Thekiso v Mokatsanyane and Others (CIV/APN/460/2003 )

Case No: 
CIV/APN/460/2003
Media Neutral Citation: 
[2004] LSHC 102
Judgment Date: 
25 August, 2004

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CIV/APN/460/2003

IN THE HIGH COURT OF LESOTHO


In the matter between :


MOTSEKUOA PATRICK THEKISO APPLICANT

VS

TS'EPO MOKATSANYANE 1ST RESPONDENT

'M'AJANKI MOKATSANYANE 2nd RESPONDENT

MASTER OF THE HIGH COURT 3rd RESPONDENT

ATTORNEY GENERAL 4™ RESPONDENT


JUDGEMENT


Delivered by the Honourable Mrs. Justice K.J. Guni On the 25th day of August 2004


Customary law heir_______________who is ?_________________

Which law applies ?____________Administration of deceased estate

Or SESOTHO Customary law ?_____________________________


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(1)

HISTORICAL BACKGROUND OF THE CASE


The applicant herein, is MOTSEKUOA PATRICK THEKISO. He is the adopted son of KOPANO AND 'M'ALEBENYA MOKATSANYANE. On the 30th September 1989 KOPANO MOKATSANYANE appointed the applicant as his customary law heir after his death and that of his wife 'M'ALEBENYA MOKATSANYANE. This notice of the appointment of the customary heir by KOPANO MOKATSANYANE presupposed that he was going to die before his wife - 'M'ALEBENYA. Some members of the MOKATSANYANE family signed as witnesses. Such notice - declaring the applicant as KOPANO AND 'M'ALEBENYA MOKATSANYANE'S customary law heir was placed before appropriate customary law authorities such as the chief of MAJOE-A-LITS'OENE and the Ministry of Interior. KOPANO died. After his death MOKATSANYANE family sat again and formally accepted this applicant - MOTSEKUOA PATRICK THEKISO as the son of KOPANO MOKATSANYANE. The family specifically declared that upon 'M'ALEBENYA's death, this applicant will be the heir.


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This was done in the presence of at least thirteen members of MOKATSANYANE family including 'M'ALEBENYA herself and the 1st respondent herein. 'M'ALEBENYA like her late husband similarly placed the said notice - declaring this applicant their heir, before the appropriate authorities. This notice declaring this applicant the heir to the deceased estate was made or signed on 9th December 1997.


On the 28th August 2000, 'M'ALEBENYA purported to make a will -disinheriting their customary law heir. She declared that on that occasion she had abandoned customary way of life and has adopted the European way and mode of life. Apparently at this time relations between her and their customary law heir were not good. She then proceeded to appoint TS'EPO MOKATSANYANE who is described as the son of her late husband's brother who is also the 1st respondent herein, as her heir in accordance with custom.


'M'ALEBENYA died in July 2003. During the burial ceremony one MAEMA TS 'OSANE read from a document purportedly written by 'M'ALEBENYA during her lifetime.


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To the applicant's surprise he had been disinherited and the 1st respondent appointed the customary law heir by 'M'ALEBENYA. The applicant had known all along that he is the customary heir of both KOPANO AND 'M'ALEBENYA MOKATSANYANE. He could not believe his ears nor the authenticity of the said document. This is the document, which is now attached to the opposing affidavit by TS'EPO MOKATSANYANE. It is the last will and TESTAMENT OF 'M'APHEELLO MOKATSANYANE. It would appear that the applicant disbelieved that his parents have disinherited him and he proceeded to behave as the heir of the deceased.


The 1st respondent's agents assaulted him and chased him away from the property. He then proceeded to file this application. He obtained a rule nisi in these terms:-


  1. That a Rule Nisi be issued and returnable on the date to be determined by this Honourable court calling upon the Respondents to show cause if any, why :

    1. The periods and modes of service be dispensed with on account of the gency of this matter,


    1. First and Second Respondents should not forthwith be restrained from taking control of


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the late KOPANO MOKATSANYANE at Ha Ts'osane and to collect rentals for their own benefit from the said premises.


    1. Directing the third Respondent to take control of the premises and to receive for safe-keeping rentals from rented flats pending the result of this application, and to surrender same to whomsoever will this Honourable court declare as the deceased's heir.

    2. Directing third Respondent to confirm, and by The strength of this Honourable court's order Direct the tenants residing in the deceased's eight room flats to pay the month rental to the third respondent.

    3. Declaring Applicant as the lawful heir in the Estate of the late KOPANO MOKATSANYANE

    4. Granting applicant further and/or alternative relief

    5. Costs


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(2) APPLICANTS CASE


It is this applicant's case that he is the customary law heir of the deceased on the ground that he is the only son of the deceased and that it was the wish of both his parents that he inherits all their property after their deaths.


