Lepetla v Makiietha and Another (CIV/APN/207/02)

Case No: 
CIV/APN/207/02
Media Neutral Citation: 
[2004] LSHC 48
Judgment Date: 
18 March, 2004

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CIV/APN/207/02

IN THE HIGH COURT OF LESOTHO


In the matter between:


SEABATA LEPETLA Applicant

Versus

NAPO MAKIIETHA 1st Respondent

M.K.M. FUNERAL SERVICES 2nd Respondent


JUDGMENT


Delivered by the Hon. Mr. Justice G. N. Mofolo On the 19th day of March, 2004


This is an application in which after the court disposed of burial rights some ancillary prayers were deferred. After disposing of the burial rights when the matter was to proceed certain problems arose among which was Mr. Monyako who appeared for the respondent saying as he had disposed of the matter there was no need for him to appear in court and this being the case was not prepared to withdraw from the case. Mr. Phoofolo had, however, submitted that he was now in effect attorney of record.


Mr. Phoofolo has submitted in perusing the file he found the application had been opposed on the ground that 1st respondent is heir to the estate of the late Nts'ehiseng and that from the body of the affidavit this was the only claim by the 1st respondent without in any way motivating his case and as the Answering Affidavit was bare it was necessary to file additional affidavit(s) to motivate 1st respondent's claim of being heir to the estate of the late Nts'ehiseng. Mr. 1stioofolo has further submitted the remissness of attorney for the 1st respondent could not be visited on the 1st respondent. The court had granted the application for filing of further affldavit(s) and affidavits in due course had been filed.


Facts of this case are that the deceased Nts'ehiseng Suzan Makhetha lived with her late husband at matrimonial home at Nts irele, Khubetsoana; Maseru City and when Nts'ehiseng' s husband died Nts'ehising continued to live at the matrimonial home. Nts 'ehiseng and her late husband had been married by Civil Rites at the Roman Catholic Church, the Cathedral of Our Lady of Victories, Maseru on 29 April, 1977 and there were no children of the marriage. It would seem Nts'ehiseng's husband died on 26 January, 2002 when Nts'ehiseng died on 9 April, 2002. Shortly before her death and on 12 March, 2002 it is alleged Nts'ehiseng decided that on her death her father Mr. Seabata Lepetla of Nts'irele Khubetsoana under Chief Hlathe Majara bury her. Not only this, it is also alleged she directed that on her death all property belonging to her be in the hands and responsibility of her father. Further, that her father bury her remains. She is also alleged to have directed that her letter be regarded as conclusive evidence before her chief and everything was to be done in compliance with the letter. The directions


were stamped before the chief of Khubetsoana where both Nts'ehiseng and her hue husband lived.


As shown above, shortly after the directions above, Nts'ehiseng died on 9 April, 2002. And shortly after Nts'ehising's death on 9 April, 2002, the family passed a resolution appointing one Napo Makhetha called an heir of Makhetha's to be released to him Thabo Monaheng Makhetha's life policy and that of Nts'chising Suzan Makhetha. The family decision is dated 15 April, 2002. Of course the reason for Napo's appointment arises from the fact (hat by reason of there being no male heir to the entire Makhetha dynasty, it was the reason for appointing Napo Makhetha as universal heir of the clan. And yet another family resolution dated 30 April, 2002 was made by the family designating Napo Makhetha as heir to the estate of the late Thabo Monaheng Makhetha and Nts'ehiseng Suzan Makhetha comprising a house, property and all monies. The family resolutions bear the official stamp of the chief of Mapeleng


There can be no doubt that in terms of the appointment the 1st respondent succeeds to the property movable and immovable of Thabo Makhetha and his wife.


On the contrary, it is the applicant's case that the late Nts'ehiseng Makhetha, his daughter, appointed him as heir and successor to his estate. In support of his contention the applicant has relied on annexure "A" dated 12 March, 2002 whose translated version reads:


I make a decision that upon my death, my father, Mr. Seabata Lepetla of Nts irele, Khubetsoana of chief Hlathe Majara bury me.


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I am making a further decision that upon my death all property belonging to me be in his hands and responsibility. I am giving him all power to bury my remains.


This letter should be regarded as full evidence before my chief in this form and everything should be done in accordance with the same.


No evidence was led in this matter but it would seem after her husband's death the late Nts'ehiseng lived with and was assisted by her father the applicant. In his Founding Affidavit the applicant confirmed this re:


Paragraph 7 where he says:


7.1 At all material times prior herein, I have always been staying with the deceased at her matrimonial home at Salang, Khubetsoana by reason of the fact that there was nobody to take care of the deceased during her lifetime as her husband had passed away. In fact I have stayed with both deceased and her husband prior to him passing away on the 26 January, 2002.


Paragraph 8


'—I wish to state with respect that I had taken full responsibility for the care and well-being of both the deceased persons who were my children and none of Makhetha family members, in particular the 1st respondent ever stretched a good Samaritan's hand in providing any

assistance whatsoever to my daughter's ill-health The 1st respondent has not contributed in any manner whatsoever to the long sickness of both my son-in-law and daughter.


