VVM Kotelo & Co v O K Mofolo & Co (C. OF A (CIV) NO 28/2000 CIV/APN/305/2000)

Case No: 
CIV/APN/305/2000
Media Neutral Citation: 
[2000] LSHC 132
Judgment Date: 
6 September, 2000

Downloads

C. OF A (CIV) NO 28/2000

IN THE APPEAL COURT OF LESOTHO


In the matter between:


HELD AT MASERU

CIV/APN/305/2000


MOSILI 'MAMONNAMOHOLO HLALELE APPELLANT

AND

SOHPIE LELAKA SELEBELENG 1ST RESPONDENT

ZAKIA KOMPONAKAE SELEBELENG 2ND RESPONDENT

MOLEFI LUCAS SELEBELENG 3RD RESPONDENT


C. OF A (CIV) NO.28/2000

IN THE APPEAL COURT OF LESOTHO


HELD AT MASERU

CIV/APN/305/2000


BEFORE J. L. KHEOLA CJ


FOR APPELLANT: V. V . M. KOTELO & CO.

FOR RESPONDENT: O. K. MOFOLO & CO.


I CERTIFY THAT THE ATTACHED IS A CHECKED AND CERTIFIED CORRECT COPY OF THE PROCEEDINGS IN THIS APPLICATION.


V.V.M.KOTELO


IN THE APPEAL COURT OF LESOTHO

C OF A (CIV) NO.2871000


In the matter between:


HELD AT MASERU

CIV/APN/305/2000


MOSILI 'MAMONNAMOHOLO HLALELE APPELLANT

AND

SOPHIE LELAKA SELEBELENG 1ST RESPONDENT

ZAKIA KOMPONAKAE SELEBELENG 2ND RESPONDENT

MOLEFI LUCAS SELEBELENG 3RD RESPONDENT


INDEX


1. CERTICATE OF URGENCY 1

2. ANNEXTURE TO CERTIFICATE OF URGENCY 2

3. NOTICE OF MOTION 3 - 4

4. FOUNDING AFFIDAVIT 5 - 9

5. ANNEXTURE "SLS1" 10 - 12

6. SUPPORTING AFFIDAVIT (Zakia Komponakae Selebeleng) 13 -17

7. ANNEXTURE "SLS2" 18

8. TRANSLATION TO ANNEXTURE "SLS2" 19

9. SUPPORTING AFFIDAVIT (Molefi Lucas Selebeleng) 20 - 21

10. NOTICE OF INTENTION TO OPPOSE 22

11. COURT ORDER 23 - 24

12. OPPOSING AFFIDAVIT 25 - 34

13. SUPPORTING AFFIDAVIT (Paseka Tseeke) 35 - 36

14. AFFIDAVIT ('Mampoi Taoana) 37 - 38

15. NOTICE TO RAISE POINTS OF LAW 39 - 40

16. REPLYING AFFIDAVIT 41 - 51

17. SUPPORTING AFFIDAVIT(Zakia Komponakae Selebeleng) 52 - 57

18. SUPPORTING AFFIDAVIT(Molefi Lucas Selebeleng) 58-60

19. NOTICE IN TERMS OF RULE 48 (1) 61

20. SECURITY BOND 62 - 63

21 . NOTICE OF APPLICATION FOR FURTHER 64 AFFIDAVIT HCR 8 (12)

22. FURTHER AFFIDAVIT 65 72

23. ANNEXTURE "C Jl" 73 - 77

24. ANNEXTURE "MOS1" 78 - 81

25. ANNEXTURE "JRS1" 82

26. JUDGEMENT 83 - 101

27. NOTICE OF APPEAL 102 - 104


V. V. M. KOTELO


IN THE HIGH COURT OF LESOTHO


HELD AT MASERU

CIV/APN/305/2000


In the matter between;


SOPHLE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFl LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


CERTIFICATE OF URGENCY


I, MOROESI GERTRUDE TAU Attorney of the above Honourable Court by lawful authority sworn and admitted, have studied this matter and it is my honest and bona fide opinion that it is a matter of urgent relief.


DATED AT MASERU THIS DAY OF AUGUST, 2000.


M. G. TAU


0. K. MOFOLO & COMPANY

MASERU BOOK ENTRE

P.O. BOX 650

MASERU 100


2


ANNEXURE TO CERTIFICATE OF URGENCY


We submit that the matter is urgent as the deceased persons have remained in the mortuaries for too long and there is need that they should be laid to rest. If application takes the normal course as provided in the rules, not only will it be costly but it would also be culturally, and normally wrong and it will also not be healthy to keep deceased unburied for long periods of time.


IN THE HIGH COURT OF LESOTHO


In the matter between;-


HELD AT MASERU

CIV/APN/305/2000



SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDFNT


NOTICE OF MOTION


KINDLY TAKE NOTICE THAT an application will be made before the above Honourable Court on the 15th August 2000 at 9:30 a.m. for an order in the following terms:-


  1. That the rules be dispensed with on periods and modes of services. 2 That a rule nisi be issued calling upon the Respondents to show cause (if any) on the 18th August 2000 why the following order shall not be made absolute.


    1. Ordering the 1st Respondent to allow the deceased Thaki Elias Selebeleng and Ramalebo Johannes Selebeleng to be buried from their home at Borokhoaneng in the city of Maseru and that all arrangements and funeral ceremony should be conducted from their said home.


    1. Interdicting the 1st Respondent disrupting and or threatening to disrupt the applicants' in arranging and conducting the funeral from Borokhoaneng.


4


    1. Setting aside and declaring as void the will of the late Alice 'Mamosili Selebeleng in so far as it bequeaths all property of her joint estate with the late Molefi Selebeleng.


  1. Ordering that prayer 2(a) and (b) should operate with immediate effect as interim relief


  1. Ordering the 1st Respondent to pay the costs of this application.


  1. Granting the applicants such further and or alternative relief as the court may deem fit.


TAKE NOTICE FURTHER THAT affidavits of Sophia Lelaka Selebeleng, Zakia, Komponakae Selebeleng and Molefi Lucas Selebeleng will be used in supoport of this application.


TAKE NOTICE FURTHER THAT the applicants have appointed the offices of Messrs O. K. Mofolo & Co. as the offices at which they will accept all notices and process in this matter.


Kindly place the matter on the rolls accordingly.


O. K. MOFOLO & COMPANY

APPLICANT'S ATTORNEYS

MASERU BOOK CENTRE

P.O. BOX 650

MASERU 100


TO; THE REGISTRAR

HIGH COURT

MASERU


5


IN THE HIGH COURT OF LESOTHO


In the matter between;-


HELD AT MASERU CIV/APN/ /2000



SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG. 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


FOUNDING AFFIDAVIT


I, the undersigned;


SOPHIE LELAKA SELEBELENG


do hereby make an oath and say;


1.

I am a female adult residing at Hammanskraal, Pretoria, in the Republic of South Africa. I am the widow of the late Thaki Elias Selebeleng. I was married to him in 1980 by customary law. I work at Automotive Leather Company. The facts deposed to herein are within ray personal knowledge unless the context indicates otherwise. They are to the best of my recollection and belief true and correct.


2.

The second Applicant- is Zakia Komponakae Selebeleng a male adult presently

employed at the University of Qwa-Qwa in the Department of Sesotho.


6


3.

The third Applicant is Molefi Lucas Selebeleng, duly assisted by me as a male minor presently attending school at Mamelodi Technical College in the Republic of South Africa. He is our only child with the late Thaki Elias Selebeleng.


4.

The first Respondent is Mosili 'Mamonnamoholo Hlalele, duly assisted by her husband. A Mosotho female adult of Borokhoaneng, near Dion in the city of Maseru.


5.

thesecond Respondent is Master of the High Court. Herein cited nominally as the Government officer responsible for all administration of all estates in Lesotho with office at Moposo House Kings way Maseru.


6.

On the 27th July, 2000 my husband Thaki Elias Selebeleng passed away after a long illness. My husband has not yet been buried for reasons I will state below. Before his death his younger brother Ramalebo Johannes Selebeleng passed away on the 21st July, 2000. The late Thaki was working in South Africa when he met his untimely death. The late Ramalebo was residing with his friends in Maseru and he was not employed. they have both not been buried and they are still at mortuaries in South Africa and Lesotho. My late husband is at the mortuary in Vanderbijl Park in Pretoria and the late Ramalebo is at a mortuary of the Lesotho funeral services in Maseru.


7.

As the second Applicant was making arrangements for burial of my late husband and his younger brother from the Lesotho side, he met some difficulties in that the 1st Respondent refuses to let the deceased be buried from their home at Borokhoaneng

7


Qoaling as she claims she has been given that property by her mother by Will. The second Applicant in his affidavit will fully set out the details of his encounters with the 1st Respondent.


8.

I wish to state that the 1st Respondent has no right to refuse to let my late husband and his younger brother to be buried from their home. It was my husband's wish and he did state that he would like to be buried in his home in Lesotho as he was just working in South Africa.


9.

I have been advised by my Attorneys and I verily believed them that there are certain procedures that the lst Respondent ought to have followed, before she could assume ownership of our home under the said Will and she has not done so. I am advised that as an executor and next of kin of her late mother who was my late father-in-law's second wife, she ought to have filed a death notice and inventory of the property with the Master of the High Court. She ought further to have sought letters of Administration from the Office of the Master of High Court as she has been appointed the sole heir and executor of her late mother's Will. She has failed to do so and thus she is not yet legally entitled to the estate unless she has satisfied the statutory requirements which would enable ownership of property bequeathed to her to pass to I beg leave to attach hereto a copy of the Will for the benefit of Court marked annexure"SLSl",


10.

Secondly I wish to state that the Will of the late Alice 'Mamosili Selebeieng is in valid in law in so far as it disposes of all property of her joint estate with the late Molefi Selebeleng who was my father-in-law. My late father - in - law died intestate and as he was married in community of property with the late Alice Mamosili,, 'Mamosili ought to have declared the estate and given the late Molefi's sons their share of the

estate and taken hers .


8


11.

I have been advised by my attorneys and I verily believe them that when people are married in community of property, and one of the spouses dies intestate, then the surviving spouse is entitled to half the estate and a child's share. The children of the marriage or of the deceased get a child's share of the estate. My late husband and I did not insist on the late Alice giving us our child's share immediately because it would have meant that she would have been without a home as the indivisible estate would have had to be liquidated. However we were not expecting her to forget when she made her will that we still had our share. The late Ramalebo as a son of the late Molefi also had a child's share in the property, which the late Alice did not have a right to bequeath. She was only entitled to bequeath only her half share from her marriage in community of property and of her child's share from her late husbands portion of the estate.


12.

I, therefore state that by virtue of my late husband's child's share in the matter, we are entitled to bury him from his home and to inherit his share with the 3rd Applicant. The late Ramalebo is also entitled to be buried from his home as he still has rights as long as his share to his father's estate remains part of the estate.


13.

As Ramalebo died a bachelor, the family of Selebeleng has appointed the 3rd Applicant to be his heir and that would entitle him to part of the estate in the will. I, therefore, aver that the will is invalid in so far as it bequeaths everything.


14.

I submit that the matter is urgent as we have to bury my late husband and his brother. It is now three weeks since the late Ramalebo has passed away and he is kept in the


9


mortuary and it is two weeks since my husband has passed and has been kept in the mortuary. We are desirous that they should be laid to rest in peace and whatever disputes regarding the estate will be made afterwards.


15.

I am making this affidavit in support of the prayers outlined in the notice of Motion.


DEPONENT

THUS SIGNED AND SWORN TO

BEFORE ME AT MASERU THIS...........

DAY OF 17th.AUGUST, 2000 BY DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT .


COMMISSIONER OF OATHS

CAPACITY/AREA


10

WILL

OF

ALICE 'MAMOSILI SELEBELENG


This is the last will and testament of ALICE 'MAMOSILI SELEBELENG a widow of Phomolong Qoaling in the District of Maseru.


WHEREAS I was married by civil rites and had abandoned the Basotho customary way of life and adopted a European mode of life.


WITNESSETH AS FOLLOWS -


1.

I revoke, cancel and annul all previous wills and writings with a testamentary effect.


12

-2-


2.

I bequeath to my daughter MOSILI EMILY HLALELE a married women the buildings and improvements on my residential site at Phomolong Qoaling in the District of Maseru together with all the moveable property therein on condition that it shall not form part of her present marriage or any marriage or marriages she might enter into


3.

I appoint MOSILI EMILY HLALELE to be the executor of administrator of this my will.


IN WITNESS WHEREOF I HAVE SET MY HAND AT MASERU ON THIS 12th DAY OF AUGUST 1992 IN THE PRESENCE OF THE UNDERSIGNED WITNESSES WHO HAVE SUBSCRIBED THEIR NAMES AS SUCH WITNESSES IN MY PRESENCE AND IN THE PRESENCE OF EACH OTHER.


TESTATRIX


AS____WITNESSES:


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IN THE HIGH COURT OF LESOTHO


In the matter between:-


HELD AT MASERU

CIV/APN/ /2000



SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


SUPPORTING AFFIDAVIT


I the undersigned,


ZAKIA KOMPONAKAE SELEBELENG


do hereby make oath and say,


-1-

I am a male adult, presently working in the Republic of South Africa, at the University of Qwaqwa and in the department of Sesotho. The facts deposed to herein are within


14


my personal knowledge and are to the best of my recollection and belief true and correct.


-2-

2.1 I have read and understood the founding affidavit of Sophie Lelaka Selebeleng and I wish to support it in so far as it relates to me, and I wish to add the following points.


