Ts'ooana Kotelo V Master of High Court & 2 Others (CIV/APN/451/2015) [2024] LSHC 180 (6 September 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                    CIV/APN/451/15

 

In the matter between

 

TS’OOANA KOTELO                                                  1^ST APPLICANT

MOOKHO KOTELO                                                   2^ND APPLICANT

AND

MASTER OF THE HIGH COURT                              1^ST RESPONDENT

 

ATTORNEY GENERAL                                              2^ND RESPONDENT

 

‘MAMPHO KOTELO ‘MOLAOA                               3^RD RESPONDENT

 

                  

Neutral Citation: T’sooana Kotelo and Another v Master of the High Court and 2 Others [2024] LSHC 180 Civ (06^th September 2024)

 

 

CORAM             :        BANYANE J

HEARD              :        21^ST MAY 2024

DELIVERED      :        06^TH SEPTEMBER 2024

 

 

Summary

Devolution of estates-intestate succession-claim to terminal benefits by deceased’s children-Rules applicable to determine intestate heirs- no concrete evidence that deceased was married-children declared intestate heirs entitled to the claimed benefits-application granted as prayed.

 

ANNOTATIONS

Cited cases:

Legislative

1. The Intestate Succession Proclamation 2 of 1953
2. Administration of Estates and Inheritance Act 2 of 2024
3. The Land Act 8 of 2010
4. Children’s Protection and Welfare Act, 2011

South Africa

1. Muganiwa v Liebenberg 1982 (2) SA 12

Books

1. MJ De waal, MCSchoeman- Malan, The Law of Succession (4^th Edn, 2008, Juta and Co.)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

BANYANE J

 

Introduction

[1]     The dispute between the parties involves payment of terminal benefits of the late Matlere Kotelo who during his lifetime served the Government of Lesotho in the Public Service Commission (PSC). Following his passing, a wrestle over the benefits emerged, the main disputants being the deceased’s children on the one hand and Matikoe Kotelo, who claimed to be Matlere’s wife on the other.

Background facts

[2]     The litigation between the parties was commenced by Matikoe Kotelo in the year 2015 wherein she sued the deceased’s sister ‘Mampho ‘Molaoa, the Master of the High Court, and the Attorney General. She claimed to be Matlere’s wife. She mainly sought an order directing the Master of the High Court to pay her share of the terminal benefits.

[3]     In her founding affidavit Matikoe alleged to have married Matlere by custom in 2013 after his first wife Mamanti passed in 2003. She attached to her affidavit, a certain agreement between the Kotelos and the Lehlokas (her maiden family) pertaining to this marriage. According to her evidence, she was welcomed into the Kotelo family upon performance of certain traditional rituals, including the slaughtering of a sheep. Since her acceptance into the Kotelo family, she lived with her husband until he fell ill and sadly passed on 23 January 2014.

[4]     According to her founding affidavit, the deceased identified her as the beneficiary of the terminal benefits. She was later informed, after submission of the required documents at the Human Resources Office (PSC) that the benefits have been deposited with the Master of the High Court.

[5]     The application was vigorously opposed by Matlere’s sister, Mrs Mampho ‘Molaoa. She raised in limine, the non-joinder of Matlere’s children, Tsooana and Mookho to the litigation. On 18 April 2016, Matikoe applied for joinder of the duo. By an order of court, these were joined as 06^th and 07^th respondents.

[6]     On the merits, ‘Mampho resisted the existence of Marriage between her brother and Matikoe. According to her affidavit, Matikoe was not entitled to the benefits because she was never married to Matlere but was his girlfriend. She asserted that the purported marriage agreement is a fake and fraudulent document because it was prepared after Matlere’s passing. It was, according to her orchestrated by Maatala in collusion with Matikoe.

[7]     To this affidavit, Chieftainess ‘Mamolato Setoaba of Matsieng filed a supporting affidavit. She averred that sometime in 2015, ‘Matikoe came to her place in the company of one Makhobalo. They had with them a document, reportedly pertaining to Matikoe’s marriage to Matlere. She refused to get involved because according to her, she had no knowledge of the said alleged marriage. Matikoe then called someone telephonically. This person introduced herself as Maatala Kotelo. The latter pleaded and urged her to sign the document, stating that Matikoe is the wife to Matlere who had already passed on. She stated that she assisted Matikoe and Maatala because they sounded desperate. Additionally she was not aware how the document was to be used. She further stated that she signed and back-dated the stamp on the document to 10 May 2013.

[8]     Although Matikoe filed an application in terms of rule 30 of the High Court Rules, 1980, asking that ‘Mampho’s affidavit be set-aside as an irregular step for having been filed out of time, ‘Mampho successfully filed an application for condonation of the late filing of the answering affidavit in April 2016.

