Thabiso Mosao V Mabohlale Makakole (Nee Mosa Mosao) & 3 Others (C of A (CIV) 09/2025) [2025] LSCA 9 (2 May 2025)

Thabiso Mosao V Mabohlale Makakole (Nee Mosa Mosao) & 3 Others (C of A (CIV) 09/2025) [2025] LSCA 9 (2 May 2025)

LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) NO. 09/2025
CIV/T/0570/2023
In the matter between
THABISO MOSAO APPELLANT
and
‘MABOHLALE MAKAKOLE (Nee Mosa Mosao) 1ST RESPONDENT
‘MATHUSO KEPA (Nee Thato Mosao) 2ND RESPONDENT
MASTER OF THE HIGH COURT 3RD RESPONDENT
THE ATTORNEY GENERAL 4TH RESPONDENT
CORAM: MOSITO P
DAMASEB AJA
MATHABA AJA
HEARD: 22 APRIL 2025
DELIVERED: 02 MAY 2025
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FLYNOTE
Customary Law – Succession – Jurisdiction – Declaration of customary heir – Whether prior family arbitration under section 14(4) of the Laws of Lerotholi is a jurisdictional precondition – Distinction between questions of status and property disputes – Misinterpretation of section 14(4) – High Court's constitutional authority to declare heirship
The appellant, the only son of the deceased, sought declaratory relief in the High Court recognising him as the customary heir to his father’s estate. The High Court declined jurisdiction, holding that the dispute must first be resolved by a family council in terms of section 14(4) of Part I of the Laws of Lerotholi. On appeal, the Court of Appeal held that the High Court had misdirected itself by conflating questions of heirship (status) with disputes concerning the distribution of property (entitlement). Section 14(4), properly construed, applies only to disputes about property and not to the anterior legal question of who the customary heir is.
Held, the High Court retains jurisdiction to declare heirship under customary law. A party seeking a declaration of status is not required to exhaust family arbitration under section 14(4) as a prerequisite. The refusal to determine the appellant’s claim constituted an error of law. The matter was remitted to the High Court for determination.
Held (Mosito P, Damaseb AJA, Mathaba AJA concurring): Appeal upheld. High Court order declining jurisdiction set aside. Matter remitted to the High Court for determination. Costs awarded to the appellant.
JUDGMENT
MOSITO P
Background
[1] This is an appeal from the High Court's refusal to entertain an application by the appellant, Mr Thabiso Mosao, who sought a declaration that he is the customary heir to the estate of his late father, Mr Thabo Augustinus Mosao. The High Court declined
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jurisdiction, reasoning that the dispute required prior resolution through family arbitration per section 14(4) of Part I of the Laws of Lerotholi. This Court is now called upon to determine whether that refusal was well-founded in law.
Background
[2] The appellant is the son of the late Mr Thabo Mosao and one ‘Mathabiso Mosao, who was married to the deceased by civil rites following his divorce from his first wife, ‘Mamosa Mosao. Two daughters, Mosa and Thato, were born in the first union, and they are the first and second respondents. The marriage between the deceased and ‘Mamosa was dissolved in 1978. The subsequent marriage to the appellant’s mother endured until 2000, when it too ended in divorce. The deceased never remarried thereafter.
[3] During his lifetime, the deceased acquired considerable movable and immovable property, both residential and commercial. Upon his death intestate on 23 April 2023, his estate was reported to the Master of the High Court, who directed that it be administered under customary law. The parties did not contest this decision.
[4] The appellant, being the only son of the deceased, claimed customary heirship. The respondents, his elder half-sisters, who had been married, returned from their respective marriages and contested this claim. Although they acknowledged the validity of the marriage between the appellant’s parents, they asserted that adulterous circumstances tainted his birth and that he was, by reason thereof, not entitled to inherit.
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The facts
[5] The central facts are not in serious dispute. The key issue lies in the legal question of whether the High Court was correct to decline jurisdiction on the basis that the appellant had not first pursued family arbitration under the customary framework set out in section 14(4) of the Laws of Lerotholi.
Issues for Determination
[6] Thus, the principal issue for determination is:
Whether the High Court erred in declining to determine the appellant’s claim to customary heirship on the basis that the dispute should first have been referred to a family council.
The Law
[7] Under customary law, succession to family leadership is governed by deeply rooted traditional norms. In this regard, WCM Maqutu, Contemporary Family Law: The Lesotho Position at pp. 168–169, states that:
