Hlalele vs Selebeleng; Holohlalele v Selebeleng and Others ; Nkhabu v Minister of Interior and Others (C. OF A. (CIV) NO. 28 of 2000 CIY/APN/305/2000)

Case No: 
CIY/APN/305/2000
Media Neutral Citation: 
[2001] LSHC 145
Judgment Date: 
28 February, 2001

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


HLALELE VS SELEBELENG


NOTE OF GUIDANCE GIVEN IN CHAMBERS TO BOTH COUNSEL. WHEN MATTER POSTPONED TO THE NEXT SESSION OF THE APPEAL COURT


Alice and Molefi I were married by civil rites in community of property. When he died in 1982, the joint estate should have been divided, and was not. That is the complicating feature. Molefi I had two sons from a previous marriage: Thaki who married Sophie, and Ramalebo. There may be a dispute whether Mosili the daughter born to Alice, was fathered by Molefi I. Even if she was born before the marriage by civil rites, she would have been legitimated by the subsequent marriage if Molefi I was her natural father. [Mosili may decide that the fact of her legitimacy or otherwise is not (financially) important enough, to quarrel about. What follows is premised on the assumption that that may be her attitude.]


When Molefi I died intestate in 1982, his intestate heirs to his half share of the joint estate in terms of Proclamation 2 of 1953 were then his two sons.

(If legitimacy of Mosili is truly in issue, and established, she would be entitled


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to one third of Molefi I's half share of the joint estate as at 1982, and Thaki to two-thirds).


Both Thaki and Ramalebo died in July 2000. The latter was a childless bachelor. Counsel were agreed that his share from Molefi I's half of the joint estate should go to Thaki's son Molefi II so that the two parties interested in the joint estate as at 1982 are Molefi II and Mosili.


Sorting out the matter on affidavit is impossible. There seem to be other interested parties who may have an interest because of events that occurred after 1982. To litigate in instalments would serve neither the interests of justice or the purses of the litigants, and an agreement between the present litigants (and any other interested party or parties) preferable by far.


The first step would be to find out as far as possible, what the joint estate consisted of, including assets in the R.S.A., in 1982, and assess what the nett value of that was, which should have gone to Alice. If she took possession of more than half in value, that should be borne in mind.


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The next step would be to find out what has happened since, if for example, Alice increased the nett value of an asset after 1982 that too should be borne in mind; as also possible claims by others which may have to be met; and the benefit of the sale of property in possession of her half-brothers. Meticulous calculation would be impossible. (Clearly values can be approximate assessments only).


If the present litigants cannot agree on a proper division it would probably be a good idea to get someone whom both Sophie and her son on the one hand trust, and Alice's daughter on the other also trusts, to help them share the assets fairly, along the lines suggested above. Since one cannot cut a car in half, or a building, the ultimate agreement may be that a physical asset goes to one party, but subject to payment of money to the other.


Advice :


  1. A good settlement is usually one where no one gloats about winning, everyone is slightly discontented.


  1. Litigating about matters such as these makes the lawyers rich, the heirs poorer.


  1. If the matter is NOT settled, the court will wish to be advised that counsel have informed their clients of the comments in par. 1 and 2.



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


HLALELE VS SELEBELENG


NOTE OF GUIDANCE GIVEN IN CHAMBERS TO BOTH COUNSEL. WHEN MATTER POSTPONED TO THE NEXT SESSION OF THE APPEAL COURT


Alice and Molefi I were married by civil rites in community of property. When he died in 1982, the joint estate should have been divided, and was not. That is the complicating feature. Molefi I had two sons from a previous marriage: Thaki who married Sophie, and Ramalebo. There may be a dispute whether Mosili the daughter born to Alice, was fathered by Molefi I. Even if she was bom before the marriage by civil rites, she would have been legitimated by the subsequent marriage if Molefi I was her natural father. [Mosili may decide that the fact of her legitimacy or otherwise is not (financially) important enough, to quarrel about. What follows is premised on the assumption that that may be her attitude.]


When Molefi I died intestate in 1982, his intestate heirs to his half share of the joint estate in terms of Proclamation 2 of 1953 were then his two sons.

(If legitimacy of Mosili is truly in issue, and established, she would be entitled


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to one third of Molefi I's half share of the joint estate as at 1982, and Thaki to two-thirds).

Both Thaki and Ramalebo died in July 2000. The latter was a childless bachelor. Counsel were agreed that his share from Molefi I's half of the joint estate should go to Thaki's son Molefi II so that the two parties interested in the joint estate as at 1982 are Molefi II and Mosili.


