IN THE HIGH COURT OF LESOTHO In the matter
'MAMOSA NKOBOLANE APPLICANT
COMMISSIONER OF POLICE 1st RESPONDENT
OFFICER COMMANDING POLICE LERIBE 2nd
ATTORNEY GENERAL 3rd RESPONDENT
MAHLOMOLA NKOBOLANE 4th RESPONDENT
Delivered by the Honourable Mr. Justice T. Monapathi on
the 7th October. 1999
The Applicant applied for a declaration (main prayer)
that she was entitled to receive the benefits which accrued to the
the late 'Kama Jeremiah Nkobolane. The deceased was a
member of the Royal Lesotho Mounted Police. Applicant also moved for
that the First and/or Second Respondent should pay the
benefits referred to above. The Third and Second Respondents were to
from paying the benefits to any party pending the
finalization of the main prayer and other ancillary relief.
The Applicant whose maiden names (before marriage to
deceased) were 'Mamosito Francinah Moshebi was a widow who resided at
in the Leribe district. A marriage certificate which was
later produced before Court confirmed that the Applicant and deceased
married on the 20th November 1997. There were no
children born out of this marriage.
The Applicant said that there were certain benefits
which would accrue to the estate of her late husband from her
the First Respondent. It was the duty of the
Respondents to disburse to the one entitled to the benefits and it
was in the present
case the Applicant. She said the Fourth Respondent
who was the father of the deceased was not entitled to benefit from
any event the Applicant said she was heir ab intestatio to
the estate of her late husband since the marriage was a childless
She added that since she was a civil rites widow of her late
husband, she was his intestate heir and hence had a clear right and
entitlement to the benefits that were due to his husband's estate.
The Applicant had already even written to the deceased's employers
indicating her claim as aforesaid.
Applicant stated that the Fourth Respondent laid claim
to the disputed benefits. And furthermore that the threat to
was foreshadowed by what Applicant called Fourth
Respondent's overt pretences that he was entitled to deal with some
items of the
property of the estate of the late Applicant's husband
without consulting Applicant. These acts were the following: removal
which Applicant said had belonged to her and her late
husband from the erstwhile marital home at Hlotse. Fourth Respondent
keeping the property as his. This also indicated that the
Fourth Respondent was bent on dissipating property of the estate of
Applicant and the deceased. The Fourth Respondent admitted having
dealt with the estate because Applicant had left. He said he was
one remaining to deal with the estate. Secondly the Fourth
approached the office of the Second Respondent to seek
payment of the disputed benefits.
I noted with great dismay the contents of paragraph 4 of
the Fourth Respondent's answering affidavit. In that paragraph the
for denial of the existence of the marriage of the Applicant
and the deceased and for the disentitlement of the Applicant is
It was that Applicant's father one Mpopoi Moshebi "reclaimed"
and removed his daughter from the matrimonial home. The alleged
grounds, (which are denied by Applicant) for removal of the Applicant
were shown in that paragraph 4 of the Fourth Respondent's answering
affidavit. These grounds most crisply capture the attitude of the
Fourth Respondent and as were presented during argument. They were
set out as follows:
"4.1 MPOPOI MOSHEBI Applicant's father claimed that
there was no marriage agreement between himself and me regarding the
between his daughter the Applicant and my late son.
MPOPOI MOSHEBI resolved to remove his daughter,the
Applicant from my late son home at Manganeng inMohale's Hoek
district and took her to Ha-Maqele inthe Leribe district to
perform mourning cloth ritualthereat.
The aforesaid grounds were witnessed and signed
beforemy area chief at Manganeng in the district of
Mohale'sHoek. I, annex the relevant letter's copy and its
fairtranslation marked "A" and "A1"
4.4 The Applicant herself willingly and voluntarily left
with her father without objection from being removed from her
home thereby denouncing the alleged marriage which had
factually terminated by the death of my son."
