IN THE HIGH COURT OF LESOTHO
In the Appeal of :
ENEA DAEMANE Appellant
SELLO DAEMANE Respondent
Delivered by the Hon Acting Mr. Justice M. Lehohla on the 8th day of February 1988
Appellant is dissatisfied with the judgment of the Judicial Commissioner's Court He drew up rather prolix and argumentative grounds of appeal in an effort to persuade this Court to reverse the Judicial Commissioner's judgment
However as clearly set out in appellant's heads of arguments prepared by counsel, it appears that the questions to be decided are :
whether an heir who signed away his rights of inheritance during the life time of the testator can after the death of the deceased claim to be heir to the deceased's estate and set aside the appointment of an heir who was chosen in his stead;
whether on the facts of this case it can be said that the deceased made a gift or allocation of his property to the appellant inter vivos.
whether the respondent can claim ownership of rights over the three fields and three gardens allocated to appellant by the lawful Land Allocating Authority of the Area, without first instituting an action to sot aside such allocations.
The record shows that appellant and respondent
are brothers. During his life time their father Lenka now deceased convened a meeting to which both parties were present and accused his eldest son the respondent, who is the first male child in the family, of not caring for him. The deceased pointed out that he was bewildered and disappointed that respondent failed to feed and clothe him, further that he even separated his father's stock from his own and went away to set up his own separate kraal and thus failed to herd after his father's stock and to plough for him. He further complained that respondent failed to send him for medical treatment when he was ill
At this meeting respondent was asked by the members of the family what he intended doing about this state of affairs. Having given consideration to the fact that these obligations derived from his rights to heirship, respondent decided that both these obligations and the corresponding rights thereof be passed to his younger brother the appellant.
The family's reaction to respondent's decision was treated with necessary and due caution. Indeed the family felt it fitting that instead of hastily accepting this decision the respondent should be given time during which to reconsider his decision. The record clearly shows that the family advised that respondent should go and sleep over the matter. The hope expressed by the family was that sleep would somehow induce change of heart on the pert of the respondent. The meeting was accordingly adjourned till the following day.
When the family reconvened the next day respondent repeated that he was abandoning his rights and obligations of heirdom to appellant. This was written down. Respondent appended his signature on the document. This document was taken to chief Mokhothu before whom respondent acknowledged his signature. Thereupon the chief stamped the document with a date stamp thus making it official. The document is dated 2nd November 1970 bears the chief's date stamp and was received as an exhibit marked "Ext. 1" on the reverse side in the
court of first instance, while on the front side it clearly bears the impression "Ex.B"
It is significant that in a letter addressed to the deceased Lenke's life policy insurers "Ex-P4" chief Mokhothu reiterates factors which led to appellant being awarded the rights of inheritance to the late Lenka's estate. Chief Mokhothu in introducing respondent to the insurers stated that he should be "granted compensation of money for the deceased as he is the one who maintained and carried all expenses for the funeral of the deceased and he is the one who paid the premium of the life insurance and has the right on the moneys according to how his father has decided."
Exhibit "13" is a document which was brought to Chief Mokhothu's attention on 4th September 1979 following a decision by the Daemane family reached on 4th August 1979 as to the disposal of the late Lenka's estate. Although the translation is very poor and wanting in a particular matter of crucial detail, however the original text clearly shows that this decision by the Daemane family including members closely related thereto, is a confirmation of the award made by the deceased during his life time to appellant Enea with the knowledge and approval of respondent Sello Daemane. See page 56 of the record.
It is common cause that deceased died in 1979. It thus seems that for nine years since 1970 when exhibit 1 was drawn up and rendered official by being given on official stamp by chief Mokhothu, respondent did nothing to express any change of heart regarding the document he had appended his signature to prior to Lenka's death.
Contrary to the family decision taken with respondent's express consent and subsequent acquiescence spanning no loss than nine years before Lenka's death, Sello Daemane assumed position of heir and took away property to which appellant had succeeded.