2.2 I am the head of the family of Selebeleng in Molefi's side as my father was older than the late Molefi, I am therefore responsible together with 1st applicant to see to it that the deceased are buried


When we learned of the death of Thaki and Ramalebo as the Selebeleng family that is our uncles, and later together with me, proceeded to try to make arrangements for their burial from their home in Lesotho. They had not built any houses for themselves.


2.3 We then approached Mosili, the 1st Respondent who is the daughter of the late Alice 'Mamosili Selebeleng. When the late Mamosili got married to my uncle Molefi, in 1968 she already had 1st Respondent. The 1st Respondent was not adopted nor was she ever under the care of my uncle. On our approaching the 1st Respondent she. informed us that she will not let us conduct the burial from the late Molefi's home, as that is her property now. We then requested the chief to intervene so that we could bury the deceased from Molefi's home. Later a will was read and shown to us before the chief We submitted that the site did not belong to her mother alone as she was married in community of property to our late uncle, however she would not hear of it. The Chief even advised that we should cooperate and bury the deceased persons and later we can dispute the property if there are any disputes, but she would not hear of it.


15


The deceased people therefore still remain unburied.


-3-

I confirm further that we did not know of any will made by the late Molefi leaving his property to the late Alice. Even a purported will that he tried to make was challenged in the case of Mosongoa Matsoso v Alice Selebeleng CIV/APN/285/83 and the outcome of that case was that Molefi and Alice were married in community of property, and the application had no merits. Molefi therefore died intestate. We only learned of the will when we were before the chief whom we requested to intervene so that we could bury the deceased.


-4-

1 aver that the estate of Molefi was never distributed to his heirs and Alice was allowed to continue using the property as division of the estate would have meant she would be without a home. However that did not mean that everything was her's as Molefi had two sons who are the present deceased persons, being Thaki and Ramalebo.


-5-

I aver that the 1st Applicant together with the 3rd Applicant would be entitled to Thakis' inheritance. The Selebeleng family further confirmed 3rd Applicant as the heir to Ramalebo's property and inheritances. The 1st Applicant and the late Thaki were legally married according to Customary Law. I was personally involved in the marriage negotiation and payment of bohali.


-6-

In 1997 after the death of the late Alice Mamosili Selebeleng we approached 1st Respondent, who was residing at the estate of Molefi and Alice because she had been looking after her mother, and informed her that the family of Selebeleng had appointed Thaki, as the heir of Molefi. However she became very hostile and never ever wanted to talk to us and said that was her mother's property and therefore it was hers. She


16


never disclosed to us that her mother had made a will, if she had Thaki would have challenged the will. We went again at the end of 1997, she was with her uncle and they still maintained the property belongs to the 1st Respondent. The matter was not pursued any further because Thaki became ill and was in and out of hospital until he eventually died in July this year. I beg leave to attach hereto a copy of the letter confirming Thaki as heir marked annexure "SLS2"


-7-

We have been advised that according to Administration of estates where one dies intestate all children share equally with the mother, the father's half of the estate. We believe this is still in line with the principle of Customary Law that the heirs should share with his brothers. Thaki would therefore share with the late Ramalebo and 3rd applicant has been appointed by the family to inherit the late Ramalebo's share


-8-

I also confirm that the matter is urgent as we would like to bury the deceased.


I am making this affidavit in support of prayers outlined in the notice of motion.


DEPONENT


THUS SIGNED AND SOWN TO BEFORE ME

AT MASERU THIS 12th DAY OF...............

AUGUST, 2000 BY DEPONENT HAVING ACKNOWLEDGED

THAT HE KNOWS AND UNDERSTANDS

THE CONTENTS OF THIS AFFIDAVIT


17


COMMISSIONER OF OATHS

CAPACITY/AREA


19


Translation to annexure SLS 2


To; The Chief of Qoaling

Maseru Lesotho


We, the family of Selebeleng and with lawful and traditional competence do hereby appoint Thaki Elias Selebeleng and cause to appear before you as sole heir to the estate of his late father Molefi Selebeleng who died in 1982 and his aunt Alice Selebeleng who died on the 15th October, 1996.


The place we are now referring to is situate at Borokhoaneng, Qoaling. Family members who confirm this appointment are:-


  1. Motete Selebeleng

  2. Zakia Selebeleng

  3. Tumo Selebeleng

  4. Lingoana Selebeleng


20


IN THE HIGH COURT OF LESOTHO


In the matter between:


HELD AT MASERU

CIV/APN/ /2000



SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT


SUPPORTING AFFIDAVIT


I, the undersigned,


MOLEFI LUCAS SELEBELENG


Do hereby make oath and say,


-1-

I am the first born son of Thaki Elias Selebeleng. I was born on the 5th May, 1980. I the only child of the late Thaki and 1stApplicant. I am presently attending School at MamelodiTechnical College. The facts deposed, to herein are within my personal knowledge unless the context indicates otherwise.


-2-

I have read and understood the founding affidavit of the lST Applicant and the supporting affidavit of the 2 nd applicant and I wish to support them in so far as they relate to me.


I am making this affidavit in support of prayer outlined in the notice of motion.


DEPONENT


THUS SIGNED AND SWORN TO BEFORE ME

AT MASERU THIS 12th DAY OF AUGUST, 2000

BY THE DEPONENT HAVING ACKNOWLEDGED

THAT HE KNOWS AND UNDERSTANDS THE CONTENTS

OF THIS AFFIDAVIT...


CAPACITY/AREA


22


IN THE HIGH COURT OF LESOTHO


In the matter between:


HELD AT MASERU

CIV/APN/305/00


SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAK1A KOMPONAKAE SELEBELENG 2ND APPLICANT

MOLEFI LUCAS SELEBELENG 3RD APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT


NOTICE OF INTENTION TO OPPOSE


KINDLY TAKE NOTICE THAT 1st Respondent herein intends to oppose the above mentioned matter.


KINDLY TAKE FURTHER NOTICE THAT 1st Respondent appointed the offices of V. V. M. KOTELO & CO. ROOM 20 & 21, TRADORETTE COMPLEX, P.O. BOX 0396, MASERU as the address of service of all process in these proceedings.


DATED AT MASERU THIS 15TH DAY OF AUGUST, 2000.


V. V. M. KOTELO & CO.

1ST RESPONDENT'S ATTORNEYS

ROOM 20 & 21

TRADORETTE COMPLEX

P.O. BOX 0396

MASERU 105


TO: THE REGISTRAR

HIGH COURT

MASERU


AND TO: MESSRS, O. K. MOFOLO & CO.

APPLICANT'S ATTORNEYS

MASERU BOOK CENTRE

MASERU


23


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU

CIV/APN/305/2000


SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAM0NNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


COURT ORDER


BEFORE; His Honourable Justice Mr Justice Kheola on the 15th August

2000.


AND HAVING-; Read papers filed of record

HAVING; Heard Ms Tau for Applicants and Mrs V. M. Kotelo for 1st Respondent


IT WAS ORDERED THAT;


  1. The rules be dispensed with on periods and modes of services.


  1. That a rule nisi is hereby issued calling upon the Respondents to show cause (if any) on the 22th August 2000 why the following order shall not be made absolute.


    1. The 1st Respondent is hereby ordered to allow the deceased Thaki Elias Selebeleng and Ramalebo Johannes Selebeleng to be buried from their home at Borokoaneng in the city of Maseru and that all arrangements and funeral ceremony should be conducted from their said home.


    1. The 1st Respondent is hereby interdicted from disrupting and or threatening the applicants in arranging and conducting the funeral from Borokhoaneng.


    1. Setting aside and declaring as void the will of the late Alice 'Mamosili Selebeleng in so far as it bequeaths all property of her joint estate with late Molefi Selebeleng.


      1. Ordering that prayer 2(a) and (b) should operate with immediate effect as the interim relief.


      1. Ordering the 1st Respondent to pay the costs of this application.


      1. Granting the applicants such further and or alternative relief as the court may deem fit.


BY ORDER OF COURT

REGISTRAR


25


IN THE HIGH COURT OF LESOTHO


In the matter between:


HELD AT MASERU

CIV/APN/305/00


SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2ND APPLICANT

MOLEFI LUCAS SELEBELENG 3RD APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT


OPPOSING AFFIDAVIT


I, the undersigned


MOSILI 'MAMONNAMOHOLO HLALELE


do hereby make an oath and say that:


1

1.1 I am the First Respondent herein.


1.2 I have read and understood Applicants' Affidavits and wish to reply thereto as

follows.


2.

The facts deposed "herein are unless the contrary is stated known to me and are to the best of my knowledge and belief true and correct.


3.

SOPHIE LELAKA SELEBELENG'S AFFIDAVIT


Ad Paragraph 2 thereof


Although the contents are within First Applicants' peculiar knowledge, I respectfully observe that Applicant does admit that she and the deceased THAKI have a home at Hammanskraal Pretoria. I aver that it is only fair and reasonable that Applicant conduct funeral services at her husband's house at Hammanskraal.


26


4

Ad Paragraph 3 thereof


Save to say that the Second Applicant has not taken the Honourable Court in his confidence but informing the Court where he stays I note the contents thereof. I aver that Second Applicant is a resident of QWAQWA


5.

Ad Paragraphs 4 and 5 thereof


Save to say that I am a widow and therefore not assisted, the rest of the contents are not denied


6.

Ad Paragraph 6 thereof


Applicant is not being honest with the Court - the deceased THAKI has his home in South Africa.


To allege only that the deceased is working in South Africa is to suggest by implication that the deceased is domiciled somewhere else: The truth of the matter is that both Applicant and her deceased husband have South Africa as their country of domicile.


The deceased has never ever, stayed in Lesotho. The deceased THAKI holds a South African passport.

I observe that the Applications before court are made 18 days after the death of THAKI and A days after the death of RAMALEBO. Clearly there is no urgency in this matter


7

Ad Paragraph 7.8. 9 and 10 thereof


Applicants have not met any difficulties from me - the fact of the matter is that Applicants are bringing a succession to property case by the back door.


I humbly beg the Honourable Court to put itself in my place having looked at the following facts.


  1. It is true that my mother ALICE was married to Applicants, father by civil rites and in community of property


27


  1. However what the Applicants have purposely omitted to tell the Honourable Court are the following facts,


    1. When my mother and deceased's father MOLEFI married, my mother and MOLEFI stayed at their house (which they owned ) at NO 480 Sharpeville South Africa This was also the home of THAKI and RAMALEBO and it still is This is where both the deceased grew up Both the deceased have never ever stayed at my home at BOROKHOANENG


(ii) The home at Sharpeville is six roomed and is made up of


- a kitchen


- two bedrooms


- a sitting room


- dinning room


- garage


(iii) On the other hand the property at Borokhoaneng was during the days of my mother and her Applicants, father made up 3 small rooms


(iv) Applicants' father and my mother also owned between them a black valiant and a blue Pugeout which remained in SHARPEVILLE.


(v) When the deceaseds' father died he predeceased my mother my mother was therefore entitled to her half share of the estate plus a child's share which equalled 1/3. By a simple arithmetic my mother inherited 5/6 of the whole estate including that in LESOTHO and in SHARPEVILLE on the death of MOLEFI


(vi) Interestingly Applicants' do not disclose to the Court when MOLEFI died

However it is clear from paragraph 3 of ZAKIA KOMPONAKAE's affidavit that by 1983 MOLEFI had died


(vii) Clearly Applicants' did not disclose all the facts to their lawyer. Had they disclosed that the deceased had a home in Sharpeville and also other property, Applicants lawyer would have advised them differently


(viii) In making reference to CIV/APN/285/83 ZAKIA KOMPONAKAE at paragraph 3 of his Affidavit has simply glossed over the real issues


The facts are that while married to my mother, Applicants father took up with MOSONNGOA MATSOSO and stayed with her as his wife. They stayed together at MOLEFI's and my mother's house at SHARPEVILLE. I have at my disposal, although I have presently misplaced the passport which shows


28


stamps by South African border control. It was and it still is a requirement that when one travels to a particular address in South Africa, the house number is stamped on the passport. I believe that at the time of going to Court I shall have found the passport which shows the House number of Applicants home.


MOSONNGOA MATSOSO shuttled between LESOTHO and 480 SHARPEVILLE during MOLEFI's lifetime.


(x) Second Applicant should in the interest of justice make available to this Honourable Court MOLEFI's will which purported to leave property to MOSONNGOA MATSOSO. He should also make available to the Honourable Court the proceedings in C IV/APN/285/83. There might be other information in the said will and also in all the proceedings in CIV/APN/285/83 which would help the Honourable Court to arrive at a fair decision.


Applicants should therefore also annex to their Replying Affidavit not only the will they rely on and also proceedings and the judgement in CIV/APN/285/83. As it is 2nd Applicant has selectively gleaned from the CIV/APN/285/83 and the purported will of Molefi only facts which he believes support his case.


In view of the above, it is my very strong contention that when MOLEFI died and both the deceased inherited all the property at 480 Sharpeville, they encroached on my mother ALICE'S greater share of the estate, and I as my mother's heir am entitled to my mother's share which the deceased had encroached upon:


(xi) I should inform the Honourable Court of another factor vital father. After MOLEFI's death which was in 1983 or before, and for the 10 years that my mother survived MOLEFI and my mother lived in peaceful and undisturbed ownership of her home at BOROKHOANENG.

(xii) Throughout the lifetime of my mother the deceased THAKI and RAMALEBO the only sons of MOLEFI, never ever came to my mother and claimed their so called share to her property . In fact, during my mother's illness I nursed her and buried her alone unassisted by anybody.


It is totally untrue that the reason why the deceased did not claim their so called share from my mother was they did not want the estate to be liquidated.


