CIV/APN/329/92
IN THE HIGH COURT OF LESOTHO
In the matter between:
KOPANG WASHINGTON THABANE APPLICANT
and
THAKABANNA THABANE 1ST RESPONDENT
'MATIISETSO THABO THABANE 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Mr. Justice G.N. Mofolo on the 27th day of April. 1999
This is an application in which the applicant seeks an order
Declaring that the applicant is the heir in the estate of the late Samuel Thabane.
Restraining the respondents from interfering with the applicant's exercise of his powers in that estate.
Directing the respondents to pay costs of this application on an attorney-and-client scale.
2
Granting the applicant such further and/or alternative relief.
The application was opposed.
It appears on 11 September, 1995 by agreement of the parties certain issues were referred to evidence, namely:
Viva voce evidence should be heard on
who is the mother of Phalali; how was she married to Molefi Samuel Thabane or any other person
who is the mother of the applicant? How was she married to Molefi Samuel Thabane, if at all?
was Thabo Thabane the late husband of 2nd respondent adopted son of Phalali or not?
The order was made before another judge and for the record, I am puzzled by (b) above because according to the marriage certificate applicant's father was Molefi Edgar Thabane and it is not clear what (b) above was intended to establish.
Counsel for the applicant had then called the applicant who sworn had stated chat he was Kopang Washington Thabane residing at Maseru Hillsview. He knew the respondents who are related to him. 1st respondent was his elder brother
3
according to family relationships being son of his senior uncle. 2nd respondent was daughter-in-law of his aunt. 'Mathabane had not been married. He had been born at Makhoakhoeng, Masianokeng in Molefi Thabane's house and he was related to 1st respondent by virtue of his father being younger brother to 1st respondent. 2nd respondent was daughter-in-law of Molefi's sister.
They had grown up from different places. He wanted the court to declare him as heir to the estate of Phalali Thabane because he was sole male issue in the family. His father's father was Samuel who had 5 boys and 2 girls. Phalali was the eldest and had since died without issue. The 2nd Ratokelo had two girls, he had since died and the girls. The 3rd Moseli had disappeared and his whereabout were unknown. He had forgotten the 4th but one Molefi was the last but one and his father. As for girls, Matšeliso was the first and after her came Emma. He knew them well. Emma Thabane had not been married but had the child Thabo who was 2nd respondent's husband. He had since died. 1st respondent was first senior brother. His father and 1st respondents father were brothers. His father's brother Samuel would be Thakabanna's grandfather for Samuel was not 1st respondents's father. There had been a dispute regarding Samuel's succession. His aunt Emma though unmarried had claimed the succession. 1st respondent as family head and chief had presided over the dispute and made a ruling and had decided that he (the applicant) was the rightful heir. The decision had been annexed to the papers.
When the decision was made 2nd respondent's husband had been absent working m the Republic of South Africa though his aunt Emma had been present. The decision he was. referring to annexure is 'KT3'. The family decision apart,
4
nobody had disputed the heirship save auntie Emma. Up to her death Emma was insisting Samuel's rights were hers. It was for this reason that he had instituted a case at Matala Local Court to claim his inheritance. The court had found against him on the ground that there was no evidence his father and mother were married. He had latter found the certificate of marriage between his mother and father annexed to the papers showing they had been married in Vereeniging. When Emma died he had claimed responsibility for burying her. Thabo had by then died and Emma was claiming Thabo to be heir to the estate. 1st respondent had said the estate was not his but 2nd respondent's and accordingly he had no right to bury Emma. When he produced annexure 'KT3" 1st respondent had disclaimed it and the burial had proceeded without him. The family property was being used by 2nd respondent without consulting him. He was asking the court to declare him as heir. That 2nd respondent's husband had been adopted by Phalali was unknown to him. The issue had never been raised in family meetings and 1st respondent had never appraised him of it. If 1st respondent had known
this he would not have made the decision in terms of annexure 'KT3'.
