Source:

Botswana Law Reports (1964 to 2018(2))/CHRONOLOGICAL LISTING OF CASES 1964 ­ 2019 Volume 2/2010 (2)/Cases Reported/BASUPANG v BAITLOTLI 2010 (2)
BLR 129 (HC)

URL:
http://jutastat.juta.co.za/nxt/gateway.dll/frbo/2/2217/2223/2240?f=templates$fn=default.htm

BASUPANG v BAITLOTLI 2010 (2) BLR 129 (HC)

Citation 2010 (2) BLR 129 (HC)

Court High Court, Lobatse

Case No Matrimonial Cause 396 of 2006 G

Judge Lesetedi J

Judgment April 20, 2009

Counsel T Joina for the plaintiff.

Annotations None

Flynote

Customary law ­ Sekwena law ­ Marriage ­ Formalities. H

Husband and wife ­ Marriage ­ Validity of ­ Husband married under customary law at time of subsequent civil marriage ­ Civil marriage a bigamous
union and hence a nullity.

Headnote

The deceased entered into a civil marriage with the defendant and he and the defendant thereafter took occupation of a developed residential
plot at Mmopane. When the deceased died, a dispute arose between the parties as

2010 (2) BLR p130

to the ownership of the land. The plaintiff claimed ownership on the basis that A she and the deceased had been validly married to one another
under Sekwena law at the time of the deceased's marriage to the defendant, and that she and the deceased had therefore jointly owned and
developed the land. The court heard expert evidence as to the formalities required for a valid marriage under Sekwena law.

Held: (1) On the evidence, the plaintiff had shown that she was married to the deceased, in accordance with Sekwena law, at the time of his
death. B

(2) Consequently, the deceased's civil marriage to the defendant was a bigamous union and hence a nullity.

(4) Under Sekwena law, spouses had a joint estate. Therefore, by virtue of her marriage to the deceased, the plaintiff held an undivided, one
half share in the land.

(5) In accordance with the provisions of s 4(10) of the Succession (Rights of C Surviving Spouses and Inheritance Family Provisions) Act (Cap
31:03), the deceased's undivided, half share in the land devolved upon the plaintiff and their children.

ACTION for declaration of invalidity of marriage. The facts are sufficiently stated in the judgment. D

T Joina for the plaintiff.

Defendant in person.

Judgment

LESETEDI J:

The dispute herein centres around whether the plaintiff was married to one E Sephutlo (herein referred to as 'the deceased') at the time when
the said Sephutlo entered into a civil marriage under the Marriage Act (Cap 29:01) with the defendant. The second issue which is related to the
first issue in a substantial manner is whether the developed residential plot located at Mmopane which the defendant and the deceased
occupied after their purported marriage was developed and co­owned by the deceased and the plaintiff, in F which event the plaintiff should
have a valid claim on it.

The plaintiff's claim is that at the time of the purported marriage between the defendant and the deceased, she was validly married to the
deceased under Sekwena customary law and that the essential components of the Sekwena marriage called patlo and the payment of serufo
were fulfilled. In respect of the property she claims that prior to their customary marriage, she and the G deceased obtained a tribal piece of
land in Mmopane around 1987 and 1988 and that although the property was registered in the names of the deceased, it was a joint property
which they both developed and considered their home.

The plaintiff called a number of witnesses to establish her case. One of them was the fourth witness, an elderly senior member of the Bakwena
tribe in the H area in which the parties resided. His name is Keitumetse Legwape and he was born in 1924. He is the Headman of the arbitration.
He was called as an expert in the Sekwena customary marriage system.

To put the enquiry into whether or not the alleged marriage between the plaintiff and the deceased was valid in perspective, I think the
appropriate starting point would be to outline the testimony of this witness as to what

2010 (2) BLR p131

LESETEDI J

constitutes a valid Sekwena customary law marriage of the area where the A parties and the deceased resided.

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experience the Sekwena culture since childhood. His competence to speak authoritatively on the matter was not questioned. B
 plot at Mmopane. When the deceased died, a dispute arose between the parties as

2010 (2) BLR p130

to the ownership of the land. The plaintiff claimed ownership on the basis that A she and the deceased had been validly married to one another
under Sekwena law at the time of the deceased's marriage to the defendant, and that she and the deceased had therefore jointly owned and
developed the land. The court heard expert evidence as to the formalities required for a valid marriage under Sekwena law.

Held: (1) On the evidence, the plaintiff had shown that she was married to the deceased, in accordance with Sekwena law, at the time of his
death. B

(2) Consequently, the deceased's civil marriage to the defendant was a bigamous union and hence a nullity.

(4) Under Sekwena law, spouses had a joint estate. Therefore, by virtue of her marriage to the deceased, the plaintiff held an undivided, one
half share in the land.

(5) In accordance with the provisions of s 4(10) of the Succession (Rights of C Surviving Spouses and Inheritance Family Provisions) Act (Cap
31:03), the deceased's undivided, half share in the land devolved upon the plaintiff and their children.

ACTION for declaration of invalidity of marriage. The facts are sufficiently stated in the judgment. D

T Joina for the plaintiff.

Defendant in person.

Judgment

LESETEDI J:

The dispute herein centres around whether the plaintiff was married to one E Sephutlo (herein referred to as 'the deceased') at the time when
the said Sephutlo entered into a civil marriage under the Marriage Act (Cap 29:01) with the defendant. The second issue which is related to the
first issue in a substantial manner is whether the developed residential plot located at Mmopane which the defendant and the deceased
occupied after their purported marriage was developed and co­owned by the deceased and the plaintiff, in F which event the plaintiff should
have a valid claim on it.

The plaintiff's claim is that at the time of the purported marriage between the defendant and the deceased, she was validly married to the
deceased under Sekwena customary law and that the essential components of the Sekwena marriage called patlo and the payment of serufo
were fulfilled. In respect of the property she claims that prior to their customary marriage, she and the G deceased obtained a tribal piece of
land in Mmopane around 1987 and 1988 and that although the property was registered in the names of the deceased, it was a joint property
which they both developed and considered their home.

The plaintiff called a number of witnesses to establish her case. One of them was the fourth witness, an elderly senior member of the Bakwena
tribe in the H area in which the parties resided. His name is Keitumetse Legwape and he was born in 1924. He is the Headman of the arbitration.
He was called as an expert in the Sekwena customary marriage system.

