HIGH COURT OF LESOTHO
KARABO MOHAU APPLICANT
by the Honourable Mr Justice W.C.M. Maqutu on the 30th June 2005
23rd June 2003 I recused myself from hearing this matter.
did at Mr Mohau request at a time I was about to hear the above
matter as a matter of urgency - with a view to finalizing
the court recess.
the matter was heard I called the parties into chambers for a short
the parties that I considered the matter complex because of the clash
between the European way of life and the African way
Mr Mohau whether or not the husband of the testatrix had abandoned
the African way of life? Secondly whether the joint estate
reported to the Master of the High Court in terms of the
Administration of Estates Proclamation of 1935. Mr Mohau would
answer this question because he regarded the matter as simply one of
whether the testatrix was sound mind when she made the
the way of life test was a threshold requirement in our law of
succession. I referred to Section 3 (b) of the Administration
Estates Proclamation of 1935. This is the requirement that had to be
first dealt with in the cases of T.C. Mokorosi v H.T. Mokorosi
4 Others 1967-70 LLR1 and F.L Hoohlo v I.M. Hoohlo 1967-70 LLR 318.
Mr Mohau felt my insistence on the answer to this question
an approach to this case not in accordance with the papers. He asked
me to recuse myself because inter alia he was not
satisfied with the
manner I had rescinded the judgment.
I did not agree that I should recuse myself, it occurred to me that
some other judge might approach this matter differently.
felt I was trying to help, but if any of the sides felt uneasy, I
should not insist and sacrifice my vacation if I was
no more doing
good. For those reasons I decided to recuse myself.
approach throughout had been grounded on the way of life test.
26th May 2005 I had made the following order without objection:-
as much as Mokoto Jeremiah Khakale wants to be heard before judgment
court appoints Mr Thoahlane to present Mokoto Jeremiah
case through affidavits, annexure and documents.
court will determine both the merits of respondents dispute and the
issue of rescission of judgment. Issue is validity of
the will and
way of life of testatrix.
Jeremiah Khakale through Mr Thoahlane is given two weeks and is
expected to file opposing papers by the 13th June 2005.
papers from applicant to be filed by the 17th June 2005.
application will be heard on the 20th June 2005. The Registrar had
recorded the same order in the following words.
observation of the audi alteram partem rule Mr Thoahlane appointed
to represent Mokoto Khakale's case through affidavits anexures
papers from applicant to be filed by the 17/6/05.
application will be heard on the 20/06/2005
21st June 2005 I still put the way of life test in the following
"Rescission of judgment granted. The matter is postponed to
23/6/2005 for hearing of whether the estate ought to be administered
in terms of the Administration of Estates Proclamation 1935 and
secondly who is the heir according to custom. The validity of the
will is also in issue."
be observed from the aforegoing that I always took the view
throughout the proceedings that the way of life test is a
in dealing with the estate of the testatrix.
Consequently I found it proper that
else who might take a different view should deal with the merits of
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