“The firstborn son of the first ‘house’ is the universal heir and head of the family, and all unallocated property vested in him.”1
[8] Thus, the general rule is that the firstborn son of the first or principal house is regarded as the universal heir. He assumes the position of head of the family, which carries symbolic responsibilities, including the custody of ancestral land and the preservation of the family name and rituals.
1 Ramatlapeng v Jessie (C of A (CIV) 15 of 2016) [2016] para 15.
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However, assuming this role is not automatic. Custom dictates that the heir must be formally nominated by the family council, a traditional deliberative body composed of senior family members. Once nominated, the heir’s name is submitted through the appropriate administrative channels, including local chieftainship and relevant customary authorities, for formal recognition. This process underscores customary succession's communal and consultative character, balancing birthright with collective family endorsement.
[9] It is only upon such formal appointment of the heir that questions regarding property rights and obligations may properly arise. Under the framework of the Laws of Lerotholi, Part I, section 14, it is the heir so recognised who inherits the unallocated property and thereby acquires both the privilege and duty of managing the deceased's estate. He is expected to use the property to maintain the dependents of the deceased and is obliged to share the estate with his junior brothers.
[10] Section 14(4) further provides that any disputes among family members concerning property or property rights must initially be referred for arbitration to the deceased’s brothers and other customary consultees. It follows, therefore, that such arbitration proceedings are contingent upon the prior determination of heirship. That is because only once the heir's identity is settled can his entitlements and corresponding duties regarding the property be judicially or customarily delineated. The law thus draws a principled distinction
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between succession disputes, which concern status, and property disputes, which relate to entitlements flowing from that status.
[11] It is trite law that the jurisdiction of the High Court, as conferred by the Constitution and enabling statutes, cannot be ousted lightly or by implication. Thus, customary arbitration forms an integral first step in resolving intra-family property disputes, provided the threshold question of heirship has been conclusively and validly resolved through the appropriate customary processes.
Consideration of the Appeal
[12] In the present matter, the learned judge a quo conflated the heirship issue with property division. While section 14(4) may indeed govern disputes as to property, it does not extend to the anterior and logically prior question of who qualifies as a customary heir. That is a question of status, falling squarely within the jurisdiction of the High Court.
[13] The appellant sought declaratory relief regarding his status, not a division of the estate per se. The High Court was accordingly bound to determine that claim. Its refusal to do so constituted a misdirection in law.
[14] Furthermore, there is no legal or jurisprudential requirement that a claim for declaration of customary heirship must first be exhausted before a family council. Even if that were encouraged as a matter of policy or practice, it could not act as a jurisdictional bar.
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[15] This Court is therefore satisfied that the learned judge fell into error in declining to adjudicate the matter. The High Court should have pronounced upon the appellant’s status and, if necessary, left any property-related disputes to subsequent resolution through customary processes or judicial determination.
Disposal
[16] For these reasons, the appeal must succeed. The matter is remitted to the High Court for hearing and determination on the merits of the appellant’s claim to be declared the customary heir of his late father.
Order
[17] The following order is made:
[a] The appeal is upheld.
[b] The High Court's declining jurisdiction order is set aside.
[c] The matter is remitted to the High Court for hearing and determination in accordance with law.
[d] The respondents shall bear the costs of the appeal.
__________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
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I AGREE
__________________________
P T DAMASEB
ACTING JUSTICE OF APPEAL
I AGREE
__________________________
R MATHABA
ACTING JUSTICE OF APPEAL
FOR THE APPELLANT: ADV. K A MARITI
FOR THE RESPONDENTS: ADV. R D SETLOJOANE

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