Sorting out the matter on affidavit is impossible. There seem to be other interested parties who may have an interest because of events that occurred after 1982. To litigate in instalments would serve neither the interests of justice or the purses of the litigants, and an agreement between the present litigants (and any other interested party or parties) preferable by far.


The first step would be to find out as far as possible, what the joint estate consisted of, including assets in the R.S.A., in 1982, and assess what the nett value of that was, which should have gone to Alice. If she took possession of more than half in value, that should be borne in mind.


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The next step would be to find out what has happened since, if for example, Alice increased the nett value of an asset after 1982 that too should be borne in mind; as also possible claims by others which may have to be met; and the benefit of the sale of property in possession of her half-brothers. Meticulous calculation would be impossible. (Clearly values can be approximate assessments only).


If the present litigants cannot agree on a proper division it would probably be a good idea to get someone whom both Sophie and her son on the one hand trust, and Alice's daughter on the other also trusts, to help them share the assets fairly, along the lines suggested above. Since one cannot cut a car in half, or a building, the ultimate agreement may be that a physical asset goes to one party, but subject to payment of money to the other.


Advice :


  1. A good settlement is usually one where no one gloats about winning, everyone is slightly discontented.


  1. Litigating about matters such as these makes the lawyers rich, the heirs poorer.


  1. If the matter is NOT settled, the court will wish to be advised that counsel have informed their clients of the comments in par. 1 and 2.



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

IN THE APPEAL COURT OF LESOTHO



HELD AT MASERU

CIY/APN/305/2000


In the-matter between"


MOSILI 'MAMONNAMO HOLOHLALELE APPLICANT

AND

SOPHIE LELAKA SELEBELENG 1ST RESPONDENT

ZAKIA KOMPONAKAE SELEBELENG 2ND RESPONDENT

MOLEFI LUCAS SELEBELENG 3RD RESPONDENT


APPELLANT'S HEADS OF ARGUMENT


A.


APPELLANT'S CASE


It is Appellant's case that immediately upon making the finding that there was a "serious dispute of fact regarding the house at Sharpeville" (please refer to the judgement of the Court a quo at page 89 thereof), the Court ought to have dismissed Applicants' case with costs. Moreso because on seeing that the allegations made by them (Applicants) were hotly disputed, Applicants apply that the matter be referred for hearing of oral evidence or be referred to trial.


B.


FACTS LEADING TO RAISING OF PRELIMINARY POINTS OF LAW


  1. AD NOTICE OF MOTION


Applicants filed an urgent Application in which they sought


  1. to have the funerals of the deceased THAKI and RAMALEBO SELEBELENG conducted from Borokhoaneng at Maseru which Applicants claimed was the home of the deceased and


  1. to have the Will of one ALICE SELEBELENG set aside in so far as it bequeaths all (my emphasis) her joint estate with the late MOLEFI SELEBELENG.


    1. AD FOUNDING AFFIDAVIT


The core of Applicants' case as supported by Affidavits was that the father of the deceased THAKI and RAMALEBO, namely MOLEFI, and his wife ALICE (stepmother of the deceased), had property at Borokhoaneng at Maseru, and that, ALICE had in her Will disposed of all the property in favour of her daughter and heiress, namely First Respondent herein.


According to Applicants ALICE should have willed to First Respondent only 2/3 of the joint estate being a half share plus a child's share (See First Applicants Affidavit paragraphs 10,11 and 12 at pages 7 and 8 of the record, and Second Applicants' Affidavit at page 15 para 4 thereof).

  1. AD OPPOSING AFFIDAVIT


31 DISPUTE OF FACT & NON DISCLOSURE


In her Opposing Affidavit Respondent hotly disputed allegations made by Applicants to the effect that the late ALICE had willed all the property of the joint estate to her, daughter 1st Respondent.


In support of her denial Respondent showed that over and above the property at Borokhoaneng the deceased ALICE and MOLEFI had during their lifetime acquired property at NO 480 SHARPEVILLE at VEREENIGING. It was Respondents case therefore that it was not true that ALICE had willed to her daughter all the property of her joint estate with MOLEFI.


First Respondent averred further that not only were the allegations regarding property false but that Applicants had withheld material information as well, yet moved the Court by way of urgent Application.