To put the enquiry into whether or not the alleged marriage between the plaintiff and the deceased was valid in perspective, I think the
appropriate starting point would be to outline the testimony of this witness as to what

2010 (2) BLR p131

LESETEDI J

constitutes a valid Sekwena customary law marriage of the area where the A parties and the deceased resided.

It is the evidence of the fourth witness that he was born, bred and lived in the Sekwena community and that he has come to learn and
experience the Sekwena culture since childhood. His competence to speak authoritatively on the matter was not questioned. B

The fourth witness's evidence is that, in a Sekwena customary law marriage, a group from the man's family is sent to the woman's family to
inform them that their son is asking for their (the bride's family's) daughter's hand in marriage. In this delegation, there are four key people who
play a role. These are the man's maternal uncle, the mother, the paternal uncle and the father. Even if those C people are not part of the
delegation, the man's family must nominate people in the delegation to play those roles.

Once the woman's parents had been informed of the request, if the woman's parents are receptive, the parties agree on a date for patlo.

On the date set for the patlo, the man's delegation goes to the woman's parents' home early in the morning at around 5 am. The men meet
other males from the D other side at the Kgotla (presumably outside the homestead), whilst the women meet their counterparts from the
woman's side inside the yard of the homestead. The negotiations then proceed and, if the woman's parents agree to the marriage, the date is
set for the celebrations. But the marriage is not complete as on the evening after the agreement, the groom's maternal uncle brings the groom
to the bride's parents. He also brings a beast called serufo. E The purpose of this beast is to constitute what in Setswana is called 'go bula
ntlo', the literal meaning of the phrase being to open the house. The house being opened is that of the bride's parents' home. It is after the
payment of this beast that the groom obtains a right of passage into the bride's parents' yard as a son in law. If the beast is not given to the
bride's parents, the groom will not be allowed into the house of the bride or the bride's parents' yard and the F celebrations symbolising the
formalisation of the marriage would not go ahead. The witness compared the symbolic significance of serufo as being similar to putting a ring on
the woman's finger in a civil law marriage. Once serufo has been paid, it connotes the formalisation of the marriage and the celebrations that
follow are merely an expression of joy by the parents and the relatives for the completed marriage processes. The celebrations constitute part
and parcel of G the patlo process.

It is after the patlo that the woman would then be taken to the groom's parents' home in a symbolic manner of taking her to her marital home.
There were certain other procedural details, for instance, that the man after the payment of serufo is entitled to spend a few days at his in­
laws' place before the bride is taken to her matrimonial home. H

Once the celebrations are over, the bride, accompanied by the maternal uncle's wife, the maternal aunt and paternal aunt, is taken to her new
home. This takes place in the morning. This last process does not require any celebration as the celebration is only done during patlo.

Proceeding further, the witness's evidence is that, according to Sekwena custom, once the parties are married, their properties become a joint
estate.

2010 (2) BLR p132

LESETEDI J

As to the divorce process, his evidence is that if it is the man who wants a A divorce, he has to inform his in­laws and there is a process
referred to as 'closing the door' which he has to go through to demonstrate that he is no longer interested in the marriage. This process
involves payment of some sort to the wife's parents. The converse also happens if it is the wife who wants to divorce the husband. Under
cross­examination, the witness admitted that, once the B parties are married, the woman is required to change her surname to that of the
man's unless there are certain disputes which hinder that process. The children born before the marriage are also to adopt their father's
surname.

Incidentally, this witness also knew some of the people involved in the litigation and he was also involved as the land overseer in the allocation
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the plaintiff when seeking allocation of the plot. I however don't think his knowledge of the parties negatively affected the cogency of his
 appropriate starting point would be to outline the testimony of this witness as to what

2010 (2) BLR p131

LESETEDI J

constitutes a valid Sekwena customary law marriage of the area where the A parties and the deceased resided.

It is the evidence of the fourth witness that he was born, bred and lived in the Sekwena community and that he has come to learn and
experience the Sekwena culture since childhood. His competence to speak authoritatively on the matter was not questioned. B

The fourth witness's evidence is that, in a Sekwena customary law marriage, a group from the man's family is sent to the woman's family to
inform them that their son is asking for their (the bride's family's) daughter's hand in marriage. In this delegation, there are four key people who
play a role. These are the man's maternal uncle, the mother, the paternal uncle and the father. Even if those C people are not part of the
delegation, the man's family must nominate people in the delegation to play those roles.

Once the woman's parents had been informed of the request, if the woman's parents are receptive, the parties agree on a date for patlo.

On the date set for the patlo, the man's delegation goes to the woman's parents' home early in the morning at around 5 am. The men meet
other males from the D other side at the Kgotla (presumably outside the homestead), whilst the women meet their counterparts from the
woman's side inside the yard of the homestead. The negotiations then proceed and, if the woman's parents agree to the marriage, the date is
set for the celebrations. But the marriage is not complete as on the evening after the agreement, the groom's maternal uncle brings the groom
to the bride's parents. He also brings a beast called serufo. E The purpose of this beast is to constitute what in Setswana is called 'go bula
ntlo', the literal meaning of the phrase being to open the house. The house being opened is that of the bride's parents' home. It is after the
payment of this beast that the groom obtains a right of passage into the bride's parents' yard as a son in law. If the beast is not given to the
bride's parents, the groom will not be allowed into the house of the bride or the bride's parents' yard and the F celebrations symbolising the
formalisation of the marriage would not go ahead. The witness compared the symbolic significance of serufo as being similar to putting a ring on
the woman's finger in a civil law marriage. Once serufo has been paid, it connotes the formalisation of the marriage and the celebrations that
follow are merely an expression of joy by the parents and the relatives for the completed marriage processes. The celebrations constitute part
and parcel of G the patlo process.

It is after the patlo that the woman would then be taken to the groom's parents' home in a symbolic manner of taking her to her marital home.
There were certain other procedural details, for instance, that the man after the payment of serufo is entitled to spend a few days at his in­
laws' place before the bride is taken to her matrimonial home. H

Once the celebrations are over, the bride, accompanied by the maternal uncle's wife, the maternal aunt and paternal aunt, is taken to her new
home. This takes place in the morning. This last process does not require any celebration as the celebration is only done during patlo.

Proceeding further, the witness's evidence is that, according to Sekwena custom, once the parties are married, their properties become a joint
estate.