Cross-examined by Ms. Kotelo the applicant said he claims to be successor to Samuel's and hence Phalali's estate because the family appointed him successor and he had come to court for a declaratory order. He says the family decision was confirmed by the head of the family. He says Emma was not married and was Samuel's daughter while Molefi (his father) was also Samuel's son. The result of the case was to allow Emma to stay in the family without awarding her the home. He says he cannot dispute that Molefi died in the Republic of South Africa and it was claimed there was no wife to bury him. Molefi his father had died between
5
1952 and 1953 when he had been bom in 1950. He says he had never said he lived at Hlotse , Leribe where he paid his tax though he agrees he did not challenge the statement. He agrees Matsieng Central Court dismissed his appeal. He disagree he has deliberately witheld the judgment from the court for the reason the court dismissed the appeal was because there was no proof that his mother was married. He agrees that Phalali, Samuel's eldest son inherited Samuel's property. He says he is entitled to succeed to Phalali's estate at Makhoakhoeng, Maseru. He says he cannot deny that Phalali made improvements on Samuel's property. He says Phalali had no children. He says 'KT3' was written by 1st respondent as chief on 09 March, 1979. He says he does not know whether a chief is a court of law. He says on Emma's death all he did was to wear the mourning cloth without participating in funeral activities. He says the fact that he did not deny 1st respondent's para 5.2 does not mean that he admits it. He did not know whether when his father and mother married the family knew. He says he does not know how he came to be bom at Qeme, Maseru district. He says he grew up at his grandmother's in a village called Bosogo opposite Makhoakhoeng, Masianokeng. He had not stayed at Makhoakhoeng and had not known Phalali personally. Phalali's mother was 'Maphalali and her maiden name was Pulane. He used to see 'Maphalah at Makhoakhoeng around 1950 -1960. He could not tell the kind of marriage Phalali had entered into and understood if it was suggested it was customary union. He had known Ratokelo faintly at Makhoakhoeng probably between 1956 - 1966. He says all he knows is that Moseli is Samuel's son and he was older than Molefi. He denies Moseli is still alive. He says 'KT3" was written as confirmation of the family
meeting. He says he was present when the family decision was made. He says he does not remember all who were present though 1st respondent was present. He
6
says the family decision had not been reduced to writing for the decision and letter had not been made at the same time. He says it is the family decision that was not accepted by his aunt Emma on account of Thabo (2nd respondent's husband) being the rightful heir. He says his father had died between 1952 - 3. He did not know whether auntie Emma had buried his father nor was it true that Molefi died in 1950. He does not deny that Thabo was bom in 1940. He says he does not know that Thabo was Phalali's adopted son and in any event Thabo could not succeed to his right. He disagrees the marriage certificate is not proof of marriage between his father and mother. Belina was his mother's maiden name and Mphoto her maiden surname.
Re-examined. He says at Matala Local Court Thabo was absent. That Thabo was the rightful heir had not been raised at Matala Local Court. 1 st respondent had already made his decision regarding his (applicant's) succession. 1st respondent had never said he made a mistake to hold him (applicant) heir instead of Thabo. That he is Molefi Thabane's son had never been rescinded by 1st respondent. At Matala Local Court Emma had said Samuel's was her parental home.
The applicant had closed his case.
Ms Kotelo had withdrawn the application for rescission of judgment and called D.W.1 Lekhoaba Mapetla who swom had stated he was 64 years old and resided at Masianokeng. He knew Emma whose son was Thabo. He also knew the Thabane's, He did not know Samuel for he was young when he died. Samuel's children were: Phalali, Ratokelo, Moseli, Pcuio, Molefi, Matseliso and Emma. He
7
knew Thabo who was Emma's son. When Thabo was bom he was residing at Masianokeng. Thabo had been given by his grandmother 'Maphalali to her eldest son, Phalali; Thabo was then 5 years old. The reason Thabo was given Phalali was because the latter had no male issue.