[9]     Matikoe regrettably passed on before prosecuting her claim although pleadings had been closed at the time. ‘Maatala Kotelo later sought substitution of Matikoe as applicant in the matter. The application was dismissed for lack of locus standi on 22 February 2023. Since dismissal of the application, no one came forth to substitute ‘Matikoe and pursue her claim.

The current application

[10]   There being no pursuit of Matikoe’s claim, Tsooana and Mookho, in October 2023 filed the present application. They seek an order directing the Master of the High Court to release and pay the terminal benefits to them.

[11]   In a founding affidavit deposed to by Tsooana, she deposes that she is an offspring of Matlere and his first wife Mamanti Kotelo who died in June 2003. After her mother’s demise, Matlere had a relationship with Puleng Moletsane. Mookho was born of this second union. Although she was born out of wedlock, she was legitimized by her mother’s marriage to Matlere. After her marriage Ms. Moletsane was named Mamookho Kotelo. She died in 2007.

[12]   Relying on Intestate Succession Proclamation of 1953, she asserts that being Matlere’s descendants, they are entitled to succeed to the entire estate. In other words, they are the sole intestate heirs because Matlere was not married to anyone at the time of his demise.

[13]   This application was triggered by the Master’s refusal to release these benefits despite a request to release them. The applicants attached a letter dated 13 July 2023 in terms of which their attorneys requested the Master to release the money. The letter reads as follows;

 

Our ref: mt/ql/M678/21                                                                       13 July 2023

Your ref:

The Master of the High Court

Sun Gardens

Maseru 100

 

Dear Sir

RE: ‘MATIKOE KOTELO (born Lehloka) V ‘MAMPHO ‘MOLAOA & 6 OTHERS CIV/APN/451/2015

 

1. We refer to the above matter and confirm that Matikoe Kotelo instituted legal proceedings in CIV/APN/451/2015 seeking payment of moneys

belonging to the estate of Matlere, the father of Ts’ooana Kotelo and Mookho Kotelo

 

2. The application was dismissed and we enclose herewith a copy of the judgment for your attention. Following the dismissal of Matikoe’s application, our clients approached you to release such moneys but your office is not prepared to do so.

 

3. We have been instructed to demand, as we hereby do, that you release the moneys to our clients within seven (7) days failing which we have instructions to apply to court for mandamus. In our view this is unnecessary and we trust you release the moneys to our clients.

 

yours faithfully

____________________

Mei & Mei Attorneys Inc    

 

[14]   On 19 July 2023, the Master responded as follows;

OFFICE OF THE MASTER OF THE HIGH COURT

                                                                                                                        19/07/2023

Mr. Letsika

Mei & Mei Attorneys

Patsa Building

Maseru 100

 

Sirs,

 

RE: ‘MATIKOE KOTELO (Born Lehloka) Vs MAMPHO AND 6 OTHERS CIV/APN/451/2015

 

Reference is made to your letter on the above subject dated 13/07/2023 to which we respond as follows:-

1. We are reluctant to release the moneys to your clients for the following reasons: i) ‘Matikoe Kotelo’s case did not die when she died. She cannot litigate from the grave but a proper substitution has to be made.

 

ii) The dismissed application is for substitution of ‘Maatala Kotelo who wished to take over ‘Matikoe’s case. The case for the moneys wasn’t fully canvassed and therefore the dismissed application is for substitution not to whom the moneys should be released.

 

iii) In our file we have a family letter confirming the fact that the deceased was late Matlere Kotelo’s wife, hence our depositing same in her name.

The status quo still remains, that is, was she the legal wife to Matlere? Who is now entitled to the money?

 

Yours faithfully

__________________

V.M. MATIYA (MRS)

MASTER OF THE HIGH COURT

 

CC: Phafane Chambers

 

 

[15]   The Master of the High Court initially opposed the applicants’ claim on 14 March 2024. She filed an answering affidavit in which she deposed that Matlere was married to Ntsoaki Lehloka (Matikoe) after Mamookho Kotelo’s passing. She further deposed that the applicants have already received their child’s share of the benefits. To support the marriage assertion, she attached the same family letter, which as indicated earlier, the chief who signed and endorsed it indicated she had back -dated the stamp at the behest of Maatala and Matikoe. The Master further asserted that Ntsoaki was survived by children, whom she already had at the time of the alleged marriage to Matlere. On these grounds Matikoe’s children are also entitled to a share in the benefits.

Issue for determination

[16]   It is common cause that in 2015, Tsooana and Mookho received M55 430.01 (each) as the child’s share in Matlere’s estate. The sole issue for determination is whether the applicants are Matlere’s sole heirs and entitled to the all benefits held by the Master of the High Court.

