Libuseng Seokho V Sepinare Seokho & 7 Others (CIV/APN/0311/2023) [2024] LSHC 74 (14 November 2024)

  

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                           CIV/APN/0311/2023

 

In the matter between

 

LIBUSENG (NEE MAANELA) SEOKHO                       APPLICANT

AND

SEPINARE SEOKHO                                                         1^ST RESPONDENT

 

LEKHOOA CHAKACHE                                                  2^ND RESPONDENT

 

TOPOLLO SEOKHO                                                          3^RD RESPONDENT

 

TSITSO CHAKACHE                                                         4^TH RESPONDENT

 

LAND ADMINISTRATION AUTHORITY                     5^TH RESPONDENT

 

MASTER OF THE HIGH COURT                                    6^TH RESPONDENT

 

ATTORNEY GENERAL                                                    7^TH RESPONDENT

 

PALO GABRIEL KHACHANE                                        8^TH RESPONDENT

 

                       

Neutral Citation: Libuseng (Nee Maanela) Seokho v Sepinare Seokho [2023] LSHC Civ 74 (14^th November 2024)

 

CORAM             :        BANYANE J

HEARD              :        16 MAY 2024

DELIVERED      :        14 NOVEMBER 2024

Summary

Unilateral disposition of property by a spouse married in community of property- since the promulgation of the Legal Capacity of Married Persons Act,2006 abolishing the marital power of a husband over the person and property of his wife and equalizing the spousal power to administer and dispose of assets of the joint estate, the husband does not possess an unfettered power of administration of the joint estate- he cannot unilaterally dispose of, by will, his wife’s share in the joint estate or her separate property.

ANNOTATIONS

Cited Cases:

Legislation

1. Legal Capacity of Married Persons Act No.9 of 2006
2. Land Act 8 of 2010
3. The Administration of Estates (Amendment) Act 2022
4. The Administration of Estates and Inheritance Act, 2024

Lesotho

1. Lethula v Lethula C of A(CIV) 19 0f 2018

South Africa

1. Francis v East London Board of Executor 1935 EDL 405
2. Engelbrecht v Engelbrecht 1989 (1) SA 597
3. Constain and Partners v Golden No and another 1960 (4) SA 457
4. Klerck No v Registrar of Deeds 1950 (1) SA 81 (T)
5. Hare v Estate Hare 1961 (4) SA 42 (W)
6. Blatchford v Batchford (1861) 1 EX 365
7. De wet No v Jargens 1970 (3) SA 38 (A)
8. S v Tlhoaele 1979 (2) SA 328 (B)
9. Ex parte Menzies ET Uxor 1993 (3) SA 799 @ 808 J – 809 A

 

Books

1. Willies: Principles of South African Law 8^th ed (1991)
2. Mostert et al: The Principles of the Law of Property in South Africa (1^st ed) 2010
3. Silberberg and Schoeman: The South African Law of property, (3^rd ed)
4. Hahlo: The South African Law of husband and wife (5^th ed) 1995
5. PQR Boberg; The Law of persons and the family (1977) (1^st ed.)

 

JUDGMENT

BANYANE J

Introduction

[1]     The dispute between the parties pertains to the validity of the last will and testament of the applicant’s late husband Mr. Mokhethi Seokho. This case raises an important question of whether a spouse married in community of property can unilaterally dispose of, by will, the property of the joint estate.

Background facts

[2]     The pertinent facts giving rise to the dispute are largely common cause and may be summed up as follows. Mokhethi Seokho (the deceased) was previously married to the 3^rd respondent’s mother. Their marriage was dissolved by this Court a while back. On 13 April 2010, the deceased married the applicant by civil rites, in community of property. No children were born out of this latter union.

[3]     In 2017, the deceased executed a will in terms of which he bequeathed some immovable property to his daughter, the 3^rd respondent, and his niece, the 4^th respondent. The will was registered with the office of the Master of the High Court on 11 January 2017. The deceased died on 13 September 2023.

[4]     The provisions of that will, as far as they are material to the present case are these reads:-

“I hereby bequeath to Topollo Seokho the following property;

4.1 My rights and interests over a plot numbered 14302 – 427, situated at Ha Leqele next to Setopong se seholo together with the development thereon in the Maseru District.

