevent the return of lobola d. to retain the family line within the married sister’s bloodline. 6.9 Thus, Seantlo is a valid customary rites marriage. An attempt to declare it legally unenforceable or unrecognizable under the so-called repugnancy clause cannot find meaning under the Constitutional dispensation where custom is specifically protected by our Constitution under Section 18 of the Constitution. 9 Alec Campbell “baNgwaketse marriage and dissolution of marriage (Conclusion).” 1970 Comparative and International Law Journal of Southern Africa P 325-347. [7] THE LAW TO THE FACTS 7.1 The question that this court has to grapple with, in terms of evidence lead and papers before it is; was there a seantlo marriage between the 1st Respondent and the late Tankiso Kibinye, the father of the Applicant? 7.2 This evidence was given by the 1st Respondent herself who took the stand. Her evidence was to the effect that after her sister died, the late Tankiso visited her father at her maiden home to ask for her hand in marriage. Whilst she said she does not know the nitty- gritty of the lobola terms, she says that when told what the discussions entailed, she consented to being married to her sister’s husband under seantlo, “to go raise her children” she said. More about raising the children will be said later. 7.3 She then says she has since then been living with the deceased Tankiso Kibinye as his wife. She testified that when she arrived at the marriage the Applicant was living with his father and has continued to do so until his death. She said further that when she got married, the Applicant’s mother was no longer living with Tankiso. She however was not divorced. [8] WAS THERE SENTLO MARRIAGE BETWEEN TANKISO AND THE 1ST RESPONDENT. 8.1 In terms of the legal principles outlined above, a seantlo marriage was entered into by a childless couple. Its purpose was for a sister to substitute her own sister for the purposes of bearing children for that marriage. 8.2 It therefore violates the requirements of Seantlo to suggest that a younger sister would be married to substitute her sister where her sister had given birth to children during her lifetime. It would also not auger well with the seantlo marriage that she had gone there to raise her sister’s children who at the time she got married was already an adult. In fact, she admitted during cross examination that at the time she started living at her sister’s husband it was at the time her late sister’s daughter was getting married. This shows that she was no longer a minor and thus there was no need for her to “raise” her. 8.3 It is also common cause that she has not given birth to a child during the subsistence of her union with Tankiso Kibinye. 8.4 There is also evidence that, she and the deceased Tankiso Kibinye entered into a civil rights marriage so that their marriage should cease being a customary rites marriage. She said that the purpose of this conversion was so as to terminate the customary marriage in favour of the civil rights one which had more benefits in that under custom she will be marginalized. 8.5 The civil rights marriage was entered into during the subsistence of the customary marriage of the Applicant’s mother and father (Tankiso) and thus, by operation of law, void in that Tankiso was not a bachelor.10 The respondent did, although reluctantly, concede during her evidence that she was aware of the existence of this marriage. In her own words she said that when the Applicant’s mother died, she pleaded with her now late husband to bury “his wife”. She said that she did not want anyone to suffer the backlash that may result in the event that she was seen as the one who prevented her husband from burying his 2nd wife (applicant’s mother). 8.6 It is unfortunate that in law, the seantlo marriage that the applicant purportedly entered into, suffers the fate that it does not comply with the legal requirements of a valid seantlo. It would make a mockery of the Sesotho custom and culture to bend customary law to suit specific situations. It should be noted that the evidence led should showed that 1st Applicant’s mother was still married to Tankiso at the time 1st Respondent solemnized her marriage. The law should thus be certain, apply 10 In Mohasa v Motoase Cof A (CIV) no.6of 2018 the court said, “Any civil marriage purportedly entered into during the existence of a valid civil marriage is in law, null and void”. consistently and equally to all and every situation. Her civil marriage too, suffers in that she entered into one with a man who was not a bachelor. [9] PUTATIVE MARRIAGE 9.1 Was there a putative marriage between the 1st Respondent and the Applicant’s father? In the case of Mohasoa v Motoase the court said; [A] putative marriage is an apparent marriage which, because of some impediment or other, is invalid but which one or both of the parties, ignorant of the impediment, believed to be valid. 9.2 The second inquiry is then, was the contracting party aware of this impediment? As has been said, the Respondent did accept that she was aware that her husband was married to applicants’ mother at the time she contracted the civil rights marriage. Thus, the principles enunciated in Leoma V Leoma11 that once it is apparent that a party was aware of the legal impediment, their subsequent marriage cannot be said to be putative. [10] CONCLUSION 10.1 The ultimate conclusion to be drawn from the facts of this case is that the 1st respondent is not legally married to the late Tankiso Kibinye, either under customary law or civil rites. Under seantlo, the marriage has failed to comply with the legal requirements of the marriage. The civil rights marriage was entered into during the subsistence of a customary marriage. 11 Leoma v Leoma (C of A(CIV)No. 19 of 2003) (NULL) [2004] LSHC 61 (07 April 2004). 10.2 Neither can the marriage be said to be putative in that there existed a legal impediment to its legality, which impediment was known to the contractor of that marriage, in this case the 1 st Respondent. It should be noted that during the hearing of this application, the applicant abandoned prayers 2(d), and (f). [11] ORDER I therefore make the following order: 1. That the marriage between the late Tankiso Kibinye and 1st Respondent is void ab- initio and of no legal effect. 2. The 1st Respondent is restrained from dealing with, withdrawing and or in any manner accessing the monies held in the deceased’s account at Nedbank South Africa. 3. The 1st Respondent is directed to surrender the Late Tankiso Kibinye’s bank card to the 2nd Respondent. 4. The estate of the late Tankiso Kibinye be administered under the Administration of Estates Proclamation no.19 of 1935. 5. There is no order as to costs. ------------------------------ M. G. HLAELE JUDGE For Applicant: Adv. L. Mainoane For Respondent: Adv. K. Lesuthu 19