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Tokoyame v Bok (CACLB-016-07) [2008] BWCA 25 (25 April 2008)
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No. CACLB-016-07
High Court Civil Appeal 006 of 2004
In the matter between:
GAKENAOPE TOKOYAME
Appellantt
and
SARAH BOK
Respondent
For the Appellant:
Mr. Attorney D.M. Mthimkhulu
For the Respondent:
Mr. Attorney I. Bahuma
JUDGMENT
CORAM:
PH TEBBUTT JP
NW ZIETSMAN JA
DR S TWUM JA
DR S TWUM J.A
1.
This is an appeal from the judgment of Sarkodie-Mensah J sitting in the High Court, Mochudi, dated the 19th of October, 2000.
2.
The facts;
For some 13 years the respondent herein and one Babeile (hereafter Ruffas), lived together as man and wife. Although the appellant
testified that they had fewer children, the Customary Court found that they had 4 children. Ruffas died in or about 1999 and a dispute
arose between the respondent and her mother-in-law, the appellant, about the sharing of the deceased’s property. It appeared
that the appellant wanted to take possession of what the respondent claimed she and her husband had acquired together. The respondent
lodged a complaint with the Kisa Customary Court which heard the complaint.
3.
The respondent’s evidence before the court was that her relationship with Ruffas started
in about 1986. In the beginning the deceased worked on farms and she sold liquor. She said they pooled their resources and bought
a donkey cart. Over time, out of their contributions they bought goats and a cow. They also exchanged goats for cattle. She said
the deceased was retrenched and they relocated to Boro 4 and settled there. Subsequently, the deceased got employment at the Roads
Department. During this period they built what was said to be the foundation of a house at Kisa whence they migrated.
4.
The responded continued her evidence by saying that when the deceased obtained employment at
the Roads Department she started to collect concrete and sand to build a house. She also looked after the domestic animals and rode
their donkeys to water their livestock at Boro 4. They completed the house at Kisa. She used to sojourn between Kisa and Boro 4 but
eventually she settled at Boro 4 on account of her work at the cattle post.
5.
She said as a result of the deceased’s unfounded suspicions that she was having an affair,
he locked her out of their bedroom and refused to talk to her. Instead, he consulted his mother. She said her situation became precarious
and she left for her parent’s place. After a while the deceased used to visit her there. Later he was taken ill and he died.
During his last illness she nursed and cared for him. She concluded her evidence by saying that after the deceased’s death,
life with her mother-in-law became unbearable. The mother-in-law took her to her own place with all her household belongings.
6.
The four children she had by the deceased were not cared for by his people. Further they had
deprived them of any share of the deceased’s property which she had jointly acquired with him. She gave an inventory of the
deceased’s property which included furniture, donkey cart, vehicle, cattle, goats, donkeys, chicken and a house. He also had
a car. Under cross-examination from the appellant, she said when she and the deceased started living together, he had nothing. When
she was asked about their cattle she said they would number over 50 and they were appropriately branded. It would appear from the
record, however, that they numbered 87.
7.
On her part, the appellant stated in her evidence that the deceased once informed her of his
relationship with the respondent. She said when the respondent gave birth she and some relatives of hers took food to the respondent
at her mother’s place. She said at his request she gave the deceased some goats for the farms. She subsequently gave him 5
cattle and their calves. She said the deceased put them in his cousin’s kraal. As a result of some misunderstanding with his
cousin, the deceased would not take his cattle to his cousin’s kraal and built his own kraal. She confirmed that the deceased
and the respondent built a house. She also confirmed that the deceased had told her that the respondent was having an affair with
another man but she advised him to seek the advice of other people as she did not like to be involved. She also admitted that she
and other relatives of hers took the respondent’s things to her at her home. She was also given 6 goats. She concluded her
evidence by saying that the respondent stopped one Metheo from selling his cattle. She said she thought it was part of the deceaced’s.
The family thought this was wrong.
8.
The appellant was questioned by members of the court. She said she knew that a house was built
by the deceased and the respondent . She said when the deceased died he owned cattle and that even though she thought the children
had rights in the cattle she did not know whether the respondent also had rights in them. She said that the inheritance of the deceased
was yet to be distributed. She confirmed that “seduction” was not paid in respect of the deceased’s impregnation
of the respondent. Finally, she said the brand mark for the deceased’s cattle was H.F.S. in a vertical order. She claimed that
livestock with the deceased’s brand belonged to her family.
9.
After her evidence some members of the court pleaded that the members of the appellant’s
family should be given time to try and effect an amicable settlement of the matter. A member of the deceased’s family, Nkatlholang
Babeile, thought that the deceased’s children as well as their mother could be given something. In particular, he was of the
opinion that the children could be given something on which they would survive since “they are the ones who will bury my aunt
tomorrow”. Another member of the deceased’s family, Piet Villander, said he was disappointed by the attitude of some
of his people who were refusing to give to the children “inheritance that has been made by their father”.
10.
After some deliberation, the court made the following ruling:
“on the 22nd of June at 8am everything that had the deceased’s brand and everything that belonged to the deceased such as car, donkey cart,
and the house and the others will be divided amongst you”.
11.
The appellant did not accept the judgment of the customary court and appealed to the Customary Court
of Appeal in Gaborone. The Appeal Court’s judgment was that it found the judgment of the customary court appropriate and endorsed
it with some modification. That modification was that it ordered the appellant to vacate the respondent’s home and give back
to her everything she acquired with her husband. In their view, there was nothing which the respondent had to share with the appellant.