3.1.1 SIGNIFICANCE OF PROPERTY AT SHARPEVILLE


  1. It is common cause that on the death of MOLEFI, ALICE stood to inherit 2/3 of the whole estate.


  1. During the lifetime of ALICE and MOLEFI the property at Sharpeville had a far higher value than property at Borokhoaneng.


  1. MOLEFI predeceased ALICE.


  1. ALICE therefore inherited 2/3 of property at Sharpeville plus property at Borokhoaneng.


  1. Since Alice moved to Borokhoaneng she must have given the deceased THAKI and RAMALEBO the property at SHARPEVILLE which even comprised more than their 1/3 of their remaining share of the estate.


  1. Even assuming, without in any way conceding, that ALICE Will was invalid for non compliance with the certain provisions of the Administration of Estates Proclamation, that would not carry Applicants case any further because of the dispute of fact regarding the property at SHARPEVILLE.


3.2 REQUIREMENTS OF INTERDICT NOT SATISFIED


In addition Respondent raised the query that Applicants had sought a permanent/absolute interdict without establishing the 3 requirements of a permanent interdict.


3.3 ABSENCE OF LOCUS STANDI

Finally, Respondent raised the query that First Applicant and 2nd Applicant had no locus standi to move the Court.


  1. AD REPLYING AFFIDAVITS


It transpired from the Replying Affidavits that indeed Applicants' had withheld material facts and that there was a material dispute of fact which could not be resolved on the papers.


First Applicant made a valiant attempt to mislead the Court but failed dismally as shown hereunder:


"—However, that notwithstanding my father in law MOLEFI during the lifetime of First Respondent's mother (ALICE) sold the house at Sharpeville" (page 44 line 8 from the bottom)


and in the same breath,


"—Alice remained with everything including what was in Sharpeville. At the time of my late father in laws death ALICE was actually still living at Sharpeville" (page 45 line 8 from the top)


Clearly the two pieces of evidence are contraditory and mutually destructive.


In the light of the incontrovertible evidence of dispute of fact and non disclosure of the material fact, namely the presence of another home of ALICE and MOLEFI at Sharpeville, the Court a quo could not but make a finding that,


"There is a serious (my emphasis) dispute of fact regarding the house in Sharpeville in the Republic of South Africa"( page 89 line 3 from the bottom)


However instead of dismissing the Application after making the aforegoing finding, the Court a quo shied away from doing so and shifted the onus of proof onto the First Respondent. Perhaps this was owing to the fact that the Court a quo had already made an unreasoned ruling in favour of Applicants, which ruling could not be detracted from in the written judgement which came out almost 8 weeks later.


Notably, at no stage did Appellants apply to have viva-voce evidence led.


5.1 THE LAW OF DISPUTE & NON DISCLOSURE AND ITS APPLICATION


On the authority of


CHIEFTAINESS 'MAMOTLOANG NKHABU

VS

MINISTER OF INTERIOR AN OTHERS


LESOTHO CAN REPORTS AND LEGAL BULLETIN

1993-1994 at page 86.


which is the leading case in Lesotho Courts on dispute of fact and non disclosure, to which the Court a quo was strenuously referred,by Respondent's Counsel, the Court a quo ought not to have found for Applicants as it did.


The following extracts from the said case speak for themselves,


"It is clear from Respondents' Affidavit that Applicant's case is very much disputed —" CHIEFTAINESS NKHABU, SUPRA, Page 487


"In my opinion the dispute of fact in this case goes to the very heart of the Appellant's case" NKHABU, Supra page 491


"In this case Applicant must have appreciated when she launched her application that a serious dispute of fact would arise. She elected to take that risk. Moreover at no time was it suggested to the Court a quo that the matter be referred for hearing of oral evidence or referred to trial" NKHABUssupra, page 491.


SUBMISSION: Since in this particular case the core of Applicants' case is that the property at Borokhoaneng comprises all the property of ALICE and MOLEFI, the serious and genuine dispute to the effect that ALICE and MOLEFI have another property at SHARPEVILLE goes to the root of Applicants' case.


Seeing that there is a genuine dispute of fact and non disclosure of material facts and that Applicants did not apply to have viva voce evidence led, the appeal ought to succeed with costs on this ground alone.


5.2 FAILURE TO ESTABLISH REQUISITES OF FINAL INTERDICT


Applicants have sought a permanent interdict without seeking to establish all the requisites of a final interdict all of which must be present namely;


  1. clear right on part of Applicants.


  1. an injury actually committed or reasonably apprehended.


  1. the absence of any satisfactory remedy available to Applicant.


