Letsie v Bereng and Others (CIV/APN 15 of 94) [1994] LSCA 95 (24 May 1994)

1 CIV/APN/15/94 IN THE HIGH COURT OF LESOTHO In the matter between : SEKHONYANA LETSIE APPLICANT and CHIEF MOHLALEFI BERENG 'MASEKHONYANA LETSIE SEKHONYANA ATTORNEY GENERAL 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT JUDGMENT Delivered by the Honourable Mr. Justice T. Monapathi On the, 2 4 th day of M a y. 1 9 94 T he A p p l i c a nt is a retired former p o l i c e m a n. At the m a t e r i al time the A p p l i c a nt stayed at a v i l l a ge of T s o e n e ng Ha L e t s ie in the D i s t r i ct of M a s e r u. T he v i l l a ge is u n d er the c h i e f ly c o n t r ol of the First R e s p o n d e nt (Chief M o h l a l e f i) w ho is also the P r i n c i p al C h i ef of R o t he and T h a b a - T s e k a. T he F i r st R e s p o n d e nt is the head of the A p p l i c a n t 's f a m i l y, m e a n i ng that he is the senior m o st m a le in s t a t us and in the f a m i ly a f f a i rs of the A p p l i c a nt as we B a s o t ho u n d e r s t a nd this to m e a n, a c c o r d i ng to c u s t o m. The Second R e s p o n d e nt is the w i d o w ed m o t h er of the A p p l i c a n t, the A p p l i c a nt being the e l d e st m a le issue and an heir according to custom in his f a t h e r 's e s t a t e. During his service as p o l i c e m an the A p p l i c a nt is said, in' e v i d e n c e, to have spent most of the time in the towns of L e s o t ho and had only returned to the said v i l l a ge of T s o e n e ng after his r e t i r e m e n t. It was further stated that the A p p l i c a nt had m a i n t a i n ed two w i v es or m a r r i a g e s. The senior wife stayed in the v i l l a ge of T s o e n e ng while the junior wife resided with the A p p l i c a nt in the L e s o t ho towns in which he worked as a p o l i c e m a n. What is important is that the A p p l i c a nt seems not to have build a h o u se but had raised an u n c o m p l e t ed wall on the p o r t i on of the site in the homestead of her deceased father and her widowed m o t h e r. In the m e a n t i me the mother of the A p p l i c a nt a c c o m o d a t ed the A p p l i c a nt in one set of rooms or a flat adjacent to the m a in house of the h o m e s t e a d. It does not seem to be very important what the size of the space w a s. It was for about seven m o n t hs that the A p p l i c a nt and the second R e s p o n d e nt lived in peace until a m i s u n d e r s t a n d i ng s u r f a c e d. This was caused by what was considered by the A p p l i c a nt as "Second R e s p o n d e nt i n t e r f e r i ng with my style of u p b r i n g i ng my c h i l d r e n" and, "the A p p l i c a nt chasing away his elder sister's daughter when she returned home after deserting her h u s b a n d ". Was he entitled to chase away the child? That is only s i g n i f i c a nt in so far as it resulted in the second Respondent calling a family meeting on the 14th January 1 9 9 4, convened by Chief Mohlalefi at his Rothe A d m i n i s t r a t i ve O f f i c e. At the meeting the Second Respondent was not in a t t e n d a n c e. It is common cause that at the meeting the Applicant objected to the Chief Mohlalefi chairing and conducting the meeting. The Applicant says that he therefore refused to co- operate with the gathering and refused to answer the 1st R e s p o n d e n t 's q u e s t i o n s. He says he was adamant that unless the gathering appointed another person to conduct the proceeding he would refuse to c o - o p e r a t e. Chief Mohlalefi then proceeded to warn the Applicant that, in his chiefly p o w e r s, he was ordering Applicant to leave his home (that of his father and m o t h e r) and to look for a shack to live in on or before the 16th January 1 9 9 4. Knowing the unhealthy relationship between the Chief Mohlalefi and himself (Applicant) and judging from the grave mood in which Chief Mohlalefi w a s, the Applicant feared that Chief Mohlalefi was nothing but serious in his threats to use his chiefly powers. The Applicant's fears were aggravated by the fact that no one in the family said anything to contradict the Chief's o r d e r s. Applicant adds that Chief Mohlalefi had gone on to further threaten that he would take further action against him if he refused to vacate the p r e m i s e s. Although he did not know what action was contemplated by Chief Mohlalefi he had reason to believe that the Chief Mohlalefi would carry out his t h r e a t s. It is for this reason that the Applicant approached this Court on