First wife wins estate of late estranged husband

LEKOPANYE MOOKETSI
Correspondent | Tuesday January 30, 2007 00:00

This ruling was made in a case in which Gasefele Tape had appealed against the decision of the High Court

In its findings, the Court of Appeal ruled that Ratsie Tape and Kebihetswe Matoso were never legally divorced and their marriage was based on the concept of community of property.

The Court of Appeal also ruled that Tape's alleged marriage to Gasefele Tape was bigamous and void.

The Court of Appeal said Matoso's rights in the intestacy of the deceased derived firstly from the community of property, which followed from her marriage certificate. 'She is therefore entitled to a half share of the cattle in her own right and is entitled to the other half share with her own children.'

The court said since Gasefele's marriage to Tape was bigamous and void, all her children by the deceased are extra-marital and have no inheritance in their father's estate.
It was ordered that Matoso was entitled to half of the 65 cattle her husband owned and her children are entitled to the other half as heirs intestate.

Gasefele was awarded half share of the borehole in virtue of her universal economic partnership with the deceased, while Matoso and her children shall own the remaining half share.

The respondent in this matter was Matoso who was married to the late Tape in 1952 in a church in Serowe.

A marriage certificate was issued in testimony and they cohabited in various places, until Matoso was forced to leave her husband.

The couple built their home at Mokwenanyana in Serowe and moved into it. The marriage was blessed with four children, the last of whom was born in 1958.

The couple stayed in their new home for a little over a year, until Matoso noticed that her husband had formed an adulterous affairs with Gasefele.

Serious disagreements ensued between them over the said relationship and matters came to a head when Ratsie introduced Gasefele into their home.

In her earlier testimonies, Matoso told the court that she met Gasefele at their home one day. She was nursing a baby and Matoso said she beat Gasefele with a burning stick.

Subsequently her husband declared openly that he was no longer in love with her and she was advised by Chief Rasebolai Kgamane to leave the husband in order to 'avert something, sinister happening'.

She left for her parents' place, but before doing so, Chief Rasebolai shared the furniture and drums that the couple owned and she took hers away. However, she left her children behind in their home. Her husband was a driver at the Treasury, while she sold beer, brandy, khadi and local beer.

She told the court that with their joint incomes they bought cattle and drums, which they later exchanged for cattle. 

After Matoso left, her husband purported to marry Gasefele in 1964. They lived together, at first in his place and later in their own house. She had two children of her own before Tape married her and in the course of the 'marriage', they had 10 children.

After Tape died in 1998, both women claimed ownership or part ownership of the properties, which formed the deceased's estate. Some of the properties were alleged to be in his sole name. 

The two women claimed that they made substantial contributions to the family's joint estate and each pursued her claim via a different legal route.

After unsuccessful attempts by the customary elders, the Serowe Senior Customary Court and the Customary Court of Appeal to have the deceased's estate shared between the two rival claimants, Matoso appealed to the High Court. All the diverse decisions of the lower adjudicating bodies were set aside by the High Court.

The High Court ruled that the borehole and the cattle bearing the deceased's brand should be awarded to Matoso and her children.

The matrimonial home in Serowe and the associated agricultural fields were also awarded to her.

Gasefele was awarded the home together with the associated agricultural field at Mmashoro. She was also awarded a truck and the tractor and that she should be allowed to keep the three horses that belonged to her.

However, Gasefele appealed against the High Court ruling. She was against the High Court ruling that she was not entitled to a half share of the borehole as of right and in terms of her contribution towards its establishment

She also appealed the ruling that Matoso and her children were entitled to a share of the borehole. She also disputed that Matoso was entitled to half share of the borehole as of right even though she never worked, nor contributed, towards its establishment.

She argued that the court also erred in law in failing to appreciate that Matoso was not a party to the seeking, drilling and establishment of the concerned borehole.