In spite of the absence above Applicants have elected to move the Honourable Court on an urgent basis.


SEE: 1. SETLOGELO VS SETLOGELO 1914 AD 221


  1. LIPSCHITZ V WATTRUS NO 1980 (1) SA 663 at 673


  1. ADMARK (RECRUITMENTS) LTD V BOTES 1981 (!) SA 860 at 861 to 863


  1. ERASMUS V AFRIKANER PROPRIETARY MINES 1976 (1) SA 950 AT 961,964 ad 965


SUBMISSION: Application ought to be dismissed with costs on one ground of failure to satisfy the requirement of a permanent interdict.


5.3 LOCUS STAND


First and Second Applicants have no locus standi to move this Application. FIRST


APPLICANT


First Applicant has a 20 year old son who is the deceased THAKI's heir. First Applicant therefore has no locus standi to move this Application.


SEE: CONTEMPORARY LAW OF LESOTHO BY W. C. M. MAQUTU PAGES 190 - 200, where all the important cases on the duty to bury are discussed.


SECOND APPLICANT


Second Applicant is a member of the extended family of SELEBELENG. It is not even clear exactly how he ranks in the line of succession. The crisp issue however is that Second Applicant has no duty to bury and therefore no locus standi to bring the Application. The deceased has a 20 year old son who is capable of bringing the Application albeit assisted.


SEE: CONTEMPORARY FAMILY LAW SUPRA PP 190 - 200


SUBMISSION: Third Applicant who is heir to both the deceased is the person who has the locus standi to bring this Application.


  1. COURT A QUO FAILURE TO ADDRESS PRELIMINARY POINTS


Except to briefly and dsmissively gloss over the issue of dispute of fact, the judge of the Court a quo dealt with the merits of the case as if the Preliminary Points had not be raised.


SUBMISSION: Had the judge in the Court a quo paid to the preliminary poins they deserved, he would have dismissed Applicants case without traversing the merits, for how would he traverse the merits without the Court establishing the real facts regarding the Vereeniging property.


C


THE MERITS


SUBMISSIONS

      1. The allegations in First Applicants Affidavit, which covered the bulk of the said Affidavit, dealt with First Applicants non compliance with the provisions of the Estate Proclamation NO 19 of 1935 relating to executors of estates (pages 7 and 8 of First Applicants Affidavit)


The allegations do not carry Applicants case any further because at the worst First Respondents non compliance with the formalities serves to make her occupation of the Borokhoaneng property premature. The non­compliance does not afford the deceased rights to Borokhoaneng which they would not otherwise have, neither does it serve to nullity ALICE'S Will.


  1. With the dispute regarding the Sharpeville property hanging on its necks under no circumstances would the Court a quo correctly set aside the will of ALICE. What if at this very point in time ALICE and MOLEFI'S property is lying intact at plot NO 480 SHARPEVILLE!


The Honourable Court made a grave error in deciding to declare as nul and void_ALICE's will on the ground that it bequeaths all the property of ALICE and MOLEFI to 1st Respondents.


  1. In its judgement (at page 93 of the record) the Court a quo made a finding with no factual basis to the effect that ALICE failed to comply with provisions of the Estates Proclamation. There is no such averment in any of the Affidavits filed before Court. The Court therefore made a serious error by declaring ALICE'S will to be nul and void relying on non-existent evidence. The Affidavit of the master of the High Court made reference no 1st Respondent and not ALICE.


  1. The judge in the Court a quo finding that the deceased THAKI as the First male issue of Molefi ought to have inheritted the estate of (page 100 of the Judgement) the relevant law is the Intestate Proclamation of 1953 and not section 8 (2) (a) (b). Even Applicants conceded this point.


  1. Contrary to the Courts finding to the contrary ALICE substantially complied with the requirements of a valid Will.


Wherefore Appellant prays that the Appeal succeed with costs, on the preliminary points, especially.


DATED AT MASERU THIS 28TH DAY OF FEBRUARY,2001.


V.KOTELO


(CIV) NO.28/2000

IN THE APPEAL COURT OF LESOTHO

In the matter between;


HELD AT MASERU G OF. A



MOSILI 'MAMONNAMOHOLO HLALELE APPLICANT

AND

SOPHIE LELAKA SELEBELENG 1st RESPONDENT

ZAKIA KOMPONAKAE SELEBELENG 2nd RESPONDENT

MOLEFI LUCAS SELEBELENG 3rd RESPONDENT


RESPONDENT 'S HEADS OF ARGUMENT


Dispute of Fact


1.0 Where the court finds that there is a dispute of fact, it has discretionary powers.

Firstly it has to consider whether the matter can decided on the papers or not.


