Nyamane v Mphalane and Others (CIV/APN/193/1999)

Case No: 
CIV/APN/193/1999
Media Neutral Citation: 
[2004] LSHC 24
Judgment Date: 
10 February, 2004

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CIV/APN/193/1999

IN THE HIGH COURT OF LESOTHO

In the matter between:-

TEBOHO NYAMANE APPLICANT

and

'MATEBOHO ('MATEBELLO) MPHALANE (nee NYAMANE)

1ST RESPONDENT

NEO MPHALANE 2nd RESPONDENT

LESOTHO HIGHLANDS PROJECT 3rd RESPONDENT

RULING

Delivered by the Honourable Mrs Justice A.M. Hlajoane

on 10th February, 2004.

This is an application in which the Applicant is claiming to be the successor to the estate of the late Motiki Nyamane and his wife 'Mammole

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Nyamane. Motiki died in 1972 whilst his wife only followed him in 1996. The parties had no male issue, but had a daughter, the 1st Respondent as their only child.

The Applicant claims to be the successor to the estate of 1st Respondent's parents, as the eldest son of Mothethoa Nyamane who is the blood younger brother of the late Motiki Nyamane. Applicant goes further and showed that he in fact was appointed by the family of Motiki and 'Mamole on the 6th August, 1998 as the sole and lawful heir to the estate of the deceased Motiki and 'Mamole.

The 1st Respondent on the other hand also claims to be the successor in title as her mother 'Mamole died having notified everybody through Chief Mopeli of her rights to the estate. The same Chief Mopeli is the one who also according to document styled annexure "B" to the Applicant's founding papers, wrote to a firm of Attorneys confirming that the Nyamane family has appointed Applicant as heir to Motiki and 'Mamole's estate.

That Annexure "B" attached to the founding papers, a letter by Chief Mopeli showing the family decision whereby Motiki and 'Mamole's estate was being transferred to Applicant as successor is dated 7th September, 1998. Annexure BB, a translation into English of a letter by the same

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Chief where the same estate was being allocated to the 1st Respondent is dated 8th June, 1997. There is no Sesotho version attached as Annexure B to the 1st Respondent's answering affidavit. 1st Respondent has also shown in her answering papers that a form C is being attached but there is no form C attached.

It has not been disputed that 1st Respondent and 2nd Respondent are respectively the daughter and grand-daughter of the said Motiki Nyamane. Also that Nyamane is related to Nqhobo. We have also been told that the 1st Respondent is married into Mphalane's family but is the only child born of Motiki Nyamane and 'Mamole Nyamane, both deceased. The issue here for determination is who, between the Applicant and 1st Respondent is to succeed to deceased's estate.

In our Sesotho custom, it is well known that there is only one heir, who is the deceased's eldest son. The male children will rank according to their seniority in the order of succession. If the deceased has no male issue, then the deceased's widow becomes the heiress. But where there is no widow, then succession goes to the next male relatives in the family tree. Abrahams vs Abrahams & Another 1991 - 96 LLR 1.

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The most disturbing factor about this case is that none of the litigants ever attempted or sought to put forward the family tree. Applicant claims to be the heir by virtue of being the first male issue of the blood younger brother to Motiki Nyamane. We have not been told if there are elder brothers to Motiki or their sons. 1st Respondent also calls the Applicant a stranger.

I am also not aware of any changes in the law of succession, at least under customary law. The position has always been that a widow in her lifetime may enjoy occupation of the husband's sites and that upon her death, the heir will be entitled to take over. The widow therefore has no right to disposition be it by allocation or by testamentary instrument during her lifetime. Ramantsoe vs Ramantsoe 1980 (2) LLR 438.

In the absence of any explanation as to how the family tree stands, either Applicant or 1st Respondent may well be the only legitimate surviving relative of the deceased Motiki Nyamane. There is a lot of dispute on this important aspect of this case which could not be resolved on papers. Applicant has as one of its prayers that he should be ordered to issue summons against 1st and 2nd Respondent within 30 days of finalisation of this matter, and is thus so ordered.

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The rule is therefore discharged and there is no order as to costs.

A. M. HLAJOANE JUDGE

For Applicant: Mr Molapo

For Respondents: Mr Kolisang