Thuto Sello V Lenka Sello & 9 Others (LC/APN/04/2014) [2024] LSHC 198 (13 September 2024)

 

 

 

 

IN THE LAND COURT OF LESOTHO

 

HELD AT MASERU                                              LC/APN/04/2014

In the matter between

THUTO SELLO                                                               APPLICANT

AND

LENKA LESLEY SELLO                                                 1^ST RESPONDENT

 

UNICE CASSIM ABDULLA                                            2^ND RESPONDENT

 

THE LAND ADMINISTRATION AUTHORITY                3^RD RESPONDENT

 

THE LAND REGISTRAR                                               4^TH RESPONDENT

 

THE MASTER OF THE HIGH COURT                           5^TH RESPONDENT

 

THE CLERK OF THE COURT MASERU                       6^TH RESPONDENT

MAGISTRATE COURT

 

THE ATTORNEY GENERAL                                          7^TH RESPONDENT

 

‘MUSETSI KARABO MOHAPELOA N.O                         8^TH RESPONDENT

 

RETS’ELISITSOE MOHAPELOA                                   9^TH RESPONDENT

 

MEKERESEMESE SELLO                                             10^TH RESPONDENT

 

Neutral Citation: Thuto Sello v Lenka Lesley Sello and 9 Others [2023] LSHC (MD) Lan 198  (13^th September 2024)

CORAM               :        BANYANE J

HEARD                :         28/03/2023, 23/02/2024

DELIVERED         :         13 SEPTEMBER 2024

 

Summary

Devolution of estates-Rules governing testate and intestate succession-where property disposed of by a will, Rules of testate succession must apply. The same property cannot be dealt with under the rules of intestate succession. Testate heir however not entitled to an order declaring her as owner of the property before its transfer to her- application partially succeeds.

 

ANNOTATIONS

Legislation

1. Land Act No. 17 of 1979
2. Inheritance Act No. 26 of 1873
3. Land Act of No.8 of 2010
4. Deeds Registry Act No. 12 of 1967
5. Land Regulations No. 21 0f 2011

Cited cases:

Lesotho

1. Mokhutle N.O v MJM (Pty) Ltd and others LAC (2000-2004)186
2. Khakale and others, Executor of the Estate Khakale v LAC (2007-2008) 193

South Africa

1. Re Estate Broodie 1954(2) SA 366
2. Povall v Barclays Bank D.C.O. 1965(3) SA
3. Greenberg and Others v Estate Greenberg1955(3) SA 361
4. Resisto Dairy v Auto Protection Insurance 1963 (1) SA 632(AD)
5. Kriegler v Minister and another 1949 (4) SA 821
6. Brooklyn House Furnishers (pty) ltd v Knoetze and sons 1970 (3) SA 264(AD)
7. 27 EE Rekhunan (pty) Ltd v Weider Gym Athlome (pty) Ltd t/a Weider Health & Fitness Centre 1997 (1) SA 646
8. Goudine Chrome v MCC contracts 1993 (1) SA 77 (AD) 

Books

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

 

 

 

 

 

JUDGEMENT

 

BANYANE J

 

Introduction

[1] The dispute between the parties pertains to the transmission of rights and interest in plot No. 12292 – 148, situated at Hills View in the Maseru urban area. The plot belonged to the 1^st respondent’s parents, Zakea Musa Sello and Malenka Matilda Sello (Dr Sello). The duo died on 10 May 1994 and 25 March 2004 respectively.

[2] It is common cause that the plot was initially identified as site 636. Zakea held a title deed over the property registered on 13 October 1979. On 18 May 1984, he applied for a lease. It was issued on 17 June 1987. On 22 March 1989, Zakea applied for consent to encumber the leased land by mortgage pursuant to section 36 of the Land Act 1979. On 13 April 1989, the Commissioner of Lands issued the certificate of consent. On 26 October 1992, a bond was registered against this property under a deed of hypothecation No. 23372.

[3] On 19 October 1999, Dr.Sello executed a will in terms of which she bequeathed her estate to her granddaughter Thuto Sello, the applicant herein. In December 2003, Dr. Sello sublet the property to the 2^nd respondent.