an urgent basis and further averred that he had no other remedy but to approach the Court as he did. The Applicant was granted a rule nisi on the 18 January 1 9 9 4, calling upon the Respondents to show cause why : " (a) D i s p e n s i ng with the periods of notice provided for in the Rules on account of urgency should not be dispensed with. (b) First respondent should not be restrained from interfering with the a p p l i c a n t 's right to occupy his late father's immovable property pending f i n a l i s a t i on of this a p p l i c a t i o n. (c) Declaring that applicant is the rightful owner of every right in and to the i m p r o v e m e n ts on his late father's site at T s o e n e n g, and that first respondent could only remove him by due process of law. (d) Granting applicant such further and/or a l t e r n a t i ve relief. (e) Respondents to pay for the costs of this a p p l i c a t i o n. 2. Prayer 1 (a) and (b) to operate with immediate effect as interim interdict." I would say from the beginning that the reasons for decision of this dispute should revolve around the following a r g u m e n t s. (a) Whether it is correct that according to customary law (regarding residential s i t e s, houses and g a r d e n) where the heir is a m a j o r, the heir can only enjoy possession of his inheritance after the widow's death. That when heir occupies the houses and uses the gardens of the estate during his mother's lifetime it is only by leave and licence of the w i d o w, (b) The Land (Amendment) Order No.6 of 1992 provides for immovable property of a deceased allottee to devolve on his widow in the first instance or on a person designated by him if he dies leaving no widow or on a person nominated by the surviving members of his family where the first two options are inapplicable and on his customary h e i r. I did not accept the explanation regarding the citing of the A t t o r n e y - G e n e r al as the Third R e s p o n d e n t. Chief M o h l a l e fi acted as a C h i e f. It is u n t e n a b le that the A t t o r n e y - G e n e r al should end up t a k i ng the b l a me for Chief M o h l a l e f i 's a c t i on as a c h i e f. A ny o t h er a r g u m e nt would not be v a l i d. M u ch as a chief is a p u b l ic s e r v a nt and a l t h o u gh the M i n i s t er of H o me A f f a i rs is u l t i m a t e ly r e s p o n s i b le for the a f f a i rs of c h i e f s, I did not see a chief as a civil s e r v a n t. He is not c o n t r o l l ed by the G o v e r n m e n t, to the e x t e nt that the A t t o r n e y - G e n e r al ought to r e p r e s e nt s u ch a chief in civil p r o c e e d i n gs such as the i n s t a nt p r o c e e d i n g s. T h e re is no d o u bt that the c a l l i ng of f o r m al m e e t i n gs of a family g r o up is an o c c u r a n ce and an i n s t i t u t i on w h i ch is well r e c o g n i z ed in our c u s t o m a ry law. T he f a m i ly m e e t i ng is a f o r um for r e s o l v i ng d i s p u t es and m a k i ng a v a r i e ty of r e s o l u t i o ns c o n c e r n i ng a m o n g st o t h e rs m a r r i a g e, c o n t r a c ts and s t a t us of f a m i ly m e m b e r s. T he size of the g r o up d i f f er from f a m i ly to f a m i l y. R u l es of p r o c e d u re d i f f er from f a m i ly to f a m i ly but they are a l w a ys i n f o r m al and f i c k l e. T he m a t t e rs over w h i ch any f a m i ly will meet c a n n ot be d e f i n ed w i th e x a c t i t u d e. But what is e x p e c t ed is that such m e e t i n gs are called by the f a m i ly h e a d. T he m e m b e rs of the f a m i ly are g i v en an o p p o r t u n i ty to m a ke r e p r e s e n t a t i o ns and put q u e s t i o ns to t h o se c o n c e r n e d. So many things can go w r o ng in a f a m i ly m e e t i n g. I s u p p o se that m a t t e rs to do w i th c e r t a in p e r c e p t i o n s, c e r t a in i n c l i n a t i o n s, p e r s o n a l i t i es and e c c e n t r i t i es of the f a m i ly m e m b e rs i n f l u e n ce the quality and the s u b s t a n t i al j u s t i ce of each family m e e t i n g 's d e c i s i o n s. But at most times m e e t i n gs are o p e n, informal and fair. But I do o b s e r ve that in this m e e t i ng (subjent m a t t er of this p r o c e e d i n g s) if there was no s u b s t a n t i al j u s t i c e, this a p p e a rs to have been caused by the a t t i t u de of the A p p l i c a nt h i m s e l f. I do not think that a n y t h i ng has been d e m o n s t r a t ed to the effect that Chief M o h l a l e fi went