C OF A
(CIV) NO.23 OF 2004
COURT OF APPEAL OF LESOTHO
MOKATSANYANE FIRST APPELLANT
MOKATSANYANE SECOND APPELLANT
THEKISO FIRST RESPONDENT
MASTER OF THE HIGH COURT SECOND RESPONDENT
ATTORNEY-GENERAL THIRD RESPONDENT
15th APRIL 2005 DELIVERED : 20th APRIL 2005
taw - Widow disinheriting the heir by a will - Validity of the will
considered -section 3 (b) of the Administration of
Proclamation, No 19 of 1935 - The effect thereof - section 2 of the
General Law Proclamation, 2B of 1884 - Competence to
make a will -
section 5 of the Law of Inheritance Act 1873
deceased Kopano Mokatsanyane and his wife 'Malebenya appointed the
First Respondent as their customary heir - However some years
Kopano's death, 'Malebenya executed a will purporting to disinherit
the First Respondent and at the same time appointing
Appellant as her heir - The First Respondent successfully sued the
Appellants in the High Court - The appeal against
the decision of the
High Court dismissed with costs on the ground that 'Malebenya had no
right in law to disinherit the First Respondent
and that there was no
proof that she had abandoned a customary way of life and adopted a
European mode of living at the time she
executed the will.
the heart of this appeal lies the validity of a will executed by the
late 'Mapheello alias 'Malebenya Mokatsanyane ("Malebenya")
on 28 August 2000. In that will, 'Malebenya "disinherit[ed]"
the Appellant on the ground that his mother had sued her
inheritance on his behalf and was thus "disrespectful" to
her. As will become apparent shortly, this appeal
further raises the
age-old problem of conflict of laws in this country - a problem, I
observe, inherent in our dual legal system
customary law on the one hand and Roman-Dutch law on the other.
Regrettably, 1 should add, this appeal illustrates the ease with
which litigants are prepared to flirt with one legal system
minute but change to the other system soon thereafter when it suits
litigation in this matter arose out of an urgent application made on
notice of motion in the High Court for an order in
"1. That a Rule Nisi be issued and returnable on the date to be
determined by this Honourable court calling upon the Respondents
show cause if any, why:
periods and modes of service be dispensed with [on] account of the
[urgency] of this matter.
and Second Respondents should not forthwith be restrained from
taking control of the premises of the late KOPANO MOKATSANYANE
Ha-Tsosane and to collect rentals for their own benefit from the
the Third Respondent to take control of the premises and to receive
for safe-keeping rentals from the rented flats pending
the result of
this application, and to surrender same to whomsoever will this
Honourable Court declare as the deceased's heir.
Third Respondent to confirm, and by the strength of this Honourable
Court's order the tenants residing in the deceased's
flats to pay the monthly rental to the Third Respondent.
Applicant as the lawful heir in the estate of the late KOPANO
applicant further and/or alternative relief
1 (a) (b) (c) and (d) to operate with immediate effect pending the
determination of this application.
 On 10
November 2003, Peete J duly issued a rule nisi as prayed but ordered
that only prayers 1 (a), (b) and (c) operate with
immediate effect as
 On 25
August 2004, Guni J confirmed the rule and granted the application as
prayed with costs. Hence this appeal.
following are the relevant material facts which are either common
cause or hardly in dispute. The late Kopano Mokatsanyane
had no male issue. He begot the First Respondent's mother Motena
'Maselloane as the only child. After Kopano's
previous wife (whose
further particulars are not disclosed in the record) passed away, he
married 'Malebenya and they together
adopted the First Respondent as
they had no male issue. They brought him up as their own child for
all intents and purposes and
accepted as such into the family. Not only that, but Kopano did more.
 On 30
September 1989, and in terms of Annexure "B", Kopano duly
appointed the First Respondent in writing as his heir.
reads as follows:-
Mokatsanyane I appoint my heir upon my death and my wife's being
'Malebenya Adelice Mokatsanyane, the name of the heir
given to me by Thapelo Thekiso and his mother Motena Thekiso and the
Mokatsanyane family at a tender age.
Mokatsanyane Sentso Mokatsanyane Mongoe Mokatsanyane Teisi
Mokatsanyane Scribe Kopano Mokatsanyane."
document which, in my view, qualifies as the deceased's written
instructions in terms of Sesotho customary law, bears the date
not only of the chief of the area where Kopano lived at Ha Tsosane
but also that of the Ministry of Interior.
 It is
further common cause that Kopano predeceased 'Malebenya in 1993 and
that on 16 August 1997, however, the whole family
Mokatsanyane duly accepted the First Respondent as heir to both
Kopano and 'Malebenya. They did so in writing in terms
of a document
thereof which reads as follows:-
"As the Mokatsanyane family we accept Motsekua (sic) Patrick
Thekiso the son of 'Maselloane and Thapelo Thekiso, who was given
Kopano and 'Malebenya Mokatsanyane at young age to be their son. The
family has therefore accepted him with open arms and he
will be known
as the son of Kopano who is Motsekuoa Patrick Mokatsanyane.
has been [slaughtered to welcome him into the family] and he has been
accepted as a member of the Mokatsanyane family. He
will be the heir
to 'Malebenya upon her death. This was done in the presence of the
 As is
evident from this document, 'Malebenya personally duly signified her
concurrence by signing the document at item number
7 thereof. Once
again this is common cause.