If it cannot be decided on the paper then it has three options viz;


  1. To discuss the application.


  1. To order that oral evidence be heard


  1. To order parties to go to trial.


Hebstein and Van Winsen: The Civil Practice of the superior courts of S.A 3rd ed. 1979 p.90 See: Room Hire Co. (PTY) LTD v. Jeppe Street Mansions (PTY) LTD 1949 (3) SA 1155 at 1162 and 1168.


Chieftainess Mamotloang Nkhabu v. Minister of Interior and ors 1993 -94 LLR and Legal Bulletin p. 486 at 490.


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1.1.1 According to the case of Nkhabu, the dispute of fact must go to the foundation of the applicant's or Respondents in the present case, cause of action. At p. 491 the court found that the dispute went to the heart of the appellant's case and that it was a real and genuine dispute of fact.


1.1.2 In the case before court today, the court a quo found that there was a serious dispute of feet regarding the property at Sharpville.


See: p.89 of record


It also found that the dispute was irrelevant.


See: p.90 of the record


1.1.3 The court has correctly decided that, the property was inherited by Thaki and Ramalebo, but she does not produce a Will of the late Molefi to that effect. The property could not have been inherited by Thaki and Ramalebo, because the 1st Respondent in her affidavit has shown that on the death of Molefi, his sons did not insist upon their shares, because then that would have meant liquidation of the Estate. Indeed Alice herself never declared the estate in terms of the Intestate Succession Proclamation No.2 of 1953.


See: p. 7 paragraph 10 and p.8 para 11 of the record.


1.2 Secondly, the appellant failed to follow the procedures provided by the Administration of Estate Proclamation No. S 31 (1) and S 31(2).


These sections provide that estate of deceased persons shall be administered according to the law and letters of administration shall be issued. S 31(2) provides that such letters of Administration shall authorise the executor to administer the estate wherever situated. 1.2.1 The law therefore put the onus on the Appellant to prove that she had made an


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inventory of all the deceased estate, declare it to the Master and Administer it and then she can be authorised by the Master to take her share as per the will. If she had followed this procedure, she would have declared the property to the Master and proved its existence, and it would have been brought together with the property mentioned in the will both valued and determined whether the property at Borokhoaneng was 4/6 of the whole estate, being the share of the testatrix.


1.2.2 As the situation stands, the sons of the late Molefi were entitled to a child's share of the estate which includes a child's share in the property at Borokhoaneng. Alice could not will away that property unless she had determined her share and given the son's a child's share. The property was therefore still indivisibly part of the joint estate with Molefi and therefore could not be willed away without proper distribution.


1.2.3 The dispute was therefore not genuine and not only that it is irrelevant, it was only created by the Appellant to misdirect the court.


1.3. Thirdly the,.Applicant/Respondent must have anticipated that there was a dispute of fact. This could not be anticipated as Respondent knew property to have been sold during Molefe's life time.


  1. Non Disclosure of Material Facts


2.1 The Appellant avers that the Respondent have not disclosed material facts, this


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being the property at Sharpville. It is our submission that for one to be guilty of non disclosure of material facts, one must have known about the facts and the non disclosure must have be done willfully and mala fide or negligently.


See: Petlane v. Petlane CIV/APN/476/98 P.7 (Unreported). Continental Circus v. De Raedts Circus 1958 (2) SA 598 at 602 Hebstein and Van Winsen 4th ed p 367.


2.2 In the present case the Respondent /Applicants knew the property to have been sold during the lifetime of their father. The Appellant alleges in her grounds of appeal ground No. 5.1 that Respondents have stated a mutually destructive story when they allege that the premises at Sharpville were sold during the lifetime of Molefi and that Alice had remained behind in South Africa when Molefi came to Lesotho.


2.3 It is our submission that these stories are not mutually destructive in so far as Alice did actually remain in South Africa when Molefi came and she came back some years later. There is nothing that could have prevented Molefi from selling the property during his life time.


2.4 The Appellant is the one who avers that the property at Sharpville was given to the Deceased's son's, therefore she must proof that. She is in a very good position to proof as the executor and next of kin of the late Alice for her to have made an inventory of all the property of the Deceased.


See: Administration of Estates Proclamation no. 19 of 1935 S 13 (a) See: also p. 91 & 92 of the record.