The Law

Rules of Intestate succession

[17]      If a person dies without leaving a valid will, his assets are inherited according to the rules of intestate succession.[1] It is common cause that Matlere died intestate in 2014. Devolution and administration of his estate was therefore governed by the Intestate Succession Proclamation (ISP) of 1953^[2] before its repeal in 2024. These laws determine who the heirs are. Section 1 of ISP declared the surviving spouse of every person who died wholly or partially intestate as an intestate heir subject to the following rules:

1. If the spouses were married in community of property and if the deceased leaves any descendant, the surviving spouse shall succeed to the extent of a child’s share in the joint estate or to much as, together with the surviving spouse’s share in the joint estate, does not exceed one thousand Rands in value (whichever is the greater);
2. …
3. If the spouse were married either in or out of community of property and the deceased spouse leaves no descendant who is entitled to succeed ab intestate but leaves a parent or a brother or sister(whether of the full or half-blood) who is entitled to succeed, the surviving spouse shall succeed to the extent of a half-share or to so much as does not exceed one thousand Rands in value(whichever is the greater)
4. In any case not covered by paragraphs, (a) (b), or (c), the surviving spouse shall be the sole intestate heir.

Administration of Estates and Inheritance Act of 2024

[18]   On 2 April 2024, the Administration of Estates and Inheritance Act, of 2024 was promulgated.[3] The Act appears to be the Government’s attempt to harmonise or reconcile customary law, the common law of testate and intestate Succession embodied in the Intestate Succession Act 1953, the Administration of Estates Proclamation (AEP) 1935, The law of Inheritance Act 1873, the Land Act 2010, and all other fragmented provisions governing inheritance in various statutes (for example the Children’s Protection and Welfare Act, 2011). This new Act restructures inheritance generally. It repeals the AEP 1935, the Intestate Succession Proclamation 1953, the Wills Ordinance 1843, and The Law of Inheritance Act 1973. 

[19]   The Act covers both testate and intestate succession. For purposes of this judgement, I will examine the relevant clauses that deal with intestate succession. These provisions substantially mirror the Intestate Succession Proclamation of 1953, with minor modifications as follows.

[20]   Section 66 (1), under Part IX of the Act, declares that the surviving spouse of every person who (before or after commencement of this Act) dies, wholly or partially intestate is an intestate heir of the deceased spouse according to the following rules:

1. If the spouses were married-

1. In community of property and if the deceased leaves any descendant who is entitled to succeed, the surviving spouse shall after division of the joint estate succeed to the extent of a child’s share.
2. out of community of property without accrual,[4] and the deceased spouse leaves any descendant who is entitled to succeed, the surviving spouse shall succeed to the extent of a child’s share.
3. out of community of property with accrual, either spouse will keep his own property but when the marriage is dissolved either through death, the other spouse shall be entitled to claim half the difference between the growths of the two estates.
4. either in or out of community of property and the deceased leaves no descendant, the surviving spouse shall be the sole heir

(b) Where the deceased is survived by descendants but not the spouse, the descendants inherit equally to the deceased estate

(c) where a biological descendant or offspring has been legitimised by his biological father or paternal family, she shall be eligible to inherit.

 

Discussion

[21]   The above exposition of the law shows without doubt that where the deceased leaves a wife, a certain proportion of the estate is payable to the wife but where the deceased is survived by descendants but not a spouse, the descendants inherit equally to the deceased estate. Where a biological descendant or offspring has been legitimized by his biological father or paternal family, she shall be eligible to inherit.

[22]   As indicated earlier, the applicants claim the benefits to be shared equally between them as Matlere’s only descendants. According to the evidence contained in the affidavits, Tsooana was born of Matlere’s first marriage and Mookho born out of Matlere’s second marriage. The latter was legitimized by the marriage of her parents.

[23]   According to the applicants, their father was not married to Matikoe. The Master of the High Court opposed this application on grounds that Matlere was married to Matikoe. For this assertion, she relied on the same family letter whose validity was vigorously contested on grounds that it was a fraudulent document.

[24]   In the light of the Master’s withdrawal, there is nothing controverting the applicants’ assertions. It is to be noted that Advocate Makhoali who earlier appeared on behalf of the Master informed the Court that Matikoe’s children are aware of these proceedings but elected not to intervene nor pursue their mother’s claim.

Disposal

[25]   The undisputed evidence adduced in the affidavits show that Tsooana and Mookho are Matlere’s only children. The chief who endorsed the family agreement showed that she endorsed the letter without any knowledge of the truthfulness of its contents and even backdated the stamp at Maatala’s request. The admission of the falsity of the document negates existence of the alleged marriage. [5]

[26]   In the circumstances, there is nothing placed before court to contradict the applicants’ version that they are the sole heirs to Matlere’s estate as there is no evidence of him being married to anyone.

Order

[27]   As a result, the application is granted as prayed and the following order is made:

1. The first respondent should release and pay terminal benefits funds of the deceased, Matlere Kotelo, to the first and second applicants.

2.  The is no order as to costs.

 

_____________

P. BANYANE

JUDGE

 

For Applicant       : Advocate Lerotholi

For Respondent    : No appearance