The issue that falls to this Court's lot to decide
is not who would be entitled to succeed but whether appellant, was not rightly designated heir by the family.
It was accordingly submitted by Mr. Matsau for appellant that heirship is a personal right. Being so, it is alienable and therefore tranbforrable. This right contrasts sharply with the right to succeed to chieftainship which is governed by statute. It is important to bear this distinction in mind.
It would seem to me therefore that the right to heirship is transferrable provided it is transferred by the rightful owner and nomination is approved by family Council.
It is important to note that in Sesotho custom inheritance is coupled with obligation unlike in common law where an heir is interested only in reaping the fruits left by deceased. The rationale in Sesotho custom is that the heir shoulders the responsibility of being head of the family. This responsibility consists in maintaining and taking care of dependants i.e. finding them in food and clothing and providing them with necessaries of life when they are young and bearing the responsibility of paying lobola when the males cone of age and take brides.
It would accordingly seem that there is merit in Mr. Ha Matsau's submission that in the instant appeal we arc not dealing with disinheritance simpliciter, in that here respondent alienated his right during the life time of deceased; further that he asked that he be disinherited because he was unable to shoulder the responsibility that devolves on an heir The moment he divested himself of these obligations, it was argued, his rights to heirship also fell along with the obligations. Consequently the submission sounds reasonable that respondent is now estopped from preventing appellant from inheriting.
Respondent appears to have tried to put in issue the question whether at any stage he divested himself of his personal right. Reference to the record shows
on page 12 where in the words of 'Masechaba Hlobotse that the following occurred "I wrote that letter. It is in Ex.1. This is my handwriting. Below here Sello signed (Respondent) I was there when he signed." Under cross examination she was adamant that those who were present did not sign. But "Lenka said you should sign your name and you signed."
It is a fact that the trial court believed the plaintiff's witnesses and found for the present appellant. Respondent appealed to the Central Court where ho lost. Then on appeal to the Judicial Commissioner's Court he won but it is significant that his success in that Court was based not on fact but on a point of law that he could not be disinherited.
The Judicial Commissioner seemed to have found it di difficult or uncomfortable for him to reconcile himself with the view that an heir can be disinherited. This view may have flowed from the text in S Poulter's Family Law and Litigation in Basotho Society at page 39 where the learned author says :
"The question arises whether, short of this, a man can ever disinherit his prospective heir and, if so, under what circumstances. The members of the Panel Discussion were adamant that the law did not recognise such a procedure and that even if a father attempted it his family would not implement his decision after his death and thus his heir would still inherit,"
It is important however to go through the learned author's argument with a fine toothed comb and thus to eppreciate a view which is in sharp contrast with the one quoted above. At page 239 further below he says
"However, recently Thompson J.C., relying strongly on the opinions of his assessors, and after having initial doubts, has held fast to the view that disinheritance is permissible, and his judgments contain as number of obiter dicta to this effect."
The learned author went on to quote on page 240 from the Central Court's President a judgment where the following words appear :
"....... A person who wishes to exclude the heir from his rights has to summon all members of the family and accuse the heir in his presence and then ask the family to exclude him from his rights Should the family find a just cause for so doing it will uphold the request which will be notified to the chief."
Even though the present case is not based on disinheritance following on serious misbehaviour which humiliates the parents but on the fact that in his own act respondent signed away his obligations together with the corresponding rights the two requirements
(i) involvement of the family and
(ii) the subsequent notification to the chief seem to have been satisfied.
Pages 13 to 25 of the record clearly indicate that much turned on the fact that respondent had forsaken the deceased and the vacancy created was filled by the appellant.
It is my considered view that from the authorities referred to by Poulter above, disinheritance is possible in Basotho Society.
Notwithstanding doubts expressed in Poulter's works as to disinheritance of an heir there does however seem to be a recognition of this factor in Part 11 of the Legal Notice 15 of 1980 section 7(1) end (2) (d).
