IN THE HIGH COURT OF LESOTHO In the matter
REGINALD THEBE TLALE Plaintiff
THOMAS MOFOLO 1st Defendant
TSEGISE TLALE 2nd Defendant
SEOBI TLALE 3rd Defendant
NTSIE TLALE 4th Defendant
LESENYEHO TLALE '5th DefendantMASTER OF THE
HIGH COURT 6th DefendantTHE REGISTRAR
OF DEEDS 7th DefendantTHE P.S, FOR
INTERIOR 8th Defendant
Delivered by the Hon. Mr. Justice B.K. Molai on the
20th day of June, 1986.
On 18th August, 1982 plaintiff herein filed with the
Registrar of this Court summons commencing action in which he claimed
the defendants :
1. (a) A declaration that the will of the late Thahaki
Tlale is null and void on the grounds that during his life time the
Thahaki Tlale had never abandoned Sesotho Law and Custom
(b) A declaration that the estate of the late
Thahaki Tlale be administered according to Sesotho Law
(c) A declaration that the first and finalLiquidation
and Distribution Account isaccordingly invalid and that the
sixthdefendant be directed not to give effectto it.
(d) A declaration that site 23 Cathedral Areasite
110 Stadium Area were properly given
by the late Thahaki Tlale during his life time to the
Costs of suit,
Other alternative relief."
The 2nd, 3rd, 4th and 5th defendants filed notices of
appearance to defend intimating their intention to oppose this
mention was made, in the minutes of pre-trial
conference, that 1st defendant should be called upon to state clearly
whether or not
he wished to defend the action there is no indication
that he, in fact, filed any notice of appearance to defend. I shall
that he, together with 6th, 7th and 8th defendants who have
also filed' no notice of appearance to defend do not intend to oppose
this matter and are, therefore, prepared to abide by the decision of
It is common cause that plaintiff and 2nd defendant are,
respectively, the eldest and the younger sons of Thahaki Tlale.
life time Thahaki Tlale (hereinafter referred to as
"Testator") made a will dated 15th April 1975. In that
will the testator
declared himself to have abandoned the Sesotho
Customary way of life for the European type. Wherefor, he gave
instructions for the
administration of his estate in accordance with
the provisions of the Administration of Estate Proclamation No. 19 of
1935 (as amended)
in the following terms,
"2. I bequeath to my son Thebe Reginald Tlale my
dwelling house and other improvements situated at residential site
Stadium Area Maseru Reserve and I further reaffirm that
the business premises known as Tlale Store remains his.
3. I bequeath to my son Tsegise Petros Tlale all
the buildings, out buildings and other improvements or
business site number 23 Cathedral Area Maseru Reserve.
4. I bequeath to my grandsons Seobi Tlale, NtsieTlale
and Lesenyeho Tlale in equal shares, allthe money that shall
remain in my estate afterpayment of my debts including burial
5. I appoint Thomas Mofolo, the counsellor of
HomesTrust Maseru to be the executor of this Will
and administrator with power of asumption without being
required to give security for the due performance of his duties in
of the said capacities."
A codicil to the will was also made on 11th August, 1978
directing that in addition to the legacies, as set out in the will,
to the plaintiff and the 2nd defendant were subject to
the condition that upon their deaths, the sites bequeathed to them
upon their sons. Both the will and the codicil were
duly registered in the Deeds Registry under numbers 130/75 and 10/78,
The evidence of P.W.2, Hendrick Jacobs Styn, an attorney
of long experience in the field of administration of estates, that
and its codicil were properly drawn by the testator was not
really disputed by the plaintiff. What the plaintiff did dispute was
the testator's capacity to make a will. His reason therefor was
that, in his life time, the testator did not, as he claimed. abandon
the Sesotho customary way of life and live like Europeans. As proof
thereof plaintiff told the court that in his life time, the
referred his sick children to traditional doctors and paid "bohali"
for the marriage of his sons. (plaintiff and
2nd defendant denied that his parents ever referred him
to traditional doctors when he was sick. As regards
the plaintiff, he told the court that he (plaintiff) was
brought up by his aunts outside Maseru and only came to live with the
when he was already a grown up.
Be that as it may, the evidence of D.W.4, Mr. M.A.