2010 (2) BLR p132

LESETEDI J

As to the divorce process, his evidence is that if it is the man who wants a A divorce, he has to inform his in­laws and there is a process
referred to as 'closing the door' which he has to go through to demonstrate that he is no longer interested in the marriage. This process
involves payment of some sort to the wife's parents. The converse also happens if it is the wife who wants to divorce the husband. Under
cross­examination, the witness admitted that, once the B parties are married, the woman is required to change her surname to that of the
man's unless there are certain disputes which hinder that process. The children born before the marriage are also to adopt their father's
surname.

Incidentally, this witness also knew some of the people involved in the litigation and he was also involved as the land overseer in the allocation
of the plot. His evidence is that he is the one who gave the deceased the plot and that, at the C time, the deceased was in the company of
the plaintiff when seeking allocation of the plot. I however don't think his knowledge of the parties negatively affected the cogency of his
expert evidence.

I now turn to the factual dispute. The plaintiff as I said earlier called a number of witnesses in support of her case. The first witness was her
son, Noah Basupang, a young man of 23 years of age. All that his evidence was relevant in, D was that he knew his mother and father to be
married and that there were five siblings born of his mother and father. He was the second born. He was born on 22 November 1985. The first
born was born some years earlier around 1979­1980. She is deceased. The last born was born in 1994. His evidence was that when they were
young, they stayed with their parents, namely the deceased and the plaintiff at the property in dispute. He however could not give concrete E
evidence as to the marriage between his parents as he was still young at that time.

The crucial witnesses regarding the efficacy of the plaintiff's claim of a customary law marriage between her and the deceased are her father
who gave evidence as the second witness, her aunt and one of the people who participated in the traditional process. The aunt gave evidence
as the third F witness. There was also the deceased's younger sister who also participated in the customary marriage process. She gave
evidence as the fifth witness. Finally an elderly aunt of the deceased by marriage who was also part of the delegation that was involved in the
marriage process. She gave evidence as the sixth witness.

The plaintiff's father was born in 1922 and the sixth witness was born in 1930. G In that regard they are elderly witnesses. Their evidence is
that the delegation on the deceased's family was made of the deceased's relatives including his father, mother, the sixth witness and other
named members of the delegation. This delegation was sent to the second witness's home to go and ask for the plaintiff's hand in marriage on
the deceased's behalf. At the time they went to H ask for the plaintiff's hand in marriage, the plaintiff and the deceased already had a number
of children together. They had also some years earlier acquired a residential tribal plot in Mmopane which they developed together and lived
together even before marriage. It is common cause that this is the property in dispute. This is the same plot alluded to by the plaintiff's expert
witness.

With regard to the asking of the plaintiff's hand in marriage, all these

2010 (2) BLR p133

LESETEDI J

witnesses confirm that the process was conducted according to Sekwena A custom as all the participants resided in the Kweneng area and
were Bakwena or considered themselves Bakwena.

It is their evidence that the proper process of patlo was carried out and that the serufo was paid. The day following patlo, there was a
celebration with the killing of animals and a lot of food being eaten. The celebration was both at the B plaintiff's homestead and that of the
deceased's parents. The plaintiff had at the time returned from the disputed plot to her parents' home for purposes of the convenience of the
patlo process.

The fifth witness, the deceased's sister who comes immediately after the deceased, vividly gave the court an account of who was involved in
the process on the deceased's family side when the whole process took place. She also C vividly gave the court an account of the problems
that beset the marriage between the plaintiff and the deceased leading to their separation and the defendant's subsequent involvement in the
deceased's life. The problems started not long after the marriage. Firstly, it was about money then about the deceased assaulting the plaintiff.
Finally it was the deceased having an affair with the defendant herein. D
© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 15 2022 15:50:22 GMT+0200 (South Africa Standard Time)
The evidence of the second, fifth and sixth witnesses shows that the efforts to resolve the marital strife between the plaintiff and the
deceased ended up before the customary court a number of times and that it was last heard by then Bakwena Regent Kgosikwena Sebele who
 estate.

2010 (2) BLR p132

LESETEDI J

As to the divorce process, his evidence is that if it is the man who wants a A divorce, he has to inform his in­laws and there is a process
referred to as 'closing the door' which he has to go through to demonstrate that he is no longer interested in the marriage. This process
involves payment of some sort to the wife's parents. The converse also happens if it is the wife who wants to divorce the husband. Under
cross­examination, the witness admitted that, once the B parties are married, the woman is required to change her surname to that of the
man's unless there are certain disputes which hinder that process. The children born before the marriage are also to adopt their father's
surname.

Incidentally, this witness also knew some of the people involved in the litigation and he was also involved as the land overseer in the allocation
of the plot. His evidence is that he is the one who gave the deceased the plot and that, at the C time, the deceased was in the company of
the plaintiff when seeking allocation of the plot. I however don't think his knowledge of the parties negatively affected the cogency of his
expert evidence.

I now turn to the factual dispute. The plaintiff as I said earlier called a number of witnesses in support of her case. The first witness was her
son, Noah Basupang, a young man of 23 years of age. All that his evidence was relevant in, D was that he knew his mother and father to be
married and that there were five siblings born of his mother and father. He was the second born. He was born on 22 November 1985. The first
born was born some years earlier around 1979­1980. She is deceased. The last born was born in 1994. His evidence was that when they were
young, they stayed with their parents, namely the deceased and the plaintiff at the property in dispute. He however could not give concrete E
evidence as to the marriage between his parents as he was still young at that time.

The crucial witnesses regarding the efficacy of the plaintiff's claim of a customary law marriage between her and the deceased are her father
who gave evidence as the second witness, her aunt and one of the people who participated in the traditional process. The aunt gave evidence
as the third F witness. There was also the deceased's younger sister who also participated in the customary marriage process. She gave
evidence as the fifth witness. Finally an elderly aunt of the deceased by marriage who was also part of the delegation that was involved in the
marriage process. She gave evidence as the sixth witness.

The plaintiff's father was born in 1922 and the sixth witness was born in 1930. G In that regard they are elderly witnesses. Their evidence is
that the delegation on the deceased's family was made of the deceased's relatives including his father, mother, the sixth witness and other
named members of the delegation. This delegation was sent to the second witness's home to go and ask for the plaintiff's hand in marriage on
the deceased's behalf. At the time they went to H ask for the plaintiff's hand in marriage, the plaintiff and the deceased already had a number
of children together. They had also some years earlier acquired a residential tribal plot in Mmopane which they developed together and lived
together even before marriage. It is common cause that this is the property in dispute. This is the same plot alluded to by the plaintiff's expert
witness.