Applicants would never have approached my mother during her lifetime with the story of shares to her estate because she would have referred them to the home at 480 Sharpeville, motor cars and other property which they inherited. In fact I aver that the story about liquidation smacks of belated legal jargon concocted to explain why for 10 years during my mother's lifetime, they never challenged her right of ownership to the property. The deceased had an


29


excuse to do so after my mother had won her case against MOSONNGOA MATSOSO in CIV/APN/285/83


The Court has to look at this whole case in a serious light both the two sons and only children of MOLEFI never ever challenged my mother's right to her property at BOROKHOANENG during her lifetime.


Secondly in 1997 after my mother's death I having expelled the deceased from my house and told them it was mine and that I had inherited it from my mother, THAKI and his brother RAMALEBO who would have had the locus standi to sue me did nothing because they accepted my right to my mother's property. It is after the death of the people who have the locus standi that I am brought to Court.


Interestingly, the Affidavit before Court is deposed to by a woman married by custom instead of a twenty year old son of the deceased namely MOLEFI LUCAS SELEBELENG


My mother in terms of the 1990 Land Act Amendment which enabled widows to inherit direct from their husband became the full and undisputed owner of the property at BOROKHOANENG and in 1992 she willed it to me


8.

Ad Paragraph 8 thereof


I categorically deny that the deceased THAKI had the wish to be buried in LESOTHO.


One has to read between the lines to see that this is untrue. Lesotho has never been the home of deceased THAKI and both the deceased have never ever stayed at BOROKHOANENG. They stayed and grew up in S SHARPEVILLE

It is clear to anybody and everybody that First Applicants want to encroach upon BOROKHOANENG. This case has nothing to do with burial of the deceased. It is a succession to property.


How can a man express a wish to be buried in a country he has never lived in an from a home he has never stayed at. During his lifetime RAMALEBO had never stayed at my home


9.

Ad Paragraph 9 thereof


I deny that I have not complied with any requirements regarding my will.


Since the averments therein are a question of fact Applicant does not know what I have done or not done.


30


Applicant is not the Master of the High Court and it is the Master of the High Court who should file art Affidavit and or suggest that I have not complied with certain requirements, not SOPHIE SELEBELENG whom I am sure has never ever seen the face of or talked to the Master of the High Court.


My response is that I have fulfilled all legal requirement and I am entitled to ownership of my property.


10.

Ad Paragraph 10.11. 12 and 13 thereof


I deny the contents therein. The lawyer advised without full facts.


The deceased have no share whatsoever to ALICE 'MAMOSILI's property. I reiterate the denial that the deceased took no action after MOLEFI's death because they had no feelings for my mother ALICE 'MAMOSILI.


It is true that after the death of my mother in 1997 Applicants including the late THAKI came and tried to suggest to me that they had a share in the estate.


Indeed, at least 15 years after the death of their father and upon the death of my mother the deceased approached me and I expelled them. The deceased THAKI was then alive and indeed the deceased THAKI was the eldest son of MOLEFI.


I told the Applicants including THAKI that I had inherited my mothers's property by will. Most important, THAKI, the heir understood they all went away and never came back. If the deceased had wanted to challenge my ownership why did they not do so in 1997- Why did they not claim their share during ALICE'S lifetime. Why did they not go to Court in 1997 after I turned them away. Would THAKI and RAMALEBO decide not to take me to Court in 1997 only for THAKI to declare 3 years later that they wanted to be buried at his home at BOROKHOANENG. This can not be true.


I aver that THAKI was not a greedy man. The reason that First Applicant is taking me to Court now is because he sees the tremendous developments that my mother made to the property at BOROKHOANENG after it passed to her. I have made additions to my mother's developments. The developments are enough to make a greedy man lose sleep such that First Applicant wants to throw away her husband in LESOTHO away from his friends, with the Hope of laying hands on my property.


This Application also, I am advised hinges on the issue of legitimate expectation. I do not after I have lived alone with my mother at BOROKHOANENG for more than 10 years except to be told at this late hour that strangers want to encroach into same.


Further, I do not expect, after Applicants knew I laid exclusive claim to the property from 1997 to have done nothing for 3 years and attempt to disturb my occupation today.


Further still all the furniture in that house is mine. I clean the furniture with my soap and polish I pay for electricity bill. I pay for the water bill who will replace broken furniture as


31


happens with funerals, who will buy my broken dishes, who will pay for my water bill, who will pay for my electricity after this strangers have run my house down.


Should absolute strangers come into my house and touch my things to which I attach not only monetary value but great sentimental value. What the Applicants are asking is permission to commit the wrong of interfering with my right to privacy, and the right of feelings. All of which will be argued on the date of hearing of this matter.


14.

I deny that this matter is urgent.


  1. First Applicant has the choice not to throw her husband away but to bury him from their home at Hamanskraal in Pretoria.


  1. Both the deceased can be buried from their home in Sharpeville.


Even here in Lesotho Applicants can bury the deceased anywhere they like, the law says so. But they should not ask to be permited to encroach on my rights in my home.

I shall suffer great prejudice if Applicants bury their deceased from my home, this will cause me great emotional strain, financial loss and invasion of privacy I shall suffer irreperable damage.


15.

ZAKIA KOMPONAKAE'S AFFIDAVIT

Ad paragraph 2 thereof


I aver that this being a succession matter, and ZAKIA being of the extended family has no locus stand in the matter.

Even assuming the case were a bona fide burial matter Third Respondent is the person who has locus stand as he is the heir of both the deceased.


2.3 It is untrue that the chief advised that we should bury the deceased and dispute afterwards. The chief was totally against the Applicants spreading trouble and said they would not bury their deceased from my home.


16.

Ad Paragraph 3 thereof


Applicants knew of my will in 1997 after my mother's death. My uncle PASEKA TSEEKE whose Affidavit is annexed hereto confirms this.


32


17.

Ad Paragraph 4 thereof


It is noteworthy that the direct descendants of MOLEFI have during their lifetime both not taken me to Court to claim purpoted rights to my house. Both the sons of MOLEFI are deceased.


I bet that poor 3rd Applicant, the son of deceased THAKI has not participated in this matter.


He has made no claims to my property. He has merely signed and confirmed averments of 1st Applicant are entitled to THAKTs inheritance.


First Applicant being married by custom to the deceased can not be deceased heir, so I am informed and verily believe.


18.

Ad Paragraphs 5 and 6 thereof


It is true that I said my mother's property was mine. Even assuming I did not mentioned the will, which I did, as soon as I turned Applicants including the deceased THAKI away in 1997, they ought to have run to Court if they so wished WILL or no WILL. A will has nothing to do with it.


It is absolutely incorrect that had THAKI known there was a will he would have challenged it. If THAKI did not know that there was a will how does ZAKIA known he would he challenged it. It is not true that THAKI would have challenged the will.


33


19.

Ad Paragraph 7 thereof


Contents are denied. The Honourable Court is referred to preceding paragraphs


20.

MOLEFI LUCAS SELEBELENG'S AFFIDAVIT


I aver that the heir to both the deceased MOLEFI has not deposed to any facts


As the heir, MOLEFI is the clamant and he should make his own averments to support his Application. Since this Application averments is not supported by Third Applicant averments it ought to be dismissed with costs.


On the date of hearing the following prelimerary points shall be disclosed


  1. There is no urgency in this matter.


  1. Applicants are guilty of non disclosure of material facts.


  1. There is a serious dispute of fact which can not be settled on the papers which Applicants ought to have forseen.


  1. First Applicant SOPHIE LELAKA has no locus standi to bring this Application.


  1. Second Applicant ZAKIA.has no locus standi to bring this Application.


  1. The Application is irregular because it is not supported by avermwnts of the rights Applicant namely First Applciant.


21.

I am making this Application in support of the prayer that the Application be dismissed with costs.


34


I am making this Affidavit in support of the prayers in the Notice of Motion.


DEPONENT


THUS SIGNED AND SWORN TO BEFORE ME AT MASERU THIS 21st DAY OF

August ,2000 THE DEPONENT HAVING ACKNOWLEDGED THAT SHE

KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT.


COMMISSIONER OF OATHS

CAPACITY:

AREA:


35


IN THE HIGH COURT OF LESOTHO


In the matter between:


HELD AT MASERU

CIV/APN/305/00


SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2NDAPPLICANT

MOLEFI LUCAS SELEBELENG 3RD APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT


SUPPORTING AFFIDAVIT


I, the undersigned


PASEKA TSEEKE


do hereby make an aoth and say that:


1.

I am the brother of ALICE 'MAMOSILI SELEBELENG and the uncle (maloma) of the First. Respondent.


2.

The facts deposed herein are unless the contrary is stated known to me and are to the best of my knowledge and belief true and correct.


3.

I confirm that after the death of my sister ALICE the deceased THAKI and others came to my sister's house now inherited by MOSILI and claimed that THAKI was the heir of MOLEFI. I was seing the deceased THAKI and the other members of SELEBELENG for the first time though I regularly visited my sister at BOROKHOANENG. Indeed First Respondent told the SELEBELENG family that the home at BOROKHOANENG was hers and had inherited by will. They were all satisfied and went away they were never again. I note that this Application is filed by other people other than the sons of MOLEFI who never challenged First Respondent's rights during their lifetime.


36


I am making this affidavit in support of the prayers in the Notice of Motion.


DEPONENT


THUS SIGNED AND SWORN TO BEFORE ME AT MASERU THIS 21st DAY OF

August, 2000 THE DEPONENT HAVING ACKNOWLEDGED THAT HE

KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT.


COMMISSIONER OF OATHS

CAPACITY:

AREA:


37


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU



SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELEiNG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


AFFIDAVIT


1, the undersigned;


'MAMPOI TAOANA


do hereby make oath and say


-1-

I am the Master of the above Honorable Court, a Government Official responsible for Administration, of Estates in Lesotho. Our offices are at 4th Floor Postal Services Building. The facts deposed to herein are within my personal knowledge and are within the records that I keep as the Master of the High Court.


-2-

I have read and understood the Founding Affidavit of Sophie Lelaka Selebeleng and supporting Affidavit of Zakia Komponakae Selebeleng and Molefi Lucas Selebeleng and I wish to answer thereto as follows:-


I wish to state that according to the Law, anyone who knows about the death of deceased or the next of kin of the Testator has to report the Estate within 14 days of the death of the testator. Death Notice, Death Certificate, an Inventory and the Will (if any) should then be filed in my office.


38


-3-

My duty would then be to issue Letters of Administration confirming the executor per the Will, to enable him/her to administer the Will per Law. A report is later expected of the executor regarding the Administration of the Estate. This report would include the Distribution Account.


-4-

I aver that regarding the Estate of Alice Mamosili Selebeleng none of the procedure were complied with. My office was never informed of the death, nor was the Will brought to us on the death of the testator. Letters of Executorship were therefore never issued from my office. The file at my office contains only the Will that was brought for registration in 1992.


-5-

I am making this affidavit as the 2nd Respondent to enable the Court to reach a just decision.


Thus signed and sworn to BEfore me at maseru this23RD day of.....august, 2000 by deponDent having acknowledged that he knows and understand the contents of this affidavit.


39


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU

GIV/APN/305/2000


SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2ND APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI' MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


NOTICE TO RAISE POINTS OF LAW


KINDLY TAKE NOTICE THAT the 1st 2nd and 3rd Applicants intend to raise the

following points of Law at the hearing of this matter.


(i) That according to the law each and every page of the Will should be signed by the Testator of Testatrix and two witnesses and the present will has not been signed but initialed on the 1st page, but only signed on the 2nd page.


(ii) According to the law Wills should not in any way be obliterated either by cancelling with ink or any other mode. The original Will of the Testatrix has been obliterated with tip-ex.


DATED AT MASERU THIS 22nd DAY OF AUGUST, 2000.


40


O. K. MOFOLO & COMPANY

APPLICANT'S ATTORNEYS

MASERU BOOK CENTRE

P.O. BOX 650

MASERU 100


TO; THE REGISTRAR

HIGH COURT

MASERU


AND TO; MESSRS V. M. KOTELO & CO.

RESPONDENT'S ATTORNEYS

ROOMS 21 & 22

TRADORETTEE COMPLEX

MASERU


41


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU

CIV/APN/305/200


SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


REPLYING AFFIDAVIT


I, the undersigned


Sophie Lelaka Selebeleng do hereby make oath and say;


1.

I am the 1st Applicant herein. I have read and understood the opposing affidavit of Mosili 'Mamonnamoholo Hlalele and I wish to reply thereto as follows.


2.

Ad Paragraph 1 and 2 thereof


Save to admit the identity of the 1st Respondent. I wish to indicate that not all facts she


42


-1-

has deposed to are true and are to her personal knowledge.


3.

Ad Paragraph 3 thereof


I deny that I have stated that I have a home at Hammanskraal with Thaki. I have only indicated that I reside at Hammanskraal. We never acquired any residential property of our own with Thaki. We rent a house at Hammanskraal. I deny that it is fair and reasonable to conduct a funeral service at Hammanskraal in a rented house. Even supposing we could, which is not what is usually done, 1st Respondent loses sight of the fact that there are two deceased people, Thaki's brother who was residing in Lesotho when he met his untimely death was staying with friends here in Lesotho. I suppose she is not suggesting that we should bury Ramalebo from his friend's homes.


4.

Ad Paragraph 5 thereof


5.1 I reiterate the contents of paragraph 4 of my founding affidavit. Save to say that I cannot deny when 1st Respondent says she is a widow. However I am surprised that she denies that she is a Mosotho female adult of Borokhoaneng when she is presently residing at Borokhoaneng and she claims that the property at Borokhoaneng is hers by virtue of a Will. Here one sees that 1st Respondent tries to create a dispute of fact even where there is none, so that she may mislead the court into believing that the application has disputes of facts.