4.2  plot number 14302 – 428, situated at Ha Leqele next to Setopong Se Seholo together with developments thereon.

4.3 Half share of my rights and interests over plot number 14301 – 701 (Commercial) situated at Ha Leqele, Liteneng in the Maseru District.

4.4  rights and interests over plot No. 18589 – 131 situated at Roodport in South Africa

I hereby bequeath to Tsitso Seokho Chakache, the following property

4.5 Half-share of his rights and interest over plot 14301 – 701 (Commercial) situated Ha Leqele Liteneng.

1. 6. Rights and interest over a plot situate at Ha Makhoathi, Mahlabatheng.”

[5]     Under paragraph 2 of the will, the testator declared as follows:

“I solemly declare that that I am a divorcee previously married by Civil rights and have abandoned the Customary way of life and adopted the European mode of life.”

The applicant’s case

[6]     The applicant asserts that she discovered the existence of the will after her husband’s passing. She challenges the will primarily on the ground that the bequest property forms part of their joint estate, so the deceased could not validly dispose of her share in the estate without consulting her. She asserts that the will was executed without her knowledge and consent and is thus invalid. On 24 October 2023 she approached this Court on urgent basis seeking relief couched as follows:

That Rule Nisi do hereby issue calling upon the respondents to show cause, if any, on a date to be determined by this Honourabe Court, why: -

1. The ordinary period of notice and modes of service shall not be dispensed with due to the urgency of this matter.
2. The 1^st and 2^nd respondents shall not be interdicted from threatening applicant with death, intimidating and threatening the life of the applicant in any manner whatsoever pending finalization of this application.
3. The 1^st and 2^nd respondents shall not be ordered to allow the applicant to have access to her home at Ha Leqele to get her personal belongings and the Deputy Sheriff of this Honourable Court be ordered to accompany the applicant to her home to get her belongings accordingly pending finalization of this application.
4.  The 1^st, 2^nd, 3^rd and 4^th respondents shall not be interdicted from making any preparations and holding the ceremony of removing a mourning cloth, (ho rola Thapo) planned for 28^th October 2023, on the applicant’s matrimonial home at Ha Leqele pending finalization of this application.
5. The 1^st, 2^nd, 3^rd, 4^th, and 5^th respondents shall not be interdicted from transferring, disposing or alienating the applicant’s movable and immovable property, including registered leases under lease numbers 14302-427, 14302-428,14302-701 all at Ha Leqele in the district of Maseru and 18589-131 at Roodport in South Africa in any manner whatsoever pending finalization of this application.
6. The 1^st to 4^th respondents shall not be interdicted from collection of any rentals from the applicant’s rental premises and why they shall not be directed to account to the applicant for such rentals collected pending finalization of this application.
7. Declaring the applicant to be the lawful widow of the late Mokhethi Seokho with full rights to inherit the estate of the late Mokhethi Seokho.
8. Declaring the will registered on the 11^th January 2017, disposing of the joint estate of applicant with the late Seokho in favour of the 3^rd and 4^th respondents to be invalid and void ab initio. 
1. Interdicting the 1^st, 2^nd, 3^rd and 4^th respondents from entering the premises of the applicant and/or interfering with the estate of the late Seokho in any manner whatsoever and releasing all the late Mokhethi Seokho movable and immovable property, including his bank cards etc. to the applicant.

1. The 1^st, 2^nd respondents shall not be ordered to pay costs of this application and 3^rd and 4^th respondents pay costs in the event of opposing same.
2. That prayer 1 (a), (b), (c), (d), (e) and (f) shall operate with immediate effect as interim orders pending finalization of this application.
3. Further and or alternative relief.

 

[7]     On 24 October 2023, Makara J granted prayers 1(a)(b) & (c). The matter was thereafter allocated to me and argued on 16 May 2024. On 14 November 2024, I partially granted the relief sought with certain modifications. These orders appear fully at the end of this judgment. The following are my reasons for the orders.

