Morienyane v Morienyane and Others (CIV/APN/204/2003 )

Case No: 
CIV/APN/204/2003
Media Neutral Citation: 
[2004] LSHC 83
Judgment Date: 
2 July, 2004

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CIV/APN/204/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:


MAMATETE MORIENYANE 1st APPLICANT

AND

NQOSA MORIENYANE 1ST RESPONDENT

MAHAO MORIENYANE 2nd RESPONDENT

TS'EPO MORIENYANE 3rd RESPONDENT

ISAAC MORIENYANE 4th RESPONDENT

MPINANE MORIENYANE 5th RESPONDENT

MASTER OF THE HIGH COURT 6th RESPONDENT


JUDGMENT


Delivered by the Honourable Mr Justice T. Nomngcongo on the 2nd July 2004


On the 16th May 2003, the applicant herein approached court ex parte and urgently

sought relief in the following terms:-


  1. That a Rule Nisi do hereby issue calling upon the Respondents to show cause if, any, on a date to be determined by this Honourable Court, why:-


    1. The ordinary periods of notice shall not be dispensed with due to the urgency of this application.


    1. The first, second and third respondents, herein shall not be interdicted forthwith from collecting, making inventory of, vandalizing, disposing of, interfering or dealing in any manner whatsoever with the estate of the late Qamako Collierd Morienyane pending finalization of this application.


    1. The first, second and third respondents shall not be ordered to surrender all proceeds and collection of all the rentals from shacks and buildings collected by them to date, (sic) From the applicant's business site at Ha 'Makhoroana pending the finalization of this application.


    1. Why the first, second and third respondents shall not be interdicted from collecting any further rentals from the said business site at Ha 'Makhoroana pending finalization of this application.


    1. The sixth respondent shall not be interdicted from appointing,


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confirming, or dealing in any manner whatsoever with the conditions of the Will of the late Qamako Collierd Morienyane registered on 22 December 1999, pending finalization of this application.



  1. The Will executed by the late Qamako Collierd Morienyane shall not be declared null and void.


  1. The purported appointment, by the sixth respondent and/or by the Morienyane family, of the first, second and third respondents, individually or collectively in pursuance of the said Will shall not be declared null and void.


  1. The applicant herein shall not be declared the lawful surviving spouse and widow of the late Qamako Collierd Morienyane with full dominum over the joint estate.


  1. The purported bequest of the joint estate, in respect of the movable and immovable property, including the so called "ploughing fields" to the first, second, forth and fifth respondents shall not be declared invalid.


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  1. Section 3(b) of the Administration of estates proclamation 19 of 1935 shall not be declared unconstitutional in that it is inconsistent and in conflict with section 3 of the Lesotho Constitution 1993 by reason of its being discriminatory ether in itself and/or in its effect, on the basis of cultural beliefs and therefore null and void to the extent of the inconsistency.


  1. The respondents herein shall not be directed to pay the costs hereof, provided that the sixth respondent shall pay costs in the event of opposing same.


    1. The applicant shall not be granted such further and/or alternative relief as this Honourable Court may deem fit.


    1. 2. That prayers 1 (a) (b) (c) (d) and (e) operate with immediate effect as temporary interdicts.


On the same day, the 16th May 2003, the applicant obtained an Interim Court Order


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in terms of the notice of motion and a rule nisi was ordered returnable on the 26th May. On that day Mr. Sekonyela for the applicant and Mr. Moruthoane for the applicants appeared before Hlajoane J and an order was obtained that:


  1. The matter is post-poned to the 26th June 2003 and Rule Nisi (sic) issued on 16th May 2003 is extended accordingly.


  1. The Master of the High Court is hereby authorized to collect forthwith, the rentals from the business site of the late QAMAKO COLLIERD MORIENYANE at Ha Makhoroana in the Berea District, for safe keeping pending the finalization of this application.


  1. That the respondents shall file their opposing papers if any, by the 16th June 2003.


In the meantime a notice of intention to oppose had been filed. It was to be followed on the 16th June by what was inelegantly styled an "opposing" instead of" answering" affidavit of the 1st respondent together with the supporting affidavits of 2nd, 4th and 5th respondents as well as that of 'Matikoe Exinia Matsoso who is not party to these


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proceedings. I will deal with these, and applicant's affidavits in due course.


