IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) N0. 17/09
In the matter between:
‘MAKHAHLISO MOTANTELI APPELLANT
TSEKO POULO TEKANE RESPONDENT
CORAM: RAMODIBEDI, P
HEARD: 15 APRIL 2010
DELIVERED: 23 APRIL 2010
Succession – Will – Section 5 of the Law of Inheritance Act No. 26 of 1873 read with section 3 (b) of the Administration of Estates Proclamation No. 19 of 1935 – Whether the deceased was competent to execute a will – Depends on abandonment of a customary mode of life and adoption of a European way of living as a prerequisite – The appellant failing to discharge the onus resting on her to show that the deceased had abandoned a customary mode of life – The respondent correctly declared the heir as the only male child of the deceased – Section 11 (1) of the Laws of Lerotholi applied – Appeal dismissed with costs.
 The main bone of contention in this appeal, as foreshadowed in the appellant’s grounds of appeal, revolves around the validity of a will which is purported to have been executed by the late ‘Mapeterose Elizabeth Tekane (“the deceased”) on 6 June 2002.
 The present respondent’s case originated in the High Court by way of a notice of motion. Therein he, as applicant, prayed for relief against the appellant and others in the following terms, inter alia:-
“2. The Execution of the Will of ‘MAPETEROSE ELIZABETH
TEKANE by the 2nd and 3rd Respondents herein, shall
not be stayed pending the finalisation hereof;
3. Declaring the purported “Will” of the Late ‘Mapeterose
Elizabeth Tekane, dated 6th June 2002, invalid, null
and void and of no legal force and effect;
4. Setting aside the purported “Will” of the Late ‘Mapeterose
Elizabeth Tekane, dated 6th June 2002, as being invalid,
null and void and of no legal force and effect;
5. Directing the 4th Respondent not to register and/or regard
the purported “Will” as of any legal force and effect;
6. Declaring the Applicant herein as the sole heir to the
Estate of the Late ‘Mapeterose Tekane;
7. Directing the 2nd and 3rd Respondents to return the
property of the deceased, which they took from her home;
8. Restrain and interdict the 2nd and 3rd Respondents from
despoiling the estate of the deceased;
9. Applicant shall not be granted leave to lead viva voce
evidence in this matter in the event there be an unforeseen
dispute of fact which cannot be resolved on the papers.”
 The High Court (Hlajoane J) granted prayers 3 to 8 as contained in the notice of motion. She also granted costs to the respondent. Hence this appeal by the appellant who was second respondent in the court below.
 The relevant facts show that the appellant and the respondent are siblings, being children of the deceased and the late Tsimokholo Tekane who died before the deceased. For the sake of completeness, it is necessary to point out that the deceased begot four children in all, namely, one boy and three girls. The respondent is the only male child of the deceased. He is the eldest child in the family. The appellant is third. All the three girls are married.
 It is crucial to point out at the outset that the respondent is the customary heir to the deceased’s estate. This is undisputed, and properly so in view of the provisions of section 11 (1) of the Laws of Lerotholi. This section reads as follows:-
“11 (1) The heir [in Lesotho] shall be the first male
child of the first married wife……”
 On 6 June 2002, the deceased purportedly executed a will, annexure “ETM 2”, in terms of which she bequeathed to the appellant her fixed property situated at Bolulo, Lipelaneng in Butha-Buthe district. She further appointed the appellant to be the executor of her will and administrator of her estate. Furthermore, she appointed her the sole heir of movable as well as immovable property in her estate.
 On 16 July 2006, the deceased passed away at Lipelaneng in Butha-Buthe district. She was laid to rest on 5 August 2006.
 On 7 August 2006, the headman of the village, one Chief Sechele Sechele, exhibited the will, annexure “ETM 2,” to the respondent. This then prompted the respondent
to launch motion proceedings leading up to the present appeal.
 In his founding affidavit the respondent, as applicant, challenged the will, annexure “ETM 2”, on three fronts, namely:-
that the deceased had not abandoned a
customary mode of life;
that the will had not been registered or
deposited with the office of the Master of
the High Court;
that as the deceased’s customary heir the respondent could not be deprived of more than half of the deceased’s estate.
 At the hearing of the matter the court a quo heard viva voce evidence on the issue of the mode of life of the
deceased. After seeing and hearing the witnesses called on both sides the court came to the conclusion that the
deceased had not abandoned the customary mode of life at the time she purportedly executed the will.