With regard to the asking of the plaintiff's hand in marriage, all these

2010 (2) BLR p133

LESETEDI J

witnesses confirm that the process was conducted according to Sekwena A custom as all the participants resided in the Kweneng area and
were Bakwena or considered themselves Bakwena.

It is their evidence that the proper process of patlo was carried out and that the serufo was paid. The day following patlo, there was a
celebration with the killing of animals and a lot of food being eaten. The celebration was both at the B plaintiff's homestead and that of the
deceased's parents. The plaintiff had at the time returned from the disputed plot to her parents' home for purposes of the convenience of the
patlo process.

The fifth witness, the deceased's sister who comes immediately after the deceased, vividly gave the court an account of who was involved in
the process on the deceased's family side when the whole process took place. She also C vividly gave the court an account of the problems
that beset the marriage between the plaintiff and the deceased leading to their separation and the defendant's subsequent involvement in the
deceased's life. The problems started not long after the marriage. Firstly, it was about money then about the deceased assaulting the plaintiff.
Finally it was the deceased having an affair with the defendant herein. D

The evidence of the second, fifth and sixth witnesses shows that the efforts to resolve the marital strife between the plaintiff and the
deceased ended up before the customary court a number of times and that it was last heard by then Bakwena Regent Kgosikwena Sebele who
admonished the parties to go and stay together and who also directed that whoever of them wanted to divorce the other, he or she must
approach the customary court and clearly state his/her E intention.

The testimony of these witnesses is that the plaintiff did not however return to the matrimonial home as she was afraid of being assaulted by
the deceased. There was at the time an expectation that the parties' parents and relatives would first take further reconciliatory efforts to
assuage her fears before she could return to the matrimonial home. The witnesses were adamant that as at F the time of his death, the
deceased and the plaintiff had not divorced each other.

The defendant's counsel cross­examined the plaintiff and her witnesses in detail questioning the customary marriage and put to these witnesses
that the defendant was going to lead evidence which would include some of the deceased's relatives to show that there was no customary
marriage between the plaintiff and the deceased. Such witnesses were never brought before court. G

The second point which was raised during cross­examination by the defendant's counsel to question the existence of any customary marriage
between the plaintiff and the deceased was that the plaintiff and her children never used the deceased's surname. The plaintiff and some of her
witnesses however had a H plausible answer to this. It is common cause that at the time when the patlo took place, the deceased used Phale
as his surname. That was the marital surname of his mother and it was the surname used by his younger siblings. From the evidence it appears
however that notwithstanding, the deceased had his own father whose surname is Baitlotli. It is also evident that during or immediately after
the marriage he changed his surname from that of his mother's marital name to that of

2010 (2) BLR p134

LESETEDI J

his biological father Baitlotli. That there was a change of such name is common A cause as evidenced an authorisation of change of surname
letter from the Ministry of Labour and Home affairs dated 30 December 1992 confirming authorisation of change of his surname from Phale to
Baitlotli.

The explanation given by the plaintiff and some of her witnesses is that she could not immediately change her surname to that of the deceased
after the marriage as at that time he was using Phale as his surname and was in the B process of changing to his new surname. At that time,
there was also a problem amongst the deceased's relatives as some were unhappy with his change of surname at an adult age from Phale to
Baitlotli. After the change of surname, the relationship between the plaintiff and the deceased was not a rosy one due to the incessant
fightings which over shadowed any need to change the surname. C

It is common cause that at least as at the late 1990s, the relationship between the deceased and the defendant had gathered momentum and
that the deceased brought her to live with him in the matrimonial property. This was well after the plaintiff and her children had run away from
the matrimonial home.
© 2018 Juta and Company (Pty) Ltd. Downloaded : Tue Feb 15 2022 15:50:22 GMT+0200 (South Africa Standard Time)
In March 2005, the deceased and the defendant entered into a civil law marriage. D He described himself in the marriage certificate as a
 With regard to the asking of the plaintiff's hand in marriage, all these

2010 (2) BLR p133

LESETEDI J

witnesses confirm that the process was conducted according to Sekwena A custom as all the participants resided in the Kweneng area and
were Bakwena or considered themselves Bakwena.

It is their evidence that the proper process of patlo was carried out and that the serufo was paid. The day following patlo, there was a
celebration with the killing of animals and a lot of food being eaten. The celebration was both at the B plaintiff's homestead and that of the
deceased's parents. The plaintiff had at the time returned from the disputed plot to her parents' home for purposes of the convenience of the
patlo process.

The fifth witness, the deceased's sister who comes immediately after the deceased, vividly gave the court an account of who was involved in
the process on the deceased's family side when the whole process took place. She also C vividly gave the court an account of the problems
that beset the marriage between the plaintiff and the deceased leading to their separation and the defendant's subsequent involvement in the
deceased's life. The problems started not long after the marriage. Firstly, it was about money then about the deceased assaulting the plaintiff.
Finally it was the deceased having an affair with the defendant herein. D

The evidence of the second, fifth and sixth witnesses shows that the efforts to resolve the marital strife between the plaintiff and the
deceased ended up before the customary court a number of times and that it was last heard by then Bakwena Regent Kgosikwena Sebele who
admonished the parties to go and stay together and who also directed that whoever of them wanted to divorce the other, he or she must
approach the customary court and clearly state his/her E intention.

The testimony of these witnesses is that the plaintiff did not however return to the matrimonial home as she was afraid of being assaulted by
the deceased. There was at the time an expectation that the parties' parents and relatives would first take further reconciliatory efforts to
assuage her fears before she could return to the matrimonial home. The witnesses were adamant that as at F the time of his death, the
deceased and the plaintiff had not divorced each other.

The defendant's counsel cross­examined the plaintiff and her witnesses in detail questioning the customary marriage and put to these witnesses
that the defendant was going to lead evidence which would include some of the deceased's relatives to show that there was no customary
marriage between the plaintiff and the deceased. Such witnesses were never brought before court. G

The second point which was raised during cross­examination by the defendant's counsel to question the existence of any customary marriage
between the plaintiff and the deceased was that the plaintiff and her children never used the deceased's surname. The plaintiff and some of her
witnesses however had a H plausible answer to this. It is common cause that at the time when the patlo took place, the deceased used Phale
as his surname. That was the marital surname of his mother and it was the surname used by his younger siblings. From the evidence it appears
however that notwithstanding, the deceased had his own father whose surname is Baitlotli. It is also evident that during or immediately after
the marriage he changed his surname from that of his mother's marital name to that of

2010 (2) BLR p134

LESETEDI J

his biological father Baitlotli. That there was a change of such name is common A cause as evidenced an authorisation of change of surname
letter from the Ministry of Labour and Home affairs dated 30 December 1992 confirming authorisation of change of his surname from Phale to
Baitlotli.