Sadly, 'Malebenya herself passed away in July 2003 and thereupon
trouble started. A document was read out at her funeral which
turned out to be her will in which she now "disinherit[ed]"
the First Respondent. The will was apparently executed
on 28 August
2000, and registered in the office of the Master of the High Court on
20 September 2000. It reads in part:-
revoke, cancel and annul all previous WILLS, codicils or other
Testamentary writings heretofore made or executed by me.
declare that I have abandoned the customary way of live (sic) and
have adopted the European way and mode of life.
disinherit MOTSEKUOA PATRICK THEKISO @ MOKATSANYANE, who obtained the
surname of MOKATSANYANE as our heir and beneficiary
to my husband and
me after my death but whose mother has sued me claiming inheritance
on his behalf, following the document annexed
to and marked "MM".
appoint TSEPO MOKATSANYANE, son of my late husband brother in
accordance with custom, to be the sole and universal heir
of all and
whole of my estate movable and immovable and of every description at
HA-TSOSANE wherever situate '
Significantly, 'Malebenya has used the name 'Mapheello in the will.
No mention is made of the name of 'Malebenya and ! should
say that it
is hard to suppress a feeling that she was probably uneasy about her
apparent change of heart.
will be observed that the bedrock of the Appellants' case both in the
court below and in this Court is that the First Respondent
disinherited by the will in question and in particular clause 3
thereof. In this connection, the First Appellant avers
in part as
follows in paragraph 4 of his Opposing Affidavit:-
"I submit that Annexure (sic) "A" and "B"
were subsequently revoked by 'Malebenya's will attached herein
marked "M" which is self explanatory".
become apparent in paragraph  below, the First Respondent
challenges the correctness of this assertion.
Before going further, it is necessary to have regard to the
provisions of section 3 (b) of the Administration of Estates
No. 19 of 1935 to the following effect:-
"This proclamation shall not apply to the estates of Africans
which shall continue to be administered in accordance with the
prevailing African law and custom of the territory Provided that such
law and custom shall not apply to the estates of Africans
been shown to the satisfaction of the Master [of the High Court] to
have abandoned tribal custom and adopted a European
mode of life and
who, if married, have married under European law"
the question whether a person has abandoned a customary mode of life
and adopted a European way of living is obviously
a question of fact
to be judged on the particular facts of each case. It remains then to
determine whether 'Malebenya had satisfied
this test when she
executed the will in question.
these circumstances, in my opinion, the onus in this regard is on the
Appellants. In this country, testamentary disposition
to persons who have abandoned a customary mode of life and have
adopted a European way of living. It makes common
sense and logic in
my opinion that such persons should bear the burden of proof in that
regard. Placing the burden on the persons
challenging wills on this
score would no doubt amount to proving the negative.
my view, therefore, the real issue between the parties in this matter
revolves around the capacity in which 'Malebenya executed
in question. That in turn involves a determination whether she had
abandoned a customary way of life when she executed
Approached this way I respectfully regret that I am unable to agree
with the learned judge a quo in her view that "'Malebenya's
declaration that she has abandoned the customary way of life and has
adopted the European mode of life is irrelevant in the determination
of this matter."
observe at the outset that nowhere in their affidavits have the
Appellants dealt with the factual issue whether 'Malebenya
abandoned a customary way of life and adopted a European mode of
contrast, it will be noted that the First Respondent specifically
challenged the validity of the will in paragraph 7 of
affidavit. Therein he averred in part as follows:-
"... / never saw this document (the will in question). / could
not even tell (at 'Malebenya's funeral) whether it was authentic
not. I therefore had no will to place before this Honourable court to
challenge. Now that deponent (First Appellant) has placed
court I say that it is invalid and the joint will (the document in
terms of which Kopano and 'Malebenya appointed him
their joint heir)
Respondent continued his direct challenge to the will in the
"In so far (sic) the contents of deponents annexure "M'
(the will in question) are concerned. I deny that 'MALEBENYA
abandoned a customary mode of life. If she did so it was merely for
the convenience of revoking the documents appointing me
customary heir. I was appointed her customary heir and she confirmed
this openly at a family meeting, and she could not
later make a will,
which disinherits me. Furthermore she made this new decision on her
own without the family's consent, or even
hearing me on the issue
although her decision affected me directly. This will has not even
been reported to the master after 'MALEBENYA's
Bearing in mind the question of onus as set out above, it was
incumbent, in my judgment, for the Appellants to have at least
applied for oral evidence to deal with the issue whether 'Malebenya
had abandoned a customary way of life. On the contrary, the
evinced by the Appellants is that mere production of a will is enough
to do the trick. In my view it is not so. There
is no magic power in
a will and where it is challenged, as here, proof must be
forthcoming. It follows that the declaration contained
in clause 2 of
'Malebenya's will does not amount to evidence especially when viewed
in the light of the First Respondent's challenge
to it made on oath.