about his role as family head in a wrong way. The learned author J. C. Bekker in his work S e y m o u r 's C u s t o m a ry Law in S o u t h e rn A f r i c a, Fifth E d i t i on says at page 94 : "The object of calling a m e e t i ng is bound up with the idea of c o l l e c t i ve right and r e s p o n s i b i l i ty which e x i s ts in c u s t o m a ry law; the family head (or family h e a d s) not only a p p r i s es his r e l a t i v es of the step about to be t a k e n, or of the d e t a i ls of the contract about to be entered i n t o, but there is a b u n d a nt e v i d e n ce of what is being d o n e. In a d d i t i o n, the family head is able to d e m o n s t r a te that he is acting w i t h in his r i g h ts in a m a t t er c o n c e r n i ng w h i ch c u s t o m a ry law may permit him to do the act in g i v en c i r c u m s t a n c es o n l y ." I would find no fault with the p e r f o r m a n ce of Chief M o h l a l e f i. O t h e r w i se the A p p l i c a nt in e f f e ct i n v i t es this Court to impose its w i s d om on the family m a t t e rs of the A p p l i c a n t 's f a m i l y. I would borrow the words of Grossman J in Printers and Fisher Ltd vs H O L L O W AY 1964 ALL E. R 731 at 736. "The law will defeat its own object if it seeks to enforce on this field standards which would be rejected by the ordinary m a n ," as quoted in LINKOE FC vs LESOTHO FOOTBALL A S S O C I A T I ON & 4 OTHERS C I V / A P N / 1 / 94 per W. C. M. Maqutu AJ. I say furthermore that the Applicant in effect invites the Court to review the decisions of the A p p l i c a n t 's family m e e t i n g. I would adopt the reasoning that the Courts will only intervene where there is evidence of mala fide, or non o b s e r v a n ce of p r o c e d u r es laid down for the functioning of domestic tribunals and that the Court would be doing what in effect amounts to substituting its own decision for that of a domestic tribunal (see Lesotho Evangelical Church vs Rev Phinias L e h l o h o n o lo Pitso, C of A (CIV) N o . 5 / 92 - 1 1 / 0 5 / 9 2, per Browde JA - u n r e p o r t e d) This c o i n c i d e n ce of Chief Mohlalefi being a chief and at the same time being a head of his family has been quite u n f o r t u n a t e. The reason is that the line of dermacation can be hard to draw. But the Applicant has attempted to draw the line by suggesting that on one o c c a s i on and at the end of the family meeting the chief M o h l a l e fi was exercising his chiefly powers and threatened to use those p o w e r s. This is admitted by Chief Mohlalefi and he says in his supporting Affidavit "as the Applicant refused even to talk to u s, I stated I would use my a d m i n i s t r a t i ve p o w e rs to compel him to abide the family d e c i s i on if he n e g l e c t ed to o b l i ge i t ". A g a i n st the b a c k g r o u nd of the A p p l i c a n ts conduct I do not see that the chief was acting beyond his p o w e rs or acting out of bad f a i t h, I would h e s i t a te to r e s t r a in the chief in the use of his l e g i t i m a te p o w e r s. I would see his alleged threat as a m e re threat w h o se a p p r e h e n s i on does not r e a l ly e n t i t le the A p p l i c a nt to a p p r o a ch this C o u r t. This is m o re so that % do not see the threat as based on an i l l e g a l i t y. It would be against p u b l ic policy to r e s t r a in c h i e fs from t h r e a t e n i ng to use their chiefly p o w e rs l e g i t i m a t e l y. I refuse to believe that there is such power w h o se use cannot be t h r e a t e n ed (to be u s e d ), in order to put p r e s s u re for p u r p o se of c o m p l i a n c e. S o m e t i m es it w o r ks by i n d u c i ng fear in the s u b j e c t. I w o u ld in the result find no basis for i n t e r f e r i ng with Chief M o h l a l e f i 's a c t i o n. I am in full a g r e e m e nt w i th the A p p l i c a n t 's s u b m i s s i on that the eldest male in a family is an heir a c c o r d i ng to S e s o t ho custom. "In the o r i g i n al c u s t o m a ry law, a w o m an was in state of p e r p e t u al t u t e l a g e. B e f o re her m a r r i a g e, her father or his heir was her g u a r d i a n, and after her m a r r i a g e, her h u s b a nd b e c a me her g u a r d i a n, her h u s b a n d 's d e a th did not affect her p o s i t i on at his family h o m e, and she b e c a me the ward of his h e i r ." (See S e y m o ur C u s t o m a ry Law in S o u t h e rn A f r i ca Fifth E d i t i on JC B e k k er at page 2 1 5) T h is what I call