CIV/APN/46/05
IN THE HIGH COURT OF LESOTHO
In the matter between:-
KARABO KARABO MOHAU APPLICANT
vs
MAKETE-KETE KHAKALE RESPONDENT
REASONS FOR RECUSAL
Delivered by the Honourable Mr Justice W.C.M. Maqutu on the 30th June 2005
On the 23rd June 2003 I recused myself from hearing this matter.
This I 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 it during the court recess.
2
Before the matter was heard I called the parties into chambers for a short conference.
I told the parties that I considered the matter complex because of the clash between the European way of life and the African way of life.
I asked Mr Mohau whether or not the husband of the testatrix had abandoned the African way of life? Secondly whether the joint estate had been reported to the Master of the High Court in terms of the Administration of Estates Proclamation of 1935. Mr Mohau would not answer this question because he regarded the matter as simply one of whether the testatrix was sound mind when she made the will.
I said the way of life test was a threshold requirement in our law of succession. I referred to Section 3 (b) of the Administration of 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 reflects 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 He asked me to recuse myself because inter alia he was not satisfied with the manner I had rescinded the judgment.
Although I did not agree that I should recuse myself, it occurred to me that some other judge might approach this matter differently. Secondly I 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.
3
My approach throughout had been grounded on the way of life test.
On the 26th May 2005 I had made the following order without objection:-
In as much as Mokoto Jeremiah Khakale wants to be heard before judgment court appoints Mr Thoahlane to present Mokoto Jeremiah Khakale's case through affidavits, annexure and documents.
The 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.
Mokoto Jeremiah Khakale through Mr Thoahlane is given two weeks and is expected to file opposing papers by the 13th June 2005.
Replying papers from applicant to be filed by the 17th June 2005.
This application will be heard on the 20th June 2005. The Registrar had recorded the same order in the following words.
4
In observation of the audi alteram partem rule Mr Thoahlane appointed to represent Mokoto Khakale's case through affidavits anexures and documents.
Replying papers from applicant to be filed by the 17/6/05.
This application will be heard on the 20/06/2005
On the 21st June 2005 I still put the way of life test in the following words:-
"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."
It will be observed from the aforegoing that I always took the view throughout the proceedings that the way of life test is a pre-requisite in dealing with the estate of the testatrix. Consequently I found it proper that
5
some one else who might take a different view should deal with the merits of this case.
W.C.M. MAQUTU
JUDGE