The defence

[8]     The 3rd and 4th respondents opposed the application. They defend the validity of the will on the grounds that ; a) although the deceased and applicant married in community of property, they never intended to marry under that regime so they agreed to keep their individual pre-marital assets as separate property; b) Accordingly each exclusively administered their individual pre-marital assets, c) the bequest property was awarded to the deceased upon dissolution of his previous marriage. It belonged to him exclusively and did not form part of the joint estate; d) Based on the agreement between them, the deceased registered the property in his name alone in 2013, a fact which the plaintiff had always been aware of. Lastly, when the will was registered in 2013, the applicant deserted the deceased.

 8.1 In the alternative, the respondents pleaded that if the bequest property belonged to the joint estate, the deceased was entitled to bequeath his half in the joint estate as he wished. 

 

The report of the Master of the High Court

[9]     According to the report filed by the Assistant Master of the High Court, the estate of the late Mokhethi Seokho was reported by the 4^th respondent, Tsitso Chakakhe, on 19 October 2023. According to this report, the death notice recorded the deceased’s status as “divorced.” The office only discovered through this application that the deceased was married to the applicant.

The parties’ submissions

[10]   Advocate Sekonyela for the applicant argued that the respondent adduced no evidence to show that the bequest property was the deceased’s separate property. Absent evidence in this regard, the property forms part of the joint estate. He cited Lethula v Lethula[1] to submit that where people marry in community of property, pre-marital assets acquired individually are pooled together into one joint estate.

10.1 He further relied on section 5 read with section 7(1)(a) and (j) of the Legal Capacity of Married Persons Act, 9 of 2006 (LCMPA) to submit that spouses married in community of property do not have unfettered powers to singly carry out transactions concerning the property belonging to the joint estate because the marital power, by which the husband was entitled to administer and alienate property of the joint estate and the wife’s separate estate under the Common law was truncated by the Act.

[11]   Advocate Potsane for the 3^rd and 4^th respondents relied on section 7(1) (J) of LCMPA to submit that the will cannot be impeached for lack of consent. He construes section 7(1)(J) read with section 9 to mean that a spouse is permitted to dispose of, by will, their half share in the joint estate. A will cannot, therefore, be impeached for lack of consent or knowledge of the other spouse unless the alienation or donation exceeds the half-share of the testator, thereby prejudicing the rights of the other spouse. The decisive factor is whether the joint estate suffered a loss as a result of the disposal, an element that the applicant failed to prove.

[12]   Another dimension of his argument is that it is not mandatory for spouses married in community of property to execute a joint will. The use of the word ‘may’ in section 9 (1) must be construed to mean that it permits one spouse to make a unilateral will disposing of his/her share in the estate.

Issue for determination

[13]   Twin issues that fall for determination are a) whether the bequest property forms part of the joint estate. b) If the property belongs to the joint estate, whether a spouse married in community of property is entitled to unilaterally (without consulting the other spouse and obtaining their consent) dispose of, by will, property of the joint estate.

 

Proprietary consequences of marriage in community of property

[14]   To decide these issues, it is probably advisable to commence with a discussion of the nature of marriage in community of property and its proprietary consequences under the common law and the (LCMPA).

[15]   The consequences of marriage are classified as variable or invariable according to whether they can or cannot be excluded by an ante nuptial contract.[2] Community of property, community of profit, and loss are invariable consequences of marriage and apply to all marriages unless expressly excluded by an ante nuptial contract entered into by the spouses before their marriage.[3]

[16]   Where spouses marry in a community of property, the pre-marriage assets individually acquired by the spouses, are automatically pooled together immediately upon marriage to form part of their joint estate.[4]  In other words, all the assets of both spouses, whether owned at the time of the marriage or acquired afterward, are merged into one joint estate of which the spouses are co-owners.[5] This rule is subject to certain exceptions enumerated paragraph 18 below.