5.2 I also do not see what she disputes with regard to the identity of the Master of the High Court.


5.

Ad Paragraph 6 thereof 6.1 Contents herein are denied. I reiterate the contents of paragraph 6 of my


-2-


43


founding affidavit. Indeed Thaki was just working in South Africa and he was domiciled in Lesotho. This should not be surprising to 1st Respondent, because her mother used to work in South Africa with my late father-in-law and they never renounced Lesotho citizenship. Similarly Thaki never renounced Lesotho citizenship, this a positive act that Thaki ought to have done as required by the Citizenship Act. It cannot be assumed.


6.2 As for me I am a South African by birth I met and married Thaki whilst he was in South Africa. But I am advised that according to law, a wife follows the domicile of the husband.


6.3 I admit that this application is brought 18 days after the death of Thaki and 24 after the death of Ramalebo. This fact I never hid from the court even though I was counting in weeks and I wish to state that this is because 2nd Applicant and other members of the family believed that this matter could be resolved amicably and took the matter to the chiefs court. I fully endorse their approach as I would not have wanted that we get into the expense of litigation without trying to resolve the matter out of court.


I aver that the matter is urgent as the deceased remain unburied even today. I aver that the owners of the mortuary where Thaki is are even complaining now, as I received their message last Friday the 18th August, 2000.


7.

Ad Paragraph 7 thereof


I reiterate the contents of paragraph 7,8,9 and 10 of my founding affidavit. I reiterate



-3-


44


that we are mainly interested in holding a decent funeral for the deceased which the 1st Respondent is selfishly impeding. We are not bringing a succession case through the back door. Challenging a Will does not have to come through the back door as it is a remedy that we are also entitled to. I aver that if the 1st Respondent had not made it impossible for us to bury the deceased, we would have buried the deceased and brought our succession case afterward and challenged the Will even by way of summons. We have only now been forced to bring them together in this way, because of the attitude of the 1st Respondent,


  1. Contents herein are admitted,


  1. I deny that I have hid facts from the court as 1st Respondent is misrepresenting the facts.


  1. Save to admit that the late Molefi and the late Alice used to stay in South Africa at their house which they owned as stated, my husband informed me and I verily believed him that since my father-in-law and 1st Respondent's mother built the home at Borokhoaneng, they as children grew up in Borokhoaneng living with their grandmother they attended schools in Lesotho, my husband even went to Life High School, and Ramalebo attended Maseru Central Primary School. However that not withstanding, my father-in-law during the lifetime of 1st Respondents mother, sold the house at Sharpville. When I got married in 1980 my father in-law had already settled to Lesotho,


  1. As for how the property was developed I have no personal knowledge and Ileave that for 2nd Applicant to deal with it.


(iii) I do not dispute that my late father-in-law, Molefi and the late Alice might have owned a black valiant and a blue pegeout, however I do not know what the 1st Respondent means when she says they remained in Sharpville. One would


-4-


45


assume that if they remained in Sharpville then they remained with her mother as she is the one who stayed behind in Sharpville, when my father-in-law came to stay in Lesotho. These are even the facts her mother presented in CIV/APN/285/83.


(iv) It is admitted that the late Molefi predeceased the late Alice, however arithmetic says the late Alice inherited 4/6 of the whole estate. However the estate was never declared and my husband did not insist on his share then therefore the late Alice remained with everything including what was in Sharpville. At the time of my late father-in-laws death the late Alice was actually still living at Sharpville. She only came to live in Lesotho after his death, after she successfully disputed the property with one Mosongoa in CIV/APN/285/83.


(v) My father-in-law died on the 16th December 1982 and I do not see how this was relevant to burial of my husband and his brother. The 1st Respondent is dismally trying to create a case of non-disclosure even though she is trying. There is no home in Sharpville. She is alluding facts which she does not know.


(vi) What Zakia Komponakae has stated about CIV/APN/285/83 will be answered by him in his affidavit. However I deny that my father-in-law and Mosongoa stayed at Sharpville, they stayed here in Lesotho, hence the late Molefi even tried to make a Will giving Mosongoa that property at Borokhoaneng. 1st Respondent's mother was in Sharpville at that time. The 1st Respondent here is trying to mislead the court into believing that her mother has always been staying in Lesotho, while in actual fact she has been staying in Sharpville and the late Molefi left her behind in Sharpville when he came to Lesotho. As for what


-5-


45


people say at the boarder post when they cross that is not within my knowledge to say. In any case even if they had so informed the border post people that way, the late Alice herself in CIV/APN/285/83, informed the court which is not disputed that Molefi left Sharpville in 1978 and came to Lesotho.


Whatever Molefi, Alice and Mosongoa did, the fact remains that Molefi died intestate as his purported will was successfully challenged by 1st Respondent's mother and his children are therefore entitled to a child's share of his estate as she was married to Alice in community-of-property.


(vii) 1 do not see how 1st Respondent is alleging that she is putting the court into her confidence by informing it what I had already informed the court in paragraph 11 of my founding affidavit. There I informed the court that Thaki and myself did not insist on the child's share during the lifetime of the late Alice as the estate would have had to be sold and Alice would have been without a home. I aver that this is not legal jargon, as I have been advised that this is a point of law. 1st Respondent chose to bury her mother alone, because she never informed anybody about her mother's illness. Even on her mother's death for which she made arrangements herself, when 2nd Applicant and other members of the Selebeleng family approached her and asked her what costs she incurred she refused to inform them. I guess she believed you acquire the right of inheritance by looking after and burying the deceased. The right of inheritance is a birth right, and therefore a legal right.


(viii) What the 1st Respondent fails to appreciate is that my husband and his brother


-6-


47


were grateful to their mother as she had raised them up as she was married when they were still young, therefore they would not have fought with her. However as I have stated in my founding affidavit they were not expecting her to forget that the property did not belong to her alone;


After the 1st Respondent's mother's death, 2nd Applicant and other Selebeleng family members approached 1st Respondent about expenses incurred for her burial and my husband's right to inherit. Regarding the details of that meeting I leave that to the 2nd Applicant as he has personal knowledge of the matter.


ix) As for the fact that the affidavit is made by me a woman married by custom. T believe that 1st Respondent has not read my affidavit very well. In paragraph 3 thereof I have indicated that I am duly assisting 3rd Applicant who is my minor son. Not that I did not have a right of my own, because according to customary law, a widow is entitled to maintenance from the estate of her late husband. My son is a minor and he himself has made an affidavit even though it would still have been proper even if I had made proceedings on his behalf without assisting him. The age of 20 years does not make one a major in this country, unless it is 1st Respondents endeavor again to create a dispute where none exists.


(xi) It is denied that the late Alice inherited the whole property in terms of the Land Act of 1990. In actual fact in 1990 there was no Land amendment Act to the effect that the widow inherit directly from a husband. The provision that the 1st Respondent is talking about is the Land (Amendment) order No 6 of 1992, Section 5 thereof, after whose promulgation, the 1st Respondent's mother proceeded to make a Will in her favour believing that the property was then fully hers. However that law does not apply retrospectively. As my father-in-law



-7-



48


died in 1982, the 1st Respondents mother did not acquire rights under the law, as it did not exit them.


Even assuming that it did apply retrospectively which is denied, the relevant section does not give the widow absolute rights. My attorney will argue this point further at the hearing of this matter.


8.

Ad Paragraph 8 thereof


The 1st Respondent here is burdening these proceedings unnecessarily, as in paragraph 7 she said she was responding to paragraph 7,8,9, and 10 of my founding affidavit and she is now addressing these paragraph individually again creating a lot of repetition. I have instructed my attorney to ask the court to penalise her with costs.


I have already responded to the allegations made herein above. I only wish to emphasise to the court that my husband lived in Lesotho at his home in Borokhoaneng. 1st Respondent is the one who did not grow up there as she was not adopted by my father-in-law. She only came to live in Borokhoaneng with her mother after my father-in-law's death, in the nineties.


9.

Ad Paragraph 9thereof


I admit that these are questions of fact and if indeed 1st Respondent had complied with the requirements she would at least be informing the court about the estate number and showing the court her letters of administration. She is just blantly saying she complied knowing very well that she did not, just to mislead the court. 1st Respondent is


-8-


49


assuming too much to suggest that I would make this application without making investigations or even authorising investigations to be made on my behalf.


By boldly alleging that she has discharged her legal requirements without supporting documents does not help her at all This just shows that she has not complied because she has the burden of proving that she has complied with the law, and she has failed to discharge it.


10.

Ad Paragraph 10 thereof


I reiterate the contents of paragraph 10,11,12 and 13 of my founding affidavit and what I have already stated earlier in this affidavit. I deny that in 1997 1st Respondent talked about a Will as is clearly stated in 2nd Applicant's affidavit who has further explained that they never returned because Thaki was ill. This is a question of fact. Thaki did not say he wanted to be buried in Lesotho in the year 2000. He stated this whilst he became critically ill since March 1999.


I admit that Thaki was not a greedy man hence he did not insist on disputing with his step-mother. However, 1st Respondent is the one who is showing greed by failing to honour his step- brother on their death merely on the allegation that it is her inheritance and for which she has not even properly inherited. She inherited her husbands property and now she wants to inherit the Selebeleng property although she is not a Selebeleng. She should have seen that her mother's will was malicious in excluding Selebeleng's children from their rightful inheritance. Indeed whilst we do not dispute that her mother was entitled to give her share, but she should not be greedy enough to take the share of other children even to refuse to let his step brother from being buried from their


-9-


50


As for the developments, I am not aware of any tremendous development except for the portion that is subleased to the Chinese, which was developed by the Chinese.


I deny that this is a matter of legitimate expectations, especially when 1st Respondent hid her expectations from the Selebeleng family, and was however aware that they were disputing the property. This is an action where no prescription is put. Actually I am advised that its prescription is 33 years and three years is just but a fraction of it.


We are surprised that the furniture of Molefi and Alice is no longer there and no account is made for it. However we were not going to spoil anything belonging to the 1st Respondent and we are not going to put any financial burden on her. We are going to bear all the expenses for the funeral. As for her privacy, this is our home also. We will not break her dishes we will use our plastic dishes as is normally done at funerals.


11.

Ad Paragraph 14 thereof


I reiterate the contents" of paragraph 14 of my founding affidavit and my earlier averments herein and aver that the matter is urgent. People are not buried from anywhere they are buried from their homes and that the only thing that we are asking from 1st Respondent. 1st Respondent shall not incur any financial loss. We thought that she was our step sister, and we are surprised that she is now calling us strangers. The 1st Respondent will not suffer any prejudice at all, after all a funeral is an inconvenience of a weekend only or two days.


12.

I pray that the court should grant the prayers in the notice of motion.

-10-


51


DEPONENT


THUS SIGNED AND SWORN

TO BEFORE ME AT MASERU THIS

DAY OF AUGUST, 2000 BY THE

DEPONENT HAVING ACKNOWLEDGED

THAT SHE KNOWS AND UNDERSTANDS

THE CONTENTS OF THIS AFFIDAVIT


COMMISSIONER OF OATHS


CAPACITY/AREA


-11-


52


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU

CIV/APN/305/2000



SOPHIA LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


SUPPORTING AFFIDAVIT


I the undersigned


Zakia Komponakae Selebeleng


do hereby make and oath and say;


1.

I am the 2nd Applicant herein I have read and understood the opposing affidavit of 1st Respondent and I wish to Reply thereto as follows. The facts deposed to herein are within my personal knowledge true and correct.


2.

Ad Paragraph 15 thereof


I aver that I am head of the family of Molefi and therefore as I have indicated in my founding affidavit I am responsible to see to it that the deceased are buried. 1st

53


Respondent is failing to appreciate that 3rd Applicant is still a minor and therefore has no responsibilities that she would like to put on him, yet. His time is still coming, and

it is fast approaching.


I reiterate that the chief did say, the deceased should be buried and disputes shall come afterwards.


3.

Ad Paragraph 16 thereof


I deny that I knew of the will in 1997. I only knew of the Will before chief at Qoaling after the death of Thaki and Ramalebo, on the 7th August 2000.


4.

Ad Paragraph 17 thereof


I reiterate the contents of paragraph 4 of my founding affidavit. The 1st Applicant has farther explained why Thaki never took 1st Respondent to court. Even if they did not, that does not mean that they did not have rights and they should not be enforced, nor that 1st and 3rd Applicant do not have rights.


To think that 3rd Applicant can make an affidavit without participating in the matter is wishful thinking. Indeed the 1st Respondent has misunderstood the nature of these proceedings. 3rd Applicant is a minor and he is suing assisted and therefore the person who is assisting him is the one who makes the substantive affidavit. If 1st Respondent read 1st Applicant's affidavit well, she would have realised that at paragraph 12 she indicates that 3rd applicant is also an heir to his father's estate.


Whilst it is correct that according to custom the heir is the first male son, but the same law gives a widow rights of maintenance and this she can claim from her husbands


54


estate.

5.

Ad Paragraph 18 thereof


I reiterate that the respondent never mentioned any Will and indeed if we had known about the Will Thaki would have gone to court. But since he did not know about it we went to the chiefs and as far as the chief of Thaba Bosiu, and Thaki fell ill whilst we were in that process.


(I know that Thaki knew that as the 1st male son of Molefi he was going to inherit from him hence his efforts to go to chiefs, to intervene.


6.