'Maphalali had called her sons i.e. Phalali, Ratokelo, Poulo, Moseli, Molefi and her daughters Matseliso and Emma and explained to them because Phalali had no male issue she was giving Phalali Thabo to be his child. As far as he knew, this is all that 'Maphalali did - there was only a pronouncement: Phalali here is Thabo your son and Thabo, here is Phalali your father. Thabo had grown up in his mother's family. Thabo was late but had a wife the 2nd respondent who was present in court. 2nd respondent had children namely: Molomo a boy, Poulo and Limakatso. The children were present at home. He could not remember when Thabo died. Emma and her brothers had buried Thabo.
oss-examined by Mr. Hlaoli the witness testified he did not get involved in Thabane's rituals though he participated in the family affairs as a bystander. His father was consulted regarding Thabane's affairs and so was he. He says he does not know whether 1st respondent is head of Thabane's family. In the gathering which 'Maphalali convened 1st respondent had been present. He says he had not been asked,about others who had been invited to the gathering. He does not recall the year. He could not remember whether the decision to adopt Thabo was reduced to writing. He agrees as late as 1992 1st respondent was making investigation whether Thabo had been adopted. He says he did not know these things he had been told about them. He had attended the court at Matala Local Court where Emma was sued for ejectment from Phalali's home. Thabo had been absent only his mother was present. In 1992 Thabo was an adult man. He knew the applicant who
8
attended Thabane's feasts though not all of them. In burials and rituals applicant participated. He also poured soil at funerals. Applicant's participation in these had not been objected to.
Re-examined. He say he was about 11 years old when Thabo was given over to Phalali.
By Court: He had gone up to Std. VII in his educational standard. _ D.W.2 Thakabanna Thabane sworn he had stated he lived at Makhoakhoeng,
Masianokeng. He was literate and had done Std VI at school. He was an administrator at Makhoakhoeng. He had started the work in 1964. Before then he had been a teacher at Thaba-Bosiu and also worked at Mazenod Printing. He was a headman at Makhoakhoeng though not gazetted. He had also worked at an income tax office in Thaba-Bosiu area. He was a teacher between 1947 to 1951 and he was 67 years old. He knew the applicant. He says he had known the applicant only recently when he was told applicant had been accepted into Thabane's family. He says the information came to him in the early 1950's. Applicant had been accepted as member of Samuel's family. Applicant had not been living at Makhoakhoeng then. Applicant had never stayed at Makhoakhoeng in his lifetime. He had known Thabo, Emma's son. He had been told by his mother that Thabo had been made Phalali's heir. This was in early 1950s. He remembered his letter though he was unable to read. He remembered the contents. In the letter he had said Kopang (applicant) wished to lodge a case in court and he had written the letter to help him appear before court. He agrees he wrote the letter because Kopang
9
(applicant) had requested him to state his status to court. He says he does not know about the family meeting for he had not attended it. In writing the letter he was basing himself on the decision of the village council. It was common to base themselves on village council decisions. It was the village council that nominated Kopang as a member of the family. He agreed with me contents of his letter. In a dispute between Kopang and Emma the village council had decided in favour of Kopang. Of importance was that the family was present when the village council met and the greater majority had supported Kopang. He says he does not agree with the contents of this letter to the extend that Kopang succeed to Samuel's estate for the letter should have instead said that Kopang is being accepted as a family member. It is correct to say Thabo was appointed as heir though he was not present then. That Thabo is heir is a report he received from his mother. He knew Molefi who was younger than his father and therefore his (witness's) uncle. Molefi was older than him but not by far. He had last seem him in the 1940's. He had not known of his marriage. That Thabo was given Phalali he had been told. Assuming Thabo had not been made heir the family would decide the issue. He says heirship is in accordance with the law of succession.
Phalali was succeeded by Poulo, Moseli, Ratokelo and the last one was Molefi. He says in terms of succession the heir would come from a senior family namely, his. He says the family has not appointed anybody as heir to Phalali's estate.
