Leoma v Leoma (CIV/APN/465/99; CIV/APN/520/99) [2000] LSCA 55 (8 August 2000)

CIV/APN/465/99 CIV/APN/520/99 IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e en :- T H E R E S IA ' M A K O P A NO L E O MA A P P L I C A NT and ' M A K H A NG L E O MA R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le M r s. Justice K. J. G u ni on the 8th d ay of A u g u st 2 0 00 T h e re are t wo applications before m e. T he parties in these applications a p p e ar different. T he issues w h i ch this court m u st determine in b o th applications are the s a me a nd or are very closely related. In C I V / A P N / 4 65 of 1 9 9 9, the applicant therein is T H E R E S IA ' M A K O P A NO L E O M A, t he w i d ow of the late R A M O T I N Y A NE E P H R A IM L E O M A. T he R e s p o n d e nt in that application is " M A K H A NG L E O MA described further as ' M A M O T I KI K H A U LI an adult m o s o t ho female residing at M A T S O KU in the L E R I BE District. T he applicant in this matter seeks a Declaratory order that the c u s t o m a ry marriages of R A M O T I N Y A NE E P H R A IM L E O MA to both ' M A K H A NG alias ' M A M O T I KI K H A U LI - respondent herein and ' M A T S E P I SO L E K H O OE - n ow deceased and not a party in these proceedings, are null a nd void. T he children, b om of the said customary marriages b e t w e en the late R A M O T I N Y A NE E P H R A IM L E O MA and ' M A K H A NG L E O MA (alias ' M A M O T I KI K H A U LI ) and ' M A T S E P I SO L E K H O O E, having an interest w h i ch m ay be affected by a decision in C I V / A P N / 4 65 of 1 9 99 filed another C I V / A P N / 5 20 of 1999, with expressed fears, that should the applicant succeed to " obtain that declaratory order, that the customary marriages of R A M O T I N Y A NE E P H R A IM L E O MA a nd their mothers ' M A K H A NG L E O MA a nd ' M A T S E P I SO L e o m a, are null and void, the question of their legitimacy will arise even though they are n ot parties in that application. T he p r o p er p r o c e d u re - described in H I GH C O U RT R U L E S, L e g al N o t i ce No 9 of 1 9 80 [8 (5)]should h a ve b e en followed. T he children b om of the alleged c u s t o m a ry marriages b e t w e en their parents, s h o u ld h a ve joined as r e s p o n d e n ts in C I V / A P N / 4 65 of 1 9 99 instead of m a k i ng a separate a nd n ew application. T he portion of T he H I GH C O U RT R U L E S, w h i ch gives, parties s u ch as these applicants in C I V / A P N / 5 2 0 / 9 9, authority to intervene r e a ds as follows:- "8 (5) A ny person having an interest which m ay be affected by a decision on an application being brought ex-parte, m ay deliver notice of an application by h im for leave to oppose, supported by an affidavit setting forth the nature of such interest and the ground u p on which he desires to be heard, w h e r e u p on the Registrar shall set d o wn such application for hearing at the s a me time as the ex-parte application." It can be readily seen from the perusal of the two applications, that the prayers therein have the effect of contradicting or cancelling each other. For example, in the first application C I V / A P N / 4 6 5 / 99 the applicant therein seeks a declaratory order, that the customary marriages of R A M O T I N Y A NE E P H R A IM L E O MA to ' M A K H A NG L E O MA alias ' M A M O T I KI K H A U LI and ' M A T S E P I SO L E O MA born L E K H O O E, are null and void. T he applicants in C I V / A P N / 5 2 0 / 99 seek, similarly a declaratory order, that those very s a me customary marriages contracted between R A M O T I N Y A NE E P H R A IM L E O MA and the t wo ladies, n a m e l y ' M A K H A NG L E O MA born ' M A M O T I KI K H A U LI and ' M A T S E P I SO L E O MA born L E K H O O E, are valid alternatively, are putative and the children born therefrom on that account are legitimate. It w as for these reasons that it w as found convenient to join the two applications and to have them argued as one. Therefore there will be one judgment for these t wo applications. F or the sake of clarity a nd convenience, the parties will be referred to as applicant in C I V / A P N / 4 6 5 / 9 9. All the applicants in C I V / A P N / 5 2 0 / 99 will be n ow referred to as 2nd a nd 3rd respondent respectively, joining respondent in C I V / A P N / 4 6 5 / 99 w ho b e c o me 1st R e s p o n d e n t. Let us e x a m i ne the facts, on w h i ch each party relies, for the prayers m a d e. T he applican1sts case, is that she entered into marriage by civil rites with the late R M O T I N Y A NE E P H R A IM L E O MA on 9th July 1 9 5 2. S he h as attached the c o py of their marriage certificate w h i ch s h o ws that they w e re married at the R o m an Catholic C h u r ch M i s s i on of P o n t m a in in the District of Leribe. S o m e t i me in 1 9 68 her h u s b a nd entered into a c u s t o m a ry u n i on with the 1st respondent. S he alleges that she w as o p p o s ed to that marriage but w as unable to say or do anything a nd w as forced by her late h u s b a nd to acquiesce to the situation. 