Ad Paragraph 19 thereof

6.1 I reiterate the contents of paragraph 7 of my supporting affidavit. I also wish to answer issues that were raised in 1st Applicant's affidavit that concerned me. I aver that I am not glossing over proceedings in CIV/APN/285/83 I was quoting them in so far as they were relevant to this case and the effect of that judgment was that Molefi died intestate. I can only provide the court with copy of the judgment at the hearing, although this is not really necessary, I have given the citation and it was the judgment of this court and therefore available to them. As for actual proceedings the 1st Respondent is the one who is in a better, position to provide them. As far as I know court records burned in 1998. However the 1st Respondent's mother's attorney was Judge Maqutu whilst he was still an attorney and Advocate Pitso was working with him. I am advised that the 1st Respondent present attorneys have what used to be then the attorney


55


Maqutu's clients' files. I was not a party to the proceedings.


6.2 I also wish to state that Thaki and Ramalebo grew up in Lesotho after the residence was built by the late Molefi and Alice. Initially they stayed with the 1st Respondent's mothers relative and later stayed with their grandmother, on their fathers site. They attended schools here in Lesotho staying at their home Borokhoaneng


6.3 I wish to state that the late Molefi had already developed the property substantially what 1st Respondent's mother did was to sub-lease part to the Chinese who developed that part. For those Chinese development to be made, some flats built by the late Molefi were demolished.


6.4 I also know that my late uncle Molefi, sold his house at Sharpville whilst he was still married to the 1st Respondent's mother. In 1978 he came to Lesotho permanently where he met Mosongoa and stayed with her .


6.5 I aver further that when I and other members of Selebeleng family went to the 1st Respondent after her mother's death, we asked her what expenses she incurred for the funeral, but she refused to state them and said she has buried her mother. We went to her on three occasions and she maintained that she did not need our contribution, she carried the costs of burying her mother out of love. She never told us of her mothers illness and even her death we met accidentally when one of us was here in Lesotho.


6.6 We also informed her that the family had appointed Thaki as the heir and she


56


said that was her property as it was her mother's property. She never produced a Will then. Even before the headman who had specifically asked her what her mother said about the property, she never produced a Will. It was only produced now before the chief of Qoaling, on the 7th August, 2000.


7.

Paseka Tseeke's Affidavit


I have read and understood the deponents affidavit and I wish to reply thereto as follows.


Ad Paragraph 1 and 2 thereof


Save to admit the identity of the deponent, I deny that everything he has deposed to is true and correct.


8.

Ad Paragraph 3 thereof


It is not true that the sons of Molefi never challenged the 1st Respondents right, as he himself in his own words says Thaki and others went to 1st Respondent and they claimed that Thaki was the heir of Molefi. He does not know how many times we approached 1st Respondent, as it is even not true that we were with Thaki when we met 1st Respondent in his presence. It was myself and three other Selebeleng family members, including Ramalebo. Furthermore the right to inherit does not depend on visitations. It is a birth right, not unless a malicious will has been made as the present. However we have made it clear to the court that we are not disputing Alice's freedom of testation, but one can not dispose of or alienate or will property


57


that does not belong to him or her. The children's share in the estate does not belong to the deponent's sister.


9.

I am making this affidavit in support of prayers in the notice of motion.


THUS SIGNED AND SWORN

TO BEFORE ME AT MASERU

THIS DAY OF AUGUST, 2000

BY THE DEPONENT HAVING

ACKNOWLEDGED THAT HE KNOWS

AND UNDERSTANDS THE CONTENTS

OF THIS AFFIDAVIT.


COMMISSIONER OF OATHS

CAPACITY/AREA


58


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU

CIV/APN/305/2000


SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2nd RESPONDENT


SUPPORTING AFFIDAVIT


the undersigned


Molefi Lucas Selebeleng


do hereby make an oath and say;


1.

I am the 3rd Applicant herein duly assisted by my mother herein as my legal guardian. I have read and understood the opposing affidavit of the 1st Respondent and the supporting affidavit of Paseka Tseeke and I wish to reply thereto as follows:-


The facts deposed to herein are within my personal knowledge true and correct.


2.

Ad Paragraph 20 thereof


2.1 I aver that the purpose of an affidavit is to depose to facts and one must have personal knowledge of facts for one to fully depose to them and itemise


59


them. In the present case I wish to state that the point that I am the heir of Thaki is not just factual but it is a legal point. The fact that the family has decided to appoint me the heir of Ramalebo is also a legal point as the family is the one which is given power by law to appoint an heir where the deceased had no direct biological heir.


2.2 Indeed my mother in her affidavit has clearly shown that she is assisting me and she has deposed to facts relating to me. I support her fully in her affidavit, as I have no locus standi in judicio myself to appear fully for myself.


2.3 Personally I do not have the legal duty on the financial capacity to bury my father and my uncle because of my minority status. The court should be aware that I am not even an emancipated minor, as I am still at school and not self-supporting . My mother and my uncle, 2nd Applicant, are the ones who have the responsibility for the funerals. As for my rights as I have indicated before they are points of law.


2.4 I submit that the matter is urgent in that not only it is desirable to the deceased to rest expediently, it is also emotionally traumatic.


2.5 1st Respondent says there was non disclosure of facts but does not indicate which facts were not disclosed that were essential for this application, without which there was influenced to grant an interim relief.

60


2.6 I aver that there are no dispute of facts in this application which would not enable the court to arrive at a decision. 1st Respondent herself has admitted in her response to my mother's affidavit that my father and my uncle Ramalebo were each entitled to a child's share in Molefi's estate and her mother was entitled to 5/6 of the estate. However the correct arithmetical figure is that her mother was entitled to 4/6 share.


2.7 1st Applicant has locus standi and she has established it. She has the duty to bury my father and she does have an interest in his estate.


2.8 2nd Applicant has also established locus standi in his affidavit.


2.9 I reiterate that the application is not irregular. 1st Applicant as my guardian has male averments necessary.


I am making this affidavit in support of prayers in the notice of motion.


DEPONENT


THUS SIGNED AND SWORN

TO BEFORE ME AT MASERU

THIS 24th DAY OF AUGUST, 2000

BY THE DEPONDENT HAVING

ACKNOWLEDGED THAT HE

KNOWS AND UNDERSTANDS THE CONTENTS

OF THIS AFFIDAVIT.


COMMISSIONER OF OATHS


CAPACITY/AREA


61


IN THE HIGH COURT OF LESOTHO


In the matter between:


HELD AT MASERU

CIV/APN/305/00


SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2ND APPLICANT

MOLEFI LUCAS SELEBELENG 3RD APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT


NOTICE IN TERMS OF RULE 48 (1)

KINDLY TAKE NOTICE that Respondent herein requires before the Application can be heard for Applicants herein to file security for costs in the amount of M10,000=00 for the following reasons:


  1. All Applicants are perigrinus and they have no property in Lesotho.


  1. The amount of M10,000=00 is required because Counsel for both sides have raised points of law. In the event of the points of law not suceeding and merits being traversed substantial costs shall be incurred.


DATED AT MASERU THIS 23RD DAY OF AUGUST,2000.


V. V. M. KOTELO & CO.

RESPONDENT'S ATTORNEYS

ROOM 20 & 21

TRADORETTE COMPLEX

P.O. BOX 0396

MASERU 105


TO: THE REGISTRAR

HIGH COURT MASERU


AND TO: MESSRS. O. K. MOFOLO

APPLICANTS ATTORNEYS

MASERU BOOK CENTRE MASERU


62


IN THE HIGH COURT OF LESOTHO


In the matter between;


HELD AT MASERU

CIV/APN/305/2000


SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT'

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE lstRESPONDENT


Master of the high court 2nd respondent.


SECURITY BOND


[, the undersigned, MOROESI GERTRUDE TAU in my capacity as a partner O. K. MOFOLO & COMPANY do hereby bind the latter for costs of the Respondent herein to a maximum of M5000-00.


DATED AT MASERU THIS 29TH DAY OF AUGUST, 2000.


ATTORNEY FOR PLAINTIFF

MOROESI GERTRUDE TAU

O. K.MOFOLO & COMPANY

MASERU BOOK CENTRE

P.O. BOX 650 MASERU 100


TO; THE REGISTRAR

HIGH COURT MASERU


63


AND TO, MESSRS V.V. KOTELO & CO.

ROOMS 21 & 22

TRADORETTEE COMPLEX

KINGSWAY

MASERU


64


IN THE HIGH COURT OF LESOTHO


In the matter between


HELD AT MASERU

CIV/APN/305/00



SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2ND APPLICANT

MOLEFI LUCAS SELEBELENG 3RD APPLICANT

AND

MOSILI 'MAMONNAMOHOLO SELEBELENG 1ST RESPONDENT

THE MASTER OF THE HIGH COURT 2ND RESPONDENT


NOTICE OF APPLICATION TO FILE FURTHER AFFIDAVITS HCR 8 (12)


KINDLY TAKE NOTICE THAT Application will be made to the above Honourable Court, only in the event of Preliminary Points not succeding, to file further Affidavit, the reason being that Applicants bring in their Replying new facts which should have been alleged in their Founding Affidavits, one being the allegation that the house in Sharpeville was sold (without stating the year) which averment is highly disputed by Respondent and that the deceased attended school in Lesotho which is also denied


Alternatively


Application will be made under HCR 29 (5) for striking out of Applicants averments which attempt to make a case at the Replying stage as being vexatious and argumentative

DATED AT MASERU THIS 28TH DAY OF AUGUST 2000


V. V. M. KOTELO & CO.

RESPONDENT'S ATTORNEYS

ROOM 20 & 21

TRADORETTE COMPLEX

P.O. BOX 0396

MASERU 105


TO: THE REGISTRAR

HIGH COURT MASERU


AND TO: MESSRS. O. K. MOFOLO & CO.

MASERU BOOK CENTRE

MASERU


65


IN THE HIGH COURT OF LESOTHO


In the matter between


HELD AT MASERU

CIV/APN/305/00



SOPHIE LELAKA SELEBELENG 1ST APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2ND APPLICANT

MOLEFI LUCAS SELEBELENG 3RD APPLICANT

AND

MOSILI 'MAMONNAMOHOLO HLALELE 1ST RESPONDENT

MASTER OF THE HIGH COURT 2ND RESPONDENT


FURTHER \FFIDAVIT


I, the undersigned


MOSILI HLALELE


do hereby make an oath and say that


1

I have read and understood Applicant's Replying Affidavit and wish to reply thereto as follows


2

The facts deposed herein are unless the contrary is stated known to me and are to the best of my knowledge and belief true and correct


3

SOPHIE SELEBELENG


Ad Paragraph 3 thereof


Whether or not First Applicant and deceased own or rent the house at Hammanskral this has nothing to do with conducting funeral services at Hammanskral


I have rented a 'municipality house in South Africa at Sebokeng, Vereeniging and I know how affairs at municipality houses are conducted As long as a tenant pays electricity and water removal of rubbish the municipality never bothers a tenant


A tenant can have as many inmates as she desires at the rented premises, have feasts and


66


conduct funeral services at the house


Not only is it fair to conduct services at the municipality house but it is common practice becuase most African people can not afford to buy houses in South Africa


As regards Ramalebo he has relatives here in Maseru there is LIMO SELEBELENG and MOTETE SELEBELENG who are uncles of the deceased LIMO's home is at Mapoteng and he stays at Ha Thamae MOTETE stays at LEKHALOANENG and has a home at LEKHALONG HA QAMO at LERIBE


The Applicants have the alternative remedy of burying the deceased at the homes of the above mentioned uncles and better still at the home of Second Applicant who is the head of the Selebeleng family.


If Second Applicant is serious about wanting the deceased to be buried nothing, absolutely nothing stops him from having funeral services conducted from his house at QwaQwa and the riving to Maseru for the burial


4


Ad Paragraph 4 thereof


Averments are vexatious and argumentative I have no reason to create a dispute where none exists Applicant knows where the real dispute is.


5

Ad Paragraph 6 thereof


I wish to reply thereto as follows:


6.1 Thaki was a resident of South Africa and also employed in South Africa, South Africa is Thaki's home and country of domicile


6.2 Noted

6 3 There is no urgency is this matter. Applicant is creating urgency of her own as an excuse to dump her husband in LESOTHO


I deny that owners of the mortuary are complaining. They would have no cause for complaint because they make money out of Applicant's efforts to dump her husband's body onto other people's laps.


6

Ad Paragraph 7 thereof


7 1 I reiterate that Applicants are bringing a succession case by the backdoor and the

urgency is of their own creation


67


7.2 Challenging the will coupled with interdicts where the issue of the will is still pending is not a remedy which Applicants are entitled to.


7.3 I am not making it impossible for Applicants burying their deceased. They can obtain a grave from the chief of Borokhoaneng any time they wish. They can also bury their deceased in South Africa if they want to.


7.4 I dispute that Applicants who are strangers to my home should be allowed to bury their deceased from my house.


7.5 I deny that the deceased THAKI claimed to have attended school in Life High School and that his brother Ramalibo attended school at Maseru Central Primary School. The deceased never attended those schools and I challenge Applicant to bring records to support her case. I aver the schools in question keep records of attendances.

The deceased would not in his lifetime have made the claim before a Court of law. Applicant is taking chances because the deceased are not here to deny her lies.


7.6 As regards the story that my father in law sold the house during my mothers life time is so vague as to be amusing:


  1. MOLEFI and ALICE married in 1968 and all that period from 1968 until MOLEFI died in 1982 was ALICE'S life time. If Applicant is telling the truth why is she afraid to take the Court into her confidence and tell the Court what year the house was sold? She can not because the house was never sold.


I wish to refer this Honourable Court to the judgement of the then Honourable Acting Judge J. L. Kheola dated 4th January, 1985 made available as per the courtesy of Messrs Mofolo and Co. being CIV/APN/285/83 - MOSQNGOA MATSOSO VS ALICE SELEBELENG "Annexture CJ1"


The case helps to clarify a number of issues namely that;


  1. Apparently during his last days MOLEFI stayed with a concubine one MOSONGOA at MOLEFI and ALICE'S house at Borokhoaneng.