Section 7(1) reads :
"Whenever any person dies within the jurisdiction of a given Land Committee leaving any allocated land.......... the nearest relative or connection of the deceased or in default of any such relative or connection, the person who at or immediately after the death has the control of the land formerly held by the deceased, shall .. ...... cause a notice of death signed by him to be delivered or transmitted to the Chairman of that Committee."
7(2) reads :
"The notice referred to in sub-section (1) shall show .-
Whether the heir is the first male issue of the deceased or was designated as heir by the deceased or was nominated as heir by the surviving members of the deceased's family in the event of there being no first male issue heir or a designated heir."
It is not denied that for purposes of section 7(1) appellant was the one who at the time of Lenka's death had the control of the land formerly held by the deceased.
Section 7(2) (d) gives the power to deceased to designate an heir.
I have observed that the property in dispute consists of four fields, three gardens and four donkeys
The record reveals that appellant was lawfully allocated the fields and gardens referred to. There are Form C's and letters of allocation attached to the record after page 76. These form C's bear chief Mokhothu's date stamp of 21st January 1980. It appears therefore prime facie that the fields were granted by proper land allocating authority of the area to appellant as his names appear in the forms and certificates.
It was submitted for appellant that before the advent of Land Act of 1979 the right to succeed to occupation of Land was not automatic in that after death of the deceased land would revert to a chief who would re allocate it
The argument was developed that however after the enactment of the 1979 Act this right became automatic
Bearing in mind that appellant was granted these rights before 1979 it can be presumed that he acquired
these rights in terms of the law relating to reversion and re-allocation of land. Consequently it can be assumed that the requirements regarding reversion and re-allocation were satisfied.
The record shows that the family met after the death of the deceased and resolved that appellant be made heir. It was on the basis of this resolution and designation by deceased that the Land allocating authorities allocated the lands to appellant. It is significant that even though Respondent was himself a member of the land allocating authority for the area he did not challenge the evidence that compromised his subsequent claim to these lands. Form C's were accordingly issued to appellant. Respondent made no adverse claim in response despite that he was aware that the fields were being allocated to appellant. He could at least register his disaproval by recusing himself from the committee that ultimately confirmed appellant on those lands. He could also have sought help from higher authority like perhaps a chief. But he did'nt.
Part 11 of Act 17 of 1979 section 8(2) (a) clearly shows that the deceased has the power to designate heirship adversely to the interests of first male issue
"Notwithstanding subsection (1) where an allottee of land referred therein dies, the chairman........... .............. shall record.........the passing of the interest in the land of the deceased allottee to :
the first male issue of the deceased allottee (who shall share with his minor brothers in accordance with the advice of the family) unless the deceased allottee had designated otherwise." (My underlining).
Although Legal Notice 15 of 1980 7(2)(d) is fraught with some doubts whether the power to designate or nominate heir by deceased and family council
respectively in the face of the first male issue being present the word otherwise appearing in the above paragraph clearly shows that someone besides an existing first male issue can be designated, by the deceased I am aware of no section in the subsequent legislation abrogating section 8(2)(a) referred to above This disposes of respondent's basis of his query whether anybody including a father can deprive his son of his heirship - even whether the heir himself has such a power.
On the basis of the above section it is certain that the deceased father is entitled to deprive his heir of a very important interest, namely interest to lend. This right to heirship is alienable even moreso because en heir is such by right either of property or of representation. The distinction should be kept alive that heir is a name of right, son the name of nature. While attributes relating to the former can be interfered with and altered, those relating to the latter cannot. I can unmake my heir but not my son.
This in my view further strengthens my attitude that appellant's appeal ought to succeed. The appeal is accordingly upheld with costs as prayed.
8th February, 1988.
For Appellant : Mr Matsau
For Respondent : Mr, Pitso.
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