the t r a d i t i o n al p o s i t i on as a g a i n st the c u r r e nt p o s i t i o n. The t r a d i t i o n al p o s i t i on w h i ch w o u ld v i r t u a l ly m e an (in the e x t r e m e) t h a t; (a) The w i d ow (if the h e ir is a m a j or and m a r r i e d) w as a d e p e n d a nt of the h e i r, (b) T he h o m e s t e a d, the g a r d e n s, the f i e l ds and l i v e s t o ck w e re c o n t r o l l ed by the h e ir (if the h e ir w as a m a j or and m a r r i e d ). (c) T he h e i r 's s i b l i n gs (if u n m a r r i e d) w e re u n d er the c o n t r ol and t u t e l a ge of the h e i r. (d) T he heir w o u ld r e p r e s e nt all the f a m i l y 's i n t e r e s ts b e f o re the c h i e f, in v i l l a ge a f f a i rs and in a r r a n g i ng c o n t r a c ts for m a r r i a ge of h is s i b l i n g s, w i th the w i d o w ed m o t h er b e i ng k e pt in the b a c k g r o u nd a l m o st in r e s p e ct of all a s p e c ts of the d e s c r i b ed a c t i v i t i e s. I w o u ld say t h e re is a m o d e rn or c u r r e nt s i t u a t i on that is c o n s i d e r a b ly c h a n g ed or w a t e r ed d o wn in the f o l l o w i ng r e s p e c t s. (a) T he w i d ow (if the h e ir is a m a j or and m a r r i e d) is o n ly a d e p e n d a nt if she is forced by d e s t i t u t i o n, i l l h e a l th or o t h er d i s a b i l i t i es but is o t h e r w i se s i m i l ar to a p a r t n er in the family a f f a i r s, both being required in p r a c t i ce to consult each other in almost all the a f f a i rs m e n t i o n ed in (b) and (c) below. (b) The h o m e s t e a d, the g a r d e n s, the fields and l i v e s t o ck are used by the w i d ow for c o n s u m p t i on and benefit subject to c o n s u l t i ng the heir w h e re the p r o p e r t i es are sought to be e n c u m b e r ed and/or disposed of. (see also see 7 ( 7) laws of L e s o t ho and S Poulter - Family Law and L i t i g a t i on in B a s o t ho society - page 2 9 1 - 2 9 2 ). (c) T h e se children of the widow (if u n m a r r i e d) are under the control and t u t e l a ge of the w i d o w. At all times except for s e r i o us need for d i s c i p l i n a ry a c t i on on the c h i l d r e n, the widow takes care of and rears the c h i l d r en almost i n d e p e n d e n t l y, subject to the need to consult the heir in case of m a t t e rs to do with amongst o t h e rs the m a r r i a ge of her c h i l d r e n, in w h i ch case she will c o n s u lt the heir and his u n c l e s, (d) The widow r e p r e s e n ts all family i n t e r e s ts before chiefs and other a u t h o r i t i e s. This kind of e x t r e me s i t u a t i on is e x e m p l i f i ed in the case of B E B E NG G R I F F I TH vs M A N T S E BO S E E I SO G R I F F I TH (1926-53 HCTLR 5 0 ), w h i ch endorsed the w i d o w s' rights in public a f f a i r s. R e a l i s t i c a l ly speaking very very few vestiges of such d i s a b i l i t i es such as contracting for finance before banks and other remain in the way of a modern w i d o w. This case is a, case of a need to resolve two conflicting c l a i m s. That is the rights of occupancy and use of the p r e m i s es by the widow on the one hand and the heir on the o t h e r. It is primarily a question of the less superior right of p o s s e s s i on and control and the u l t i m a te right of o w n e r s h ip of p r e m i s e s. I am ever attracted by this statement by the learned author S Poulter in his valuable work Family Law and L i t i g a t i on in Basotho Society where he says at page 2 8 0, " The d e c i s i o ns of the higher courts are therefore i n a d e q u a te in their pursuit of the limited goal of defining who has control of the p r o p e r t y ." The p a r a g r a ph continues to u n d e r l i ne the greater need of the widow to be maintained and the heir to support the widow out of the e s t a t e. A clear statement is made of the c o n s t r u c t i ve control of the property by the heir allowing for actual physical control by the widow as a form of m a i n t e n a n ce and d e p e n d e n c y. This appears to be the whole case of the A p p l i c a n t. So that the widow (as submitted by the A p p l i c a n t) is akin to a perpetual l e s s e e, that is until her death. The Applicant s u g g e s ts that he has a right to direct as to how the premises ought to be used, with him as a co-occupier as a matter of right or m u s t. This is where the conflict lies. The s i t u a t i on was aggravated by the d e c i s i on of the family to have the Applicant