Cross-examined by Mr Hlaoli the witness says he is not muddling. About Thabo he says he was informed by his mother and whoever did this gave away his
10
right for he had not been consulted. Applicant at burials poured soil before Kanono and Lepekola. Kanono's father was Sello. He now says except the applicant, there is no living person in Samuers family. He says Moseli is Molefi's brother. He says applicant is the only one who performs death and other rituals. When Thabo died nobody had come up as his heir; Thabo's wife and children had been pointed out as Thabo's property. He says Thabo was illegitimate. Put to him the applicant is the only surviving heir to the estate of Phalali, he says he believes Moseli is still alive for if he were dead they would know. He did not know whether Moseli was alive. Asked why he did not query the property devolving on Thabo when Moseli may have been alive, he says it's because he knew Thabo's roots.
He says he does not make decisions alone and is not practising double standards and selective morality. He say he is always looking up to the family to make decisions. He says the dispute between applicant and Emma was that Emma did not accept that applicant is Molefi's son and the village council had made a decision aligning itself with family decision. He says in giving the applicant the letter it was because applicant was saying he was going to eject Emma from Samuel's property. He had issued the document because the village council had decreed it. It was not everything that the community accepted from him. He denies he has been deceiving the court throughout. He says he can only accept marriage if there is proof of marriage. As for Thabo being a gift he merely trusted what his mother told him. He says if the certificate of marriage is authentic he will accept that there was marriage. He had believed his mother who deputised for him. He was satisfied applicant is a member of the family. The greater number of the family and his mother had accepted the applicant. He says applicant was accepted into the
11
family because there was proof of marriage between applicant's father and mother.
The defence had closed its case. Counsel on either side had addressed the court.
Mr. Hlaoli for the applicant has said there is no doubt that applicant is heir to the estate in dispute and respondents far from disputing this seemed to support the applicant. 1st respondent in his 'KT3' had virtually confirmed a family decision to the effect that applicant is heir to the estate. The court could not allow 1st respondents antics in blowing hot and cold. Other than applicant, the family had designated no one to the estate.
Ms Kotelo has said that applicant had failed at Matala where the dispute was the same and the applicant could not be allowed to resuscitate a claim in which he had failed and not appealed from. It was common cause that Moseli was still alive and applicant had not discharged the onus of proving that Moseli was dead or otherwise incapable of succeeding. For there to be an heir was a family matter and the family had not decided that applicant is heir to Samuel's estate or for that matter Phalali's.
The law as to succession in this country is based on customary law. Actually, irrespective of the kind of marriage, in succession customary law prevails. It is rather simple for succession is in the male line the first son succeeding failing which the succeeding son and so on until the entire house is exhausted. Where there is no
12
male issue, brothers succeed failing which, their sons in order of preference and in descending order are preferred and failing these, collaterals succeed using the same method of precedence. Put simply when a man dies without male issue his brothers or brothers' sons in their senionry succeed to the estate failing which uncles in the same line of succession.
In the instant case Samuel beget Phalali who had no male issue. According to the evidence Phalali had brothers but these were without issue except Molefi who beget the applicant. In recognition of his title, it appears to be common cause that applicant sued his aunt Emma at Matala Local Court to have her ejected from Phalali's estate on account of Emna never having married and visited with the usual feminine incapacities prevailing at Sesotho law and custom.
When applicant went to Matala Local Court, he had armed himself with annexure 'KT3' whose free translation reads Kopang Thabae was
claiming his rights in the family of Samuel Thabane in respect of his aunt Emma Thabane. In this matter this court confirmed the family decision that Kopang Thabane be given all his rights in that family, by virue of being the son of Molefi Thabane fathered by Samuel Thabane'
Although the copy of judgment of Matala Local court was not made available, excerpts from it read to be court seemed to suggest that the court threw out applicant's claim on a single jocund, namely: that applicant had not proved that his mother and father were legally married. Quite significantly it was Emma the
13
applicant intended to eject from Samuel's property. When applicant failed to eject Emma, the latter continued to occupy the premises in dispute in her own right.
In this application the applicant is seeking a declaratory order to the effect that he is heir to the estate of the late Samuel Thabane. As I have said, the only defence at Matala Local Court was that applicant's parents were not legally married suggesting, perhaps, that applicant was illegitimate. Two defences which seem to have materialised before this court had not been raised at Matala Local Court, namely:-
That Thabo had been given to or loosely adopted into Samuel's family as heir;
perhaps failing (1) above, that Moseli an elder brother of Molefi (applicant's father) has a better title to succeed and applicant has not proved Moseli's incapacity to succeed.