[17] Resultantly, the joint estate consists of all the property and rights of the spouses that belonged to either of them at the time of the marriage or which were acquired by either of them during the marriage.[6] The joint estate is held by the spouses in co-ownership, in equal, undivided shares.[7] 

[18] Assets not forming part of the joint estate include; a) gifts and bequests(and their fruits) by third parties containing a clause that such bequest shall be excluded from  the community, b) an asset excluded from community by an ante nuptial contract, c)personal rights such as usufructuary rights and property subject to a fideicommissum or trust(because these rights are personal and cannot be alienated by the beneficiary); d) delictual damages for non-patrimonial loss(any amount recovered by one spouse by way of damages because of a delict committed against him or her); e) insurance policies.[8]

[19]   The LCMPA permits, albeit, obliquely, certain property, classified as ‘separate property” to be excluded from the community of property.[9] Separate property of a spouse under the Act includes, inter alia, an amount recovered by way of damages other than damages for patrimonial loss because of a delict against his or her person, income derived from separate property of the other spouse, donation, inheritance e.t.c.[10] 

[20]   With these principles in mind, I turn to the facts of the instant matter. It is common cause that the bequest property was awarded to the deceased upon dissolution of his marriage to the 3^rd respondent’s mother. The deceased registered the bequest property in his name in 2013, recording his status as a ‘divorcee.’ As a result, the leases were issued in his name to the exclusion of the applicant. Similarly, when he executed the will, he identified himself as a divorcee. According to the respondents, the property did not form part of the joint estate upon marriage, and neither did the property belonging to the applicant.

[21]   Based on the authorities cited above, it is clear in my view that absent an ante nuptial contract, the 3^rd respondent’s allegation that the bequest property was a separate estate of the deceased is not backed up by any evidence. This conclusion applies equally to the property acquired by the applicant before the marriage. Resultantly, I conclude that the individual property acquired by the applicant and the deceased before their marriage is not excluded from the community and thus automatically merged into their joint estate upon marriage.

Administration of the joint estate and disposal of its assets

[22]   Having concluded that the bequest property forms part of the joint estate, I turn to the next question of whether a spouse married in community of property is entitled to unilaterally (without consulting the other spouse and obtaining their consent) dispose of, by will, property of the joint estate.

[23]   Before the enactment of the (LCMPA), 2006 the husband, as the head of the family, had a decisive say in many matters; inter alia ;a) he had power over the person and property of his wife; b)he administered all assets of the joint estate under the marital power; c) as the administrator of the joint estate, he may, without the wife’s knowledge or consent enter into contracts, alienate, or encumber the movable and immovable property of the estate.[11]

[24]   This Act introduced substantial reforms that jettisoned gender differentiation. The prime object of this Act is to abolish the minority status of women and concomitant restrictions that the marital power placed on their legal capacity. These include concluding contracts, to sue and be sued, registering immovable property in their name, binding themselves as sureties, e.t.c.[12]

[25]   I highlight provisions relevant to the determination of the issues in the instant matter. Section 3 of the Act abolished the husband's marital power over his wife's person and property. Section 5 equalizes the power of the wife to that of the husband to: a) dispose of the assets of the joint estate) contract debts for which the joint estate is liable; and c) administer the joint estate.

[26]   Section 7 sets out the juristic acts requiring spousal consent. I quote it in relevant parts.

“7 (1) Notwithstanding subsection (4) and (5) and subject to sections 11 and 12, a spouse married in community of property shall not, without the consent of the other spouse;

1. Alienate, mortgage, burden with a servitude or confer other real right in any immovable property forming part of the joint estate;
2. ….
3. …

j) donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to any of the provisions of paragraphs (a), (b), (c), (d) and (e).”

i) receive any money due or accruing to the other spouse or the joint estate by way of.

i)remuneration, bonus, allowances, royalty, pension or gratuity by virtue of the other spouse’s employment, profession, business, or services rendered by him or her

ii)compensation for loss of any income contemplated in subparagraph(i)

iii) inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse;

iv)income derived from the separate property of the other spouse

v)dividends or interest on or the proceeds of shares or investment in the name of the other spouse;

vi)the proceeds of any insurance policy or annuity in favour of the other spouse

(7) In determining whether a donation or alienation contemplated in subsection(1)(j) unreasonably prejudices the interest of the other spouse in the joint estate, the court shall have regard to-

a) the value of the property donated or alienated;

b) the reason for the donation or alienation

c) the financial or social standing of the spouse;

d) their standard of living; and

e) any other factor which in the opinion of the court is reasonable to take into account.