  1. By virtue of the fact MOSONGOA nursed MOLEFI she considered herself to have a claim to MOLEFI and ALICE'S estate (the Honourable Court will notice that MOSQNGOA makes no reference to a will)


  1. ALICE, personally supervised the building of the house at BOROKHOANENG and as soon as it was finished MOLEFI and MOSONGOA came to live in the house leaving ALICE in Vereeniging.


  1. Up to 1983 when the Application in CIV/APN/285/83 was filed, which was after MOLEFI's death ALICE was living in VEREENIGING.


68


The Vereeniging which we know for a fact to have been ALICE and MOLEFFs home which was in Sharpeville house NO 480.


As late as 1983 the house at Sharpeville Vereeniging was in the possession of ALICE. Clearly Alice left it in the hands of the deceased THAKI after the judgement of the 4th January, 1985 when she came to re-claim the house whose building she surpervised only to be seized by MOSONGOA and MOLEFI on completation.


The judgement in CIV/APN/285/83 gives the he to the allegation that MOLEFI sold the house at Sharpeville because even up to 1983 when ALICE and MOSONGOA had a dispute ALICE still stayed in Sharpeville. The black Valiant and the blue Pugeout also remained with ALICE at Sharpeville. There is no suggestion by Applicant that ALICE disposed if the property which MOLEFI left in her possession because this is not so.


.7 Paragraph (iv) of Applicant's Affidavits is an example of the common Sesotho maxim mosotho o tsoaroa ka lipuo" (meaning that as he goes round and round nuking false statements he gets cought up in his lies)


First Applicant in (iv) says — "Alice remained with everything including what was in Sharpeville. At the time of my late father in laws death ALICE was actually still living in Sharpeville"


The above-mentioned truth which corresponds with facts alleged in CIV/APN/285/83 is conclusive evidence that MOLEFI who died in 1982 never sold the house at SHARPEVILLE what more.


In view of the facts outlined above, Applicant should explain to the Court what happened to the home in Sharpeville. Why is she afraid to take the Court into her confidence.


MOSONGOA and'MOLEFI definitely stayed together at Sharpeville. The annexed passport bear testmony to the fact. Apparently each time Alice left for LESOTHO to supervise the building of the house at Borokhoaneng for some other reason MOSONGOA would move unto ALICE'S house at 480 Sharpeville and stay with MOLEFI. The Honourable Court is referred to Annexture MOS1 hereto.


Now that Applicant has admitted that when MOLEFI died there was property at 480 Sharpeville, property at Borokhoaneng and 2 motor cars, I aver that the task of the Honourable Court has been simplified.


The crisp issuers since Alice was entitled to 1/2 share plus childs share of 1/3 of the whole estate, and she Alice only willed the property in Lesotho made up of 3 rooms to me what is wrong with that when Alice came to live in LESOTHO after being given judgement in CIV/APN/285/83 and left the bulk of the estate at Sharpeville to MOLEFI's two sons.


69


My mother's burial had nothing to do with Applicants. I am my mother's child and heir . MOLEFFs sons are not my mother's heirs.


I have to put the record straight regarding my mother ALICE and the deceased children of MOLEFI.


The family of SELEBELENG including the deceased regarded MOSONGOA not ALICE as their mother. They were in fact very hostile to ALICE. MOSONGOA was the one who wore mounting cloth when MOLEFI died. The SELEBELENG family never told ALICE about MOLEFI's illness and death.


Subsequent to ALICE obtaining judgement in CIV/APN/40/86, MOLEFI's son, the same deceased JOHANNES RAMALEBO SELEBELENG forcefully despoiled my mother ALICE of her property at BOROKHOANENG which is also correctly referred to Phomolong Qoaling. The Honourable Court is respectfully referred to Annexture IRS1 hereto which speaks for itself. As the Honourable Court can see for itself ALICE was saved by this Honourable Court.


It is clearly untrue that the deceased RAMALEBO JOHANNES and THAKI ever treated ALICE as their mother nor that they were greateful to her. They were always hostile to her. The reason they did not take ALICE to court during her lifetime is that they knew they had no leg to stand on as she had left them with their father's property at Sharpeville.


7.8 I deny that Applicant has a right of her own to these proceedings.


8.

Ad Paragraph 8 thereof

deny that I only lived at Borokhoaneng in the nineties and put Applicant to the proof thereof, leiterate my denial that First Applicant's husband ever stayed at BOROKHOANENG.


9.

Ad Paragraph 9 thereof


I reiterate that Applicants have no interest in procedures regarding my mother's will.


10.

Ad Paragraph 10 thereof


I vehemently deny that the reason Applicants never returned was that THAKI was ill. In any case my argument is not about the return on non-return of Applicants, it is about both the


70


deceaseds failure to take me to Court when I refused point blank to entertain them in 1997 telling them that BOROKHOANENG was mine and mine alone.


I deny that I inherited my husbands property. My husband died almost immediately after our marriage in 1964. We had no property whatsoever. I reiterate that the property which my mother passed to me is not SELEBELENG's property but her own inheritance. I am not motivated by any greed.


I have fully explained why the concept of legitimate expectation applies to me, in my Founding papers. By her own admission MOLEFI stayed with MOSONGOA at BOROKHOANENG leaving me in Sharpeville I therefore do not know what Applicant means by MOLEFI and ALICE'S furniture.


I deny that Applicants will not be a financial burden to me. In fact it is my case that they shall come to my house with a vengeance- to destroy. In any case why should they come to my house when they have alternative places for conducting services. There is more to funeral services than using plastic dishes. "


11.

Ad Paragraph 11 thereof


Applicants are strangers to me and I am a stranger to them. I have never had contact with them except for the two visits in 1997 and 2000; and my home is not their home.


ZAKIA SELEBELENG'S AFFIDAVIT


12.

Ad Paragraph 2 thereof


reiterate that Applicant has no locus standi in these proceedings.


13.

Ad Paragraphs 4 and 5 thereof


4.1 The significance of THAKI and RAMALEBO's failure to take me to Court in 1997 when I told them the site at Borokhoaneng is mine is that;


  1. Pursuing the matter on an urgent basis in the year 2000 shows lack of bona fides


  1. The Application is being made at the instance of Applicant.


71


4.2 On the contrary I have thoroughly understood the nature of these proceedings. The

nature of these proceedings is that First Applicant and Second Applicant have no locus standi. They can not therefore make averment as Applicants.


The widow is the eldest son's child for purposes of maintenance is concerned. The fact that she can expect maintenance does not give her an iota of locus standi.


I categorically deny all the contents therein. THAKI abandoned this whole matter in 1997. Applicant knows I mentioned the will.


14.

Ad Paragraph 6 thereof


6.1 Contrary to what Applicant wants the Court to believe, Applicant indeed merely glossed over CIV/APN/285/83 extracting only what seemed to support his case.


The said judgement is now made available to the Honourable Court and clearly it helps to clarify several issues.


It also confirms that Applicants are guilty of non disclosure of the material fact that up to as late as 1983 ALICE Was still in occupation of the property at Sharpeville.


On the question of the then Maqutu being ALICE'S lawyer, Applicant knows that his lawyer Miss Tau approached Mrs Kotelo's chambers looking for the file in CIV/T/40/86 Mrs Kotelo who then did not know that she would be appointed to represent Respondent went all out to assist Miss Tau to locate the file all in vain.


6.2 The contents are denied and as aforesaid Applicants can easily produce records in this respect if there are any.


6.3 I deny that any of Molefis were dimolished and put Applicant to the proof thereof.


72


I am making this Affidavit in support of the prayers in the Notice of Motion


DEPONENT


THUS SIGNED AND SWORN TO BEFORE ME AT MASERU THIS 30th DAY OF AUGUST2000 THE DEPONENT HAVING ACKNOWLEDGED THAT SHE KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT.


COMMISSIONER OF OATHS


CAPACITY:


AREA:


73


CIV/APN/235/65

IN THE HIGH COURT OF LESOTHO


In the matter of


MOSONGOA HATSOSA Applicant

v

ALICE SELEBELENG Respondent


REASONS FOR JUDGMENT


filed by the Hon. Acting Mr. Justice J.L. KHEOLA ______or. the 4th day of January, 1985.___________


On the 22nd October, 1984 I dismissed the application for rescission of a default judgment granted by this Court on the 28th November, 1983. I intimated that my reason for judgment would follow later. These now follow.


her founding affidavit, the applicant deposed that on the 10th November, 1983, the process in CIV/APN/229/1987 was served on one 'Mapaseka Kasane who was the officer in charge at the applicant's place of work. At the relevant time she was on three weeks' leave. She denies that she over confirmed that this process had reached her as the Deputy Sheriff alleges. When the process came to her notice, and because most of the evidence she required in rebuttal of respondent's claim was in Vereeniging, she tried to proceed there herself but was refused entry at the South African Border Post. She then contacted a relative to assist her procure the evidence.


She further avers that she did not realise that she should not have waited for the documents she needed before filing her notice of intention to oppose.


She further avers that when she was put out of occupation of the site and improvements herein, she went the High Court, there to discover that judgment had been given in favour of the -respondent and that her intended notic of intention to oppose was out of time. When she and the


deceased pooled .....


74



2 -

deceased pooled their resource: to improve the said cite the respondent was in Vereeniging where she has lived up to, this day. The respondent is, therefore, a peregrinus. She further says that the respondent was fully aware of her relationship with the deceased, but she connived at it and she was in collusion, and she condoned it.


She further avers that she incurred heavy expenses, medical and otherwise, during deceased's long and last illness, even the burial expenses were her sole concern.. She claims the entire estate as hers; at the very worst alleges that she is entitled to her half-share of what might be held to have been a universal partnership. Annexure 'A' is a letter of bohali showing that the deceased paid ten head of cattle to the father of respondent on the 11th October.. 1970: Annexrure 'B' is a receipt No. 075161 for R542-22 being the price of the coffin; Annexure 'C' is a sort of a will made by the deceased awarding the site at Borokhoaneng to the respondent;


In her supplementary affidavit the applicant admits that when she got married to the deceased in 1970 her marriage to one Paul Rampona was still subsisting. This was a civil marriage solemnized at Maseru in the Parish of Our Lady of Victories on the 3th August, 1964.


A supporting affidavit has been filed by one Soloce Selebeleng who is the elder brother of the deceased. avers that the deceased married his first wife, 'Mampoye, accoraing to traditional marriage. As far as he knows to deceased never divorced his first wife before he married the respondent. He knew the applicant as the only legal wife of the deceased at the time of his death.


In her answering affidavit, the respondent aver


  1. that the applicant was properly served as more fully appears in the Deputy Sheriff's return of service;


  1. that the applicant has not disclosed a defence in as much as she does not deny that she is the wife of Paul Rampona;


  1. that in 1969 she and her late husband worked in the Republic of South Africa until he came permanently to Lesotho, in 1978


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3


leaving her still working in the Republic of South Africa. She denies that she is a peregrinus because her domicile followed that of her husband.


She further avers that she personally supervised and paid for the building of the house on the site. The first builder she employed was Thabo Mohono and the second one was the late Motlomelo. She denies that she ever condoned or colluded in the said adulterous relationship between her husband and the applicant. When she heard the rumours about applicant's association with her husband, she vent to Chief Seqobela Letlatsa. Her husband denied the rumours.In his supporting affidavit, Ernest Fusi Ramoepane deposes that he was employed as a taxi driver by the late Molefi Selebeleng from the 16th July, 1969. He used to transport building material from Vereeninging to the site at Qoaling in the truck of the respondent and her husband, and he knew that the respondent was in charge of the building operations at the site.


In order to succeed in an application for rescission of judgment, the applicant must satisfy the following requirements:-


  1. she must explain to the court's satisfaction the reasons for the default,


  1. she must persuade the court that the applica­tion is not made simple to delay plaintiff's claim;


  1. she must show a bona fide defence. (See Rabby Ramdaries v. Khadeoe Mafaesa, CIV/T/ 56/83.(unreported) and Taiwan Construction v. Lesotho National Insurance Co., CIV/APN/ 101/83 (unreported).


I am afraid that in the present case the applicant has hopelessly failed to explain to the court's satisfaction her reasons for the default. She has deliberately refrain from telling the court the exact date on which the process came to her notice. All she says is that when process came to my notice, and because most of the evidence I required in rebuttal of respondent's claim was in Vereeninging, I tried to proceed there myself but met with refusal on entry at the S.A. border post". Why is she afraid of


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4


telling the Court the exact date on which she received notice of motion from 'Mapaseka Kasana? The date or which she received the process is very important because the Deputy Sheriff's return shows that service was effected on 'Mapaseka Kasana but he went back later and the application confirmed that she had received the process. In an application of this nature, the applicant must be honest with the Court and she must reveal every information to enable the Court to decide whether the default was wilful or not.


Again the applicant has deliberately refrained from telling the Court what evidence was in Vereeninging. All" annexures to her founding affidavit are documents which ought to have been in her possessions at her home. The document (Annexure "A") which is a certificate of "bohali ought to have been at her parents' home at Mafeteng under the Principal Chief of Tebang, Ts'akholo and Selese before whom the agreement was made.


As a conclusive proof that the applicant's default was wilful, on the 14th November, 1983, this Court postponed the matter to the 28th November, 1983 and ordered Mr. Maqutu counsel for the applicant to arrange for service of set down upon the applicant. On the 21st November, 1983 one Refiloe Litsoane, a messenger in the offices of Messrs. Maqutu & Co. went to Maseru Club where the applicant works. Mapaseka Kosana duly pointed put the applicant -Litsoane, who attempted to serve the applicant with the notice of set down. She refused to accept service on the ground that the names used were not the ones by which she known.This very important point showing that the applicant is a person who usually defies process of a court of law was not denied by the applicant in her affidavits, not think that any court can assist any person who treats its process with such contempt.