I might also mention another defence that emerged during 1st respondent's evidence that
1st respondent coming from a more senior lineage his right to succession in Samuel's house cannot be ignored.
It is also worth mentioning that whereas the applicant and 1st respondent gave viva voce evidence in support of their contentions, although 2nd respondent
14
was present in court she chose to lead no evidence preferring the court to rely on her affidavit. Importantly too. by producing marriage certificate of the marriage between his father and mother, applicant appears to have removed a major hurdle in his path; this because in her Answering Affidavit the 2nd respondent has deposed at paragraph 2.2.1
Applicant his not been frank with the court by withholding the fact that he brought ejectment proceedings against the late Emma Thabane in C.C.47/79 before the Matala Local Court. His claim was dismissed because the marriage of his mother to Molefi Thabane was not proved. He tried to appeal to Matsieng Central Court where bis appeal was dismissed.
Because the fact that applicant's mother was not married to Moled Thabane was not proved, applicant cannot be a lawful descendant of the late Samuel Thabane. Consequently applicant cannot be deemed to be heir to any member of the Thabane family unless he can prove that his mother was married to the late Molefi Thabane. I am advised that applicant's failure to disclose that a court of law (The Matala Local Court) has imposed on him the burden of proving his mother's marriage in C.C.47 "9 is fatal to his application'
I am further advised that failure by applicant to disclose that in C C 47/79 of the Matala Local Court he failed to prove his mother's marriage amounts to bad faith in application proceedings______' (I have underlined).
According to the 2nd respondent then, applicant's success was conditional on 'proving that his mother was married to the late Molefi Thabane. Again, the so-called burden of on the applicant by the 2nd respondent was fatal to
15
applicant's case unless he shifted or removed it. It follows that if applicant proved his parents' or forebears' marriage, there would be nothing else for him to prove -at least if the court in motion proceedings is expected to be confined to the four comers of the matter in hand expecting either the applicant or respondent to rise or fall by his allegations.
As far as (1) above is concerned, at best this appears to be a conjured up, mushroom defence. It did not feature at Matala Local Court nor was it regarded by the 2nd applicant as sine qua non of her defence. It was not raised in 2nd respondent's papers but came out in evidence by both D. W. 1 and D.W.2 much as their evidence, on this score, amounts to no more than hearsay. Be this as it may. Emma was unmarried and gave birth to Thabo out of wedlock. It is not uncommon for some Basotho families by reason of not having male issue to discourage their daughter(s) from marrying with the hope of raising seed and prospective heir. Emma lived with her parents all her life and so did her children and especially Thabo. The likelihood is that he was regarded as heir to the estate of his maternal grandfather. A question which arises to be answered is: was Thabo in law adopted by Phalali? The evidence, for what it's worth, refers to Thabo having been made a gift to Phalali by 'Maphalali. Did this amount to adoption and did 'Maphalali have such capacity?
Although Proclamation 62 of 1952 regulates the adoption of children, its section 14 is to the effect that the Proclamation shall not apply to Africans and more, 'nothing in this Proclamation contained shall be construed as preventing or affecting the adoption of an
16
African child by an African or Africans in accordance with Basuto law and custom' In other words, for there to be adoption, it must be in accordance with Sesotho law and custom.
Seymour (Customary Law in Southern Africa - 5th Ed) says the requisites for valid adoption under customary law is that the adoption must comply with provisions of the Child Care Act, 1983 and that relatives of both the family head of the child being given away and received are to be at the meeting at which the adoption takes place and the matter is to be reported to the chief. In our case, the essentials are more or less the same save that we have no Child Care Act.
Poulter (Family Law Litigation in Basotho Society endorses these requirements the legal validity of the act depending on:
agreement between the chiefs natural father (or guardian) and the prospective adopter.
full family publicity of the event.