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2.5 The burden of proof therefore is shifted on her to proof that she made an inventory of all the property of the deceased, and therefore the property at Sharpville no longer belonged to the deceased. The facts themselves which are not denied support the allegation that the property no longer belonged to the estate. For example Thaki, lived at Hammanskraal at the time of his death and Ramalebo lived in Maseru with some friends. None of them lived in the alleged property at Sharpville.


See: para 3 25 of the record and para 3 p.42 of the record.


3.0 Requirements for an interdict


  1. A clear right on the part of the Applicants/Respondents.


  1. An injury actually committed or reasonably apprehended.


  1. The absence of any satisfactory remedy available to Applicant.


3.1 A Clear right


It is our submission that the Respondents have established a clear right. The Appellant herself concedes that the late Alice, was entitled to the half of the joint estate and a child's share. She alleges that she was entitled to 5/6 of estate whilst Respondents allege that she was entitled to 4/6 which is calculated as follows:-


l/2+ l/3 x 1/2 l/2 + l/6 = 3+16 = 4/6 or 2/3


See: para 7 (b) (v) p.27 of the record and para 11 p.8 and para 7 (b) (iv) p.45 of

the record.


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3.1.1 The deceased therefore had a clear right being 2/6 share of the estate of the late Molefi and Alice Selebeleng, which is contained in the property that has been willed away to the Appellant. On the basis of their share, the deceased were therefore entitled to be buried from their home.


3.1.2 An Injury Actually Committed or Apprehended In this case an injury has actually been committed in that the late Alice has made a will giving the Appellant all the rights of the property at Borokhoaneng which included their rights. The Appellant had actually on the basis of the purported will refused to let the deceased persons being buried from their home, hence they had to come to court on an urgent basis.


3.2 Absence of A Satisfactory Remedy


There was no remedy that was available to the Respondents except to approach the court in the manner that they did. They needed to bury the deceased persons. They had actually tried to exhaust local remedies, by going to the chief to intervene. It is at the chiefs place that they found there was a will, and they immediately approached the court. They could not wait to issue summons when the corpses were in the mortuary.


See: para 6 & 7 at p. 7 of the record.


3.2.1 In the case of Erasmus v. Afrikaner Proprietary Mines p.950 it was found that the Applicant had another remedy, being an action for damages,In the present case there is no other remedy except that the laws of an Intestate


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Succession and Administration of Estates which have mandatory clauses ought to be followed.


3.2.2 In the case of Admark(Recruitment) (PTY) LTD v Botes it 1981 SA 860. The applicant failed to prove that there was an injury actually committed as his restraint clause was found to be too wide and therefore unenforceable. In the present case as we have already indicated above an injury has already been committed being the will and the Appellants assumption of rights of ownership under the will.

3.2.3 Actually the facts of this case indicate that the appellant does not have a right to the estate because her right would result from the execution of the will, which the law provides how it should be done in mandatory terms under the following sections.


3.2.4 Section 13 of this proclamation makes it mandatory that where a person dies leaving a Will, the nearest relative at the place of death or a person who immediately after the death has the control of the premises at which the death occurs shall within 14 days thereafter cause a notice of death, signed by him or her to be delivered to the Master of High Court or to the District Commissioner or presently the District Secretary who shall remit same to the Master of the High Court.


We emphasise the word shall because it makes the procedure to be mandatory. The 1st Respondent has not complied with this requirements of


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the law.


3.2.5 Section 16 provides that any person who has a Will in his possession at the time of the death, or at any time after the death of the person executing the same. "Shall" forthwith deliver it to the Master of the High Court. Again the section makes it mandatory that the Will should be remitted to the Master of the High Court. The 1st Respondent has failed to do so.


3.2.6 Section 20,21 and 22, require that an inventory of deceased be made within 14 days by the surviving spouse or child, or next of kin of deceased or anybody who had control of premises and that it should be transmitted and/ or submitted to the office of the Master of the High Court. The sections use the word "shall" which therefore make the procedure mandatory. The 1st Respondent has failed to comply.


3.2.7 Section 24 deals specifically with immovable property and requires an inventory of such property to be made in which the deceased had an interest or which was registered in the name of the deceased, how the title is held and thedate of the title. Again the procedure is mandatory, and the l Respondent has failed to comply.


3.2.8 Section 31 (1) provides that estate of all persons dying either testate or intestate shall be administered and distributed, according to law, under letters of administration granted by the Master of the High Court. This procedure has not been complied with.


