As court president it has been my duty to see that justice is done and determine what is right, wrong and fair.
But one person’s concept of fairness in any given situation will frequently differ from another.
It is a debate I invite readers of my column to consider as I present my weekly look at cases I have presided over during my time at the kgotla.
This week’s story is no exception as it exposes how our tradition and cultural laws are thrown into a tug of war against the realities of life.
Culturally inheritance laws were based on either marriage or blood relationship.
The verbal will that most communities respected for many years, almost invariably expressed the desire to leave something to a relative through blood or marriageand never romance.
The integrity of the principle was dramatically put to the test when Thari filed a case against the Mokgalo family demanding the right to inherit a field she had ploughed with her late partner Banjo.
Thari was overcome with anger and frustration as she approached the cultural justice system to file a case against Banjo’s brother.
She demanded that he must show cause as to why the field she had enjoyed with her partner may not become her inheritance.
Although her petition concerned the field, her story like that of many women was laced with the all too familiar tale of ugly insults and abuse she had to put up with from Banjo’s family.
Thari’s claim was based on the fact that she had assisted in the de-bushing and fencing of the field, producing evidence to show that she was the one who had paid for the drilling of a well there.
As a consequence she felt she was entitled to inherit the land.
Points to consider:
Thari was widowed prior to meeting Banjo.
She and Banjo had never had a child together but Banjo had children from his previous relationship.
Thari and Banjo had developed a field that was actually registered in the name of Mokgalo (Banjo’s late father)
Thari had worked with Banjo to de-bush, fence and drill a borehole at the field.
In her summary Thari submitted that the field had been hers and Banjo’s.
She argued that there should be no reason why the Mokgalo family should suddenly emerge and claim it as their father’s field after all the developments.
The claim was met with stern defiance as Banjo’s brother Mosi took up the Mokgalo family’s defence.
Mosi told the kgotla that Thari was only hiding (a iphitlha) with their late brother.
Permission to use the field was given to Banjo and he did not understand how Thari could invest her money in a field belonging to their father.
The Mokgalo family never established any formal relationship with Thari – they simply saw her as someone who warmed up their brother’s bed a remark Mosiemphasised with sneering contempt.
Mosi declared that Thari must know that the deceased had children who actually had the right to have the field passed on to them.
The old uncles and aunts from both sides of the matter sat in silence with their jaws supported by their palms (ba itshwere ditlhaa), looking up only to murmur (bathogabasatlholebana le ditlhong) meaning people these days nolonger respect themselves.
It was a point Uncle Morago was at pains to drive home as he requested to speak.
It was his considered opinion that the world must be coming to an end with all this ‘escalating greed.’
He added that even though the Bible made mention of David’s concubines in passing, they were never placed in any line of inheritance.
To this Thari wittingly quipped that David’s concubines did not suffer loss by drilling boreholes in his field.
Uncle Moragohowever hit back by saying that that was because they knew their position.
Thari’s very old auntthen spoke in a tired voice, more to Thari than to the Kgotla, saying, “Ngwanawagankgonne kana o jelwe, wenaokaitiratlou was tsamaya o digaditlharemomasimong a batho” (meaning how could you behave like an elephant which pulls down trees even in other peoples’ fields).
At this Thari became tearful as she realized that even her family were missing the point and failing to support her.
As if to add salt to Thari’s wound the old lady declared, “How many inheritances do you wish to acquire?
I seem to remember you inherited all from your husband and now…..”her voice trailed off as the assembled elders looked to me to deliver the verdict.
Balancing the facts on one side with the administration of justice on the other was not an easy equation.
Mentally listing the relevant points I couldn’t help thinking that Banjo and Tharihad left too many things to chance by being oblivious to the possibility of death and not making a will.
In the end the kgotla ruled that the field belonged to the Mokgalo family, but acknowledged that Tharishould be compensated for drilling the water.
As the combatants filed out of the kgotla, I was left with my own reflections.
Although there is evidence that the older generation based their social choices and judgements on the value of wisdom and discretion, the younger generation has evidently put ‘wisdom” on hold.
Sadly the issue of insulting in-laws at funerals is worrisome, ugly and un-cultural, but it seems to give power to the people who are in wait to exploit death.
Let me share with you the words of Lao-Tzu when he said, “The wise man wears rags, but carries treasures in his heart.”
As we face the realities of life in which many of our cultural norms are being abandoned, we are all obliged to look deep into our souls and develop a culture of the heart that is our treasure.