[4] Despite Dr. Sello dying testate, the applicant’s father, Lenka Sello (1^st respondent herein) was nominated as heir by some members of the Sello family. Following the nomination, the land was registered in his name, and his wife Makeresemese Sello (10^th Respondent). He later concluded a sale agreement with the 2^nd respondent.

Relief sought

[5]    The applicant as heiress and executrix of Dr. Sello’s estate approached this Court seeking the following reliefs:

(a)      That the ordinary rules and modes of service in terms of The Land Court Rules, Legal Notice NO. 20 of 2012 be dispensed with on account of the urgency of the present matter.

(b)      That it be directed that 1^st 2^nd, 3^rd and or 4^th respondents be interdicted forthwith from facilitating any transfer over Plot NO. 12292 -148 pending determination of these proceedings.

(c)      That the 3^rd and 4^th respondents be directed to dispatch the contents of the file which has all the relevant documentation in regards to Plot NO. 12292 – 148 within 14 (fourteen) days after the grant of this order to the applicant pending determination of these proceedings.

(d)      That it be directed that 6^th respondent dispatch the entire record of proceedings launched by 1^st respondent against 2^nd respondent which were instituted in the Maseru Magistrate Court under reference numbers CC/700/05 within 14 (fourteen) days after the grant of this order.

(e)      That it be directed that 5^th respondent furnish a report gleaned from her records in respect of the estate of the late ‘Malenka Keketso Sello under section 105 read with section 107 of The Administration of Estates Proclamation 19 of 1935.

(f)      That applicant be given leave to amend and or fortify her pleadings upon compliance with prayers (c), (d) and (e) above. And to furnish list of witnesses upon compliance thereof.

(g)      That it be directed that viva voce evidence be led in order to thrash out any glaring disputes of fact prevalent in the pleadings if any.

(h)      That it be declared that any contract of transfer and or sub-lease between the 1^st respondent and the 2^nd Respondent or any other person is null and void in line with section 85 of The Land Act Legal Notice 42 of 2010 read with section 31 – 32 of The Administration of Estates Proclamation 1935.

(I)      That it be declared that the 1^st and or 2^nd respondents are unlawful

occupants of Plot NO. 12292 – 148.

(J)      That it be declared that the applicant is the lawful owner of Plot No.        12292 – 148 pursuant to a bequest by the late ‘MALENKA KEKETSO       SELLO.       

(K)     The 2^nd Respondent (as substituted) shall not be ordered and directed to pay occupational rental for utilization of Plot No. 12292 – 148 from the 1^st January 2006 at the rate of M6, 500.00 until the date of the judgment with interest at the rate of 10% per annum.

The defence

[6]    The 1^st, 2^nd and 10^th respondents vigorously opposed the application, but the 1^st and 10^th respondents (husband and wife respectively) later withdrew their opposition. The application remains contested by the 2^nd respondent. He sadly passed on before the disposal of the case. He was later substituted by his son Shaheed Abdulla, who was appointed co-executor of his parents’ estate and issued letters of administration in March 2022.

[7] The essence of the 2^nd respondent’s case as captured in his amended answer is that Dr. Sello sold her rights in the disputed property to him for a consideration of M 1.5 million. However, she died before obtaining consent to transfer her rights. After her demise, the 1^st respondent inherited the property and sued him for ejectment in the Magistrate Court under CC/700/2005. He later concluded a sale agreement with the 1^st respondent although he had validly concluded a sale agreement with Dr. Sello.

 

 

 

The trial

Plaintiff’s testimony

[8]    The applicant testified that she was raised by her grandmother. They lived on the disputed property until the year 2002 when they moved to a house belonging to her grandmother’s church and later to Ha Tsosane. They vacated the disputed property because her grandmother was financially struggling to service the bond with the bank and needed to raise funds by renting out the house. Her grandmother died in 2004. She was 16 years of age when her grandmother passed.