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3.2.9 S. 31 (2) provides that the letters of administration shall authorise the executors to administer the estate wherever situate. The reason why the law requires an inventory to be made and values of the property to be made, is because there is need to calculate with certainty each one's share and to investigate all the property of the deceased.


3.3 It is clear that in the absence of letters of administration the 1st Respondent has no authority to administer the property, even assuming that the will was valid.


3.3.1 S.32 provides that where a Will appoints an executor, the Master "shall" upon written application of the person so appointed, grant letters of administration to him as soon as the Will has been registered in the office of the Master.


3.3.2 All the above sections are mandatory and have to be complied with the 1st Respondent has boldly and wildly indicated that she complied, without producing letters of administration to proof her compliance. The burden and onus of proof is on her to proof that she has complied with the law and according to 31 (2) she has to be authorised to administer the estate. She has failed to discharge her burden and therefore she has no authority to administer the estate or to assume ownership.


See: paragraph 9 of the1st Respondent opposing affidavit


S 44 makes it mandatory for executor to make an inventory after his appointment, a confirmation of his appointment by the master.


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S 68 (i) Provides that the executor shall administer and distribute the estate, according to the law and the provisions of a valid Will. S.68 (2) This is done after publication of such distribution account and according to S.68 (6) she ought to cause publication in the government gazette and in the newspaper, of the availability of the distribution account for inspection by anybody who may so wish.


3.3.4 In view of the 1st Respondents failure to comply with the law, it is our submission that she has no authority over the property and she has no power to refuse to let the deceased's funeral being conducted from their home. She has not yet assumed ownership of the property, even assuming that the Will was valid.


S 110 makes it an offence not to comply with Sections 13,16,20,22,23,44 etc and imposes liability for punishment or penalty or forfeiture.


4.0 Locus Standi


4.1 According to the "Age of Majority Ordinance 62 of 1829 Section 2"


thereof indicates, a person becomes a major on attaining the age of 21. It is therefore clear that the third Respondent was a minor at the time of institution of these proceedings, and the Appellant herself says Thaki has a 20 years old son.


4.2 Molefi being a minor therefore ought to be assisted financially and legally.


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The first two Respondents are the appropriate persons to assist him. W.C.M Maqutu in contemporary law of Lesotho pp 190 -200 was discussing the duty to bury in the context of where interest of the heir and the mother or uncle are mutually destructive and the court has to determine who has a duty. In the present case they are all working towards the same goal.


In the same book, Maqutu indicates that where an heir is a minor he is assisted.


See: Maqutu Supra p. 121


4.3 It is our submission that a widow has locus standi in judicio in a case where she has an interest and she can also act on behalf of the minor child for whom she is a guardian or assist such a minor.


It is therefore our submission that the 1stRespondent is acting properly. See: Bereng Griffith vs Mants'ebo Seiso Griffith 1926-53 HCTLR. quoted from W.C. M. MAQUTU Contemporary Family Law Lesotho page 121 Laws of Lerotholi s. 12 (1) and s 13 (1)


4.4 According to the Laws of Lerotholi where the heir is a minor the guardian of the minor child administers the estate of the minor in consultation and with the consent of the uncles. Therefore an uncle has locus standi in judicio in matters concerning the estate or the prospective estate of the minor.


See: Laws of Lerotholi s 12 (2)


We submit that the uncle would also therefore be responsible together with the widow for burial regard being had to the fact that the third applicant is a minor.

5. The Will


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The court a quo correctly found that without execution, a person does not derive any rights from the will. It is just a persons's wish to give another some property, and it is realised through compliance of the relevant laws that enable it to be used.


See: p.91 of the record


5.1 The Learned Judge in the court a quo declared the will invalid on the grounds that it does not comply with the Will's ordinance No.15 of 1845, which provides for how a will should be signed, and the Will of the late Alice Selebeleng was not properly signed. The said Will was not signed on its first page which showed whose will it was and what capacity she had to make a Will, and also which cancels other written testamentary writings that may be existing.


See: p. 11 of the record. See: also p.96 & 97 of the record.


5.2 The court A quo in its interpretation of the Wills ordnance found that the provision requiring signing of the Will is mandatory and failure to comply with it was fatal to the Will.


See: p.97 of the record It is our submission that the court a quo had rightly set aside the will.


5.3 The Appellant argues that there were no facts which were alleged in the affidavits which revealed that Alice did not comply with the provisions of the Estate Proclamation. At "paragraph 10 p.7 of the record, the first Respondent makes that allegation.