 It is convenient to digress there and address another twist to the case. At the hearing of the appeal in this Court Adv. Teele KC for the appellant abandoned the appeal regarding the validity of the will, annexure “ETM 2”. Counsel was constrained to take this dramatic step in the light of the provisions of section 3 of the Attesting Witnesses Act, 1876. This section provides as follows:-
“3. If any person shall attest the execution of any will or other
testamentary instrument, to whom or to whose wife or
husband any beneficial devise, legacy, estate, interests, gift, or appointment of or affecting any property (other than and except charges and directions for the payment of any debt or debts), shall be thereby given or made, such devise, or legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will or other testamentary instrument, or the wife or husband of such person, or any person claiming under such person, or wife or husband, be null and void.”
 Adv Teele KC correctly submitted, in my view, that if the will, annexure “ETM 2”, is valid then the appellant as the intended beneficiary “will get nothing.” This is so because the facts show that the appellant’s husband, to whom she is admittedly married in community of property, actually attested the execution of the will.
 Faced with this dilemma, Adv Teele KC then sought to revert to another will, annexure “JAM I”, purportedly executed on 17 January 2002. He submitted that this will is a replica of the disputed will, annexure “ETM 2”, the only difference being that the appellant’s husband was not a witness. As I see it, there are at least two insurmountable problems with this approach, namely:-
In the subsequent will, annexure “ETM 2”,
the deceased actually made the following
“ I hereby revoke and cancel all previous wills, codicils,
testaments or testamentary writings hereunto made before
by me and declare this to be my last will and testament.”
It cannot, therefore, be seriously disputed that the will, annexure “JAM I”, is one of the “previous wills” which the deceased revoked and cancelled.
The real issue is not how many wills the deceased executed. On the contrary, the issue is whether the deceased was competent to execute a will. This in turn raises the question whether the deceased had abandoned a customary way of life and had adopted a European mode of life. It is to this aspect that I now turn.
 In terms of section 5 of the Law of Inheritance Act, No. 26 of 1873 (“The Act”), it is not every person who is entitled to make a will. It is only a competent person who is entitled to do so. This section reads as follows:-
“5. Every person competent to make a will shall have
full power by any will executed after the taking effect
of this Part to disinherit or omit to mention any child,
parent, relative or descendant without assigning any
reason for such disinheritance or omission, any law,
usage or custom now or heretofore in force in [Lesotho]
notwithstanding: and no such will as aforesaid shall be
liable to be set aside as invalid, either wholly or in part,
by reason of such disinheritance or omission as aforesaid.”
 Similarly, section 3 (b) of the Administration of Estates Proclamation No.19 of 1935 is decisive in the determination of the matter. This section reads as follows:-
“3. This Proclamation shall not apply –
(b) to the estates of Africans which shall continue to be
administered in accordance with the prevailing African
law and custom of the Territory. Provided that such
law and custom shall not apply to the estates of
Africans who have been shown to the satisfaction of
the Master to have abandoned tribal custom and
adopted a European mode of life, and who, if married,
have married under European law.”
 It is instructive to point out that in concluding that the deceased had not abandoned the customary mode of life the court a quo took into account the following factors, namely:-
that the deceased was a subject of a chief;
that only one of her children had gone to university;
that she earned her living by brewing Sesotho beer;
that she wore traditional clothes;
that she believed in ‘spirits (balimo).’ She also threw feasts to honour her ancestors.
 Crucially, the court a quo considered these factors, not in isolation, but cumulatively. I may add that, even so, the fifth factor set out above would, in my view seem to carry huge weight on its own. I venture to suggest that no person who leads a European mode of life would believe in “spirits (balimo)” and throw feasts in honour of the ancestors as the deceased did.
 Regarding clothing, there is no evidence on record to show that the deceased wore European clothes at all. This would then seem to suggest that she wore traditional clothes exclusively. This in turn is a strong pointer in my view that she had not abandoned Sesotho way of life.
 In the light of these considerations I am satisfied that the court a quo’s conclusion that the deceased had not abandoned the Sesotho mode of life cannot be faulted. The appellant failed to discharge the burden of proof which rested on her to show that the deceased had abandoned the customary mode of life. See for example Mokatsanyane And Another v Thekiso And Others 2005 – 2006 LAC 117. Significantly, there was not even a declaration by the deceased herself in her purported will to show that she had in fact abandoned the Sesotho mode of life, something that she could easily have done if that was the case. In my judgment, this conclusion decides the matter in favour of the respondent as will become evident shortly.
As this Court held in Mokatsanyane’s case, the words “competent to make a will” indicate that the Act is limited to persons who have abandoned a customary way of life and who have adopted a European mode of living.
 It follows from these considerations that the deceased was not competent to execute the purported will in question. Similarly, the court a quo was justified in, inter alia, declaring the respondent the sole heir to the deceased’s estate.
 In the result the appeal is dismissed with costs.
PRESIDENT OF THE COURT OF
APPEAL OF LESOTHO
I agree: _________________________ D.G. SCOTT
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For the Appellant: Adv. M.E. Teele KC
For the Respondent: Adv. N.E. Makhera