 

[9]    In 2009, she discovered the existence of the will through the 8^th respondent (the executor testamentary). She was aged 21 at this time. The latter showed no interest in pursuing the executorial mandate. Due to the executor’s failure to carry out the mandate, the Master of the High Court authorized her to administer the estate by issuing letters of administration on 1^st July 2009. After obtaining the same, she notified her father about the will. Her father questioned the validity of the will. She then verified with the office of the Master that the will had been registered.

[10] In 2011, she instituted an ejectment action in the Magistrate Court against the occupiers (2^nd respondent) in CC/169/2011. The 2^nd respondent claimed to have renovated the property and thus filed a counterclaim which she did not oppose. She later discovered that the 2^nd respondent obtained a default judgment for M 200.000.00 on 23 November 2011.

 

The 2^nd respondent’s testimony

[11] The 2^nd respondent’s son, Shaheerd, testified that his parents occupied the plot around 2003 under a sub-lease agreement. His parents undertook to pay Dr. Sello’s bond. The payment arrangement was made through the Harley and Morris attorneys’ firm. After settling the outstanding loan amount with the bank, Dr Sello died. Harley and Morris released the lease to them because Dr. Sello had sold the property to his father but died before facilitating the transfer. They learned of her passing in 2005.

[12] The 1^st respondent then surfaced claiming to be his parents’ heir. He claimed to know about his mother’s intention to sell the property and undertook to cause the transfer. However, he demanded payment of M200,000.00 before facilitating the transfer. A deed of sale was prepared and signed by the parties.

[13] Around 2012 or 2013, the lease was released to him to do what was necessary to effect the transfer. Although the lease was accordingly transferred to his name and although he obtained a certificate of consent to transfer the rights in this property, the 1^st respondent played ‘hide-and-seek’ and slapped them with numerous excuses for not processing the transfer. He also sought to extort more money from the 2^nd respondent. This situation prompted the parties to sign a memorandum of understanding.

[14]  Under cross-examination, the witness testified that his father stopped paying rentals after the property was sold to him. Cross-examination also revealed that from 2020, the house was rented out to someone else, but the rent was paid to the 1^st respondent for some time.

Issues

[15]  The crisp issue is whether the late Dr. Sello disposed of her interest in the land to Mr. Cassim Abdullah (2^nd respondent). If not, could the 1^st and 2^nd respondents validly conclude the sale agreement relating to this land?   I deal with them below.

 

Was there an agreement of sale between Dr. Sello and the 2^nd respondent?

[16]  It is well established that a party who relies on a contract must plead and prove the terms of the contract.[1] According to 2^nd respondent’s amended answer, Dr. Sello sold the property for M 1.5 million but died before obtaining consent to transfer her rights.

[17] The 2^nd respondent’s son handed in the sub-lease agreement between Dr. Sello and his father, an undated sale agreement concluded by his father and the 1^st respondent, and a memorandum of understanding signed between them on 29 August 2013.

[18] The sub-lease agreement shows that on 01^st January 2003, Dr. Sello agreed to sublet the property to the 2^nd respondent (Eunice Cassim Abdulla) for 3 years commencing on the 1^st day of January 2003.

[19] In the memorandum of understanding, it is recorded that the 2^nd respondent bought the property for M 1.5 Million from Dr. Sello, and paid the purchase price in full but Dr. Sello died before effecting the transfer.

[20] According to this memorandum, the parties agreed that the ejectment claim filed by the 1^st respondent against the 2^nd respondent be withdrawn and that M100.000,00 be paid in full and final settlement of the claim.

[21] Besides what is recorded in this memorandum, no proof of the alleged agreement between Dr. Sello and the 2^nd respondent nor its terms was adduced. Since the evidence revealed that Dr. Sello died during the subsistence of the sub-lease agreement in 2004, the 2^nd respondent ought to have at least furnished proof of payment of 1.5 million.

[22] Absent proof of the alleged sale agreement or payment of the purchase price, the applicant’s version that her grandmother never sold the disputed property but only moved out and rented it out because she could not afford to service the loan, is the more probable in the circumstances and therefore accepted.  Consequently, I conclude that Dr. Sello never disposed of her interest in the disputed property to the 2^nd respondent.