5.4 In terms of the Intestate Proclamation of 1953, where there is no Will, the children share with the surviving spouse. The ratio used is that the surviving spouse inherits half of the entire estate and a child's share. Section 8 (2) (a)


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(b) of the Land Act of 1979 on the other hand concentrates on land only, and as the Learned Judge in the court a quo rightly stated, according to that statute with regard to land allocations the first male issue inherits and shares with his brother and the widow would be entitled to remain in occupation in terms of S 8 (3).


5.5 It is our submission that Alice has failed to comply with the law regarding requirements for a valid Will, and the Appellant herself has failed to comply with the requirements for execution of the Will. That is why this matter only came to court three years after the demise of Alice.


6.0 Intestate Succession


6.1 The relevant law is Intestate Succession Proclamation No.2 of 1953. Section 1 (ii) (a) provides that where spouses are married in Community of Property and the deceased spouse leaves any descendent 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 One Thousand Two Hundred Rand in value (which ever is the greater).


It is therefore our submission that since Molefi did not leave a valid Will, his spouse, the late Alice who survived him, could not inherit everything, she could only inherit a child's share. The late Alice after her husband, Molefi's death also ought to have complied with the mandatory provision of the administration of Estates Proclamation, and a distribution ought to have been made to Molefi's children. However the fact that the children did not insist upon the distribution then, does not mean they were not entitled nor that their


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survivors are not entitled.


6.2 The 1- Respondent herself admits in paragraph 7 that her mother was not entitled to everything, but to her share and a child's share. She however alleges that the children, who are now deceased, took their shares for themselves in Sharpville. This has been denied by the 1st Applicant who would personally have benefitted or known, being the wife of Thaki. This is the matter that cannot be assumed. It is factual. 1stRespondent being the one who alleges it has to prove it.


6.3 In the premises this Will is therefore invalid to the extent that it bequeaths the whole estate. The entire premises. It does not recognise that the testatrix did not own the entire estate by herself. There has actually not been any massing of the estate to assume that the husband had consented to his share being that of testatrix. In actual fact the proceedings in CIV/APN/285/83 show that the husband had not intended that his share should be inherited by the testatrix. He had actually purported to dispose of part of all his share to someone else.


See: Ex parte Wessels, N.O v. LUBBE 1954 (2) S.A. 225 at 226


6.3.1 It was held in that case that where a testator had been found to have died intestate and the other spouse had made a Will, the joint estate had to be divided in half, one portion to be divided equally amongst the testator's brothers and sisters and the other half equally between the testatrix brother and sister.


6.3.2 The case of Ex parte Uys N.O 1956 (1) S A 441 also shows that each spouse in a marriage in community of property has his or her share to the estate for which one can bequeath as one pleases. In this case spouses were married in community of property and surviving spouse and children were


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appointed sole and universal heirs of the whole estate in equal shares and the children were to get one half share of the estate and the other half share was to go to wife. This was even a joint will but it recognised each spouses half share.


6.4 In the case of Brummund vs Brummund's Estate 1993 (2) S A 494. The spouses married in community of property had made a joint will appointing a survivor the sole and universal heir. It was held "the sole" meant exclusion of everyone else while universal meant heir to everything: because there was already a joint estate and because neither party could therefore will away the entire estate, the surviving spouse inherited only the undivided share of the deceased".


6.4.1 It was held further that since the "will...provide that the heirs of the surviving spouse would be the testators' children, each testator had surrendered his or her right to an unrestricted half-share in the joint estate..." Massing of the estate had accordingly taken place.

6.5 In our present case, in the absence of a mutual will wherein the late Molefi massed his estate with that of testatrix (the late) Alice, then the testatrix had no right to bequeath Molefi's share to her daughter. Molefi's unrestricted right. Since he has not shown by will how it could be distributed then his ab intestato heirs are entitled to inherit his share. In turn they having died intestate their ab intestato heirs also have a right to inherit.


The Learned Judge in the court a quo had actually dealt with the Appellants points in limine in that he had held that the dispute of fact that was created by the Appellant was irrelevant and had found that there was urgency in the matter.


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See: p.90 and p.97 and 98 of the record


Wherefore we pray that the court should confirm the judgement of the court a quo and dismiss the appeal.


O. K. MOFOLO & COMPANY

RESPONDENT'S ATTORNEYS

MASERU BOOK CENTRE

P.O. BOX 650

MASERU 100


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