Siddique, a surgery specialist at Queen Elizabeth 11 hospital, that
on 25th April
1979 the testator was ill when he was admitted in
hospital was not really disputed. D.W.4 testified that as a
specialist he was a
consultant and did not normally admit patients at
the hospital. However, according to hospital records, when he was
testator was suffering from vomitting and his liver was
not functioning properly. D.W.4 personally had the occasion to
testator only on 25th May, 1979. He found that the
testator had some obstructions at the mouth of his stomach for which
surgery or an operation which was duly carried out on
31st May, 1979. It was only then that the testator showed some signs
until 5th June, 1979 when, according to the hospital
records, he became confused and could no longer take even anything
9th June, 1979 the testator became some what drousy and
passed away on the following day, 10th June, 1979
It was never, at any time, suggested that when he became
ill the testator went to consult traditional doctors. I find it
that he would have referred his sick children to
traditional doctors whom he himself could not consult when he was
ill. It seems
to me, therefore, that, on a balance of probabilities,
the evidence of the 2nd defendant that the testator did not
take his sick children to traditional doctors is more likely
than plaintiff's evidence that he did and I am inclined
to accept it as the truth.
2nd defendant conceded that the testator did pay
"bohali" when he (2nd defendant) and the plaintiff entered
into their respective
marriages. The question is, however, whether
the testator had any choice in the matter. "Bohali" in
this country is normally
demanded by the "bride's parents
unless, of course, they are prevented to do so on religious grounds.
If the father of the
groom, be he a mosotho or not, declines to pay
"bohali" he runs the risk of his future daughter-in-law
failing to obtain
the requisite parental consent and the parties to
the marriage ending up in no marriage at all, depending, of course,
on the age
of the bride to be. I do not think that many
fathers-in-law, even if they have abandoned Sesotho Customary way of
life, would consider
non-payment of "bohali" worth the risk
Be that as it may, plaintiff himself could not dispute
the evidence of 2nd defendant corroborated, to some extent, by D.W.3,
Tlale, that the testator was a Christian; attended
school after which he worked as a civil servant for a living; entered
into a Christian
marriage for which no "bohali" was paid
(presumably on religious grounds); sent his children to school for
upon his retirement from the civil service operated
shop, restuarant and transport businesses; owned and lived in houses
European style; always lived in Maseru and owed no
allegiance to any chief outside the Reserve and finally drew up a
will in which
he unequivocally stated that he had abondoned the
sesotho customary way of
life for the European type.
On this evidence there is no doubt in my mind that it
can be accepted that the testator had, by and large abandoned the
way of life and lived like Europeans. He had,
therefore, the capacity to make the will and its codicil which
cannot, for that reason,
be declared null and void.
It was contended on behalf of the plaintiff that even if
it were found that he had abandoned the Sesotho Customary way of life
the European type and had, therefore, the capacity to make the
will and its codicil, the testator had, subsequently and during his
life time, donated site No.23 to him thus revoking the will and its
codicil by adamption. The contention.was based on certain
made on the title Deeds of sites Nos. 23 and 110 as well
as the evidence of both P.W.2, Mabote Namane, (the Reserve headman),
the plaintiff himself.
First as regards the evidence, plaintiff told the court
that on 25th May, 1979 the testator wrote a letter in which he
his customary heir. He also wrote the following
inscriptions on the title Deeds of sites Nos. 23 and 110, to which
attached his signature: "I, Thahaki Tlale
transfer this Title Deed to my son Reginald Thebe Tlale."
However, it later
on emerged that the inscriptions were in fact,
written in the handwriting of, and signed by, the plaintiff himself
and not the testator.
The inscriptions purport to have been
witnessed by Tseko Tlale, Tlali Tlale and a hospital matron by the
name of Maile. None of
them, however, testified before this court.
Be that as it may, plaintiff went on to say the testator
then gave the letter and the Title Deeds to him for onward
P.W.2 to facilitate processing of the transfer of the
sites to him (plaintiff). This plaintiff did. Sites Nos. 23 and 110
transferred to him on 6th June, 1979 and 9th
November 1979, respectively. During the funeral of the testator the
original Title Deeds
for sites Nos. 23 and 110, however, got lost and
could not be produced at this trial. Only photostat copies, which,
bear the inscriptions described above, were produced.
The letter in which the testator allegedly declared plaintiff as his
heir was also not produced in this trial.