I deal first with the applicant's prayers. There are some thirteen of them in all. Four deal with usual relief in this kind of matters namely, dispensation with the ordinary periods of notice, costs, alternative relief and temporary relief pending finalization. The rest deal with the gist of this application and they center around the Will of the late Qamako Collierd Morienyane. They seek interdicts and declaratory orders, all flowing from the Will. The respondents are to be interdicted from dealing in any way with the estate of the late Qamako Collierd Morienyane under the Will, including appointment or confirmation by sixth respondent of the first respondent as executor thereof. It is then sought to declare the Will itself null and void and it is added, quite superfluously in my view that "the purported bequest of the joint estate in respect of movable and immovable property including the so called "ploughing fields" shall not be declared invalid." The applicant goes on to seek to be declared "the lawful surviving spouse and widow of the late Qamako Collierd Morienyane with full dominum over the joint estate." {My emphasis). Finally the applicant wants to have "Sec. 3(b) of the Administration of Estates Proclamation 19 of 1935 declared unconstitutional in that it is inconsistent and in conflict with section 3 (I think it is meant section 2) of the Lesotho Constitution 1993 by reason of its being


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discriminatory either by itself and/or in its effects, on the basis of cultural beliefs and therefore null and void to the extent of the inconsistency."


The latter, rather long drawn out prayer is motivated as follows in applicant's founding affidavit par. 20 thereof.


"I am further advised by Counsel of record herein and believe same to be true that the said purported Will is invalid and void in one, other or all of the following respects:


  1. That it is executed under a law which is unconstitutional, in that clause 3(b) of the Administration of Estates Proclamation 1935 discriminates against persons who are Basotho and practice "tribal custom " and;


  1. That alternatively, even if the Will -I think the law is intended here -were to be held not discriminatory .... my late husband had not abandoned tribal custom as required by the Proclamation. I submit that my late husband and I were married according to the so called "tribal custom " as Bohali was duly paid and all customary rites ensured......"


Section 3 (b) of the Administration of Estates Proclamation reads as follows:


3) This Proclamation shall not apply -


  1. to the estates of Africans which shall continue to be administered in accordance with the prevailing African law and custom of the Territory: Provided that such law and custom shall not apply to the estates of Africans who ......... have abandoned tribal custom and adopted a European mode of life and who if married, have married under European law.


It will immediately be clear that the deceased, Morienyane, executed the Will in spite


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of and not under the impugned Proclamation which specifically and by the applicant's own admission excludes either of them. Her averment that he did and advancing it as a reason for declaring the Proclamation unconstitutional cannot stand. Her late husband defied that law and in doing so apparently purported to disinherit the applicant. For the purposes of this prayer her wrath should have been directed not at the law but the Will. In my view she confuses the law and the Will. Of course she does that elsewhere, but for the purposes of declaring the Proclamation unconstitutional she completely misdirected her challenge. In this regard it is important to note that applicant invokes the provisions of section 18 of the Constitution. It provides:


18 (1) Subject to the provisions of subsections (4) and (5) no law shall make any provision that is discriminatory either of itself or in its effect.


This provision must be read with section 22 (1) which provides.


      1. If any person alleges that any of the provisions of sections 4 to 21 (inclusive) of this Constitution has been, is being or is likely to be contravened in relation to him........, then without prejudice to any other action with respect to the same matter which is lawfully available, that person.......may apply to the High Court for redress. (My emphasis).


Thus for any party to succeed to strike down a provision of the law under section 18(1) of the Constitution he must allege under section 22 (1) a contravention against


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himself or herself either past, present or future. It is not enough, in this case for instance to allege that, the law is discriminatory, the applicant must go further and allege that it is discriminatory against herself. This accords with the principle that an applicant for a declaratory order must have an interest in the decision sought which is not merely academic but must relate to an existing, future or contintengent right as obligation. It was thus held in the South African case of Adbro Investment Co. Ltd v Minister of the Interior and Others 1961 (3) SA 3 283 (T) at 285D.


"....some tangingle and justifiable advantage in relation to the applicant's position with reference to an existing......future or contingent legal right or obligation must appear to flow from the grant of the declaratory order. "


Here the applicant does not allege that the law discriminates against her or stands in her way by including her from making a Will, nor for obvious reasons that it stood in the way of her deceased's husband capacity to do so. Her husband did purport to execute a Will. If I were to in fact declare the law unconstitutional, it would follow that prima facie that Will was valid, which is precisely what the applicant does not want. Nothing illustrates more clearly the confusion that exists to the applicant between the law and the Will both of which she seeks to have declared either invalid or unconstitutional for being discriminatory.


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Now I have to advert to another aspect which was not specifically raised nor was argued before me and that is the procedure adopted in making this constitutional challenge to the law. I consider this important enough to express my views on it, in spite of the view that I take of this case which will soon be apparent.


The High Court is vested with original jurisdiction over matters concerned with the protection and enforcements of the rights and freedoms entwined in Chapter II of the Constitution, sections 4 and 21 inclusive section 22 (2) provides


(2) The High Court shall have original jurisdiction:-


    1. to hear and determine any application made by any person in pursuance of subsection (1) (i.e. the enabling section)


Subsection (6) then goes on to provide


  1. The Chief Justice may make rules with respect to the practice and procedure in relations to the jurisdiction and powers conferred on it by or under this section (including rules with respect to the time within which applications may be brought and references shall be made to the High Court).