The explanation given by the plaintiff and some of her witnesses is that she could not immediately change her surname to that of the deceased
after the marriage as at that time he was using Phale as his surname and was in the B process of changing to his new surname. At that time,
there was also a problem amongst the deceased's relatives as some were unhappy with his change of surname at an adult age from Phale to
Baitlotli. After the change of surname, the relationship between the plaintiff and the deceased was not a rosy one due to the incessant
fightings which over shadowed any need to change the surname. C

It is common cause that at least as at the late 1990s, the relationship between the deceased and the defendant had gathered momentum and
that the deceased brought her to live with him in the matrimonial property. This was well after the plaintiff and her children had run away from
the matrimonial home.

In March 2005, the deceased and the defendant entered into a civil law marriage. D He described himself in the marriage certificate as a
bachelor. The purported marriage was in community of property. The marriage however did not last long in that on 22 November 2005, the
deceased committed suicide. During the funeral, there were a lot of misunderstandings as to whether he and the plaintiff were still married or
whether it was the defendant who was lawfully married to him. The defendant, holding an ostensibly valid marriage certificate and being E in
occupation of the deceased's place of abode, held the stronger cards. She may also have had strong support from the deceased's father.

It is clear from the evidence placed before court, more particularly that of the defendant herself and the fifth witness, that the deceased's
biological father was complicit in this second marriage. The deceased's mother also seems to have F played a role in accepting the defendant as
a partner or wife of the deceased. These two have however not given any evidence in this case.

With regard to the property, the plaintiff's evidence is that the construction of the property was carried out by her younger brother on behalf of
her and the deceased. The younger brother gave evidence to confirm that he carried out the building works on the property in awareness that
it was that of his sister and the deceased. He described the structures which he constructed on the property. G The deceased's sister (the
fifth witness)'s evidence corroborates with that of the plaintiff in this regard.

The defendant gave evidence in her own defence and all she stated was that, at the time she married the deceased, she was not aware that
the deceased was married to the plaintiff. She could not say whether the plaintiff's evidence with H regard to the customary law marriage and
its subsistence was true or not. All she did was to try and show that she openly associated with and married the deceased with the full
knowledge of the plaintiff and the deceased's relatives. The long and short of her case in this regard therefore is that she was never aware that
the deceased was married.

2010 (2) BLR p135

LESETEDI J

The plaintiff's evidence on the other hand had been that she was not aware A that the deceased was married to the defendant. She may well
have been aware of their association as quite clearly it was when the defendant came into picture that the marriage broke. The defendant
would have resided at the plaintiff's matrimonial home with impunity as the plaintiff herself had been chased away by the deceased and was
staying at another place. But the plaintiff did assert her B rights immediately after the deceased's death when the defendant sought to deny
her and her children the appropriate recognition. Any non­action by the plaintiff before the deceased's death cannot however affect the legal
rights of the plaintiff and her children on whether she was still married to the deceased at the time of his death.

There was one point of weakness in the plaintiff's case. Most of her witnesses C could not say exactly when the customary marriage took
place. They were however, quite clear that the marriage had not taken place in 1982 as pleaded but much later after the construction of the
property in dispute. Some of the witnesses were however quite emphatic that it was after a number of children had been born between the
plaintiff and the deceased. Their last child was born in 1994. During trial, after many of her witnesses gave evidence, the plaintiff D applied for
an amendment of her pleadings so that the date of the customary marriage should be amended to read 1992 not 1982. I granted this
amendment as most of the evidence showed that the marriage was later than 1987 and at the latest in the early 1990s not in the early 1980s.
TheJuta
© 2018 plaintiff herself explained
and Company (Pty) Ltd. why the amendment was brought late. Her explanation was
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Africa Standard
it was prepared. I do not think the defendant E can be said to have suffered any prejudice occasioned by this amendment in the light of her
 the marriage he changed his surname from that of his mother's marital name to that of

2010 (2) BLR p134

LESETEDI J

his biological father Baitlotli. That there was a change of such name is common A cause as evidenced an authorisation of change of surname
letter from the Ministry of Labour and Home affairs dated 30 December 1992 confirming authorisation of change of his surname from Phale to
Baitlotli.

The explanation given by the plaintiff and some of her witnesses is that she could not immediately change her surname to that of the deceased
after the marriage as at that time he was using Phale as his surname and was in the B process of changing to his new surname. At that time,
there was also a problem amongst the deceased's relatives as some were unhappy with his change of surname at an adult age from Phale to
Baitlotli. After the change of surname, the relationship between the plaintiff and the deceased was not a rosy one due to the incessant
fightings which over shadowed any need to change the surname. C

It is common cause that at least as at the late 1990s, the relationship between the deceased and the defendant had gathered momentum and
that the deceased brought her to live with him in the matrimonial property. This was well after the plaintiff and her children had run away from
the matrimonial home.

In March 2005, the deceased and the defendant entered into a civil law marriage. D He described himself in the marriage certificate as a
bachelor. The purported marriage was in community of property. The marriage however did not last long in that on 22 November 2005, the
deceased committed suicide. During the funeral, there were a lot of misunderstandings as to whether he and the plaintiff were still married or
whether it was the defendant who was lawfully married to him. The defendant, holding an ostensibly valid marriage certificate and being E in
occupation of the deceased's place of abode, held the stronger cards. She may also have had strong support from the deceased's father.

It is clear from the evidence placed before court, more particularly that of the defendant herself and the fifth witness, that the deceased's
biological father was complicit in this second marriage. The deceased's mother also seems to have F played a role in accepting the defendant as
a partner or wife of the deceased. These two have however not given any evidence in this case.

With regard to the property, the plaintiff's evidence is that the construction of the property was carried out by her younger brother on behalf of
her and the deceased. The younger brother gave evidence to confirm that he carried out the building works on the property in awareness that
it was that of his sister and the deceased. He described the structures which he constructed on the property. G The deceased's sister (the
fifth witness)'s evidence corroborates with that of the plaintiff in this regard.