Is the sale agreement between the 1^st and 2^nd respondent valid?

[23]  Having decided that Dr. Sello did not conclude a sale agreement with the 2^nd respondent, the next question to consider is whether the 1^st and 2^nd respondents could validly conclude the sale agreement relating to this land.    

[24] The resolution of this issue hinges on whether the disputed property forms part of Dr. Sello’s estate bequeathed to the applicant under the will.

[25] The starting point of the inquiry is the examination of the last will and Testament of Dr. Sello executed on 09 September 1999. In terms of this Will, Dr. Sello bequeathed her estate to her granddaughter Thuto Ingrid Reanetse Sello as follows in clause 7 of the will;

“I nominate, constitute and appoint my granddaughter, Thuto Ingrid Reanetse -Sello (born on 27 September 1988) as the sole and universal heiress of all the family assets and effects, whether movable or immovable and wherever situated because she has given me the philadel love and support throughout our relationship.” 

[26] At para 13 and 14, the testator stated that:

“Having regard of the fact that my late husband and I spent a considerable sum of money on the education of our eldest son Lenka Lesley Sello, thus equipping him to get a good job and a good start in life, I hereby direct that

1. No deposition shall be made under my will for the said Lenka.
2. …”

 

[27]  According to the 2^nd respondent, the disputed property is not included in this will because it is not specifically identified or mentioned. The applicant conversely asserts that the immovable property in clause 7 means the disputed property because it is the only immovable property owned by her grandmother.

[28] When construing a will, the court is entitled to have regard to the material facts and surrounding circumstances to ascertain the testator’s intention. In Re Estate Broodie[2], extrinsic evidence was admitted to identify the subject or object of the gift in a will.

[29]  Before the court considers the circumstances by which a testator was surrounded when she made the will, its first duty is to construe the will. In doing so, the object of the inquiry is not to ascertain what the testatrix meant to do but her intention as expressed by the language used in the will.  In Povall v Barclays Bank D.C.O.[3] the position was explained as follows;

“the procedure to be adopted is accordingly not to first ascertain the surrounding circumstances and with that knowledge to approach the will but first to construe the will. If the meaning is clear, surrounding circumstances cannot be looked at to throw a doubt  upon that meaning or to give the will a different meaning.”[4]

[30] Construing the will in question, ascertaining Dr. Sello’s intentions, and identifying the object of clause 7 present no difficulty because she bequeathed ALL her movable and immovable property to the applicant.

[31]  Although the disputed property or any movable property is not distinctively identified or described, the applicant’s testimony that the disputed property is the only immovable property owned by her grandmother remains unchallenged. Importantly, the will was executed in 1999 before the 2^nd respondent came into the picture as a tenant. Because the testator bequeathed all her estate, movable and immovable, it follows therefore that the disputed property forms part of the estate bequeathed under the will.

[32] In terms of section 35 of the Land Act 1979 (the applicable law in 1999), a lessee was entitled to dispose of her interest in the disputed land by a will. The 1^st respondent never challenged his mother’s will, so it remains in existence as a fact. The will specifically excludes the 1^st respondent from inheritance under clauses 13 and 14. Indeed, she was entitled to omit to mention any child in the will in terms of Section 5 of the Law of Inheritance Act 1875, which provides:

“ that every person competent to make a will has the power to disinherit or omit to mention any child, parent, relative, or descendant in the will, without assigning any reason for such disinheritance or omission.”

[33] Despite Dr. Sello dying testate, and without any legal challenge against the validity of the will, some members of the Sello family nominated the 1^st respondent as heir to the disputed property on 05 January 2005. This nomination was made pursuant to section 8 (2) (as amended) of the Land Act 1979 embodying intestate succession rules. Following the nomination, the procedure set out in the Land Regulations, 1980 for the transmission of land rights based on the inheritance was applied because the 1^st respondent’s nomination was published and endorsed by the Urban Land Committee on 08 September 2010. On 30 September 2013, the lease was transmitted and endorsed in his name and of his wife.