vacate the premises which the Applicant regards as his by reason of his being an heir. I am convinced that in 1992 the legislature intervened by means of section 5 2 ( a) the Land (Amendment) Order No.6 of 1992 which r e a d s: (2) Notwithstanding section ( 1 ), where an allottee of the land dies, the interest of the allottee person to, (a) Where there is a w i d o w, the widow is given the same rights in relation to the land as her deceased husband but in case of re-marriage the land shall not form part of any community of property and where a widow r e - m a r r i e s, on the widow's death, title shall pass to the person referred in paragraph ( c ). (b) Where there is no widow a person designated by the deceased allottee. (c) Where paragraphs (a) and (b) do not apply a person nominated as the heir of the deceased allottee by the surviving members of the deceased allottee's family or (d) " (my u n d e r l i n i n g) This was against the background of what the learned author S, Poulter in his said work Family Law and Litigation in Basuto Society says at page 2 8 1: " against the requirements of the widow must be balanced with the general interest of the heir, both in terms of his right to make overall decisions about the administration and preservation of the estate property and in respect of his own beneficial use, It is to be hoped that the higher Courts will adopt a flexible approach to the whole question in the future and confine itself within the narrow framework of inquiry". It is clear therefore that since this statement much water has run under the bridge. The Courts do not have to adopt any approach but follow the Land (amendment) A c t. The Courts did not have to interfere. My i n t e r p r e t a t i on of the Land Amendment Act of 1992 is that it has had the following e f f e c t s: (a) to make the widow an heir herself with all rights of control, beneficial use and ownership of all rights and interests over the land in question; (b) during the widow's life the widow has the power to decide who to grant lesser rights of occupation (by her leave and licence) akin to a lease (sui g e n e r i s ). I feel that the submission that the Second Respondent is a u s u f r u c t u a ry of the e s t a te flies a g a i n st the p r o v i s i o ns of the Land ( A m e n d m e n t) A c t. I seem to recall that this a r g u m e nt (about the u s u f r u c t) has been r e j e c t ed by one c o m m e n t a t or but for other r e a s o n s, It is h o w e v er i n t e r e s t i ng to s u r m i se as to what the e f f e ct of the Land ( A m e n d m e n t) Act 1992 will be on the p r o v i s i o ns of S e c t i on 14 of the D e e ds R e g i s t ry Act 12 of 1 9 6 7. I need not c o m m e nt about that n o w, In I N W A R DS v BAKER 1965 ALL ER 446 it was held that d e s p i te the title being in the P l a i n t i f f ' s, the son had an e q u i ty to r e m a in "in the b u n g a l o w" as long as he desired to use it as his h o m e. D a n c k w a r ts LJ said that : " e q u i ty p r o t e c t ed him so that an i n j u s t i ce may not be p e r p e t r a t e d ," T h is is a c c o r d i ng to the e q u i t a b le p r i n c i p l es of the E n g l i sh law. I do not think a w i d ow would be duty bound to a c c o m m o d a te a m a j or m a r r i ed s o n. If she does d e c i de to a c c o m m o d a te him it would be of her own free will and by her leave and l i c e n c e. In that E n g l i sh case the son e x p e n d ed money on the land under an e x p e c t a t i on c r e a t ed or e n c o u r a g ed by P l a i n t i ff that he would stay on the land. The judge went on to say: "It s e e ms to me that this is one of the c a s es of equity created by e s t o p p e l ," T h is is not the case h e r e. I would t h e r e f o re r e j e ct the A p p l i c a n t 's a r g u m e nt that he has i n h e r i t ed the e s t a t e. T h e re is no proof of t h a t. The A p p l i c a nt has no clear right nor any right to be v i o l a t e d. I w o u ld r e p ly to t he A p p l i c a n t 's q u e ry that he h as b e en g i v en short n o t i ce or that t he f a m i ly h as t a k en t he law in i ts o wn h a n ds by s a y i ng that I did n ot find fault w i th t he f a m i l y 's d e c i s i o n. I h a ve stated my r e a s o n s. T h e se a re t he r e a s o ns u p on w h i ch I d i s c h a r g ed t he R u le Nisi and d i s m i s s ed the A p p l i c a t i on w i th c o s ts on t he 25th M a y, 1 9 9 4, T. M O N A P A T HI JUDGE For the Applicant : Mr. Mafantiri For the Respondents: Mrs Makara