On the 14th December 2000 the Chief Justice made the Constitutional Litigation Rules in terms of the powers thus conferred upon him by section 22 of the Constitution. "Court" is interpreted under the rules as "the High Court" established by section 119 of the constitution and exercising its jurisdiction under section 22 of the Constitution (Rule 2(1)).


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Thus the court sitting in its constitutional jurisdiction should be distinguished from the court sitting in its ordinary civil or criminal jurisdiction. In that jurisdiction its procedure and practice is governed by separate rules. It is therefore not proper in my view to lump together in one application constitutional as well as ordinary redress. It may well be that it would be convenient to argue the two together where for instance one relief depends on the other, but that is a matter of the direction of the court hearing the matter in its proper jurisdiction under the relevant rules.


It would seem therefore that the constitutional challenge is not properly before me - this court sitting as it is, in its ordinary civil jurisdiction.


Finally the decision of this case lies elsewhere. I dealt with the above matter simply because they touched on the constitution and that being the supreme law of the land, I considered that they could not be left without comment.


This application was brought on an urgent basis. It is alleged in the certificate of urgency that unless the 1st, 2nd and 3rd respondents are interdicted they are likely to "vandalize, misuse and/or cause destruction and/or dissipation of the


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property and estate of the late Qamako Collierd Morienyane and throdle (sic) applicant means of livelihood. " It is further alleged that applicant is likely to suffer irreparable harm due to starvation together with her children, there being no other means of livelihood available to her and finally that respondents may not be able to compensate applicant in due course.


As has been indicated elsewhere in this judgment all the woes of the applicant stem from the Will executed by the late Qamako Morienyane. In her founding affidavit she says she never knew of the existence of the Will until she was called to the office of the Master of the High Court on the 28th March 2003 -"where I was shown for the first time, purported (sic) Will of my late husband" (Par. 12 of founding affidavit). This is repeated as follows at par. 14 "I never knew anything about the existence of any Will ....until that day which is four years later." Confronted with the answer by 1st respondent that this could not be true as the Will had been read and explained in a family meeting in her presence as long back as the 26th December 1999 all she can say is that the meeting had not been called for the purpose of reading and explaining the Will. She nevertheless concedes that: "The issue of the Will was only raised in response to my question about moneys..." (Par. 16 of the reply). Then follows


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a startling statement: " from the meeting ....I dismissed the so-called Will as fictitious and a joke because even in that meeting it was agreed ...that issues of succession will be covered by Annexure 7." She goes on to insist that it was not on the agenda but "it was just read in the meeting" This is a far cry from a bold assertion that applicants never knew anything about the very existence of the Will until it was read to her at the offices of the Master. The applicant has simply not told the truth. She knew of the existence of the Will as far back as December 1999 but decided that it was a joke. Two material issues arise. The applicant is not bona fide and secondly there was no urgency at all when she approached court. It is trite that the courts cannot come to the assistance of a litigant in who, ex parte approaches it mala fide even if such mala fides were not intentional. It is worse in casu, where I unfortunately cannot avoid to say she is lying to the court.


That the applicant's cause of action arose long before he decided to hijack the rules and approach this court is further demonstrated by the fact that some of the acts attributed to the respondents under the Will took place as long ago as the year 2000. I refer here to the collection of rental which in terms of her own affidavit was started by the first respondent in that year. She nevertheless saw


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fit to rush to court in 2003 to urgently interdict them from further doing so. She could not do so.


This court and the Court of Appeal have on innumerable occasions lamented this abuse of court process. The lamentations fall on deaf ears. The blame lies squarely at the door of legal practitioners who fail in their duty to properly advise their clients. The Court of Appeal has warned that costs de bonis propriis in cases like this may be ordered.


On the grounds that this application is not bona fide, and that it was not urgent at all, I dismiss application. Costs of course follow the cause, but in view of my remarks about the conduct of this case, I also have to add that this is one case where counsel should consider himself fortunate that, such costs have not been ordered de bonis propriis.


T. NOMNGCONGO

JUDGE


For Applicant : Mr Sekonyela

For Respondent : Mr Matooane


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fit to rush to court in 2003 to urgently interdict them from further doing so. She could not do so.


This court and the Court of Appeal have on innumerable occasions lamented this abuse of court process. The lamentations fall on deaf ears. The blame lies squarely at the door of legal practitioners who fail in their duty to properly advise their clients. The Court of Appeal has warned that costs de bonis propriis in cases like this may be ordered.


On the grounds that this application is not bona fide, and that it was not urgent at all, I dismiss application. Costs of course follow the cause, but in view of my remarks about the conduct of this case, I also have to add that this is one case where counsel should consider himself fortunate that, such costs have not been ordered de bonis propriis.


T. NOMNGCONGO

JUDGE


For Applicant : Mr Sekonyela

For Respondent : Mr Matooane


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