1st respondent w as given the n a me M A K H A NG L E O MA by the family. S o m e t i me in 1 9 77 her late h u s b a nd again entered into yet another c u s t o m a ry u n i on with another w o m an n a m e ly M A L I P H A P A NG L E K H O OE w ho w as too accepted by the family a nd applicant w as forced to afford her rights of a legally married wife of her deceased husband. In her F o u n d i ng affidavit the applicant avers that she has b e en informed and verily believes the s a me to be true that the c o m m on l aw does not allow b i g a my On behalf of the respondents the concession accepting the legal position as stated by applicant, has b e en m a de a nd properly so by M r. Sello, the respondents' attorney. T he respondents' case is therefore that the purported c u s t o m a ry l aw marriages b e t w e en the late R A M O T I N Y A NE E P H R A IM L E O MA a nd the 1st respondent a nd the m o t h er of 3rd respondent, the late M A L I P H A P A NG L E K H O O E, are putative. A c c o r d i ng to the respondents, the applicant w as not just acquiescing to the situation. S he is alleged to h a ve actually played an active part in the creation or bringing about of the t wo alleged c u s t o m a ry l aw marriages b e t w e en her late h u s b a nd a nd the t wo ladies in question. T he 1st respondent has alleged that she w as only nineteen (19) years old in 1 9 6 8, w h en R A M O T I N Y A NE E P H R A IM L E O MA abducted her. He took her to his matrimonial h o me at M A T S O KU in the L E R I BE district w h e re he resided w i th this applicant. He presented her to the applicant w ho w e l c o m ed a nd received her as the junior wife to their h u s b a n d. T he applicant herself administered a nd accorded to the 1st respondent all Sesotho c u s t o m a ry and traditional rituals appropriate for the admission into the family, as a junior wife of their h u s b a n d. T he consent of the senior wife, w h e re the h u s b a nd is desirous of taking another wife, is very material. This fact the applicant herein, m u st h a ve b e en very m u ch a w a re of. T h at is w hy she alleges that she w as acting in the m a n n er w h i ch indicated to the parties a nd the world at large, that she has consented, because she w as forced by her h u s b a n d. A l t h o u gh the applicant claims she w as forced to acquiesce to the situation, she does not explain, the nature, the m a n n er and the extent of the force used u p on her by her husband. Further difficulties are raised by the applican1sts admissions of the allegations of actually playing an active part, m a de against her by the 1st respondent. E v en after ceremonies of w e l c o me and acceptance into the L E O MA family, the 1st respondent at the first opportunity that arose, she escaped f r om the family. S he claims that she h ad no affection for the m an w ho had abducted her. S he ran to M o k h o t l o ng district. T h e re she sought and w as given refuge by the Catholic n u ns at their convent in the t o wn of M o k h o t l o n g. This applicant herself followed after 1st respondent together with their husband's elder brother, o ne M O K A K O. T he applicant reported herself at the Local Police Station on arrival at M o k h o t l o ng town,. T h ey enlisted the assistance of the police officers they found thereat. W i th the help of the police officer, they sent for the 1st respondent at the convent with the special request that they need to talk to her. T h ey asked her to c o me to the police station w h e re they were. There, they talked to her in the presence of the police officers In that discussion this applicant m a n a g ed to persuade the 1st respondent to return to their h u s b a nd at their matrimonial h o m e, M A T S O KU from hence she h ad escaped. By acting as she did this applicant claims she w as forced by her husband. At that time, there s e e ms to h a ve b e en no indication m a de to the 1st respondent or a n y o ne else that this applicant w as acting under duress of s o me kind. S he gave the 1st respondent a nd the w h o le world a definite impression that she regarded 1st respondent as married to their h u s b a nd in accordance with Sesotho c u s t om and tradition. This the applicant does not deny. T h e re is no w a y, to-day that this applicant can turn around and u n do those impressions a nd beliefs that she had accepted the alleged customary marriages. S he cannot m a ke customary marriage exist w h e re the l aw does not permit one. S he is estopped f r om n ow taking an action w h i ch is likely to prejudice the interests of the parties w ho w e re prevented from taking steps that could have rectified their position, h ad she not misled t h em into believing that there w as a marriage b e t w e en t h em a nd her husband. If there w as no marriage created despite their efforts a nd g o od intentions to create o n e, there is no marriage to declare null and void. On that g r o u nd alone this application m u st fail. T he allegation that the applicant w as forced to acquiesce in the situation of acting as if she has accepted the existence of subsequent c u s t o m a ry l aw marriages b e t w e en her h u s b a nd a nd the t wo ladies in question, d o