In his evidence P.W.2 testified that during one of his
visits to the testator at the hospital the latter told him that he
transfer sites Nos. 25 and 110 to plaintiff. He also
told him that he had made a will before a Judge but was of the
opinion that the will could be changed
during his life time. I doubt
if this is what the testator told P.W.2 for there is no indication on
the will that it, was made before
a Judge nor do I think it is
necessary for will to be made before a Judge. Be that as it may,
P.W.2 went on to say the testator
was in his sound and sober senses
as he said all these things. Subsequently the testator completed
certain forms for the transfer
of sites Nos. 23 and 110 to plaintiff.
The forms were, however, completed in the testator's own handwriting
and were definitely
not those appearing on pages 35 and 36 of the
typed record. The forms and the letter declaring plaintiff the
customary heir were brought before him by the plaintiff.
He endorsed or signed and date stamped the documents with which he
plaintiff to the Ministry of Interior to initiate the
processing of the transfer of the sites to his name.
At first P.W.2 denied that the Title Deeds of sites Nos.
23 and 110 were ever brought to him by plaintiff. But when he was
with the date impression of his office and his own
signature on these documents he had to concede that they were in fact
It is significant to bear in mind that it is the
plaintiff in this case who claims that the testator has donated site
No.23 to him.
The onus of proof that the testator did, in fact, do
so, rests squarely on his shoulders on. the well known principle that
assets bears the onus. In his evidence plaintiff has not told
the court that when he said he was donating site No. 23 to him the
testator was anticipating death. On the contrary P.W.2's evidence
was that when he told him that he wished to transfer sites Nos.
and 110 and change the will that he had made before the Judge the
testator was in his sound and sober senses. That does not in
view, imply that at the time he made the statements the testator was
anticipating death. That being so, what the testator is
' alleged to
have said to both plaintiff and P.W.2 amount to hearsay evidence. It
does not fall within the armpit of the exceptions
to that rule and,
therefore, remains inadmissible evidence which cannot be of
assistance to this Court.
Although initially plaintiff tried to tell the Court
that the inscriptions on the two Title Deeds for sites
Nos. 23 and 110 were written and signed by the testator
it later imerged that plaintiff was not being very candid with this
when he said so, for he himself and not the testator had, in
fact, written those inscriptions.
The original letter and the forms allegedly written
and/or completed by the testator and on which documents plaintiff
relied for his
contention that the testator declared him his
customary heir to whom site No. 23 should be transferred, could not
be produced before
this Court. Indeed, the title Deeds for sites Nos.
23 and 110 produced before this Court were, themselves, photostat
copies of the
original Title Deeds which plaintiff said went missing
during the funeral of the testator.
How the plaintiff has managed to obtain photostat copies
of title Deeds that have been lost remains a . puzzel to me. It
seriously suggested that the copies of these title Deeds
were obtained from the Deeds Registry because the inscriptions which
supposed to have been made on the original are reflected on these
copies of Title Deeds.
I can only say plaintiff's genuiness of his failure to
produce the original Title Deeds, in the circumstances, leaves me
It is trite law that a court of law is entitled to the
best evidence. If it were true that the testator did write a letter
he declared plaintiff his customary heir and completed, in
his own handwriting, forms to facilitate transfer of sites Nos. 23
110 to plaintiff who was referred to the Ministry of Interior
with those original documents, then the documents are, in all
probabilities, still at the Ministry of Interior from
where they could have easily been produced to this Court.
By and large, I am not convinced that plaintiff has, on
a balance of probabilities, satisfactorily discharged his onus of
the testator had, in his life time, donated site No. 23 to
him and thus revoked the will and its codicil by adamption.
Plaintiff has admitted that he used for himself all the
money that was left in the estate of the testator. He had site No.
to him, and rightly so, in my opinion, because this
was bequeathed to him by the testator. He now wants to have site No.
was bequeathed to 2nd defendant, transferred to him leaving
the latter with nothing to gain from the estate of their father. This
the plaintiff has, in my view, no right to do, be it under the
Sesotho customary law or in terms of the provisions of the Will made
by the testator.
From the foregoing it is obvious that the view that I
take is that plaintiff's claim cannot succeed and it is accordingly
J U D G E
20th June, 1986.
For the Plaintiff : Mr. Kolisang For the Defendants
: Mr. Mphalane
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