HIGH COURT OF LESOTHO
MORIENYANE 1st RESPONDENT
MORIENYANE 2nd RESPONDENT
MORIENYANE 3rd RESPONDENT
MORIENYANE 4th RESPONDENT
MORIENYANYE 5th RESPONDENT
THE HIGH COURT 6th RESPONDENT
BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 4th NOVEMBER, 2005
The capacity to make the
On what grounds can the will be invalid..............................
On whom does the burden lie, to prove invalidity.
OF THE CASE
applicant is the wife of the testator who was a widower at the time
they married. The testator has children both in his previous
and also with the applicant. The testator has made the
will-disinheriting or leaving out the applicant who is now
her husband's power to make a valid will,
The testator has unlimited powers to make the will.
testator may leave out of the will or disinherit the spouse, a child
and /or a parent.
onus of establishing invalidity rests on the person alleging the
BACKGROUND OF THE CASE
16th May, 2003, this applicant approached this court ex-parte and
urgently, in terms of RULE 8(22) HIGH COURT RULES, LEGAL
OF 1980. She sought and obtained a RULE NISI in the following terms:-
a Rule Nisi do hereby issue calling upon the Respondents to show
cause if, any on a date to be determined by this Honourable
ordinary periods of notice shall not be dispensed with due to the
urgency of this application.
first, second and third respondents, herein shall not be
interdicted forthwith form collecting, making inventory of,
vandalizing, disposing of, interfering or dealing in any manner
whatsoever with the state of the late Qamako Collierd Morienyane
pending finalization of this application.
first, second and third respondents shall not be ordered to
surrender all proceeds and collection of all the rentals from
shacks and buildings collected by them to date, (sic) From the
applicant's business site at Ha 'Makhoroana pending the
of this application.
the first, second and third respondents shall not be interdicted
from collecting any further rentals from the said business
Ha 'Makhoroana pending finalization of this application.
sixth respondent shall not be interdicted from appointing,
confirming, or dealing in any manner whatsoever with the conditions
of the Will of the late Qamako Collierd Morienyane registered on
22nd December 1999, pending finalization of this application.
Will executed by the late Qamako Collierd Morienyane shall not be
declared null and void.
purported appointment, by the sixth respondent and/or by the
Morienyane family, of the first, Second and third individually
collectively in pursuance of the said Will shall not be declared
null and void.
applicant herein shall not be declared the lawful surviving spouse
and widow of the late Qamako Collierd Morienyane with
over the joined estate.
purported bequest of the joint estate, in respect of the movable
and immovable property, including the so called 'ploughing
to the first, second, forth and fifth respondents shall not be
3 (B) OF THE ADMINISTRATION OF ESTATES PROCLAMATION 19 OF 1935
shall not be declared unconstitutional in that it is
and in conflict with SECTION 3 OF THE LESOTHO CONSTITUTION 1993 by
reason of its being discriminatory either in
itself and/or in its
effect, on the basis of cultural beliefs and therefore null and
void to the extent of the inconsistency.
respondents herein shall not be directed to pay the costs hereof,
provided that the sixth respondent shall pay costs in
the event of
applicant shall not be granted such further and/or alternative
relief as this Honourable Court may deem fit.
Prayers 1 (a) (b) (c) (d) and (e) operate with immediate effect as
CIV/APN/204/2003. That application and the confirmation of the rule
nisi so obtained, were opposed. Once the filing of
the pleadings were
completed, the matter was placed for hearing before my brother the
Honourable Mr. Justice T. Nomngcongo who
delivered the judgment in
that matter, on the 2nd July, 2004.
questions asked and determined in that judgment are;-
proprietary of bringing mix together both civil and constitutional
matters before the High Court which is exercising its
civil jurisdiction. When determining constitutional questions the
High Court sits as a Constitutional Court and
promulgated constitutional litigation rules designed for
application in the determination of the constitutional
or not the matter - CIV/APN/204/2003 was sufficient urgent to
warrant bringing it before the court as such.
lack of bona fides on the part of the applicant who brought that
above in the rule nisi obtained, there were a dozen or so prayers in
that application. Some of them were seeking ordinary
When the three legal questions set out above were determined, the
court was satisfied that the application must fail
and therefore it
upon receipt of that judgment the same papers were re-filed, as
CIV/APN/311/04. This time the application proceedings
are brought on
notice to all the respondents.
applicant is seeking an order of this court in the following terms;-
the First, Second and Third Respondents from collecting, making
inventory or vandalizing, disposing of, interfacing
or dealing in
any manner whatsoever with the estate of the late QAMAKO COLLIERD
MORIENYANE pending the finalization of this
the Sixth Respondent from releasing any rentals, collected from
the estate of the late QAMAKO COLLIERD MORIENYANE,
to the 1st,
2nd, 3rd, 4th and 5th respondents or to any other person
whatsoever and pending the finalization of this application.
the will signed by the late QAMAKO COLLIERD MORIENYANE null and
void ab initio.
the applicant herein as the Lawful surviving spouse and widow with
full dominium over their joint esate with the
late QAMAKO COLLIERD
the respondents herein to pay the costs of this application.
the applicant such further and/or alternative relief as this
Honourable court may deem fit.
direct question of the validity of the will of the late QAMAKO
COLLIERD MORIENYANE, is most important in the determination of
dispute. It is the argument of the counsel for the applicant that the
previous application was determined after consideration
questions only, without getting into the merits of the case. I
appreciate and take his point. The issue now, after perusing
heads of the argument filed of record and after listening to the
addresses of both counsel for applicant and respondents, remain
firmly on the validity of the will of the late QAMAKO COLLIERD
MORIENYANE. In other words it is the will that caused the dispute
between the parties. The applicant seeks an order of this court to
stop and prevent the actions which the respondent perform pursuant
the provisions of her late husband's will.