The defendant gave evidence in her own defence and all she stated was that, at the time she married the deceased, she was not aware that
the deceased was married to the plaintiff. She could not say whether the plaintiff's evidence with H regard to the customary law marriage and
its subsistence was true or not. All she did was to try and show that she openly associated with and married the deceased with the full
knowledge of the plaintiff and the deceased's relatives. The long and short of her case in this regard therefore is that she was never aware that
the deceased was married.

2010 (2) BLR p135

LESETEDI J

The plaintiff's evidence on the other hand had been that she was not aware A that the deceased was married to the defendant. She may well
have been aware of their association as quite clearly it was when the defendant came into picture that the marriage broke. The defendant
would have resided at the plaintiff's matrimonial home with impunity as the plaintiff herself had been chased away by the deceased and was
staying at another place. But the plaintiff did assert her B rights immediately after the deceased's death when the defendant sought to deny
her and her children the appropriate recognition. Any non­action by the plaintiff before the deceased's death cannot however affect the legal
rights of the plaintiff and her children on whether she was still married to the deceased at the time of his death.

There was one point of weakness in the plaintiff's case. Most of her witnesses C could not say exactly when the customary marriage took
place. They were however, quite clear that the marriage had not taken place in 1982 as pleaded but much later after the construction of the
property in dispute. Some of the witnesses were however quite emphatic that it was after a number of children had been born between the
plaintiff and the deceased. Their last child was born in 1994. During trial, after many of her witnesses gave evidence, the plaintiff D applied for
an amendment of her pleadings so that the date of the customary marriage should be amended to read 1992 not 1982. I granted this
amendment as most of the evidence showed that the marriage was later than 1987 and at the latest in the early 1990s not in the early 1980s.
The plaintiff herself explained why the amendment was brought late. Her explanation was that she never had sight of the writ of summons after
it was prepared. I do not think the defendant E can be said to have suffered any prejudice occasioned by this amendment in the light of her
defence and in the light of the evidence which has been led before the amendment was sought. The real substantive issue to be determined
was whether at the time of the marriage between the defendant and the deceased in 2005, there was in subsistence a customary law marriage
between the plaintiff F and the deceased. My ruling in respect of the amendment was delivered separately from this judgment in the course of
the trial.

I now proceed to evaluate the plaintiff's evidence. I have found the evidence of the fourth witness as an expert credible. The evidence of the
fifth witness, the deceased's sister and that of the sixth witness has been particularly impressive. The witnesses gave evidence which appear
to me to have been clear. Even G when it was pointed out to the fifth witness that her mother would be giving evidence inconsistent with hers,
she did not hesitate to cross swords with such intended evidence. I found her to be quite impressive and credible. The sixth witness also was
quite frank where she could not remember the details to say so. She was a witness who had nothing to benefit from this case and for that
reason I accept her evidence wholly. The evidence of the second witness falls H in with the evidence of the other plaintiff's witnesses in
material respects. For that reason I accept it.

On the other hand I have found the defendant not only to be an unimpressive witness but she also seemed to have litigated this dispute in a
half hearted manner. On 25 June 2009, the court postponed this trial for continuation on 10 August 2009, 17 August 2009 and to 1­3 December
2009 both dates being inclusive. The court also ordered that she should

2010 (2) BLR p136

LESETEDI J

deliver a notice to call an expert witness on customary law marriages within A 21 days from the date of that order. This was after her attorney
had indicated her intention to call such expert witness. The defendant never delivered any notice to call an expert witness within the time­
frame given let alone at all.

When the matter was called on 10 August 2009, the defendant was not in court, it being alleged by her attorney that she was unwell and
unable to come. This B was undisputed by the plaintiff through her attorney. The matter was then postponed to 17 August for continuation. It
was on this date that she turned up. Her explanation of why she did not come to court on the previous date for hearing did not entirely tally
with that of her attorney. Although she admitted she had been sick, she had not gone to the hospital for her ailment. Nor did she go to a clinic.
Her evidence is that it was her intention to go to the hospital but that C there was a long queue. She went to buy some medication at a
chemist. No explanation was given as to why even then, her witnesses did not attend court other than that they were away and unable to
come. This was never good enough as some of the witnesses were relatives of the deceased from Mmopane village near Gaborone. I however
hold nothing against her in this regard. D

After the defendant completed her evidence on the said date, the matter was adjourned. On the date on which it was set for continuation of
trial, that is, on 1 December, the defendant did not turn up and her attorney having withdrawn, there was no explanation to her non­
appearance. The matter was postponed to 2 December 2009 for continuation. On the said date, she once more did not turn E up and no
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explanation was given for her non­appearance. The matter was then postponed once more to 3 December 2009 for submissions. Once more, she
did not turn up and notwithstanding the plaintiff's attorney's insistence to proceed in her absence, the court adjourned the matter to 16
 the deceased was married.

2010 (2) BLR p135

LESETEDI J

The plaintiff's evidence on the other hand had been that she was not aware A that the deceased was married to the defendant. She may well
have been aware of their association as quite clearly it was when the defendant came into picture that the marriage broke. The defendant
would have resided at the plaintiff's matrimonial home with impunity as the plaintiff herself had been chased away by the deceased and was
staying at another place. But the plaintiff did assert her B rights immediately after the deceased's death when the defendant sought to deny
her and her children the appropriate recognition. Any non­action by the plaintiff before the deceased's death cannot however affect the legal
rights of the plaintiff and her children on whether she was still married to the deceased at the time of his death.

There was one point of weakness in the plaintiff's case. Most of her witnesses C could not say exactly when the customary marriage took
place. They were however, quite clear that the marriage had not taken place in 1982 as pleaded but much later after the construction of the
property in dispute. Some of the witnesses were however quite emphatic that it was after a number of children had been born between the
plaintiff and the deceased. Their last child was born in 1994. During trial, after many of her witnesses gave evidence, the plaintiff D applied for
an amendment of her pleadings so that the date of the customary marriage should be amended to read 1992 not 1982. I granted this
amendment as most of the evidence showed that the marriage was later than 1987 and at the latest in the early 1990s not in the early 1980s.
The plaintiff herself explained why the amendment was brought late. Her explanation was that she never had sight of the writ of summons after
it was prepared. I do not think the defendant E can be said to have suffered any prejudice occasioned by this amendment in the light of her
defence and in the light of the evidence which has been led before the amendment was sought. The real substantive issue to be determined
was whether at the time of the marriage between the defendant and the deceased in 2005, there was in subsistence a customary law marriage
between the plaintiff F and the deceased. My ruling in respect of the amendment was delivered separately from this judgment in the course of
the trial.