es not take the applican1sts case any further. S he has failed to explain the nature a nd the extent of the alleged force. S he continued to c o m m it acts w h i ch left no d o u bt in anyone's m i nd that she has accepted the 1st respondent as the junior wife of their husband. In 1 9 89 after her late husband's death this applicant, as the customary l aw heiress to the estate of her deceased h u s b a n d, administered a nd distributed the property of the deceased. As s h o wn in A n n e x u re M L1 - attached to the A n s w e r i ng affidavit, by 1st respondent, this applicant demonstrated that she h as always regarded a nd accepted 1st respondent as the lawful wife of their late h u s b a n d, by voluntarily, of her o wn free will [because at this stage her h u s b a nd w ho allegedly forced her w as dead] g a ve the 1st respondent her share of the deceased's estate. All these facts, w h i ch this applicant does not deny, are relevant in the determination of a putative marriage. L E T H O KO S E C H E LE vs L E H L O H O N O LO S E C H E LE C of A ( C I V ) N o .6 of l988. The facts relevant to proving the putative customary marriage, are limited to the events such as the abduction of the 1st respondent by the late R A M O T I N Y A NE E P H R A IM L E O M A. The payment of lobola to the lst respondent's family. The carrying out of the traditional ceremonies and rituals by the applicant, evidencing her consent. The m a n n er in which the parties acted, w as the indication of their state of mind, during the performance of those rituals w h i ch w e re intended to establish or to create customary marriage relationship. O v er the years from 1968 the applicant's treatment, of the 1st respondent and the children she bore during their cohabitation with the late R A M O T I N Y A NE E P H R A IM L E O M A, demonstrated without a doubt that she had accepted that there is a customary marriage relationship between the 1st respondent and their husband. There is no evidence to the effect that the parties [i.e. R A M O T I N Y A NE E P H R A IM L E O MA and the 1st respondent] had any k n o w l e d ge that they were committing bigamy. For all intents and purposes, in their minds, they w e re married and were referred to by their family and everyone, as husband and wife. E X - P A R TE S O O B I AH a nd O T H E R S: IN RE E S T A TE P I L L AY 1 9 48 ( 1 ) SA 8 73 T he 1st respondent has averred in her Answering affidavit, that all the children she bore in that marriage between her and R A M O T I N Y A NE E P H R A IM L E O M A, were in fact, baptised in the Catholic church at the instance of the applicant. This she does not deny. Applicant does not deny that 2nd respondent w as brought up by her and her late husband as their o wn son at M A P U T S OE while his mother - 1st respondent remained in M A T S O KU running their business there. It is the finding of this court that there w as a putative marriage b e t w e en the late R A M O T I N Y A NE E P H R A IM L E O MA and the 1st respondent and the m o t h er of 3rd respondent. T he children of those marriages are therefore legitimate on that account. T he evidence, w h i ch is not contradicted, s h o ws clearly that for all intends and purposes all the children b om during the subsistence of the purported customary l aw marriages b e t w e en the late R A M O T I N Y A NE E P H R A IM L E O MA and the t wo ladies in question, w e re in fact treated by the parties as legitimate children. T h e re w as not even a hint of any k n o w l e d ge on their part, of any likelihood of their being illegitimate. I therefore feel obliged in the circumstances to declare t h em legitimate children of the putative marriage. A M T H O KA v T R H O O H LO 1978 L L R , 3 25 at 334. Since t wo applications h ad b e en consolidated and argued as o n e, the dismissal of the application has the effect of the success of the counter application. This being a family dispute the order of costs in my opinion w o u ld not be appropriate. Particularly as it appears from the papers filed of record that the applicant has, from the beginning of these episodes of subsequent marriages by her late h u s b a n d, continuously been, c o m p r o m i s i ng her o wn interests S he has further shared the deceased estate as an indication of selfless e v en w h e re she w as entitled to k e ep the w h o le estate to herself. H er act of giving is twice blessed according to the S h a k e s p e a r i an sentiments e x p r e s s ed by the m o st r e n o w n ed a d v o c a te of selfless attributes, - Portia in T HE M e r c h a nt of V e n i c e. It blesseths h im that gives, it blesseths that takes. A p p l i c a nt blessed those s he g a ve the property a nd they m u st appreciate it. S he m u st be also blessed by so giving. T h at is w hy I feel t he order of costs against her, is n ot suitable. T he order of costs m i g ht disturb t he equilibrium a c h i e v ed by the applicant's o wn distribution of the d e c e a s ed estate. It is therefore ordered that e a ch party bears its costs. K . J. G U NI J U D GE 8th August 2 0 00 For Applicant: M r. M a k h e ne For Respondents : M r. Sello