CIV/APN/411/2005
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
MASHEANE PAUL TSAOANE Applicant
AND
MOFANA RAMOKONE First Respondent
LEBAMANG LETHOLE Second Respondent
SHELE LETHOLE Third Respondent
MAMAFAHLA JAFETA Fourth Respondent
MOEKETSI MAJARA Fifth Respondent
LESOTHO FUNERAL SERVICE Sixth Respondent
For Applicant: Mr. Nathane
For Respondent: Ms. Ramafole
JUDGMENT
Delivered by the Honourable Mr Justice T Monapathi On the 24™ of November. 2005
The Applicant's Notice of Motion reads as follows:-
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The Rule Nisi do hereby issue calling upon the Respondents to show if any, on a date to be determined by this Honourable Court why:-
The Ordinary periods and modes of service shall not be dispensed with due to the Urgency of this matter.
The first, Second, Third and Fourth Respondents shall not be interdicted forthwith from carrying without burial arrangements of the late Lephethesang Lethole without consultation with Applicant herein, pending finalization hereof.
The First, Second, Third and Fourth Respondents and/or their agents shall not be interdicted forthwith from vandalizing and/or otherwise dealing with the estate of the late Lephethesang Lethole and restore possession of all those that they have taken pending finalization hereof.
The fifth Respondent herein shall not be forthwith interdicted from interfering with funeral arrangements of late Lephethasang Lethole.
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The sixth Respondent herein shall not interdicted with from releasing the body of the late Lephethesang Lethole to First, Second, Third and Fourth Respondent and/or their agents pending finalization hereof.
The Applicant herein shall not be declared the rightful person to bury the deceased and also the heir to the estate of the late Lephethesang Lethole
Ordering and Directing the First to Fourth Respondents to produce' and handover forthwith to Applicant herein the mortuary papers and other documents of the deceased, pending finalization hereof
The First to fourth Respondents shall not be directed to pay the costs of this Application.
That prayers 1(a) (b), (c), (d), (e), and (g) operate with immediate effect as temporary interdicts."
I noted that prayers 1 (b) (d) (e) and (g) about Deceased's burial, have already been discharged by consent. This means that relevant Respondents will have a free hand in that regard. In order to resolves the remaining issues, the Applicant's entitlement to inherit the Deceased's estate, the status of
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Applicant in the family of Lethole has to be decided thus resolving prayers (c) (0 and (h) of Notice of Motion. Is he a member of Lethole family?
The Applicant, who says he was born in 1967, has reverted to the name of Tsaoane from that of Lethole. He claims property of the Deceased i.e. three cows by virtue of his being heir to Deceased's house as he alleges. He says Deceased, during his lifetime, earmarked the cows which are in fact offspring of the animals he possessed.
It seems to be common cause or rather later it became uncontested that the Deceased had had three wives 'Momoholi, 'Matsietsi and Isdorina, and first two having pre-deceased Isdorina who became married to Deceased in 1971 by civil rights. Applicant contended that he was adopted by Deceased and Isdorina. Isdorina had been married previously to the said Tsaoane. He says he was adopted when Isdorina was no longer living with Tsaoane. He said he thus became the son of Lephethesang Lethole by adoption. This was disputed.
It emerged that truly speaking Deceased had had a son by the name of Moholi born by 'Mamoholi. 'Mamoholi also had Khethollo and Khotso as
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his children. This aspect was not disclosed in the founding papers and the Applicant having given the impression that he was the only heir. This position is shown by the change of stance by Applicant in his replying Affidavit where he no longer spoke of being the only male issue and son of the Deceased. I observed that Mr Nathan for Applicant did not have a ready answer for this.
In reply Applicant speaks of there being a situation of malapa ha a jane. That no one except Applicant himself can benefit from the house of Isdorina in that the "houses cannot eat each other." If a man's wife dies and then he marries another wife he does not form a second house. Several houses only exist if he is a polygamist and then each house would have its own property. This is not the situation in the present case.
As regard the issue of adoption and how a person can claim to be an heir through it the laws are very clear. It is not enough that a man brought up a boy as his own from a tender age. There are two requirements to be met Firstly, there must be agreement between the child's natural father or (guardian) and the prospective adopter. Secondly, there must be full family publicity given to this event. The above propositions were stated in Sebastian Poulter's Family Law and litigation in Basotho Society 1" Edition at pages
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237 - 239 and were cited with approval in the following cases: Moeno v Moeno and Others CIV/APN/365/96 also Nchee v Medical Superintend 1982-84 LLR 22 at page 23.
Applicant said it otherwise amounts to unjust enrichment in that he had contributed to and benefited the property of the house of Isdorina. In the circumstances Applicant was therefore suggesting that the property is his by law. See paragraph 12 of founding affidavit.
On this aspect of proof of adoption I noted that Applicant had not brought any evidence written agreement or letter either from his mother's family or from the Lethole family. Adoption is a matter of agreement. Applicant does not say even who made the agreement in the circumstance.
I noted further as Miss Ramafole for the Respondent also contended, that the marriage certificate between Applicant's mother and Deceased showed that Applicant's mother was already married by customary law. I noted further that Deceased had described himself as a widower. Nothing really turned on this.
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I thought that what was important however was whether Applicant was able to prove that he was a member of the Lethole family by law. Nothing by way of proof or evidence showed that this was conclusive. Secondly, this aspect of unjust enrichment and proof that Applicant could have had the three cows forming part of his wealth, was in no better position. Nothing was advanced by way of evidence in that regard. That the Applicant adopted this attitude, that he would be so prejudiced, only in reply removes any credibility from his case and does influence me to concludes that the Applicant had no good case or leg to stand on. Furthermore it was irregular that he had to change his position rather opportunistically in reply.
I also bear in mind that Applicant did not disclose that Deceased had a son Moholi by his first wife 'Mamoholi. This demonstrated lack of bona fide and honest disclosure.
Therefore in the circumstances, as I concluded, the remaining prayers in issue have to be discharged with costs.
T.MONAPATHI
JUDGE