The appellant was given 30 days within which to comply with their judgment. There was a rider. If at the end of that period the appellant
had not complied with the order, appropriate legal measures should be instituted against her for refusing to vacate property which
does not belong to her and for refusing to give back to the respondent her property.
12.
The appellant was still dissatisfied and appealed to the High Court. At the hearing of that appeal
counsel for the appellant submitted that the issues to be determined were;
(1)
Whether the deceased and the respondent were married
(2)
If not, if the respondent has a right to inherit from the deceased
(3)
Whether at the time of death the deceased and the respondent were cohabiting.
(4)
Whether the respondent contributed towards the acquisition of property and therefore a universal partnership exists.
13.
The High Court ruled that on the evidence the parties had never been married. However, it said the
respondent had led sufficient evidence to show that there was in existence at the date of death of the deceased, a universal partnership
between the deceased and the respondent. Consequently, it made an order that the respondent was entitled to a half share of the estate
of the deceased. It awarded the other half share to the children of the deceased. It also ordered the appellant to vacate the disputed
property and hand over possession to the respondent within 30 days of the date of judgment.
14.
Once again the appellant was dissatisfied with this judgment and sought leave from the High Court
to appeal to this Court. The application for leave came before Mr Justice Kirby at Lobatse. She was granted leave to appeal.
15.
The appellant filed her Notice and Grounds of Appeal on 12th November 2006. A large number of grounds were filed but I believe that her grievances can be dealt with under these three grounds:-
i)
Whether or not the respondent was entitled to part of the deceased’s estate.
ii)
Whether the children of the deceased were similarly entitled.
iii)
Whether the appellant herself was also entitled to share in that estate.
16.
Since these grounds are inter-related, I will consider them together.
17.
Counsel for the appellant argued that the concept of universal partnership was a common law idea
which was foreign to customary law. This much was conceded by counsel for the respondent but he submitted that the essence of that
system was not repugnant to customary law. Counsel for the appellant further submitted that the idea of an unmarried woman sharing
in the estate of her partner was foreign to the customary law of the community in which the deceased lived. He said the appellant
disputed that the respondent at any stage contributed to the house at Kisa which was built by the deceased when he was employed by
the Roads Department but admitted that the second house built on land at the respondent’s mother’s homestead was for
the respondent and that the appellant was not laying claim to that. He further submitted that the respondent did not contribute to
the vehicle or the household furniture. He said these were acquired by the deceased at the time the deceased worked at the Roads
Department and that he acquired them from his income there from. In sum, counsel submitted that the respondent was entitled to nothing
from the deceased’s estate. When his attention was drawn to the evidence on record which pointed to various forms of contribution
made by the respondent, counsel for the appellant suggested that if the respondent were to be given anything at all, it should not
exceed 25 per centum of the deceased’s estate.
18.
In reply, counsel for the respondent referred the Court to page 44 of the record where the judgment
of the Kisa Customary Court was recorded and submitted that the Chief’s ruling was sound and based on the local customary law.
19.
He said the Customary Court Act (Cap 04:05) empowers tribal communities to apply customary law as
understood and practised by that particular tribe. In casu the record shows that many of the members of the court present at the hearing of the respondent’s complaint expressed the view
that the respondent had a share in the deceased’s estate. As I have pointed out earlier, even some of the people thought that
the children should be given something. This , of course, was not reflected in the judgment of the court.
20.
As is stated in the papers the same customary law is not applicable in all arrears of Botswana.
It can differ in different areas. What needs to be determined and applied is the customary law as understood and practiced in the
area in which the parties live. See Letsholo v Sete (1998) BLR 676 (HC). This was also stated by Kirby J when granting the appellant leave to appeal to this Court. The customary elders are the repositories
of the customs in their communities.
21.
In the present case both parties, the deceased and the respondent, contributed to the build up of
the assets acquired by them and , applying the customary law as understood and practiced in the Kisa area the Customary Court decided
that the assets should be distributed between the appellant and the respondent. This decision was upheld by the Customary Court of
Appeal. We must accept therefore that this contributed a correct application of the customary law in that area.
22.
As stated both parties, the deceased and the respondent contributed to the build up of the estate.
This was also the finding of the Customary Court.
23.
The deceased probably contributed more in the form of money. The respondent, however, apart from
contributing the money earned from her liquor sales, contributed in other ways. She, for example, inter alia looked after the cattle
and the other assets of the parties and she nursed and looked after the deceased during his illness. Bearing this in mind it is our
conclusion on the facts of this particular case that the assets should be distributed on a 50/50 basis between the parties. This,
we understand to have been the conclusion reached by the Customary Court when it ruled that the assets are to be divided “amongst
you” i.e between the appellant and the respondent.
24.
Counsel for the appellant referred to 10 head of cattle which was said had been donated by the appellant
to the deceased. These cattle would, having been donated to him, form part of the assets accumulated by the deceased and the respondent.
25.
In the result the order of the Customary Court in the terms in which it was confirmed by the Customary
Court of Appeal is restored and confirmed by this Court, and it is so ordered.
On the question of costs of all the proceedings including the costs of this appeal we feel that the fairest order to both parties
would be that each party should pay their own costs and it is so ordered.
DELIVERED IN OPEN COURT AT LOBATSE THIS 25th DAY OF APRIL 2008
--------------------------
DR S TWUM
JUDGE OF APPEAL
I AGREE
-------------------------
PH TEBBUTT
JUDGE PRESIDENT
I AGREE
-------------------------
NW ZIETSMAN
JUDGE OF APPEAL
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