Thabiso Mosao V Mabohlale Makakole & 3 Others (CIV/T/570/2023) [2023] LSHC 26 (12 December 2023)

IN THE HIGH COURT OF LESOTHO

CIV/T/570/2023

HELD AT MASERU

In the matter between:-

THABISO MOSAO                                                 PLAINTIFF

and

’MABOHLALE MAKAKOLE

(nee MOSA MOSAO)                                         1^ST DEFENDANT

’MATHUSO KEPA (nee THATO MOSAO)      2^ND DEFENDANT

MASTER OF THE HIGH COURT                    3^RD DEFENDANT

ATTORNEY GENERAL                                    4^TH  DEFENDANT

Neutral citation:- Thabiso Mosao vs ‘Mabohlale Makakole (nee Mosa Mosao) & 3 others [2023] LSHC Civ 26 (22 January 2025)

CORAM                                 : JUSTICE M.P. RALEBESE

DATE OF SUBMISSIONS    : 16 SEPTEMBER 2024 AND                                                            12TH  DECEMBER 2024

JUDGMENT                          : 22 JANUARY 2025

SUMMARY

Practice - Declarator - Plaintiff seeking to be declared as the customary heir - Special plea of jurisdiction - Section 14(4) of Part I of the Laws of Lerotholi delays the court's jurisdiction until the heirship disputed is arbitrated by the family council.

ANNOTATIONS

LESOTHO CASES

Makhalemele v Board of Enquiry of the National Security Services C of A (CIV) 38/2022

Moteane v Moteane LAC (1995-1999) 307

Shale v Shale (C of A (CIV) 35 of 2019) [2019] LSCA 45 (1 November 2019)

SOUTH AFRICAN CASES

STATUTES

Administration of Estates and Inheritance Act No.2 of 2024

High Court Act No.5 of 1978

High Court Civil Litigation Rules Legal Notice No. 65 of 2024

High Court Rules Legal Notice No.8 of 1980

Laws of Lerotholi

ARTICLES

Introduction and Background

1. This matter concerns an heirship dispute over the estate of the late Mr. Thabo Augustinus Mosao (Mr Mosao). The main antagonists in this case being the plaintiff and the 1^st and 2^nd defendants are half-siblings born of the late Mr Mosao. The plaintiff is the half-brother to the 1^st and 2^nd defendants who are sisters. The late Mr Mosao was initially married to the mother of the 1^st and 2^nd defendants by civil rights and the marriage was severed by a decree of divorce in 1983.  In the same year, the late Mr. Mosao married the plaintiff's mother by civil rites. Apparently, the late Mr. Mosao already had an amorous extra-marital relationship with the plaintiff's mother long before he divorced the 1^st and 2^nd defendants’ mother because the plaintiff was born on 3^rd May 1981, some two years before the divorce was granted. The late Mr. Mosao's marriage to the plaintiff's mother was also severed by a decree of divorce in 2000 and in terms of the decree, the latter forfeited all the benefits that arose from that marriage. Mr Mosao passed away on 23^rd April 2023 leaving no will. The estate was reported to the Master of the High Court. The Master has filed a report in these proceedings pursuant to Rule 8(19) of the High Court Rules[1]. In terms of the report, the Master, in the minutes of the meeting held on 28^th June 2023,  resolved that "…it was pointless to have reported the estate to the Master of the High Court because the estate was already administered through Customary Law.”

2. The plaintiff instituted this action seeking a declaratory order that he is the rightful customary heir to the estate of his late father. His case is that being the only son of his deceased father, Mr Mosao, he should under custom, be declared the heir to his estate. His complaint is that his half-sisters left their respective marriages to fight him over the estate and they have even taken control of the businesses that belonged to the late Mr Mosao.

3. The 1^st and 2^nd defendants are the only ones who defended the matter and reference to the defendants hereinafter is to these two defendants. The defendants initially filed a plea without raising any preliminary point of law. There were several interlocutory applications filed by the respective parties in this matter none of which was ever prosecuted to finality. The initial counsel for the 1^st and 2^nd defendants (hereinafter defendants) withdrew as their counsel of record in this proceeding having filed a notice in that regard. The defendants instructed another counsel who, upon coming on board, and in terms of Rule 143(2)(a) of the High Court Civil Litigation Rules[2]  raised a special plea of jurisdiction. This is the court’s decision on that special plea.

4. The ruling on the special plea was initially scheduled to be delivered on 19^th November 2024 but on that day, the court invited both parties to file the supplementary heads of argument to address a specific point of  the impact of section 69 of the Administration of Estates and Inheritance Act[3] on the whole case and specifically on the special plea as raised by the defendants, given the previous decisions on the issue. The Administration of Estates and Inheritance Act came into force on 2^nd April 2024 while the instant action was instituted on 3^rd October 2023. Section 69 of this new Act in relevant parts provides as follows:-

                         “96(1) The customary law on inheritance, and allocation of                       property to an heir shall not be applicable to an estate of a                           deceased person.

2. Subject to subsection (1), all the children of the deceased person under civil or customary marriage, male or female, regardless of the age shall be beneficiaries in equal shares to the estate of their deceased parents, except where there is a will or written instruction in Form H set in the second schedule.”