 

[27]   Section 9 governs bequests. It permits spouses to bequeath the property in the joint estate by a joint will. It reads as follows:

“9 (1) Where the spouses are married in community of property, the spouses may bequeath the property in the joint estate by a joint will.

(2) Where the spouses disagree in bequeathing the property in the joint estate, the Court shall decide how the property is to be bequeathed to the beneficiaries of the joint estate if such bequest is not in conflict with the rights of any of the spouses in respect of the property.

 

The effect or implications of co-ownership.

[28]   Having highlighted the relevant provisions of the LCMPA, and having discussed above that a marriage in community of property has the consequence of automatic co-ownership in the property brought to and accumulated during the marriage,[13] I next discuss the concept of co-ownership and the rights and limitations of co-owners.

 [29]  Joint ownership or co-ownership occurs when more than one person simultaneously has ownership rights in the property. Each owner acquires an undivided co-ownership share in the property concerned. Accordingly, co-ownership involves two elements: namely an undivided share in the property, reflecting each co-owner's interest which may be equal or not; and property which is movable or immovable.[14]

Free Co-ownership v tied Co-ownership. 

[30]   Common law co-ownership is divided into free and bound or tied co-ownership, both relating to movable and immovable property.[15] Co-ownership of the joint estate by spouses married in community of property is a species of tied co-ownership in which the spouses' shares are not only undivided but also indivisible, unless the division of the joint estate is ordered. [16] On the other hand, Co-ownership by spouses married out of community of property is ordinary free co-ownership.[17]

[31]   Under the Roman-Dutch law, the primary distinction between free and tied/ bound ownership is the right to alienate. [18] A free co-owner can alienate or burden his undivided share in the property independently (i.e, unilaterally). Furthermore, free co-ownership can be terminated unilaterally.[19] Willies Principles of South African Law[20] puts it thus;

“Alienation of the joint property can be effected only by the joint action of all co-owners, and they may together transfer an undivided share in the land or fraction of a share. A single joint owner could not alone alienate the whole property. Though he may alienate his undivided share in it, he can only transfer a fraction of his undivided share if he has obtained a certificate of registered title of his undivided share in the land”

[32]   Conversely, in free co-ownership, a co-owner may alienate his share or make arrangements as to his share against the wish of his fellow co-owner.[21]

[33]   The main consequences of bound Co-ownership are therefore that: a) the co-owners cannot alienate or burden their undivided co-ownership share as long as the underlying relationship is intact, and b) co-ownership cannot be terminated unilaterally.[22]  So, for as long as co-ownership exists, the property cannot be divided and one co-owner cannot burden or alienate the property without the consent of the other co-owner (s).[23]

 [34]  Reading sections 7 and 9 of LCMPA in light of these principles, I am of the view that the word ‘may’ in section 9 (1) permits the spouses married in a community of property to execute a joint will, but does not permit spouses to execute separate wills without consulting one another. To show that the legislature intended consultation with one another, the provisions further show that if the spouses cannot agree on how the property is to be distributed to the beneficiaries, then they must approach the Court to resolve that issue. The right to alienate spousal share in the joint estate is restricted by sections 7 and 9. They make it clear that a spouse as a co-owner may not simply subtract from the right of the other co-owner by unilaterally alienating his share in the estate without consulting the other spouse.[24]

[35]   The question is whether the singular registration of the property in the name of the deceased and his unilateral execution of the will can detract from the applicant’s rights in this property. I do not think so because land ownership and other real rights in immovable property which form part of a matrimonial joint estate are required to be registered in the name of the husband and the wife. The Court in Ex parte Menzies et uxor[25] the Court said;

“Marriage in Community of property must be the most common instance where a person acquires ownership or rather a share in the ownership of immovable property without registration. At the commencement of such a marriage the property of the spouses, subject to certain exceptions is brought automatically into community without the necessity for delivery of movables or transfer of immovables… The immediate consequence is obviously that the nominal title to immovable property previously registered in either spouse’s name in the Deeds Registry no longer accords with true ownership position.”

[36]   Section 10 of the Land Act 8 of 2010 embodies this principle by providing that;

“10 (1) where persons are married in community of property either under civil, customary or any other law and irrespective of the date on which the marriage was entered into, any title to immovable property allocated to or acquired by anyone of them shall be deemed to be allocated to or acquired, and any title to such property shall be held jointly by both.”

