End of road for chieftainship battle

The two families, who are third generation claimants, were fighting for the chieftainship of Tajane, Pontšeng, and Ha-Ramoetsane. Sometime in March 1982, the late Chief Nkhahle Mohale was suspended from office.

In the wake of that suspension a dispute arose before the High Court as to who had the “first right” to succeed him and to be acting chief.

The applicant was the wife of the late Chief Nkhale who was married to him under civil rites, ’Mamonica Mohale.

The respondent was Mopeli Mohale who told the court that he was the eldest son and heir of the chieftainship by a subsequent marriage.

’Mamonica sought a relief declaring Mopeli not to be the legitimate son of Nkhahle Mohale who stood to be the successor in terms of the Chieftainship Act.

She asked the court to declare her the sole wife of Chief Nkhahle Mohale and the lawful successor in terms of the Act.

Mopeli also asked the court to declare him the legitimate child of Chief Nkhahle Mohale and his wife ’Mamopeli Mohale.

The late Chief Tlali Mohale, Chief Nkhahle’s younger brother, instead became the successor winning the case against Mopeli and his mother.

Chief Tlali who died in 2014 fathered the incumbent Chief Thato Mohale, who won the case on Friday.

The court found that on January 21, 1951, ’Mamonica married Chief Nkhahle Mohale in the Roman Catholic Church in Mpharane in the district of Mohale’s Hoek in a civil rites marriage. There was no issue with the marriage.

In 1958, the Chief went through a form of customary marriage with ’Mamopeli and bride price was paid.

The court found that the purpose of the second marriage was to raise a male child so that there could be a successor to the chieftainship.

The court said the customary union which followed a civil rites marriage conflicts with the common law which recognises only monogamous civil marriage.

It therefore concluded that the purported customary marriage between ’Mamopeli and Chief Nkhahle was null and void.

’Mamopeli’s lawyer, the late Advocate Khalaki Sello, had argued that because she had entered the customary marriage in good faith it should be regarded in law as a putative marriage the children of which would be legitimate.

The court did not decide on this question because “other persons besides the parties to these proceedings may have an interest in this matter and they have neither been identified nor joined as parties”.

The court emphasised that “children of a void marriage are illegitimate”.

In fact, the High Court had earlier described Mopeli’s parents’ marriage as “adulterine relationship of late Chief Nkhahle Mohale and ’Mamopeli Mohale”.

The court said ’Mamopeli’s children should establish their legitimacy so that her son, Mopeli, could claim rights of succession.

The Court of Appeal found that Mopeli admitted that when his mother entered into the customary union with Chief Nkhahle, she was aware that the Chief was already married by civil rites to ’Mamonica.

She could not have been unaware that a marriage contracted in a Roman Catholic Church was essentially a monogamous union, it said.

’Mamopeli first lost the case to ’Mamonica in 1982. She lost it again to Chief Tlali in 2008 and her four grandchildren, led by her grandson ’Mako, Mopeli’s only son. She now lost it to Thato, Chief Tlali’s son.

In all cases in the High Court, it was found that ’Mamopeli’s marriage to Chief Nkhahle was illegitimate and therefore children born out of it could not be legitimate.

In the latest Court of Appeal case, ’Mako Mohale wanted to be allowed to reignite the case that the court decided in 2009 but he failed to give the court convincing reasons for the delay to file his application.

The Court said there was no reasonable explanation for the delay. He said he delayed because he could not trace the record of the case, which the court did not believe.

The court found that there were no efforts made to reconstruct the record, no suggestion by the applicants that poverty, ignorance or some other limiting social factor prevented them from pursuing a challenge to the 2009 judgment.

The application was dismissed with costs.

Staff Reporter