There is also the need to inform the local chief It also appears a person who would have inherited the estate but for the adoption is to be informed when a child leaves for his adopted home. Also, a single beast (khomo ea seotla or compensatory beast) is payable to redeem costs of upbringing and maintenance. Compensation is deeply woven into the fabric of Sesotho law and custom for whenever there is deprivation
17
or loss of some kind the deficiency is ameliorated, somehow, to signify that an event of some kind took place. Payment is the means by which the event is recorded and will always be recalled. This was necessary probably because the people were then illiterate or there was no necessity to reduce such events to writing. On this basis it looks like even an illegitimate child can, according to Poulter, inherit as where he is adopted by his maternal grandfather as Thabo was claimed to be.
In Lethaha v. Lethaha (H.C. 22/1943) a daughter of the deceased had disputed the estate with her brother's son. The Paramount Chiefs
court had divided the property between them the reason being that the defendant had totally failed in his duty to look after the deceased's widow during an illness though the court had no doubt he was the legal heir to the estate. On appeal the High Court had reversed the decision by awarding the whole property to the defendant on the ground that he was heir. A motion brought before the National Council to the effect that when a person dies leaving daughters but no sons his estate should be divided equally between his daughters and brothers, was heavily defeated. It is said the ratio decidendi of Lethaha's case was to establish the principle that the deceased's brothers and their issue take precedence over his daughters. Although Judicial Commissioner's case have no binding force and cannot be followed by this court, as the Judicial Commissioner is reservoir of Sesotho law and custom, these cases are quoted to illustrate the content and force of Sesotho law and custom in adoption cases under customary law.
Thus in Malatela v. Sefale, J.C. 42/61 a claim between a married daughter of
18
the deceased and son of deceased's sister had arisen with the latter claiming to have been adopted. The J.C. had given limited confirmation to the decision of the family council by holding neither party had outright claim to the estate since there was a son of one of deceased's brother's who, when located, would have a prior right. From some decisions, it appears an illegitimate child can only inherit if there is no survivor of his maternal grandfather's family (see Tsoele v. Nqhae - J.C.73/1964 and Mahomed v. Lempe, J.C.227/1964). And in Thabo v. Makopela, J.C.360/1947, deceased's estate passed to his junior brother rather than to his daughter's illegitimate son despite the deceased's stated desire that his grandson should inherit. A motion in the National Assembly to address rights of inheritance by illegitimate children was heavily defeated probably because chiefs felt threatened with the likelihood of illegitimate children succeeding to the throne were the motion allowed. As 1 have said, there were two witnesses as to Thabo's adoption namely D.W.I Lekhoaba Mapetla and D.W.2 Thakabanna Thabane. Thakabanna's evidence has been merely that 'Thabo was given by my grandmother 'Maphalali' to her eldest sonPhalali. According to him, it was a gift Significantly, although Thabo's wife the 2nd respondent was present in court, she had given no evidence on the issue preferring to rise of fall by her affidavit. In answer to Mr Hlaoli's questions Lekhoaba Mapetla had agreed as late as 1952 1st respondent was making investigations into whether Thabo was adopted. What's worse, this witness says he was told these things for it is not 'what I know/ He also said at Matala Local Court where he had given evidence he had not said that the site in dispute was Thabo's. He has also said in so far as rituals are concerned, applicant performed them without objections from the family. Quite apart form the fact that this witness has relied on hearsay so far as Thabo's adoption is concerned, he does not belong
19
to the Thabane family his mother having been married into Thabane family. Not much reliance can be place on his evidence. Thakabanna (D.W.2) as reflected by his evidence, is guilty of hearsay evidence. He says 'I was informed by my mother that Thabo had been given Phalali to be Phalali's heir'. As his evidence shows, Thakabanna is duplicitous, unreliable, self-serving and guilty of unimaginable distortions. This court has not believed his evidence a whit.