 

[37]     All things considered, I am of the view that the deceased was not entitled to alienate or dispose of the joint estate property without consulting the applicant or obtaining her consent. The relevant provisions of the LCMPA read with the Land Act 2010 make it clear that disposal of matrimonial property must be done jointly by both spouses or at least in consultation with one another.  Unilateral disposal is prohibited by these laws. Anything done against the prohibition of the law is void. The will must, therefore, be declared as such.

The legal effect of dissolution of the community of property

[38]   Having concluded that the will is void, the rules of intestate succession come into play.  I next discuss the legal effect of the dissolution of community of property / joint estate by death of one spouse or both.

[39]   As shown above, during the subsistence of the marriage, the spouses own the joint estate in equal, undivided, and indivisible shares. Upon dissolution of the marriage, through death or divorce, the shares become divisible, so each party is entitled to a half-share of the joint estate. The half share of the deceased spouse devolves upon his or her heirs, and the surviving spouse retains his or her half share. After the debts which are charged in the joint estate have been paid, the residue is divided equally between the surviving spouse and the heirs of the first dying spouse.”[26]  The Court in Ex parte Menzies[27] explained the rights of the heirs as follows:

“Where a man or woman who was married to his or her spouse in community of property dies, the heirs of the predeceased spouse do not acquire co-ownership in the individual assets of the joint estate, but merely the right to claim from the executor half of the net balance of the joint estate. Nor is the survivor, despite the fact that he was during the lifetime of the predeceased spouse co-owner of half of the joint estate, vested with dominium of half of the assets. Like the heirs of the predeceased spouse, he/she is restricted to a right against the executor to half of the net balance.”[28]

[40]    Put differently, when the community of property is terminated, the survivor is not on such termination automatically or immediately vested with the dominium of one-half of each of the assets of the joint estate. The executor has to discharge all the liabilities before distributing it. It is only half of the net balance of the estate which vests in the survivors.[29]

Disposal

[41]   The authorities cited show that the marriage in community of property is not a species of “free” co-ownership, in terms of which each co-owner has the right to freely alienate or dispose of his or her share in the estate; hence, it is described as tied co-ownership. The result is that, during the subsistence of the marriage, the shares in the estate are indivisible and become divisible upon the dissolution of the community. Only then is each spouse entitled to alienate his or her share.

[42]   In addition, the authorities are also clear that upon dissolution of the community, the heirs of the deceased spouse do not automatically acquire co-ownership of individual assets but merely the right to claim half of the net balance of the joint estate from the executor of the joint estate after winding up. The surviving spouse, too, does not acquire dominium in individual assets but half of the net balance.

[43]   The consequence of setting the will aside is that the estate of the deceased Mr. Mokhethi Seokho must be administered in accordance with the Administration of Estates and Inheritance Act 2024 because, according to the Master of the High Court’s report, the estate was reported to her office on 19 October 2023. This was after the commencement of the Administration of Estates (Amendment) Act, 2022. Section 3 of the Administration of Estates and Inheritance Act 2024 shows that the Act applies, inter alia, to estates under customary and civil rites and estates reported after the commencement of the Administration of Estates (Amendment)Act 2022.

Order

[44]   For reasons set out in this judgment, the following order is made;

1. The last will and testament of the late Mokhethi Seokho registered on 11 January 2017, is declared null and void ab initio.
2. The applicant is declared to be the lawful wife of Mokhethi Seokho with rights to inherit from Mokhethi Seokho’s estate subject to the relevant provisions of the Administration of Estates and Inheritance Act 2024.
3. The estate is to be administered under the supervision of the Master of the High Court in accordance with the relevant provisions of the Administration of Estates and Inheritance Act 2024.
4. Respondents must not interfere with the assets or the administration process until its finality
5. Each party to bear own costs occasioned by this application

 

 

_____________

P. BANYANE

JUDGE

 

For Applicant                 :         Advocate B. Sekonyela

For 3^rd Respondent           :         Advocate M. Potsane

For 4^th Respondent          :         Advocate G. Makara