CIV/T/570/2002
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
PAUL RAMAHETLANE PHEKO
1st Applicant
‘MAMATSELISO PHEKO
2nd Applicant
And
MALEFETSANE PHEKO
3rd Applicant
‘MATEBOHO PHEKO
4th Applicant
MOTHETHE PHEKO
5th Applicant
JUDGMENT
Coram
:
Hon. Acting Chief Justice T. E. Monapathi
Date of Hearing
:
15th July, 2014
Date of Judgment
:
15th August, 2014
SUMMARY
CITED CASES
STATUTES
BOOKS
[1]
The Applicants approached this court on an urgent basis for four main
prayers for an order interdicting and restraining the Respondents form using the
property of the Estate of the late Timello Pheko pending finalisation hereof; an
order to appoint a provisional executor pending appointment of an executor by
the Master of the High Court; an order declaring the Second Applicant as the
lawful heir of the Deceased Timello Pheko; Directing Respondents to release to
the Applicants forthwith the Deceased’s Death Certificate.
[2]
The Applicants in this matter son and mother respectively. Applicants
allege that the late Timello Pheko was Second Applicant’s husband married by
civil rites. A marriage certificate between Second Applicant and Deceased has
been attached to her Founding Affidavit marked annexure “PRP1” (page 8). The
First Applicant is their son born out of that communion. They allege further that
the late Timello Pheko whose estate is in dispute had quite a number of
concubines and for purpose of this application the Second Respondent is the most
relevant concubine. We hope that the court has taken a Judicial notice that she
is now late.
[3]
Applicants allege that Second Respondent came to work at one of the
Deceased’s shops at Masianokeng Junction and be and became Deceased’s
concubine. Hey allege further that First Respondent who is the son of the
Deceased has been staying with his mother in Ladybrand but only came to
Masianokeng to start up a business of panel beating. He then hired a shack that
belonged to the Deceased. The Applicants do not deny that First Respondent is
the Deceased’s son but aver that he was born out of wedlock but on the other hand
claims to be Deceased’s heir.
[4]
The Applicants aver that on or about November 2002 the Deceased died
and one of the Deceased’s brothers, one Othoane nominated the First Respondent
as the heir. Then the three Respondents started to occupy the Deceased’s business
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where they continue to run shops. The First Respondent is also said to be
collecting rentals from the Deceased’s flats. On the contrary, the Respondents
allege that the Deceased had four (4) wives and the Second Respondent is one of
the wives as well as First Respondent’s mother. Applicant confirmed that she is
an illegal wife of the Deceased. The Deceased Timello Pheko married the Second
Applicant when Deceased already had a customary law wife hence the
Deceased’s marriage to the Second Applicant is null and void according to
Respondents.
[5]
Applicant contract that however, the Respondents have all failed to
produce any documentary proof of Deceased’s marriage to any of the purported
four (4) customary law marriages. Neither have they at least stated when those
marriages were negotiated and entered into, how much bohali cattle was agreed
upon and paid and also who took part in the bohali negotiations. These have not
been done even by deponents who made supporting affidavits in relation to the
said marriages.
[6]
Whether the Second Applicant’s marriage to Deceased Timello Pheko was
valid. Applicants say that it is a valid marriage because marriage was in terms of
Marriage Act. Whether the Respondents have any right over the Deceased’s
property in any circumstances.
[7]
A civil rites marriage is governed by inter alia Marriage Act of 1974. See
section 15 and 16 f the said Act provide that no marriage shall be valid unless
there has been publication banns or a special licence is issued and this should be
done within a period of not more than three (3) months receding the
solemnization. Section 23 (1) of the same Act provides that any person desiring
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to raise an objection to any proposed marriage shall lodge an objection in writing,
with the person who makes publication of the banns of such marriages or the
person who issues a special marriage licence in respect of such proposed marriage
or the marriage officer who is to solemnize such marriage.
Section 23 (3)
provides that if any such objection is brought to the notice of the marriage officer
who is to solemnize such marriage he shall inquire into the ground of the
objection and if he is satisfied that there is no lawful impediment to the proposed
marriage, he may solemnize the marriage in accordance with the provisions of
this Act.
[8]
In the present case, as reflected in paragraph 5.1 of Othoane Pheko’s
Affidavit (for Respondents) there was an objection to the solemnization of the
marriage. However, the said objection fell away in terms of section 23 (3) of the
Marriage Act of 1974. The person who made the object tis said to have been
Letsema Pheko, section 11-12 support affidavit of Joseph Caswell Pheko. The
late Timello Pheko never accepted the First Respondent’s mother (Malefetsane’s
mother) as his wife. He proceeded to marry the Second Applicant (‘Mamatseliso
Pheko), and the First Respondent’s mother never challenged the said marriage to
be annulled.
[9]
This therefore means that the marriage officer in charge found out that
there was no legal impediment to the intended marriage i.e. it was not true that
the late Timello Pheko had an existing marriage at the time to marry the Second
Applicant. The deponent Othoane Pheko has failed to inform this court why the
marriage was solemnized despite the objection and the logical conclusion that
one can come to …. is that it was because it was found out that there was no
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impediment, hence the parties Second Applicant’s and the late Timello Pheko’s
civil rights marriage was valid for all intends and purposes.
[9]
It follows therefore that any kind of marriage be it civil or customary which
followed the Deceased and Second Applicant’s marriage was void ab initio. This
means therefore that even if the First Respondent was the son of the Deceased,
he was born out of wedlock because if his mother was indeed legally married to
the Deceased the objection could have stood. It goes without saying also that the
Third Respondent’s mother was not legally married to the Deceased as he
purported marriage followed a valid civil rites marriage. The Second Applicant’s
marriage is indeed valid as it satisfied all the requirements shown in the Marriage
Act.
[10] The Second Applicant has annexed her marriage certificate as proof that
she was married civilly to the Deceased. It is surprising that the Respondents are
saying they knew of existence of a marriage certificate. A civil rites marriage
goes with a marriage certificate. Even if they did not know of the existence of a
marriage certificate, they at least knew of the existence of the marriage which is
what is important. A customary marriage is valid if the following essentials are
met to wit, agreement between the parties to the marriage, agreement between
parents or those in loco parentis, agreement over quantum of bohali and payment
of part or all bohali agreed upon. See Laws of Lerotholi Part II section 34 (1)
pages 72 and 74.
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[11] It is our submission that in the present case the Respondents have failed to
prove that any of the purported customary marriages was valid. They have not
shown that any of the requirements of the customary marriages existed. Not even
to show at least when anyone of the alleged wives was married, not even single
documents evidencing the said marriages. Their allegation is therefore a bare one
and one concludes that failure to prove one of the points to the fact that they are
merely fabricating.
[12] On the contrary, the Second Applicant has been able to prove that she was
married civilly to the Deceased Timello Pheko and has put forward some proof
which is in the form of a marriage certificate. The said certificate was not
attached to by the Respondents as having been obtained fraudulently hence t
stands unchallenged. In the circumstances, we submit that the First Applicant is
in the heir of the Deceased Timelo Pheko and the First and Third Respondents
are illegitimate and therefore belong to their mother’s family. We humbly pray
that the application be granted as prayed in the notice of motion and that the
Respondents pray the costs of this Application.
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