Now the next point that I have to consider is whether the applicant had a bone fide defence or not. It is common cause that when the applicant purported to enter into the marriage with Molefi Selebeleng according to Sesotho customary law, she was still legally married to one Paul


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- 5 -


Rampona according to civil marriage. To make things worst even Molefi Selebeleng was still legally married to the respondent according to civil marriage solemnized in Vereeninging on the 2nd February, 1968 (See Annexure A to applicant founding affidavit in CIV/APN/235/33). Both applicant and Molefi Selebeleng could, therefore, not enter into any valid customary marriage while their civil marriages where still subsisting. The purported customary marriage between them was void ab initio (Mokhothu v. Manyaapelo, 1976 L.L.R. 261.). A void marriage produces none of the legal conse­quenoes of a marriage (Veils v. Dean - Willcocks, 1924 89 at 92). The applicant cannot be heard to say she was entitled to the division of the estate of the late Molefi Selebeleng as their customary 'marriage' was a nullity whom produced no legal consequences, A void putative customary union whether or not it was bona fide, could never result in community of property and can, therefore, never be a union versal partnership (Manyaapelo v. Mokhothu, 1976 L.L.R. 55.


For the reasons I have attempted to summarise above, I came to the conclusion that there was no merit at all in the application and accordingly dismissed it with costs.


J.L. KHEOLA,

ACTING JUDGE.

4th January, 1985.


For Applicant : Mr. Matsau

FOR Respondent : Mr. Pitso,


82


IN THE HIGH COURT OF LESOTHO


In the matter between:

HELD AT MASERU

CIV/T/40/86


ALICE SELEBELENG PLAINTIFF

and

JOHANNES SELEBELENG DEFENDANT


ORDER OF THE COURT


On the 5th August 1988 before the Honourable Mr Justice B.K. Molai; HAVING HEARD Mr W.C.M. Maqutu Counsel for Plaintiff and having read the papers filed of record.


IT IS ORDERED


  1. (a) Return of Plaintiff's 2 primus stoves, 1 small radio, kitchen table and6 chairs, 4 cups and saurcers, Dining room suite, kitchen Unit and kitchen stove.


ALTERNATIVELY


Payment of M2 698.00 being fair value of the said property, (b) Costs of suit


  1. (a) Payment of M2 400.00 rental collected by Defendant.


    1. An order ejecting Defendant from Plaintiff's residential site at Phomolong Qoaling in the district of Maseru


    1. Costs of suit.


BY ORDER OF COURT


REGISTRAR


83


CIV/APN/305/2000

IN THE HIGH COURT OF LESOTHO


In the matter between:


SOPHIE LELAKA SELEBELENG 1st APPLICANT

ZAKIA KOMPONAKAE SELEBELENG 2nd APPLICANT

MOLEFI LUCAS SELEBELENG 3rd APPLICANT

-AND

MOSILI 'MAMONNAMOHOLO HLALELE 1st RESPONDENT

MASTER OF THE HIGH COURT 2lND RESPONDENT


JUDGMENT

Delivered by the Honourable Chief Justice Mr. Justice J. L. Kheola on the 4th day of September. 2000


The rule has already been confirmed in terms of prayers 2(a), (b), (c) and 4. It was confirmed on 4th September, 2000. What follows are the reasons for judgment.


This is an application for an order in the following terms:


  1. That the rule be dispensed with on periods and modes of services.


  1. That a rule nisi be issued calling upon the respondents to show cause (if any) on the l8th August 2000 why the following order shall not be made absolute.


  1. Ordering the 1st respondent to allow the deceased Thaki Elias Selebeleng and Ramalebo Johannes Selebeleng to be buried from their home at


84


Borokhoaneng in the city of Maseru and that all arrangements and funeral; ceremony should be conducted from their said homes.


  1. Interdicting the 1st respondent disrupting and or threatening to disrupt the applicants in arranging and conducting the funeral from Borokhoaneng.


  1. Setting aside and declaring as void the will of the late Alice Mamosili Selebeleng in so far as it bequeaths all property of her joint estate with the late Molefi Selebeleng..


    1. Ordering that prayer 2(a) and (b) should operate with immediate effects as interim relief.


    1. Ordering the 1st respondent to pay the costs of this application:-


    1. Granting the applicants such further and or alternative reliet as the court may deem fit.


The first applicant is the widow of the late Thaki Elias Selebeleng. He died in the Republic of South Africa on the 27th July, 2000. His wish was that he should be buried in Lesotho from his home at Borokhoaneng Qoaling.


His younger brother, Ramalebo Johannes Selebeleng died here in Maseru on the 1st July 2000. Their two dead bodies are still lying in the mortuaries in Lesotho and in the Republic of South Africa.


The second applicant alleges that he is the head of Selebeleng family because his late father was the elder brother of Molefi who is the father-in- law of the first applicant.


The third applicant is the heir of the late Thaki Selebeleng. He is the first born


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3


son of the first applicant.


The first respondent is the daughter of the late Alice Selebeleng who was the second wife of the late Molefi. The two deceased persons are the step-sons of the late Alice and are therefore the step-brothers of the first respondent.


It is common cause that the property at Borokhoaneng-Qoaling was jointly owned by the late Molefi and Alice because their marrage was in community of proerty'. The late Molefi predeceased the late Alice. He died intestate.


In her founding affidavit the first applicant avers that the late Thaki was working in the Republic of South Africa when he met his untimely death. The late Ramalebo was residing with his friends in Maseru and was unemployed. They have both not been buried because as the second applicant was making arrangements for their burial, he met same difficulties in that the first respondent refuses to let the deceased be buried from their home at Borokhoaneng-Qoaling as she claims that she has been given that property by her mother by Will. She avers that her late husband stated that he would like to be buried in his home in Lesotho and not in South Africa where he was merely working.


The first applicant avers that the first respondent ought to have followed certain procedures before she could assume ownership of the Borokhoaneng property under the will of her mother. As the executor and next of kin of her mother, she ought to have filed


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4


a death notice and an inventory of the properly with the Master of the High Court. She

also ought to have sought the Letters of Administration from the Master of the High Court as she has been appointed the sole heir and executor under her mother's will. She has failed to do so and thus she is not yet legally entitled to the estate because she has not satisfied the statutory requirements which would enable ownership of the bequeathed property to pass to her.


She avers that the will of the late Alice Mamosili Selebeleng is invalid in law in so far as it disposes of all the property of her joint estate with the late Molefi Selebeleng who died intestate. As he was married in community of property with the late Alice, she (the late Alice) ought to have declared the estate and given the late Molefi's sons their share of the estate and taken hers. Alice was entitled to half of the estate plus a child's share. The children of the deceased get a child's share. She avers that she and her late husband did not insist on the late Alice to give them their child's share immediately beause it would have meant that she would have been without a home as the indivisible estate would have had to be liquidated.


She avers that as Ramalebo died intestate and was still a bachelor, the family of Selebeleng has appointed the third applicant as his heir; that the matter is urgent because they have to bury the deceased. It is now three weeks (on 1lth August when the affidavit was sworn to) since the late Ramalebo passed away and two weeks since her husband passed away.


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5


In his supporting affidavit the second applicant avers that he is working in the Republic of South Africa, at the University of Qwaqwa in the department of Sesotho. He is the head of family of Selebeleng. His father was older than the late Molefi. He is therefore responsible together with the first applicant to see to it that the deceased are buried. When he learned of the death of the deceased persons he approached the first respondent to make arrangements that the deceased be buried in Lesotho from their home at Borokhoaneng. They had not built any house of their own. The first respondent Informed him that she would not allow them to conduct the burial services from the late Molefi's home, as that is her property now. They requested the chief of the area to intervene but the first respondent produced a will which was read to them before the chief. He submitted that the site did not belong to her mother alone as she was married in community of property, however she could not hear of that. The Chief even suggested that they should cooperate and bury the deceased persons and later dispute the ownership of the property.


In his affidavit the third applicant avers that he is the first born son of the late Thaki Selebeleng. He was born on the 5th May, 1980. He is presently attending school at 'Mamelodi Technical College. He avers that he has read and understood the founding affidavit of the first applicant and the supporting affidavit of the second applicant and he wishes to support them in so far as they relate to him.


In her opposing affidavit the first respondent avers that it is true that her mother


88


6


Alice was married to first applicant's father-in-law by civil rites and in community of property. She avers that the truth of the matter is that both first applicant and her deceased husband have South Africa as their country of domicile and that the deceased Thaki holds a South African passport; that the matter is not urgent in that the applications before Court are made eighteen days after the death of Thaki and twenty-four days after the death of Ramalebo. The late Molefi and her mother Alice owned a house at No.480 in Sharpeville in South Africa. That house is still the home of Thaki and Ramalebo who never lived at Borokhoaneng in Lesotho. She avers that the deceaseds' father predeceased her mother Alice. Her mother was entitled to her half share of the estate plus a child's share which equalled 1/3 by simple arithmetic her mother has inherited 5/6 of the whole estate including that in Lesotho and in Sharpeville on the death of Molefi.


If I may digress and deal with the point raised by the first respondent above; I agree with her that when Molefi died intestate the mother of the first respondent was intitled to inherit half of the estate plus a child's share of the whole estate. By the "whole estate" I mean the Borokhoaneng-Qoaling estate plus the Sharpeville property in the Republic of South Africa. Alice was not entitled to take all the Borokhoaneng-Qoaling property and to bequeath the whole of it to the first respondent. She was entitled to her half share of that property plus a child's share. Section 1 (1)(a) of Proclamation No 2 of 1953 provides:.


"(1), Subject to the provisions of section three the surviving spouse of every


89


.7


person who, after the commencement of this Proclamation dies either wholly or partly intestate is hereby "declared to-be an intestate heir of the deceased spouse according to the following rules:-


  1. If the spouses were married in community of property and if the deceased spouse leaves any descendant who is entitled to succeed ab intestato, the surviving spouse shall succeed to the extent of a child's share or to so much as, together with the surviving spouse's share in the joint estate, does not exceed six hundred pounds in value (whichever is the greater)".


When Molefi died intestate he left the two deceased persons who were entitled to succeed ab intestato. They are Thaki and Ramalebo Selebeleng. They were entitled to a child's share of the joint estate. Alice was not entitled to inherit the whole estate and to deprive Thaki and Ramalebo of their shares. On this ground alone Alice's will is invalid because; it purports to bequeath to the first respondent the whole of the immovable and movable property at Borokhoaneng-Qoaling. It is contrary to the provisions of section 1 (1) (a) of the Basutoland Intestate Succession Proclamation No.2 of 1953.


There is a serious dispute of fact regarding the house in Sharpeville in the Republic of South Africa. The first applicant avers that the house was sold by the late Molefi during his lifetime. The first respondent denies,that it was sold and avers that if


90


8


is still part of the estate. She avers that that is the part of the joint estate that was taken

or inherited by Thaki and Ramalebo. This allegation is not supported by any evidence. In any case the first respondent's failure to follow the procedures prescribed by the Administration of Estates Proclamation No. 19 of 1935 renders the above dispute of fact irrelevant. Section 31 (2) provides that Letters of Administration shall authorise the executor to administer the estate wherever situate. The house in Sharpeville forms part of the estate which was jointly owned by the late Alice and the late Molefi. The inventory which the first respondent ought to have made would have included the house in Sharpeville because the law refers to the estate "wherever situate".


Section 31 (1) of the Administration of Estates Proclamation No.19 of 1935 provides -


"The estates of all persons dying either testate or intestate shall be administered and distributed, according to law, under letters of administration granted by the Master in the form "B" in the First Schedule to this Proclamation. Such letters of administration shall be granted to the, executors testamentary duly appointed by persons so, dying or to such persons as, in default of executors testamentary, are appointed,as in this Proclamation described, executors dative to the persons so dying."


The first respondent is an executor testamentary duly appointed by the late Alice


91


9


and as such she was under an obligation to apply for Letters of Administration from the Master of the High Court which would authorise her to administer and distribute the estate she has never been granted any Letters of Administration-according to which she. could distribute the part of the estate to which she is entitled in terms of the will; I mean ' in terms of the will if it had been valid. I have already said that it is invalid because it purports to bequeath the whole estate to the first respondent. She is relying on the will as a document which has transferred ownership of the property to. her. She is wrong because a will is not a title deed It merely reveals the wish of the testator. It is only after the Letters of Administration have been granted that the estate can be administered and distributed according to a valid will.


In the present case me first respondent does not seem to have followed the proper procedure prescribed by the law because up to now she has not applied for Letters of Administration from the Master of the High" Court. She is merely holding the will and claiming ownership of the property in question. Section 13(a)of the Administration of Estates Proclamation No.19 of 1935 provides as follows:


"Whenever any person dies within the Territory leaving therein any property or a will,the nearest relative or connection of the deceased at or near the place of death, or in default of any such near relative or connection, the person who at or immediately after the death has the control of the premises at which the death occurs, shall within fourteen


92


10

days thereafter cause a notice of death to be framed in the form ''A" in the First Schedule to this Proclamation, and shall cause that notice, signed by himself to be delivered or transmitted


      1. if the death occurs in the district wherein the office of the Master is situate, to the Master; or"


The first respondent did not comply with section 13 (1)(a)above Another very important section is section 16 (!) (a) which provides that every person (other than the Master) who has a will in his possession at the time of or at any time after the death of the person executing the same shall forthwith transmit or deliver the will (a) if it is in the district wherein the office of the Master is situate, to the Master.