applicant's case as gleaned from the papers filed of record, is
clearly an attack on the testator's power to make a valid will.
applicant does not like the provisions made by her late husband in
his will. She alleges that her late husband had no power
to make the
valid will on these grounds:
her late husband has disposed of her half share of their joint
the said will is silent about her rights, that is to say, she has
been left out or excluded from the will.
in the said will the testator has bequeathed fields, arable lands in
contravention of the LAND [Amendment] ACT 1979.
the testator had not abandoned the tribal custom.
married under custom where payment of bohali was made:
TO MAKE A VALID WILL
capacity to make a valid will is a commodity available to any and
everybody unless the person is defective due to his or her
or mental illness. WILLES PRINCIPLES OF SOUTH AFRICAN LAW, EIGHT
EDITION, PAGE 373. A will may be invalid at the time
execution, by reason either of incapacity or lack of animus testandi
on the part of the testator or non-compliance with
formalities for its execution GROTIUS 2.24.5, VOET 28.3.2. For
example the will which is not signed by the testator
witnesses, may be held to be defective for non-compliance with the
prescribed form. The proper and valid will ex facie bears
signatures of the testator and those of his or her witnesses at the
applicant in this case attacks the validity of the will not by its
form. She attacks the validity of the will by its content
omissions as shown above on her grounds of the alleged invalidity.
The applicant does not specify what items of property
disposed off by her late husband's will and that constitutes her half
share of the joint estate.
to Annexure 5 attached to the Founding Affidavit, this applicant
stepped into the shoes of her husband's late wife. The
estate of the
late MANQOSA MORIENYANE who was the testator's first wife, was not
remained part and parcel of the estate of QAMAKO COLLIERD MORIENYANE.
Some of the respondents who are the children of the testator
first marriage, claim that the half of the estate of the late QAMAKO
COLLIERD MORIENYANE belonged to their mother. As her
are entitled to half share of her estate. There is no single item of
property which is mentioned as forming any particular
immovable property, e.g. unregistered sites and ploughing field were
acquired by the deceased and his late wife prior
to her death. It is
clearly set out in Annexure 5 that the site was acquired during
MANQOSA'S lifetime and in her presence. This
site cannot form the
joint property of the late QAMAKO COLLIERD MORIENYANE with his
present widow. The applicant herein does not
show which items of the
estate of the late QAMAKO COLLIERD MORIENYANE, form the part of their
joint estate. She does not allege
nor prove the type or item of
property acquired by her together with the testator. There is no
mention nor proof of the property
that could form her share of the
joint estate. Therefore there is no way in which this court can find
that her share of the joint
estate has been disposed off.
silence of the will, with regard to the applicant's rights is not a
suitable ground on which the testator's normal, regular
valid will can be invalidated. The Testator has powers to dispose of
his property or rights in the property as he pleases
subject to just
a few limitations which the court may impose as it sees fit during
OF SUCCESSION IN SOUTH AFRICA, second edition by CORBETT HOFMEYR KAHN
at page 39. The complete freedom of testation has
been recognized and
has found full expression in this jurisdiction. CORBETT HOFMEYR KAHN
[Supra]. The law is concerned mainly with
the form of the will. The
contents of the will is left completely to the discretion of the
individual making it. DEWAAL 1939 ESSAYS
TELL LR 162. The testator
can leave out of his or her will the spouse, a child and/or a parent.
The testator has the freedom to
disinherit anyone. Therefore leaving
out of the will anyone of those persons mentioned above does not
invalidate the will. The
onus of the establishing the alleged
invalidity of the will of the late QAMAKO COLLIERD MORIENYANE rests
on the person alleging
the invalidity. SECTION 5 OF ACT 26 OF 1873 -
LAW OF INHERITANCE - permits every person competent to make a will to
powers by executing any will. The failure by testator to
mention any child, parent or relative "shall not make such a
liable to be set aside."
ground on which the will of the QAMAKO COLLIERD MORIENYANE is alleged
to be invalid, is that he was an African who had
not abandoned tribal
custom and adopted a European mode of life. It is a cardinal
principle of law that he who alleges must prove
his allegation. There
must be evidence that prove the alleged position of the testator as
the traditional, tribal and customary
paragraph 9 of Founding Affidavit, the applicant avers that she and
the deceased were married according the custom. There is
no proof of
the alleged customary marriage. The applicant attached the copy of
Civil Marriage Certificate. There is no evidenciary
proof of the
allegations made by the applicant that her late husband had not
abandoned custom. The mode of life of any individual
is a fact which
must be proved and judged according the circumstances of each case.
MOKATSANYANE AND THEKISO AND TWO OTHERS - C
OF A (CIV) NO.23 OF 2004
without the proof of his allegation that the deceased maintained his
customary way of life this court
cannot set aside the testator's will
as invalid due to his lack of capacity to make the said will.
rest of the prayers in this application the applicant is seeking a
final interdict. In his address and written submissions,
for the applicant seems to have abandoned these other prayers. Their
relevancy would be material only if the question
of the validity of
the will of the deceased is decided in the applicant's favour.
the common feeling that the most important question to be determined
is the validity of the will. This court has found no
grounds on which
the will of the late QAMAKO COLLIERD MORIENYANE can be declared
invalid. Therefore the restraining orders sought
are an exercise in futility. This application must fail. It is
dismissed with costs.
Applicant : Mr. Sekonyela
Respondents : Mr. Matooane
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