It was in cross-examination put to Thakabanna why he did not query Thabo's succession pretensions since Moseli may have been still alive; his answer was that 'he knew Thabo and his roots.' Further, he had deposed in his evidence 'Thabo who was appointed as heir is the right one.' Although seemingly and perhaps grudgingly supporting Thabo's cause, it is the same Thakabanna who has given a totally misleading impression in his evidence by asserting in cross-examination: 'whoever gave away my right to Thabo did not consult me.' He was saying this because in his evidence he had said his family being senior it should have succeeded.
According to D.W.2's evidence for what it's worth, it appears Thabo was made Phalali's heir in the 1950s in the absence of Moseli and there has been no evidence that since then Moseli surfaced. Ms Kotelo has said that the onus is on the applicant to establish the fact that Moseli is dead or beyond considering him for succession and the applicant had failed to do so. This court takes note of the fact that though Moseli came into play during D.W.1's and D.W.2's evidence, in his Founding Affidavit the applicant had deposed:
'I am the only surviving heir to Phalali who did not have
20
male child and Molefi whose elder son is myself.'
Significancy too, applicant has been disputing the estate with her aunt Emma without Moseli's mention. From the 1st respondent's affidavit, applicant's pretensions are denied for several reasons. One of them is that applicant has not lived at Makhoakhoeng at Thabane's having instead grown up and been raised at his mother's maiden home. Another reason and a major one looked upon by the 1st respondent as decisive was the fact that applicant's father and mother were not married. He also says that applicant has been in a rush before 'determining whether or not Phalali adopted Thabo_______.'
At paragraph 5.4 he says:
'Applicant is trying to eject the descendants of Emma Thabane from the home that Phalali Thabane had provided for them.'
5.5 'The family has met in order to determine who has a right to the family home of Phalali Thabane where Emma Thabane resided.'
There is no mention of Moseli. In other words, Moseli was never Thakabanna's or 2nd respondent's defence against applicant's claims. Since Emma in law had no right of succession to the estate, it would seem her issue and in particular Thabo cannot succeed for if he did, it would be over the heads of Thabane's male descendants.
It is a grievous error to view and look upon without selection, custom as it
21
prevails in a given country as if it was only harsh, selfish and unthinking good for nothing save oppressing and ignoring fundamental rights and liberties of the fair sex, minors and the weak instead of upholding and protecting and safeguarding their interests. The judgment in Lethaha's case supra by the Paramount Chief's court is a case in point for the ratio decidendi of the decision is that no heir will be allowed to shirk his responsibilities towards his wards. At pristine Sesotho law and custom females and minors were regarded as incapable of handling their affairs. Even if females were capable of this, the fact that they were wont to be married and lost to the family counted against them. Besides, there was the ever present and pervading idea or feminine frailty now attenuated by human rights lobbyists and on the wane as a result. In view of the present power and contribution women are making to the national effort generally, it is hoped Parliament will look at women's social status afresh with a view to putting them on the same pedestal as that of men.
hi Sesotho 'mojalefa' is one who 'eats-and-pays' It is as it should be as was highlighted in the celebrated Lethaha's case above.
Sesotho law and custom generally has to do with proven responsibility and seeks to strike a balance between the advantaged heir and disadvantaged non-heirs and member of the family. Unless these nuauses are fully appreciated, custom as practised in Lesotho could wreak untold suffering on members of the family.
This court is not inclined to appoint applicant as curator bonis to take care of Phalali's assets in case Moseli resurfaces any more than the court is disposed to award the applicant the estate subject to his providing security should Moseli re-
22
appear. From the evidence for what it's worth, it would seem Moseli disappeared without trace more than forty (40) years ago. In the interests of family stability and cohesion and more particularly interest of Phalali's descendants, applicant is declared heir to the estate of the late Phalali on condition that the applicant will maintain and support the 2nd respondent and her minor children (if any) and the applicant will not eject the said 2nd respondent from Phalali's premises during the natural term of her life.
Alternatively, that the applicant at his own expense will find suitable accommodation for the 2nd respondent and any minor children.
As this is a family matter, there will be no order as to costs.
G.N.MOFOLO
JUDGE
9th April, 1999.
For the Applicant: Mr. Hlaoli
For the Respondents: Ms Kotelo