any event, and as was correctly pointed out by Guni J, there is no
evidence that Kopano himself abandoned a customary way
of life and
adopted a European mode of living. It is therefore most unlikely that
'Malebenya being his wife and living together
as husband and wife
could have led a different mode of life from his. Furthermore, I
consider it most unlikely that 'Malebenya
her customary way of life in three years' time between 1997 when she
admittedly participated in the appointment of the First
her customary heir and 2000 when she purported to disinherit him by a
the light of the aforegoing considerations, the conclusion is
inescapable that the Appellants failed to discharge the onus
that 'Malebenya had abandoned a customary way of life and adopted a
European mode of living when she executed the will
in question. It
follows that they have failed to prove the validity of the will. Once
that is so, the law that governs the matter
is Sesotho customary law.
See Molungoa Bolei Khatala vs Francina Bolei Khatala 1963-6 HCTLR SZ.
regard, the provisions of section 2 of the General Law Proclamation
2B of 1884 also bear reference. That section reads:-
"In all suits, actions or proceedings, civil or criminal, the
law to be administered shall, as nearly as the circumstances
country wilt permit, be the same as the law for the time being in
force in the colony of the Cape of Good Hope: Provided,
in any suits, actions or proceedings in any courts, to which all the
parties are Africans, and in all suits, actions
whatsoever before any Basuto Court, African law may be
Although section 14 (1) of the Laws of Lerotholi is on allocation of
property, it is nevertheless a clear indication, in my
view, that the
instructions of the deceased must be respected in a matter such as
this. That section reads:-
"If a man during his lifetime allots his property amongst his
various houses but does not distribute such property, or if
leaving written instructions regarding the allotment on his death,
his wishes must be carried out, provided the heir according
custom has not been deprived of the greater part of his father's
is important to bear in mind that, but for the will in question, the
Appellants do not dispute the fact that the First Respondent
properly and duly appointed a customary heir to both Kopano and
J pointed out in her judgment that in terms of Sesotho customary law
a wife is regarded as a minor. Indeed Sebastian Poulter
and Litigation in Basotho Society observes at page 292:-
"[t]he (customary law) widow obviously has no right of
disposition either by allocation during her lifetime or by
respect to the learned author, this statement may now require
qualification. It is plainly a statement representing the classical
traditional viewpoint expressed twenty-nine years ago. In my
judgment, it may well be that the correct legal position is that a
customary law widow does have the right of disposition by
instrument provided she satisfies two requirements namely:
she has abandoned a customary way of life in favour of a European
mode of living;
the heir is not thereby deprived of more than half of the estate.
requires to be stressed that provided these requirements are met,
section 5 of the Law of Inheritance Act 1873 applies.
provides as follows:-
"5. Every person competent to make a will shall have full power
by any will executed after the taking effect of this Part
disinherit or omit to mention any child, parent, relative or
descendant without assigning any reason for such disinheritance
omission, any law, usage or custom now or heretofore in force in
Basutoland notwithstanding; and no such will as aforesaid shall
liable to be set aside as invalid, either wholly or in part, by
reason of such disinheritance or omission as aforesaid."
"competent to make a will" provide a clear indication, in
my view, that this Act is limited to persons who have
customary way of life and have adopted a European mode of living. On
this construction, therefore, the section did
not avail Malebenya.
learned judge a quo was correct in my view, in concluding that
'Malebenya could not in law revoke her late husband's wish.
It is for
that matter trite that Sesotho customary law simply does not permit a
testator to deprive the customary heir of more
than half of the
deceased's estate. See W.C.M. Maqutu and AJGM Sanders. The Internal
Conflict of Laws in Lesotho at p387. The learned
authors make the
point in these terms:-
"...the customary law, while making allowance for testate
succession, does not permit a testator to deprive the customary
heir.. ..of more than half of the estate".
is supported by Mokorosi vs Mokorosi 1954 HCTLR 24. See also section
14 (1) of the Laws of Lerotholi referred to in paragraph
fairness to Mr Molapo for the Appellants, he conceded in argument
before us that if Kopano had appointed the First Respondent
customary heir and had practised a customary way of life, 'Malebenya
could not in law disinherit the First Respondent. Mr
significantly abandoned the First Respondent's second ground of
appeal which reads as follows:-
"The Court a quo erred in finding that the widow of the late
Kopano, 'Malebenya cannot lawfully dispose of the property of
joint estate when Kopano had appointed a customary heir."
the light of these considerations, therefore, there can be no
question of 'Malebenya lawfully "disinheriting"
Respondent in this matter.
the result, the appeal is dismissed with costs.
Appellant: Mr L.D. Molapo
Respondent: Mr E.H. Phoofolo
at Maseru this 20th day of April 2005
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