Botswana: Court of Appeal

                                                      Civil Appeal No. 011 of 2005

In the matter between

MBAKO MONGWA                                         1^ST APPELLANT

ONTIFILE MONGWA                                      1^ST RESPONDENT

Lobatse, 13 and 27 January 2006

                           McNALLY JA

McNALLY JA

1.       This is a family dispute about “ownership” of a borehole at Sepalola cattle post. The words “ownership” and “right to use” and “inheritance” are cited interchangeably in the papers, but as I understand it, ownership of land in a tribal area vests in the local Land Board (Tribal Land Act, Cap 32:02, 5.10) and what is actually in dispute is the right to be registered as the holder of a Water Right in respect of the borehole in question, under Part IV of the Water Act, Cap 34:01). The right is presently registered in the name of the syndicate mentioned below.

2.      

The dispute is between the two families of the late Ketsaletswe Mongwa (the senior Mongwa) a London Missionary Society Pastor. He married his first wife in Serowe in 1908, and she died in 1952. They had a number of children, some since deceased. The four who are appellants/defendants in this matter are a son, Mbako, and three daughters. The fifth appellant/defendant is a syndicate formed by the brothers and sisters of the first marriage in order to hold the water right in respect of the disputed borehole. Some members of the syndicate are in fact children of deceased brothers and sisters of that first marriage.

3.      

In 1954, some two years after the death of his first wife, the senior Mongwa married again. His second wife was Ontifile, and she bore 6 surviving children. Then, in 1977 he died.

4.      

It is apparent that the main asset in the estate of himself and his second wife was the water right pertaining to the borehole at Sepalola cattle post. There seems to have been an uneasy relationship between the two families after his death, particularly in regard to the use of the borehole, for many years, but eventually Ontifile was moved, in 1998 to sue in the High Court for a declaration (as amended) that the first family (as I shall describe them) had no right to inherit the borehole from their father’s estate. Alternatively she sought a declaration that the second family were entitled to inherit from their father’s estate, and in particular to inherit the disputed borehole.

5.      

I should add that, in the knowledge that the major issue would be the provisions of the Kalanga-Ka-Nswazi Customary Law of Inheritance, the learned judge at the hearing invited two local people to sit with him as assessors. We can safely assume they were chosen because of their familiarity with Customary Law.

6.      

The issues for determination were defined as follows:
(1)     

Whether the parties are each entitled to inherit as of right from the estate of their father;
(2)      Whether or not a partnership existed between the defendants (the first family) and their late father in respect of the borehole. (In the event no evidence was led on this issue, and it fell away.)
(3)      Whether relations gathered after the death of the late Mongwa could decree that the borehole be kept for the benefit of (all?) the children and if in fact they did so.
(4)      If 3 above is in the affirmative, are the parties in a position to co-own the borehole?

7.      

One important issue of fact was not included in this list. The first family asserted (plea, para 7) that the borehole in question was already in existence and being used by the first family before the senior Mongwa remarried in 1954. Ontifile strenuously denied this in a replication. Her contention was that the borehole was dug between 1958 and 1960 at the suggestion of her father, on land which he allocated to them. Her father and her husband dug it over a period of two years. The first family had nothing to do with it, although they later used it.

8.      

At the hearing which began on 3 November 2003 the plaintiffs’ case was presented by Ontifile supported by her younger brother and by a chief who gave expert evidence in relation to Kalanga Customary Law. He had been a chief since 1991, a member of the House of Chiefs from 1995 and 1999, and he was of the Bapedi Clan “from the Nswazwi regiment.” His expertise was not disputed, although his conclusions were.

9.      

The defendants’ case was presented by Mbako, a son of the first marriage, supported by an expert witness, Chief Mathafeni Nswazwi who was born a chief in 1923, was registered in 1983 and has been sitting since then in the Nswazwi Customary Court.

10.     

Judgment was delivered on 15 December 2004 in favour of the plaintiffs (the second family). The first family then appealed.

11.     

In his judgment the learned judge was clearly impressed with Ontifile’s evidence and her credibility. He said –

“In so far as the cross-examination may have been directed at impeaching the witness’s credibility I need say no more than that she remained unshaken.”

12.     

It is trite that an appellate court will normally defer to the trial judge’s assessment of credibility. In this case a reading of Ontifile’s evidence confirms the learned judge’s finding. As to her younger brother’s evidence, the learned judge simply recorded his evidence without comment, but clearly he accepted it.

13.     

The sum total of their evidence establishes the factual basis of their claim on a number of fundamental points:
(1)     

It became evident that the disputed borehole did not even exist during the lifetime of the first wife.
(2)      The borehole site was given to Ontifile by her father and the borehole itself was dug by these two men without any significant help from the children of the first family in 1958-60. This finding gave the lie both to the original plea that Ontifile “found the borehole there” when she married the senior Mongwa (a stance simply abandoned by Mbako in evidence) and to the fall back position he adopted that the children of the first marriage contributed materially and financially to the construction of the borehole.
(3)      While there was a meeting (Galedema) after the death of the senior Mongwa, it did not come to any clear decision about the borehole.
(4)      While there was no formal galedema on the death of the first wife, there was in fact action by the adult children of the first marriage to claim their share of the family assets and to deny the second wife (who was probably younger than most if not all of her step-children) the use of the family home and the household pots and pans, etc.
(5)      Although they seem to have been abandoned by the first family, there were in fact a homestead, a field and a water source at the original (first wife’s) home at Chadibe. That was their inheritance. If they chose to abandon it that was their decision.