The unbelievable logic of above was that the Fourth
Respondent even went to the extent of denying that he was in fact the
The Fourth Respondent said that the Applicant had
voluntarily left and abandoned the deceased estate on instructions of
who denounced the marriage. That is why he said he was
entitled to recover the benefits accruing to bis late son's estate.
of the Applicant's father, it was again emphasized, was
the reason why the Fourth Respondent felt the Applicant became a
and become disentitled. And that is why the Fourth
Respondent contended that he was the one who was entitled to recover
accruing to his late son's estate.
It would have been difficult for the Applicant to deny
the strong feeling and apparent bitterness of her father in that
never been any arrangements of a customary marriage between
the parents of the Applicant and the deceased's father (Fourth
This is explainable in that the Applicant's father's
letter, date stamped the 4th October 1998, which was
marked as annexure "A"1 (translation) had this to say:
"This is testimony that Mpopoi Moshebi is
requesting that his child be released because he and Mahlomola
Nkolobane had not concluded
a marriage contract concerning (the)
Mpopoi Moshebi's daughter.
That being the case in Mpopoi Moshebi concludes that his
daughter will wear mourning cloth at his place at Ha Maqele Leribe
(of) the deceased's son Mr. Mahlomola Nkolobane."
By saying that it was difficult for the Applicant to
deny the attitude of her father I was not suggesting that such an
the Applicant did not come forth. It did. It was from the
Applicant herself. This she did by relying on the supporting
of her father. This affidavit by a strange slant in effect
sought to contradict the contents of annexure "A1" (quoted
Before coming to the supporting affidavit of Applicant's
father referred to above. I needed to make a brief note of the
of the Applicant contained in the replying affidavit. She
said she had never abandoned her marriage nor abandoned that estate
the deceased and herself. She said she left her "maiden"
home on account of ill-health. She must have meant marital home.
had not intended to abandon their estate. In removing from their home
as she did and in seeking to come back thereto as he intended
under no obligation to consult the Fourth Respondent. In any event
she was not averse to negotiating with that Respondent.
I had to speak about the Applicant's supporting
affidavit. In it theApplicant's father said in paragraph 3(a)
that his daughter (Applicant) was a sickly person and after the
funeral of her husband the
Fourth Respondent was asked to permit
Applicant to come to her "maiden home" where she would be
closer to medical practitioners
which was not the case in Semonkong.
The FourthRespondent did not give the permission. As a result it
was brought to the attention of the Respondent that he had not paid
The Fourth Respondent said he: ".. ..maintained that in
view of the non payment of bohali he had
no authority to ever refuse to release Applicant to me
for the reason I have mentioned in (a) hereof."
The affidavit ended up by stating that the Fourth
Respondent's family performed all rituals of widowhood on the
I might as well and here point out that there were very
strong indications from evidence and probabilities that Applicant
marital home after her husband's death as a result of the
attitude of her father. See Annexure "A"1. This I
as the true reason. It made me to conclude therefore that
both the Applicant and her father were being dishonest in speaking
ill-health as the reason for the Applicant to have removed from
her marital home. It was an after thought. This is besides the
questions whether Applicant abandoned her estate or whether
she was estopped from claiming the estate because of her removal.
I still had to decide.
It should be clear how the above was a tactical marriage
of Fourth Respondent's attitude in annexure "1A" and what
forward as the immediate cause namely the illness of the
Applicant and the refusal of the Fourth Respondent to release the
This was tactical in that it was sought, albeit at
replying stage, to justify why the Applicant removed from her marital
the same time the attitude of the Applicant's father was not
denounced and at the same time the alleged reason of ill-health was
I may have even been inclined to disbelieve the
Applicant and her father on this aspect of her alleged ill health but
did not find that there was any intention proved on the
part of the Applicant to abandon her interest to the estate of the
It all remained a matter of speculation and conjecture. I
envisage that argument over the speculation could amount
to proved facts even after the analysis on probabilities by Mr.
Teele for Applicant did not accept the argument.
Mr. Mpopo for the Fourth Respondent submitted that by
removal of the Applicant there was:
"Estoppel by conduct which operates both against
Applicant and her father by voluntarily reverting to her maiden home,
as against her father in denouncing the marriage on
non-payment of bohali and removing his daughter to her maiden home."
