IN THE HIGH COUR OF LESOTHO
HELD AT MASERU
CIV/APN/557/2010
In the matter between:
’MAPULENG MOTHAE
APPLICANT
AND
THE COMMANDER OF LESOTHO
DEFENCE FORCE
LETHUSANG MOTHAE
THE MASTER OF THE HIGH COURT
ATTORNEY GENERAL
1ST RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
SUMMARY
Customary law – Application for declaring applicant legally
married to the deceased by customary law – Whether nonpayment of bohali invalidates a customary law marriage –
Respondent denying claim of a valid marriage after the death of
his son – Rule Nisi confirmed with costs.
JUDGMENT
Delivered by the Honourable Madam Justice L. ChakaMakhooane on the 17th May, 2011
[1]
In November, 2010 the applicant approached the court on an
urgent basis seeking relief in the form of a declaratory order
and an interdict in the following terms:
1.
2.
That the normal periods and modes of service
be dispensed with on account of the urgency
this matter.
of
a)
That a Rule Nisi be issued by this
Honourable
Court calling
upon
the
respondent to show cause (if any) on a date
to be determined by this Honourable Court,
why an order in the following terms should
not be made absolute and final.
(b)
The 1st respondent shall not be interdicted
from paying out the late Thabang Mothae’s
death benefits to 2nd respondent, pending
the final determination by this Honourable
court.
(c)
The 2nd respondent shall not be ordered to
hand over the following documents to the
applicant; her late husband Thabang
Mothae’s Mothae’s passport (passport no is
RA 193598), his death certificate and a
declaration by the family in writing which
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shows that the applicant is the legal
beneficiary to her late husband’s estate.
[2]
(d)
Costs of suit in the event of opposition.
(e)
That prayer 1 and 2 (b) may operate
with immediate effect as an iterim
relief.
(f)
Granting applicant further and/or
alternative relief.
When the matter was finally heard, I gave an ex-tempore ruling
in December, 2010 where the parties were ordered to lead viva
voce evidence on the question of whether or not the applicant
had been legally married to one Thabang Mothae now
deceased, in terms of customary law or at all. The matter was
eventually heard on the 14th February, 2011.
[3]
It is the applicant’s case that she first eloped and then got
married to Thabang Mothae (“deceased”) in 2005 and that two
(2) head of cattle were paid for her as bohali, in monetory form.
One child Boitumelo Mothae, a girl was born of this marriage
in 2006.
The applicant testified that certain rituals were
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performed in her honour to show her that she had been
accepted by the Mothae family.
For instance she and her
daughter were given the names of ‘Mapuleng and Boitumelo
respectively by the 2nd respondent Lethusang Mothae, the
deceased’s father.
[4]
The applicant was corroborated by her father Jack Dyke
Ramosamo who according to him, his daughter had eloped
with the deceased. Thereafter the 2st respondent wrote to him
to inform him that his daughter was at his home.
He also
confirmed that the 2nd respondent’s family sent the applicant
home for maternity and after the baby was born, the 2nd
respondent, his wife and the deceased came and gave the baby
the names of Boitumelo Nerea Mothae. The applicant’s father
testified that the two (2) families agreed on the marriage of
their children and they even agreed that bohali should be in
monetary form. He also alleged that a letter of agreement was
also signed by the two (2) parties (see Exhibit “B”). After her
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maternity period was over, the applicant went back to live with
her husband and parents-in-law.
[5]
On the contrary however, even though the 2nd respondent also
agreed that his son brought the applicant to his home after
they had eloped, he denied that they were ever married.
According to him he gave the applicant the name of ‘Mapuleng
soon after she had arrived.
The 2nd respondent alleged that
he did not perform any ritual such as the slaughtering of the
sheep upon the arrival of the applicant.
[6]
The 2nd respondent vehemently denied the existence of the
marriage because according to him, the negotiations for bohali
failed and it was never paid.
He showed that the applicant’s
father had unfortunately set pre-conditions for the 2nd
respondent’s family before it could be said there was an
agreement of marriage.
It is alleged that one of the pre-
conditions was that bohali be paid with live cattle and not in
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monetary form and the other condition was that the 2nd
respondent must ensure that the applicant goes back to
school. In the mean time Ramosamo is said to have allowed
his daughter to live with the deceased.
[7]
According to the 2nd respondent, since he was unable to meet
these pre-conditions, the negotiations were terminated and he
went back with the money that he had thought he was going
to pay as bohali.
Of interest is that the 2nd respondent
refused to acknowledge Exhibit “B” which was said to be an
agreement of marriage between the families of the 2nd
respondent and the applicant.
On the face of the document,
only the witnesses on both sides had signed and the parents of
the marrying couple had not.
The applicant’s father
acknowledged the document and alleged it was signed in their
presence even though they did not sign.
The 2nd respondent
insisted that it was signed without his authority by his
witnesses and the Ramosamo witnesses, while he and
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Ramosamo had gone out of the house, where Ramosamo was
dictating the pre-conditions to him.
[8]
It is also note worthy to show that inspite of the fact that the
2nd respondent was insisting that the applicant and his son
were not married, he admitted that he considered her as his
son’s wife.
He further showed that it was not their custom to
slaughter a sheep of acceptance for a new daughter-in-law so
that it was a coincidence that when the applicant arrived, a
sheep had already been slaughtered for the festive season,
that is probably why the applicant thought it was for her. He
denied that he had sent the applicant home for maternity. He
explained that she went home because her father had
demanded that she be sent back. It was while she was there
that the baby was born.