The foregoing provisions in essence scrap the male primogeniture rule on which the plaintiff's main case is premised. A finding, therefore, that these provisions apply to the instant case will effectively put an end to the plaintiff's case. 

5. The parties duly filed their supplementary heads of argument and on 12^th December 2024, both the counsel made brief oral submissions in terms of which they were ad idem that the Act and specifically section 69 of the Administration of Estates and Inheritance Act does not apply to the instant case. They correctly submitted that section 69 has no retrospective application to the case in casu. 

               The Special Plea of Jurisdiction

6. The defendants have challenged the jurisdiction of this court over the plaintiff's claim to be declared the customary heir to the estate of the late Mr Mosao. The defendants submit that under customary law, the heir must be nominated by the family council and not by the courts of law.  They contend that if the court were to declare the plaintiff an heir as he has sought, it would be usurping the powers of the Mosao Family Council. The defendants are in this regard relying on the case of Moteane v Moteane[4].

7. The plaintiff has opposed the special plea and he argues that the case before the court is a declarator  over which the High Court in terms of section 2(1) of the High Court Act[5] has the exclusive jurisdiction. He contends that the plaintiff is not seeking to be appointed as the customary heir. The plaintiff referred the court to the decision in Makhalemele v Board of Enquiry of the National Security Services[6]  where it was held that in determining the cause of action and whether the court has jurisdiction, the reference point is the pleadings, being the prayers in the notice of motion as well as the averments in the supporting founding affidavits. The plaintiff's sole prayer in the summons and the declaration is to be declared as the sole customary heir to the estate of the late Mr. Mosao. In terms of section 2(1) of the High Court Act, the plaintiff has called upon this court to inquire into and determine whether he has the right to be the customary heir to the estate of the late Mr. Mosao. A positive finding that he has an interest and an existing or contingent legal right to be so declared will be binding and it will be tantamount to him being nominated as the customary heir to the estate. The plaintiff's attempt to draw a distinction between being declared by this court and being nominated as the customary heir by the family is illusory, to say the least. The essence of what he is seeking is for the court to determine that he is the lawful customary heir to the estate of the late Mr. Mosao. 

8. As earlier indicated, the Master of the High Court decided that the late Mr. Mosao's estate was already being administered in terms of customary law. If the plaintiff felt that there was a dispute concerning heirship to the estate of the late Mr. Mosao, he ought to have resorted to the procedure outlined in section 14(4) of Part I of the Laws of Lerotholi which reads that:-

“Any dispute amongst the deceased's family over property or     property rights, shall be referred for arbitration to the          brothers of the deceased and other persons whose right it is     under Basotho Law and Custom to be consulted. If no      agreement is arrived at by  such persons or if either party       wishes to contest their decision, the dispute shall be taken to the appropriate court by the dissatisfied persons.” (my           emphasis)

9. The foregoing provision has the effect of delaying the jurisdiction of this court until the heirship dispute has been referred for arbitration by the family council[7]. As held in Moteane’s[8] case, the court should be the last resort as the family arbitration and efforts at reaching an amicable agreement are necessary steps before the court can be approached.

10. The plaintiff in the instant case has not alleged that the procedure outlined in section 14(4) of Part I of the Laws of Lerotholi was exhausted before he could institute these proceedings. The Court of Appeal in an obiter dictum in Shale v Shale[9] said:-

“The core dispute touched on landed property and not on heirship. Even if for a moment the court assumed to be with the appellant, section 14 of the laws of Lerotholi enacts the procedure to be followed if there is a dispute about who the appropriate heir is, which was not followed in this case.”

The appellant in Shale’s case was the applicant in the court a quo.      He sought to be declared the lawful and sole heir to the property that used to belong to the late Mokhali and 'Mamotlalepula Shale which had been inherited by Shale Shale. The court’s obiter in that case was that an heirship dispute would have to be resolved by the Shale family council before the appellant could resort to the courts.

11. The plaintiff is alleging that his half-sisters are fighting him over the estate in issue, and he is thereby insinuating that there is an heirship dispute between him and the defendants. He has not alleged that the dispute was ever referred for arbitration by the Mosao family council. He has thus approached this court prematurely. It is only after the Mosao family council has arbitrated over the heirship dispute that the plaintiff, or any party dissatisfied with the decision of the family council, can approach this court.

Disposition

12. This matter is prematurely before this court as its jurisdiction is delayed until the alleged heirship dispute has been unsuccessfully arbitrated by the Mosao family council. The defendants' special plea is therefore upheld and the court declines jurisdiction in this matter.

13. The defendants have sought that this court should decline jurisdiction with costs on attorney and client scale as the defendants unnecessarily tracked them to court. They submit that the action and all the interlocutory applications instituted by the plaintiff constituted the abuse of the court process. The defendants however failed to substantiate on the nature and details of these applications and how they were an abuse of the court process. Given the foregoing consideration and the fact that this matter involves siblings, the plaintiff shall bear the costs at an ordinary scale.

_______________________

Ralebese J.

Judge

For the plaintiff          : Advocate Marite

For the 1^st and 2^nd Defendants: Advocate R. Setlojoane