[34] The rules of intestate succession, by which the 1^st respondent was nominated as heir would apply only where Dr. Sello died intestate. This is because if a person dies without leaving a valid will, his or her assets are inherited according to the rules of intestate succession.^[5]

[35]  As long as the will remains unchallenged, it excludes the 1^st respondent. Because Dr. Sello died testate, the property remains in the estate to be dealt with according to the rules of testate succession. 

[36] For these reasons, the family council’s attempt to deal with Dr. Sello’s estate by intestate succession rules envisaged under section 8 (2) of the Land Act 1979, read with regulations made thereunder, is legally flawed. The 1st respondent’s purported nomination and subsequent registration of the rights in this property is invalid. Consequently, any contract concluded with the Abdullas is invalid. Prayer H must therefore succeed.

[37]  Having decided the two main questions in favour of the applicant, one last matter to consider is whether the other substantive prayers I, J, and K are sustainable in the light of the evidence.

Declaratory order

[38] The applicant seeks to be declared the owner of the disputed property in prayer J. An owner of immovable property is defined as a registered owner in the Deeds Registry Act 1967.

[39]  It is common cause that the applicant launched this application as the heiress and executrix of the estate.[6] This prayer she seeks in her capacity as heiress to the estate.

[40]  It is well established that the heir does not acquire dominium in the estate before the executor has discharged his duties and accordingly issued a liquidation and distribution account to the satisfaction of the Master of the High Court.[7] In Greenberg and Others v Estate Greenberg,[8] the Court stated that the heir is in the position of a residuary legatee. Centlivres CJ said:

“The position under our modern system of administering deceased estates is that when a testator bequeaths property to a legatee, the latter does not acquire the dominium in the property immediately on the death of the testator but what he does acquire is a vested right to claim from the testator’s executors at some future date i.e. after confirmation of the liquidation and distribution account in the estate of the testator. If for instance, immovable property is bequeathed to a legatee, he acquires a vested right as at the death of the testator but he does not acquire the dominium in that property until it is transferred to him by the executor. If that property has to be sold in order to pay the debts of the estate, the legatee may never acquire the dominium in that property.”

[41] This position was re-affirmed in Mokhutle N.O v MJM (Pty)Ltd and others.[9] It follows that until the estate is wound up, the applicant as heir does not acquire any right of ownership in the property before the dominium is passed to her. Her right is to claim transfer of ownership from the executor rather than assert the right of ownership.[10]

[42]  In the light of the foregoing, it seems that the applicant seeks to be given preference over creditors. This, as the Court of Appeal stated in Khakale and others[11] is not right in law. Consequently, the declaratory relief must fail.

Is the 2^nd respondent an unlawful occupier of the plot?

[43]  To support the relief under prayer I, the applicant complains that the 2^nd respondent is an unlawful occupier of the property. The evidence revealed that the 2^nd respondent effected certain improvements to the property and in 2011, he obtained Judgment for payment of M200.000.00 as compensation for these improvements.

[44] To my mind, the 2^nd respondent (as substituted) is a bona fide possessor who holds a lien over the property until compensated. In other words, the lien enables him to retain possession of the property until the expenditure on the property has been compensated.

[45] A lien (right of retention) is defined as the right to retain physical control of another’s property, whether movable or immovable, as a means of securing payment of a claim relating to the expenditure of money or something of monetary value by the possessor (termed retentor of lien holder) while exercising his or her lien on that property, until the claim has been satisfied.[12]

[46] The rights of a bona fide possessor who has effected useful improvements to retain possession of the property are real rights created by operation of law which, while they exist, prevail against all the world.[13] The 2^nd respondent cannot therefore be declared an unlawful occupier of this plot. 

 

Claim for occupational rent

[47] One last aspect that requires comment is the claim for rentals under prayer K. The applicant claims rentals from the expiration of the sub-lease agreement, in January 2006, until the date of judgment. She sought an order directing the 2^nd respondent to pay rent at the rate of M6 500 per month for this period.