I have perused the record in these proceedings including amplified and additional affidavits and nowhere have I found that the Makhetha family denied applicant's allegation that he was the only one who looked after the health and welfare of applicant's son-in-law and daughter. As for the 1st respondent's amplified or additional affidavit at paragraph 9 in answer to paragraph 7 above, 1st respondent admits that applicant stayed with the deceased as alleged. He maintains the Makhetha family did not forsake


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deceased though by reason of the deceased being hostile to the family' it was difficult lor the family to maintain complete care and contact with her.' What the lst respondent has established is that deceased was hostile to Makhetha' s family for the reason that the applicant influenced the deceased against the family. The totality of 1st respondent's case is that the deceased Nts'ehiseng was hostile to the Makhetha family and not least to the 1st respondent who, by his own admission in his Additional Answering Affidavit says 'I used also to offer my van to take her to the doctor, but she used to decline my offer.'


It has been argued on behalf of the 1st respondent that the testament in favour of the applicant is a forgery the reason advanced being that at the time Nts'chiseng was totally blind. If it is meant that an otherwise literate person turning blind cannot write, with this I disagree save for the fact that he or she cannot see what he or she writes nor can he or she tell if his or her signature is awry. 1 do miss my signature and have to correct if from time to time. In my view if it was complained that the signature is not Nts'ehiseng's, it was up to the 1st respondent to prove this since the onus is on him who asserts. It having not been proved that the signature is not Ntsdiiseug's, I reject the allegation that the signature is a forgery. I am to be understood, it could well be that the testament is a forgery though, to be deemed as such, there should have been evidence to the effect since this court is not an expert on handwriting. Importantly, Nts'ehiseng wrote the testament on 12 March, 2002 and according to papers before me she died on 9 April, 2002 less than a month after writing the testament. The testament bears chief of Khubetsoana's official stamp and was witnessed by one Thabang Neliai. Since Nts'ehiseng died shortly after the testament, I am of


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the view that this was her last wish. I do not see how it could have been otherwise for by 1st respondent's own admission, Nts'ehiseng was hostile to Makhetha's family and the 1st respondent.


1st respondent's case is that though illegitimate and coming from Nts'ehiseng's husband's sister who was never married, he was nevertheless appointed by the family to succeed to Nts'ehising's estate.


As to the appointment, 1st respondent in his original papers, namely Answering Affidavit says at para. 2


Applicant is related to deceased who was my step-mother and brought me up.


In this context, I understand reference to deceased as meaning Nts'ehiseng. There is no need for authority as to who is a step-mother for a step-mother is a woman married after the first wife has died and 1st respondent is saying that after her mother who was married to Monaheng died. Nts'ehiseng was married. In his additional affidavit 1st respondent does his best to evade this issue though, in paragraph 10 of his Answering Affidavit he more or less comes out of his shell alleging 'I also took care of my sister-in-law if I may call her that'.


According to papers before me, 1st respondent is neither step-child to Nts'ehiseng nor is Nts'ehiseng 1st respondents sister-in-law for 1st respondent was born of a sister to Monaheng, Nts'ehiseng's husband, the reason it is common cause that 1st respondent is illegimale.


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I lake exception to the fact that 1st respondent has not only contradicted himself but that he has lied, lied by saying that Nts'ehiseng was his stepmother. He lied to give the impression that he was closely related to Nts'ehiseng when, in fact, he was not so closed related for, at paragraph 11 of his Additional Answering Affidavit the 1st respondent also comes out of his shell by admitting:


My biological mother is Monaheng's younger sister and she was never married 1st respondent has confirmed his status by saying he has annexed family resolution marked 'NM1' and a fair translation of the same. He has also said he has annexed resolution marked 'NM3" and the translation marked 'NM4 " But unfortunately these were not annexed having been annexed in the Replying Affidavit marked annexures "A", "B", and "C" though there are no annexures "A", "B" and "C" in my file save annexures 'Nm' and 'NM' dated respectively 15 April, 2004 and 30 April, 2002 encompassing the entire estate.


In an application, all material facts are to be disclosed in the original papers; this goes for the Founding and Answering Affidavit; if they are not so disclosed and come later in replying affidavits, these are taken as an afterthought and are excluded. In fact, not appearing in the original papers, there is always the suspicion that they are resorted on in order to close gaps.


Since Nts'ehiseng and Monaheng were married by civil rites and appear to have led European way of life and there being no evidence to the


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contrary, I have resolved to decide this matter basing myself of principles of the received civil law.


Boberg at p. 342 (The Law of Persons and Family) quoting from several sources is of the view that on intestacy an illegitimate child succeeds to his mother and her relations in the same way as a legitimate child does. Now, the 1st respondent is Monaheng's sister's child born of an unmarried sister and it would appear on this basis the 1st respondent is liable to succeed to Nts'ehiseng's and Monaheng's estate and despite lst respondent's misrepresentations, as lst respondent belongs to the Makhetha family, it would only be fair and just that 1st respondent succeed. On 1st respondent's way, however, stands the applicant who claims Nts'ehiseng testament was to the effect that he take control of the estate. After the demise of Monaheng, Nts'ehiseng's husband, undoubtedly the family property devolved on Nts'ehiseng who was, on death, entitled to dispose of it as she wished. I am of the view that at custom she could not do this for at custom death does not terminate marriage while at civil law death terminates marriage.


Since I am of the view that the 1st respondent failed to prove that Ntsehiseng's testament is a forgery, it follows that this applications ought to succeed.


Accordingly, the interim court order is confirmed and the application is granted as prayed with costs.


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G.N. MOFOLO

JUDGE


For the Applicant: Mr. Nathane

For the 1st respondent: Mr. Phoofolo


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