If the above section had been complied with the will would have been registered by the Master when Alice died. Notwithstanding such registration the validity or legal effect would still be determined by the Court if challenged by another person.


Section 20 (1)and (3) provides as follows:


  1. When one of two spouses who have been married in community of


93


11


property dies the survivor shall, within six weeks after the death, cause any inventory of all property which, at the time of the death, formed part of or belonged to the estate possessed in community between the predeceasing and surviving spouses, to be made in the presence of two impartial witnesses being persons of good credit and repute and in the presence of such persons having an interest in the distribution of the joint estate as. heirs or legatees of the predeceased spouse as may attend.


  1. Every such inventory shall be subscribed by the surviving spouse, the witnesses aforesaid, and the heirs or legatees so attending."


Alice failed to comply with the provisions of section 20 above. If she had made such an inventory six weeks after the death of her husband that would have shown that the couple had a house and some movable properties in Sharpeville. Her assumption that the late Thaki and the late Ramalebo who are her step-sons had inherited the Sharpeville property was unreasonable and not based on any evidence. Her wrong assumption has seriously prejudiced the late sons of Molefi because she has excluded them from the property at Borokhoaneng to which each of them was entitled to a child's share. She wrongly bequeathed the whole estate to the first respondent. [ have already held above that her conduct invalidates her will because she was entitled to half of the estate at Borokhoaneng plus a child's share. That was the portion of the joint estate which she was entitled to bequeath to her daughter.


94

12


Section 44 provides that every executor shall, as soon as Letters of Administration have been granted to him, make,subscribe and transmit to the Master, an inventory showing the value of alt property belonging to the estate; and if he comes to know thereafter of any property which is not contained in any inventory lodged by him with the Master he shall make, subscribe; an transmit to the Master an additional inventory showing the value thereof and shall find such further security as the Master may direct under section thirty-nine of this Proclamation. This section shows the importance of Letters of Administration as well as the making of inventory of the property of the estate The first respondent has failed to comply with its provisions.


Mrs Kotelo, attorney for the first respondent, submitted that statutory provisions in a will are peremptory and not mandatory. It seems to me that the two words mean more or less the same. In the Shorter Oxford English Dictionary ''mandatory" means of the nature of, pertaining to or conveying a command or mandate; obligatory, especially consequence of a command." ''Peremptory" means that puts an end to, or precludes all debates, question, or delay Peremptory order, without fail."


She further referred to Loque and another vs The Master and others 1995 (1) S.A. 199 in which it was held that it is apparent from section 2 (3) and section 2 A of the Wills Act 7 of 1953 that the Legislature, whilst still providing for formalities to ensure authenticity and to eliminate false or forged wills, nevertheless intended that failure to comply with formalities prescribed by the Act should not frustrate or defeat the genuine


95


13


intention "of testators. The Wills Act, as now amended the Law of Succession Amendment Act 43 of 1992, stresses the importance of giving effect to the genuine will of a deceased expressed.in a document; It was held further that the provisions of the Act are peremptory rather than directory.


Section 2(3) of the Wills Act as amended provides:


"(3) If a Court is satisfied that a document or the amendment of a document drafted or executed by a person who has died since the drafting of execution thereof, was intended to be his will or an amendment of his will, the Court shall order the Master to accept that document, or that document as amended, for the purposes of the Administration of Estates Act 66 of 1965; as a will, although it does not comply with all the formalities for the execution or amendment of will referred to in ss (1).


Section 2 A provides:


"If a Court is satisfied that a testator has-


  1. made a written indication on his will or before his death caused such indication to be made;


  1. performed any other act with regard to his will or before his death caused such act to be performed which is apparent from the face of the will; or -


  1. drafted another document or before his death caused such document to be drafted,.


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14


by which he intended to revoke his will or a part of his will, the Court shall declare the will or the part concerned, as the case may be to be revoked."


It is clear that in Loque 's case (supra) the Court was dealing with, and interpreting the amendment to the Wills Act of the Republic of South Africa. Our Wills Ordinance No. 15 of 1845 has not been amended in a similar manner. It is a very old statute which appears on page 510 in the Laws of Basutoland - Volume VIII of 1963. As our law has has been amended by the South African law this court cannot follow the decision in Loque's Case (supra). It is the Court's duty to interpret the Wills Ordinance of 1845 and the Administration of Estates Proclamation No.19 of 1935 as they stand in the statute books. Section 3 of the Wills Ordinance provides:


"; and where the instrument shall be or shall have been written upon more leaves than one, the party executing the same and also the witnesses shall sign or shall have signed their names upon at least one side of every leaf upon which the instrument shall be or shall have been written."


On page 10 of the record is the Will of Alice 'Mamosili Selebeleng. On page 1 of that Will which is page 11 of the record we see the initials of Alice and her two witnesses. They have not signed that leaf in terms of section 3 quoted above. In Harpur NO v Govindamail and another 1993 (4) S.A 751 (A.D) it was held that the word ''signature" did not bear a technical or legal meaning but had to be interpreted in its'


97


15.


ordinary popular sense. That in ordinary usage the word 'signature' did not bear a technical or legal meaning but had to be interpreted in its ordinary, popular sense. That in ordinary usage the word 'signature', used without qualification,meant signature by writing one's name or signature by making one's mark. That although they might be used to identify the person affixing them, initials were not a signing in the ordinary sense of the word.

''Alice's Will is therefore invalid because it was not signed properly on page 1 The requirement of proper signatures is a peremptory provision of section 3 of the Wills Ordinance.


I propose to return to the first respondent's opposing affidavit and make a few remarks. She avers that the matter is not urgent because the first applicant has a choice not to throw away her husband but to bury him from their home at Hamanskraal in Pretoria. Or both deceased,can be buried from their home in Sharpeville., Even here in Lesotho applicants can bury the deceased anywhere they like. But they should not ask to be permitted to encroach on her rights in her home. She alleges that she will suffer great prejudice if applicants bury their deceased from her home, this will cause her great emotional strain, financial loss and irreparable damage.


Urgency is challenged. The burial of deceased persons is naturally an urgent matter. No man can enjoy keeping a body in a mortuary for a long time even if he has


98


16


enough money to pay the mortuary for a long time. The bereavement is-usually

prolonged by the body lying in the mortuary for a long time.


The delay to bury the deceased in the, present case, was caused by the first respondent who refused to allow to use their home at Borokhoaneng as a place from which burial services were to be conducted. In her affidavit she admits that to the joint property of her late husband and herself she was entitled to half of the property plus a childs share.The rest of the property was to be inherited by the two deceased persons Although she refers to them as strangers, she knows them to be the sons of her late step father, Molefi.


It is a common practice for people working in the Republic of South Africa to inform their families that when they die they should be buried in Lesotho from their parents' home. They do not like the idea of being buried from a rented house in that reign country. The late Thaki apparently did not regard the rented house at Hamanskraal as his home. He knew His father's home at Borokhoaneng and expressed a wish to be buried from there. It was the hostile attitude of the first respondent towards her own step bothers that led to this unfortunate litigation causing dead bodies to remain in mortuaries for a long time.


If the Sharpeville house has been inherited by the deceased persons in question , it was her duty to include it in the joint estate and to disclose to the Master of the High


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17


Court that Molefi's sons had already inherited it. She would have to produce title deed

or registration certificate or lease as proof that the house is registered in the names of the two deceased persons. In paragraph 7 of her opposing affidavit the first respondent correctly avers that her mother was entitled to half share of the estate plus a child's share which equalled 1/3. She refers to the whole estate including that in Lesotho and in Sharpeville on the death of Molefi.


The first respondent avers that in terms of the 1990 (sic)Land of Amendment which enabled widows to inherit direct from their husbands Alice became the full undisputed owner of the property at Borokhoaneng and in 1992 she willed it to her.


The Land Act of 1979 was actually amended in 1992 by Order 6/1992 The amendment was not made retrospective. When Molefi died in 1983 the relevant section 8 (2) (a) (b) provided:


"(2) Notwithstanding subsection (1) where an allottee of land referred therein dies, the chairman of the Land Committee having jurisdiction shall record , in his register the passing of the interest in the land of the deceased allottee to


  1. the first male issue of the deceased allottee (who shall share with his junior brothers in accordance with the advice of the family) unless the deceased allottee had designated otherwise,


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18


  1. where paragraph (a) does not apply, the person nominated as the heir of the deceased allottee by the surviving members of the deceased allottee's family; or.",


Thaki, as the first male issue of Molefi, ought to have inherited the estate of his father but for Alice's will that could not happen.


The late Thaki might have lived in Sharpeville all his life but that wishing to be buried in Lesotho from his father's home at Borokhoaneng.


The first respondent avers that the first applicant is not the Master of the High Court and that it is the Master who should file an affidavit and or suggest that she has not complied with certain legal requirements, not the first applicant whom she is sure has never ever seen the face of or talked to the Master. This dispute ought to have been dispelled by the first respondent by annexing her Letters of Administration granted to her by the Master. Her failure to do so means that she has not got them. She is the one who has never seen the face of or talked to the Master. The provisions of a Will can never be effective without the powers of the Master.


It is not true that the applicants are brining a succession case by the backdoor. If the first respondent behaved reasonably and allowed the applicants to conduct their burial services from their father's house at Borokhoaneng there would have been no litigation.

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19


involving an order that Alice's will should be declared as invalid.


For the reasons stated above the rule was confirmed.


J.L.KHEOLA

CHIEF JUSTICE

31st October, 2000


For Applicants - Miss Tau

For Respondents - Mrs Kotelo.


102


C. OF A (CIV)

IN THE APPEAL COURT OF LESOTHO-


In the matter between:


HELD AT MASERU

CIV/APN/305/2000



MOSILI 'MAMONNAMOHOLO HLALELE APPELLANT

AND

SOPHIE LELAKA SELEBELENG . 1ST RESPONDENT

ZAKIA KOMPONAKAE SELEBELENG 2ND RESPONDENT

MOLEFI LUCAS SELEBELENG 3RD RESPONDENT


NOTICE OF APPEAL


KINDLY TAKE NOTICE THAT MOSILI 'MAMONNAMOHOLO HLALELE

hereinafter referred to as Appellant being dissatisfied with the ruling of this Honourable Court delivered on Monday the 5th August,2000 hereby notes an appeal against the whole ruling, as per Annexture A hereto.


KINDLY TAKE NOTICE FURTHER THAT Appellant reserves the right to file further grounds of appeal once the full written judgement of the Honourable Court is made available to the attorney of record,


ANNEXTURE "A"


GROUNDS OF APPEAL A. PRELIMINARY POINTS


1.

The Honourable Court erred and misdirected itself in shifting the onus of proof on to the Respondent:

2.

It being common cause that the Applicants knew as early as 1997 that Respondent was claiming exclusive rights to the property at Borokhoaneng, Will or no Will, and the. Applicants having not approached the Courts for redress in 1997, the trial Court erred.


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and misdirected itself in entertaining, on an urgent basis, three (3) years later), Applicants' claim of rights at Borokhoaneng.


3.

The trial court erred and misdirected itself allowing Applicants to challenge and on an, urgent basis at that, a Will of whose existence they knew, three (3) years previously.


4.

In view of 2 and 3 or above, the trial, court erred and misdirected itself in failing to take into account that while it is highly desirable for deceased people to be buried expeditiously, a funeral service can not /should not be used as an excuse by Applicants to create their own sense of urgency.,


5.

5.1 The trial Court erred and misdirected itself in failing to take into account the serious dispute of fact which goes to the root of Applicants' Application which dispute is in respect of the existence of a home for Applicants at Sharpeville in South Africa, not only it there a serious dispute.of fact but Applicants give two mutually destructive regarding the Sharpeville versions, which the trial court erred and misdirected itself in failing to take account of.


5 2 In relation to 5.1 above, the Applicants' had the option to apply to lead viva voce evidence to enable,the Court to arrive at a just and equitable decision, which opportunity Applicants did not avail themselves.


5.3 In the light of the genuine dispute in respect of the Sharpeville property, the trial Court can not have been in a position without the assistance of viva voce' and documentary evidence, to establish whether by willing the property at Borokhoneng exclusively to her daughter First Respondent mother committed an irregularity:


6.

Applicants prayers 2 (a) and (b) of the Notice of Motion were urgent mandatory and prohibitory final Interdicts and the Honourable Court erred and misdirected itself in disregarding the fact that Applicants had not satisfied the two requirements of clear' right and that of absence of any other alternative satisfactory remedy, available to Applicant this is in spite the fact that there is ample authority to the effect that all requirements of interdict must be satisfied.,


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7.

On burial matters, authority is abundant to the effect that it is the heir who has locus standi in judicio and not the widow, in the circumstances the Court erred and misdirected itself in failing to take into account the objection that First and Second Applicants had no locus standi in the above mentioned proceedings (the fact that 3rd Applicant is a minor and therefore had to be assisted by his mother is not in issue).


8.

In view of the fact that First Applicant's averments were in support of her Application in her own capacity, the Court erred and misdirected itself in failing to take into account that the deceased's heir Third Applicant, had made no averments to support his Application.


9.

B. ON THE MERITS


The Honourable Court erred and misdirected itself in granting the Application for a final interdict also declaring the Will null and void and by ordering Applicant to pay costs when there was no evidence led to justify such a judgement.


DATED AT MASERU THIS 6TH DAY OF SEPTEMBER,2000.


V.V.M. KOTELO & CO.

APPELLANT'S ATTORNEYS

TRADORETTE COMPLEX

ROOM 20 & 21

P.O. BOX 0396

MASERU 405