I now proceed to evaluate the plaintiff's evidence. I have found the evidence of the fourth witness as an expert credible. The evidence of the
fifth witness, the deceased's sister and that of the sixth witness has been particularly impressive. The witnesses gave evidence which appear
to me to have been clear. Even G when it was pointed out to the fifth witness that her mother would be giving evidence inconsistent with hers,
she did not hesitate to cross swords with such intended evidence. I found her to be quite impressive and credible. The sixth witness also was
quite frank where she could not remember the details to say so. She was a witness who had nothing to benefit from this case and for that
reason I accept her evidence wholly. The evidence of the second witness falls H in with the evidence of the other plaintiff's witnesses in
material respects. For that reason I accept it.

On the other hand I have found the defendant not only to be an unimpressive witness but she also seemed to have litigated this dispute in a
half hearted manner. On 25 June 2009, the court postponed this trial for continuation on 10 August 2009, 17 August 2009 and to 1­3 December
2009 both dates being inclusive. The court also ordered that she should

2010 (2) BLR p136

LESETEDI J

deliver a notice to call an expert witness on customary law marriages within A 21 days from the date of that order. This was after her attorney
had indicated her intention to call such expert witness. The defendant never delivered any notice to call an expert witness within the time­
frame given let alone at all.

When the matter was called on 10 August 2009, the defendant was not in court, it being alleged by her attorney that she was unwell and
unable to come. This B was undisputed by the plaintiff through her attorney. The matter was then postponed to 17 August for continuation. It
was on this date that she turned up. Her explanation of why she did not come to court on the previous date for hearing did not entirely tally
with that of her attorney. Although she admitted she had been sick, she had not gone to the hospital for her ailment. Nor did she go to a clinic.
Her evidence is that it was her intention to go to the hospital but that C there was a long queue. She went to buy some medication at a
chemist. No explanation was given as to why even then, her witnesses did not attend court other than that they were away and unable to
come. This was never good enough as some of the witnesses were relatives of the deceased from Mmopane village near Gaborone. I however
hold nothing against her in this regard. D

After the defendant completed her evidence on the said date, the matter was adjourned. On the date on which it was set for continuation of
trial, that is, on 1 December, the defendant did not turn up and her attorney having withdrawn, there was no explanation to her non­
appearance. The matter was postponed to 2 December 2009 for continuation. On the said date, she once more did not turn E up and no
explanation was given for her non­appearance. The matter was then postponed once more to 3 December 2009 for submissions. Once more, she
did not turn up and notwithstanding the plaintiff's attorney's insistence to proceed in her absence, the court adjourned the matter to 16
December 2009 to give the defendant yet another opportunity to turn up in court. The court made an order that the plaintiff serve a copy of
the notice of set down for the said date, F upon the defendant.

On 16 December 2009, the defendant appeared in court. She had appointed another attorney who advised the court that his firm had only
recently been instructed. The said attorney proceeded to ask for a postponement to another date for submissions as he was then not ready. No
application was made by the defendant to reopen her case. G

The postponement was granted and the matter was once more postponed to 22 February 2010 at 9.30 am for submissions and the parties were
ordered to file their heads of argument by 18 February 2010; and, that pending the final determination of the matter, all rentals from the rented
rooms forming part of the disputed property be collected by the defendant and kept in her attorney's trust account. The latter part of the court
order was made because it was common H cause from the defendant's evidence that there are four rooms on the property which are being
rented out at the total rental of P160 each for four of the rooms and P120 each for two other rooms. The order was made by consent of the
parties.

On 22 February 2010, when the parties appeared, no submissions had been filed by the defendant in terms of the previous court order. The

2010 (2) BLR p137

LESETEDI J

defendant's attorney sought leave of court to withdraw from the case. The A reason he gave therefore was that he had been receiving no
cooperation from the defendant. It also emerged on that day that there had also been non­compliance by the defendant in remitting the rentals
into her attorney's trust account as per the court order of 16 December 2009. The defendant's attorney was granted leave to withdraw and the
submissions proceeded as the B defendant indicated she was ready to proceed without legal representation. Once more there was no
application by the defendant to reopen her case to call any of her witnesses. No explanation was given for the defendant's non­appearance at
the previous hearing whose dates had been set in her presence. C

In the circumstances, the defendant must stand or fall on her own evidence. Her evidence that she did not know that the plaintiff was married
to the deceased fails to constitute an answer to the plaintiff's case. The plaintiff has led cogent evidence to show her right in the property not
only by marriage but through its acquisition and development. She is entitled to an undivided half share in it. The other half share she would be
entitled to share with the deceased's heirs (being D her children). See s 4(1) of the Succession (Rights of Surviving Spouse and Inheritance
Family Provisions) Act (Cap 31:03). This is unless if it was shown that customary law applies that it requires devolution of the deceased's half
share in a different manner.

From the record, it is clear that the plaintiff's letter demanding that the defendant vacate the disputed premises was delivered to the
defendant's attorney on 5 E December 2005. That date constitutes the date of mora in respect of any rentals received.
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In so far as the defendant claims to have made certain developments on the property, she must have been fully aware that she did not have
right of claim to the property. She must have been aware at least from the fifth witness that the deceased was still in a lawful customary
 2009 both dates being inclusive. The court also ordered that she should

2010 (2) BLR p136

LESETEDI J

deliver a notice to call an expert witness on customary law marriages within A 21 days from the date of that order. This was after her attorney
had indicated her intention to call such expert witness. The defendant never delivered any notice to call an expert witness within the time­
frame given let alone at all.

When the matter was called on 10 August 2009, the defendant was not in court, it being alleged by her attorney that she was unwell and
unable to come. This B was undisputed by the plaintiff through her attorney. The matter was then postponed to 17 August for continuation. It
was on this date that she turned up. Her explanation of why she did not come to court on the previous date for hearing did not entirely tally
with that of her attorney. Although she admitted she had been sick, she had not gone to the hospital for her ailment. Nor did she go to a clinic.
Her evidence is that it was her intention to go to the hospital but that C there was a long queue. She went to buy some medication at a
chemist. No explanation was given as to why even then, her witnesses did not attend court other than that they were away and unable to
come. This was never good enough as some of the witnesses were relatives of the deceased from Mmopane village near Gaborone. I however
hold nothing against her in this regard. D

After the defendant completed her evidence on the said date, the matter was adjourned. On the date on which it was set for continuation of
trial, that is, on 1 December, the defendant did not turn up and her attorney having withdrawn, there was no explanation to her non­
appearance. The matter was postponed to 2 December 2009 for continuation. On the said date, she once more did not turn E up and no
explanation was given for her non­appearance. The matter was then postponed once more to 3 December 2009 for submissions. Once more, she
did not turn up and notwithstanding the plaintiff's attorney's insistence to proceed in her absence, the court adjourned the matter to 16
December 2009 to give the defendant yet another opportunity to turn up in court. The court made an order that the plaintiff serve a copy of
the notice of set down for the said date, F upon the defendant.