14.     

Mbako’s case started at a disadvantage because it was based on two contradictory contentions. In the plea the defendants, seeking to justify the fact that the water right was registered in the name of their syndicate, alleged –

“that the said borehole was the property that 1^st plaintiff found (ie, it was already there when she came on the scene) and (she) did not contribute towards its establishment.”

“Plaintiffs are not in terms of Kalanga Custom entitled to inherit the borehole or the well situate at Sepalola because they found it and did not contribute towards its existence.”

15.     

When he came to give evidence Mbako was constrained to abandon this patently false assertion, upon which his whole case had been based in the pleadings. Without a blush, and without explanation he shifted his case to another basis. They had all constructed the new borehole together, he said, and thus equity and customary law demanded that they all share it. Ontifile and her family had been invited to join the syndicate but they had refused. So what could the first family do?

16.      As to the galedema, he said Ontifile was asked as to who the borehole belonged to, and -

“In her own words she told the gathering that the borehole belonged to my father and me my brother and the gathering there both decided that the borehole be used by the whole family and that Jeremiah who was my brother should look after the borehole.”

17.     

Not only does this contradict Ontifile’s evidence, but if it is true, Ontifile’s subsequent conduct is inexplicable. But in any event, given the enormous shift in the first family’s case, Mbako’s evidence could not be relied upon when it clashed with the clear and credible evidence of Ontifile.

18.     

Accordingly, and with respect, correctly, the learned judge and his assessors rejected the factual allegations of Mbako on behalf of the first family and turned to the legal conclusions to be drawn from the facts as set out by Ontifile.

19.     

There was a conflict between the evidence of the two experts. The court examined the evidence of each of them at some length. Chief Masunga (47), called on behalf of the second family, said quite clearly that –

“It is not possible for the children from the first marriage to go and inherit property from the second marriage.”

20.     

The reason for this is –

“Because that man has moved from the first house, having one (gone) to start life afresh with (the) second wife. If it happens that from the second marriage there are children, these are the ones who can inherit from their mother’s property from the second marriage” (note the words “their mother’s property”)

21.     

In cross-examination he repeated –

“… if he goes out to go and marry again he does not take anything with him to the second wife; the property that is accumulated with the second wife is for her.”

“When you marry you are supposed to build a house for the second wife first, because the yard of the deceased is for her children.”

         And finally –

“Q.       Kgosi, do you assert that the children of the first marriage do not inherit anything after their father accumulated with the second wife?

They cannot claim from that.”

22.     

The language used by the witnesses, as interpreted, is not always as clear and precise as one would like it to be, and I must confess to having difficulty with what is said by both Ontifile and her expert witness. Ontifile says clearly at one point that her father gave the borehole to her. But then under cross-examination she concedes that it was half hers and half her husband’s. I do not think she meant that in the technical sense in which the Roman Dutch Law would interpret it. What she meant was that it was a contribution from her side of the family, but while her husband was alive she naturally shared the enjoyment of it with him and deferred to him as the head of the family. Only in that sense was it half his.

23.     

Similarly I think the expert’s evidence must be understood in the light of the words in paragraph 20 above to which I have drawn attention. In other words, he is talking about “the mother’s property accumulated during the second marriage”, and what I have quoted from his evidence in paragraph 19 and 21 above must be understood in that context. If the deceased father had himself accumulated wealth during the second marriage – by trading successfully, by winning a lottery or by speculating profitably on the Stock Exchange – then I think the position of the children of the first marriage might have been more favourable to them. The borehole was “the mother’s property” in the sense that it was she who brought it into the second marriage. That is why the Customary Law says that it was not to be inherited by the children of the first marriage, but only by her children.

24.     

In response to these statements the 81 year old Chief Nswazwi was far less clear. Initially he did not seem to grasp the factual basis upon which he was being questioned. After the question had been repeated several times he said the “well” should be shared between all the children of the two families.

25.     

However, on cross-examination he seemed to concede –

“The well he sank with the first wife will be given to the children of the first house. If the well is given to the first family then what is there is for the second wife because the first family has been given their share.”

26.     

Eventually he seemed to wander back to his original stand-point –

“I have already said that the children of the first house as well as those of the second are entitled to inherit.”

27.     

It is thus not surprising that the learned trial judge concluded –

“I therefore prefer the expert testimony of Kgosi Masunga, not only for (the) reasons set out above, but after due consultation with my assessors, who agree with his opinion of the Kalanga Customary Law of inheritance.”

28.     

There is nothing repugnant to natural justice in this conclusion. The disputed borehole was created and acquired by the senior Mongwa and his second wife Ontifile in 1958-60, with the help of her father. This happened some six years after the first wife had died, and at a time when all of the “children” of the first marriage must have been adults. They had, without the formality of a Galedema, possessed themselves of the cattle and other property which they regarded as rightfully theirs after the death of their mother. They, it seems, freely chose to abandon the field and the water source at Chadibe, which their father had left (albeit not immediately) in order to set up his new homestead elsewhere with his new wife. In the circumstances I see nothing morally repugnant in their being denied a share in the new water right created and acquired by the founders of the second family, and originating in a gift by the second wife’s father to her.

29.     

Having decided in favour of the second family both on the facts and on the law, the court a quo inevitably resolved the dispute in favour of the plaintiffs. It seems to me to be clear that it was right in doing so. Accordingly I would dismiss the appeal with costs as prayed.