On the return date the confirmation of the said rule nisi was opposed. The opposing papers were filed and the matter was heard. A point in limine was raised, that there is dispute regarding who is the deceased's heir because the 1 st respondent is appointed heir by the deceased's late wife -'M'ALEBENYA.


There may be dispute because there are two claimants to the heirship of the deceased's estate but, that dispute can be resolved on papers filed of record. As a result the point in limine is not properly taken and must therefore fail.


Now I proceed to deal with the merits of the case. The other respondents are not claiming to inherit the deceased's estate. They have filed no papers. Therefore they have no special interest in the matter. They are prepared to abide by the decision of this court in this matter.


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(3) RESPONDENTS CASE


It is not denied that the applicant is the son of the deceased. It is also admitted that by Annextures "A & B" attached to the Founding Affidavit, the applicant was made a customary law heir by the deceased, but that has been revoked by the last will of the deceased's wife.


(4)


The question to be resolved before this court is who is entitled to be the customary law heir of the deceased. The late husband of 'M'ALEBENYA MOKATSANYANE appointed the applicant herein as his customary law heir after his death and his wife's death. The subject matter of the dispute is (3) three unnumbered residential sites at HA TS'OSANE in MASERU. After her husband's death 'M'ALEBENYA MOKATSANYANE sought to revoke her own wishes and these of her late husband. Is this permissible in law.


Which law applies in this matter? Although there is a marriage certificate filed nobody refers to this document. It appears KOPANO was married twice at two different times to two different women.


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The copy of the marriage certificate indicates the parties to the marriage as KOPANO JOHANNES MOKATSANYANE and MARIA TLELENG. This factor per se does not prove that KOPANO had abandoned the customary way of life and had adopted the European way and mode of life. The two documents "Annexture A & B" attached to the Founding Affidavit, show that the parties at that time, practiced their SESOTHO custom and Tradition: The two notices which show unequivocally that this applicant is the customary law heir of the deceased were, made and given to the family and chiefs in terms of the SESOTHO custom. The law that should apply to revoke or quash the SESOTHO customary law heir must be the SESOTHO customary law. In SESOTHO customary law the wife is a minor. The minor owns no property. The SESOTHO customary law recognizes the right of the widow to use the immovable property of her late husband. The residential sites form part of immovable property. The residential sites are inherited by the male heir not by the widow. RAMONTSOE vs RAMONTSOE 1980 (2) LLR 438 at 439. The widow remains in occupation and continues to enjoy the use of the immovable property until she dies. It is only after the death of the widow that the heir has a right to physical possession and use of the property which he has inherited after the death of his father.


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There is no evidence that KOPANO himself changed his way of life from SESOTHO custom and tradition to EUROPEAN way of life. Therefore the law that applies is the SESOTHO CUSTOMARY LAW. The administration of estates proclamation does not apply in this case because before his death KOPANO had not abandoned the SESOTHO way of life and adopted the EUROPEAN way.


In accordance with the Sesotho customary law the man's son is his heir. LAWS OF LEROTHOLI PART I SECTION 11(1). The applicant is the deceased's son. The evidence which is not denied by the respondents points at one direction only - showing that the applicant is the son of the deceased. Even though the widow has a right to possess and use the immovable property of her late husband, she cannot lawfully dispose either by allocation during her lifetime or by testamentary instrument after her death. [SEE POULTER - FAMILY AND LITIGATION IN BASOTHO SOCIETY]


'M'ALEBENYA's declaration that she has abandoned the customary way of life and has adopted the European way and mode of life is irrelevant in the determination of this matter.


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It is her late husband who has a right to dispose of the immovable property, not herself. The late KOPANO MOKATSANYANE's actions indicate that he preferred to practice his SESOTHO custom and tradition. He behaved and acted in accordance with SESOTHO LAW AND CUSTOM. KOPANO is the person who had a right to disinherit the heir - not 'M'ALEBENYA, RAMONTSOE v RAMONTSOE supra at page 440. KOPANO did not disinherit their son. 'MALEBANYA has no right in law to revoke her late husband's wishes.


'M'ALEBENYA or anybody else cannot revoke her late husband's wish. She cannot change the law. The man's son remains his heir. Those who helped 'M'ALEBENYA can claim their expenses from the estate. They cannot inherit the deceased's estate on that ground that they helped 'MALEBAYA or anyone depended on the estate for her or his maintenance and support.

IN THESE CIRCUMSTANCES THIS APPLICATION MUST SUCCEED. IT IS THEREFORE GRANTED AS PRAYED WITH COSTS.


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KJ.GUNI

JUDGE


For Applicant : E.H. Phoofolo

For 1st & 2nd Respondents: O.K. Mofolo & Co


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