[48]  As stated earlier, the 2^nd respondent occupied the property from 2003 as a tenant. The sub-lease agreement handed in shows that Dr. Sello agreed to sublet the property to the 2^nd respondent for 3 years commencing on the 1^st day of January 2003. The rental payable was M6 500.00 per month as follows in terms of clause 3 of the agreement:

3.2.1 To Messrs Harley and Morris 3^rd floor Christie House, Orpen Road, Maseru, attention Mr. Seymour Harley until an amount of M150 070.16 together with interest as may accrue thereon has been paid.

3.2.2 After payment of the sum of M50 000.00 as is referred to hereinafter in clause 9.2 hereunder and all the amounts referred to in 3.2.1 above then the sublease shall pay no further rentals to the sub-lessor for the initial period and the option periods.

3.3 The rental shall be payable free of bank exchange and without deduction or self-off.

48.1 Clauses 8 and 9 deal with maintenance of the property as follows.

“8.1, The sub-lessor shall maintain the exterior of the premises as well as the walls and the roofs thereof in good order and repair.

8.3 The sub-lessee shall be responsible for the maintenance of the interior of the premises in good order and condition through the period of the sublease, but shall not be required to make good any deterioration in the premises which may be caused solely through the effluxion of time or fair wear and tear, and such deterioration shall from time to time, be made good by the sub lessor at its expense subject to clause 9.2. herein under.

9.1 The sub-lessee shall have the right at any time to carry out in the premises any alteration and/or additions whether such alterations and/or additions are structural or otherwise.

9.2 It is agreed between the parties that the sub-lessee will improve and renovate the premises by effecting repairs to a value of M50 000.00 which amount shall offset against rental payable. In the event of the sub-lessee not expending an amount of M50. 000.00 he will pay the difference between the amount expended and M50.000.00 (fifty thousand maloti) to the sub-lessor.

[49]  On examination of the relevant clauses in the sublease agreement, rent in the amount of M5 600.00 was not paid to Dr. Sello as the owner but to a firm of Attorneys towards the settlement of the loan of M150 070.00 with the bank. After payment of this amount and the amounts referred to in clause 9.2, no further payment was to be made for the first term of the sub-lease agreement.

[50] The evidence further showed that in 2005, the 1^st respondent surfaced and sued the 2^nd respondent for ejectment in the Magistrate Court. The applicant adduced no evidence on what happened to rental payments between 2006 and 2011 when she filed her ejectment claim against the 2^nd respondent; neither did she explain what happened after issuing the ejectment summons.

[51] On the other hand, the uncontroverted evidence of the 2^nd respondent’s son revealed that the 1^st respondent received rentals before the property was sold to his father. Even after the sale, the 1^st respondent collected rentals from the person to whom the 2^nd respondent sublet the property in 2020. It is also undisputed that the 1^st respondent received consideration for the purported sale of this property. In addition, the 1^st respondent received sums of money in settlement of the claim filed against the 2^nd respondent in 2005.

[52]  In the circumstances, I conclude that the applicant failed to adduce evidence to support the relief sought in prayer K. Conversely, evidence revealed that the 1^st respondent received some rentals, the purchase price, and money in settlement of the 2005 ejectment claim. To require the 2^nd respondent to double-pay for their occupation is unjust and illogical. In my judgment, the applicant’s remedy is to pursue her father (if so minded)  to pay back the money belonging to Dr. Sello’s estate because he acquired an undue benefit from this property.  For these reasons, this prayer too, must fail.

Order

[53] For reasons set out in this judgment, the following order is made:

1. The applicant’s claim partially succeeds as follows:   

        It is declared that any contract of transfer and or sub-lease between the 1^st respondent and the 2^nd Respondent or any other person is null and void in line with section 85 of The Land Act of 2010 read with sections 31 – 32 of The Administration of Estates Proclamation 1935.

b)     Prayers I, J, K are dismissed

c)     Each Party is to bear its costs.

 

_____________

P. BANYANE

JUDGE

 

For Applicant                           : Advocate Setlojoane

For 1^st and 10^th respondents    : No appearance (opposition withdrawn

For 2^nd Respondent                  : Advocate Letuka