[9]
The 2nd respondent was supported in his testimony by his
brother Mohlolo Mothae who confirmed that even though he
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does not live with the 2nd respondent’s family, he was informed
that the deceased had married and he was even introduced to
the applicant as the deceased’s wife.
As far as he knew they
were married and they lived as husband and wife.
He
confirmed also that they generally did not perform any rituals
in relation to daughters-in-law such as sending her home for
maternity.
He was aware that the applicant had gone home
when the baby was born even though he did not know whey
she had gone home.
Both the 2nd respondent and his brother
Mohlolo showed that no one in the Mothae family including
the applicant wore the mourning cloth after the death of their
son, the applicant’s husband. This was because when he died
there already were two (2) other deaths in the family, as such
they decided not to wear it since it would have meant wearing
one mourning cloth over another.
[10] It is common cause that the applicant initially eloped with
Thabang Mothae in 2004.
April, 2009.
They lived together until he died in
It is also not in dispute that the applicant on
8
arrival at the Mothae household, was accepted and given a
name, as is customary when a new daughter-in-law is
welcomed.
Further more, even though there is a conflict on
the issue of why she went home, it is agreed that while she
was at her maiden home, the applicant gave birth to a baby
girl. Following the birth of this child, the Mothae family came
to acknowledge the child and to give her a name. She was
named Boitumelo Nerea Mothae.
This is a Sesotho custom
that is ordinarily observed when there has been a customary
marriage.
Further more, after her maternity the applicant
went back to her husband and in-laws. This is all common
cause.
[11] The applicant lived together as husband and wife in the eyes
of both the Mothae and the Ramosamo families until the death
of Thabang in 2009.
However, the Mothae family in the form
of the 2nd respondent now deny that the deceased and the
applicant were ever legally married.
9
According to the 2nd
respondent, they simply lived together in line with the wishes
of Dyke Ramosamo, the applicant’s father.
[12] I am of the view that there was a customary law marriage
between the applicant and the late Thabang Mothae.
The 2nd
respondent would like us to believe that even though he did
observe some customary rituals performed only when there is
a bride or a daughter-in-law in the family, there still was no
marriage.
The 2nd respondent and his brother corroborated
the evidence of the applicant and her father that after the two
(2) had eloped, the 2nd respondent wrote to inform Ramosamo
where his daughter was.
The 2nd respondent confirmed the
applicant’s version of events that she was given a name soon
after her arrival.
Whether or not a sheep was indeed
slaughtered in her honour does not necessarily mean she was
not accepted in this particular case. She infact was accepted.
10
[13] It is suprising however,
that the 2nd respondent claimed that
after he had named the applicant, her father demanded her
return.
This would be somewhat strange in the Sesotho
setting.
The same Ramosamo who demanded his daughter
back allowed her and his grand child to go back to the 2nd
respondent’s home.
This is not the attitude of a man who
does not want his daughter married.
In trying to persuade us
to believe that there was no marriage, the 2nd respondent
showed that the bohali negotiations failed as a result of the
pre-conditions set by Ramosamo.
This may be so but
Ramosamo’s next move totally goes against what the 2nd
respondent was alleging.
The same Ramosamo then allowed
the 2nd respondent to take his daughter to live with the 2nd
respondent’s son in sin, so to say.
Again, it becomes a bit
hard to believe that a self respecting Mosotho man would do
what the 2nd respondent suggested happened.
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[14] There was also a document, Exhibit “B”, that suggested that
bohali had been paid in monetary form, even though it had not
been translated into English and the 2nd respondent’s counsel
Mr. Kao had rejected it.
The document prima facie suggests
that a transaction of some sort actually took place. The only
problem is that none of the parties called those witnesses
alleged to have signed the document to give evidence.
That
renders the document useless.
[15] By his own admission the respondent and his brother agreed
that they considered and accepted the applicant as their
daughter-in-law.
That she did not wear mourning cloth after
her husband’s death was explained by both the 2nd respondent
and his brother and I accept their explanation as reasonable.
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[16] It may very well be that bohali was eventually not paid or
indeed only two (2) cattle in monetary form were paid, either
way for all intents and purposes, the applicant and the
deceased were married by customary law. The applicant was
accepted by her in-laws as a daughter-in-law all along, during
the life time of their son. They can not be heard to change
their tune now that their son is gone.
Even if I was to believe
the 2nd respondent that no bohali was ever paid I totally align
myself with Ramodibedi P in ‘Mantsebo Ramootsi and Four
Others and ‘Malineo Ramootsi C of A (CIV) 14/08
(unreported) where at page 10 he said:
“It follows from the foregoing consideration that
in this day and age I should be prepared to lay
it down as being in accordance with common
sense and logic that the absence of payment of
bohali is not fatal to the validity of a customary
law marriage in all cases.
Put differently,
bohali is not a sine qua non of the validity of a
customary law marriage in all cases.”
See also Tseli Moeti v Tanki Lefalatsa and another
1999 – 2001 LLR 511 (HC)
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[17] In the light of the foregoing I find that the applicant was
married to the deceased by customary law. I therefore,
make the following order, the Rule Nisi is confirmed as
prayed for in terms of the prayers as they appear in the
Notice of Motion, with costs on an ordinary scale.
________________________
L. CHAKA-MAKHOOANE
JUDGE
For Applicant
For Respondent
:
:
Ms. Motipi
Mr. Kao
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