Mr. Mpopo could be said to have validly urged that there
was an inescapable inference that the Applicant, when and as
her father, intended to remove from her marital home.
Mr. Mpopo was however at pains to demonstrate that it was intended
removal was a permanent one and most importantly whether it
was intended to abandon the estate or the benefits that accrued or
accrue to the estate. I concluded in my judgment that more
would be needed to prove that the Applicant had as a fact abandoned
benefits of the estate by way of adiating or such like.
Those acts of abandoning or reneging on the benefits of
an estate such as repudiation have to be proved. And others which
character of election for example adiation and waiver would
need to be demonstrated whether there have been a vesting of those
or not. See generally THE LAW OF SUCCESSION IN SOUTH AFRICA
(1980) Corbett, Hahlo Hofmeyer, Kahn - pages 14-16. (III Adiation and
repudiation), Applicant cannot have repudiated unless a form of
intention on her part (whether same was directly or circumstantially
proved. It became difficult to infer from the conduct or
attitude of the Applicant's father that Applicant therefor abandoned
rights to the estate. This was so even if Applicant may covertly
have aligned herself with the attitude of her father.
I observed that the Applicant's father may have
concluded that the absence of a customary marriage between her
and the deceased meant that after the death of
the deceased the Applicant may have no longer have been of the family
of the Fourth
Respondent. In all the circumstances of this case that
could not be correct. In the first place, besides the customary
did not exist) there still was the civil marriage
which subsisted until the deceased's death. I took the existence of
the civil marriage
as a good ground when I concluded that the
Applicant was endowed with all the rights to the benefits of the
This Court could not find anything indicating that the
Applicant denounced her rights to the estate. Mr. Mpopo had argued
that the conduct of the Applicant in removing to her
father's place amounted to an estoppel. As I have said there had to
be an element
of intention on the part of the Applicant. As I say now
there must have been an action done in good faith pursuant to that
What is it that she did that she represented to the First
Respondent? I saw none of the essentials of an estoppel as submitted
Mr. Teele on the authority of the work AMLER'S PRECEDENTS OF
PLEADING, L.T.C. Harms, Fifth edition (Amler's) at pages 185-187.
the Fourth Respondent was not able to show how the Applicant
ought to be precluded or estopped from:
"denying the truth of a representation previously
made by him to other person if the latter, believing in the truth of
acted to his detriment." (My underlining)
(supra) at page 185. This should dispose of the issue of estoppel.
It was finally submitted that, in the alternative, the
Fourth Respondent had become an heir or one of the heirs to the
estate of the
deceased husband of the Applicant. That if the
Applicant was found to be an heir she was one among the many, having
the Applicant was childless.
The Sesotho customary system of intestate succession,
which applies whenever an estate is not administered in terms of the
of Estates Proclamation 19/1935, is often said to be
not a strict primogeniture system. Where the deceased died without
issue it is often said there is no heir strictu sensu. As
S.M. Poulter says in his useful work FAMILY LAW AND LITIGATION IN
SOCIETY, 1976 Edition at page 232:
"Next in descending order of precedence come the
people listed below; if any person within the appropriate category is
at the deceased death he or she succeeds to the estate in
preference to those in the subordinate categories:
Deceased's widow in terms of section 11(2) Part I of
the Laws ofLerotholi.
I respectfully agreed with S.M. Poulter's illustration
of the correct legal position. That widows inherit rights can be
compared to situations where they become chieftainesses,
where their wishes are given preference in burials of the deceased
and most recently where albeit by statute they become heirs
for occupation and leasehold ownership of properties.
The above opinion by S. M. Poulter would in my mind put
to rest the distinction sought to be made by Mr. Mpopo as to whether
fell to be treated as an inheritance issue or marital
property issue. In any event I took the view that the Applicant would
in either of the two.
Applicant's claim succeeded with costs.
T. Monapathi Judge
7th October, 1999
For the Applicant : Mr. Panyane
For Fourth Respondent: Mr. Mpopo
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