On 16 December 2009, the defendant appeared in court. She had appointed another attorney who advised the court that his firm had only
recently been instructed. The said attorney proceeded to ask for a postponement to another date for submissions as he was then not ready. No
application was made by the defendant to reopen her case. G

The postponement was granted and the matter was once more postponed to 22 February 2010 at 9.30 am for submissions and the parties were
ordered to file their heads of argument by 18 February 2010; and, that pending the final determination of the matter, all rentals from the rented
rooms forming part of the disputed property be collected by the defendant and kept in her attorney's trust account. The latter part of the court
order was made because it was common H cause from the defendant's evidence that there are four rooms on the property which are being
rented out at the total rental of P160 each for four of the rooms and P120 each for two other rooms. The order was made by consent of the
parties.

On 22 February 2010, when the parties appeared, no submissions had been filed by the defendant in terms of the previous court order. The

2010 (2) BLR p137

LESETEDI J

defendant's attorney sought leave of court to withdraw from the case. The A reason he gave therefore was that he had been receiving no
cooperation from the defendant. It also emerged on that day that there had also been non­compliance by the defendant in remitting the rentals
into her attorney's trust account as per the court order of 16 December 2009. The defendant's attorney was granted leave to withdraw and the
submissions proceeded as the B defendant indicated she was ready to proceed without legal representation. Once more there was no
application by the defendant to reopen her case to call any of her witnesses. No explanation was given for the defendant's non­appearance at
the previous hearing whose dates had been set in her presence. C

In the circumstances, the defendant must stand or fall on her own evidence. Her evidence that she did not know that the plaintiff was married
to the deceased fails to constitute an answer to the plaintiff's case. The plaintiff has led cogent evidence to show her right in the property not
only by marriage but through its acquisition and development. She is entitled to an undivided half share in it. The other half share she would be
entitled to share with the deceased's heirs (being D her children). See s 4(1) of the Succession (Rights of Surviving Spouse and Inheritance
Family Provisions) Act (Cap 31:03). This is unless if it was shown that customary law applies that it requires devolution of the deceased's half
share in a different manner.

From the record, it is clear that the plaintiff's letter demanding that the defendant vacate the disputed premises was delivered to the
defendant's attorney on 5 E December 2005. That date constitutes the date of mora in respect of any rentals received.

In so far as the defendant claims to have made certain developments on the property, she must have been fully aware that she did not have
right of claim to the property. She must have been aware at least from the fifth witness that the deceased was still in a lawful customary
marriage with the plaintiff at all material F times. On the other hand, the defendant has doggedly continued not only to benefit from the
property by occupation, she has also been receiving rentals from it even to the extent of disregarding the order of court requiring her to deposit
the rental in her attorney's trust account. This observation however has no bearing on my findings on the merits of the dispute.

In the event, the court finds that the plaintiff has proved her case against the G defendant. The following order is therefore made:

1. the marriage between the defendant and the deceased which was solomnised on 31 March 2005 is declared null and void, it
being a bigamous marriage;

2. the disputed plot at Kwadibana ward, Mmopane is granted to the H plaintiff and her children of the marriage;

3. the defendant is to be evicted from the aforesaid property and to vacate and hand it over to the plaintiff within 14 days hereof;

4. the defendant is to pay the costs of the action.

Judgment for the plaintiff.

2010 (2) BLR p138

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 On 22 February 2010, when the parties appeared, no submissions had been filed by the defendant in terms of the previous court order. The

2010 (2) BLR p137

LESETEDI J

defendant's attorney sought leave of court to withdraw from the case. The A reason he gave therefore was that he had been receiving no
cooperation from the defendant. It also emerged on that day that there had also been non­compliance by the defendant in remitting the rentals
into her attorney's trust account as per the court order of 16 December 2009. The defendant's attorney was granted leave to withdraw and the
submissions proceeded as the B defendant indicated she was ready to proceed without legal representation. Once more there was no
application by the defendant to reopen her case to call any of her witnesses. No explanation was given for the defendant's non­appearance at
the previous hearing whose dates had been set in her presence. C

In the circumstances, the defendant must stand or fall on her own evidence. Her evidence that she did not know that the plaintiff was married
to the deceased fails to constitute an answer to the plaintiff's case. The plaintiff has led cogent evidence to show her right in the property not
only by marriage but through its acquisition and development. She is entitled to an undivided half share in it. The other half share she would be
entitled to share with the deceased's heirs (being D her children). See s 4(1) of the Succession (Rights of Surviving Spouse and Inheritance
Family Provisions) Act (Cap 31:03). This is unless if it was shown that customary law applies that it requires devolution of the deceased's half
share in a different manner.

From the record, it is clear that the plaintiff's letter demanding that the defendant vacate the disputed premises was delivered to the
defendant's attorney on 5 E December 2005. That date constitutes the date of mora in respect of any rentals received.

In so far as the defendant claims to have made certain developments on the property, she must have been fully aware that she did not have
right of claim to the property. She must have been aware at least from the fifth witness that the deceased was still in a lawful customary
marriage with the plaintiff at all material F times. On the other hand, the defendant has doggedly continued not only to benefit from the
property by occupation, she has also been receiving rentals from it even to the extent of disregarding the order of court requiring her to deposit
the rental in her attorney's trust account. This observation however has no bearing on my findings on the merits of the dispute.

In the event, the court finds that the plaintiff has proved her case against the G defendant. The following order is therefore made:

1. the marriage between the defendant and the deceased which was solomnised on 31 March 2005 is declared null and void, it
being a bigamous marriage;

2. the disputed plot at Kwadibana ward, Mmopane is granted to the H plaintiff and her children of the marriage;

3. the defendant is to be evicted from the aforesaid property and to vacate and hand it over to the plaintiff within 14 days hereof;

4. the defendant is to pay the costs of the action.

Judgment for the plaintiff.

2010 (2) BLR p138

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 Judgment for the plaintiff.

2010 (2) BLR p138

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