CIV/APN/598/04
IN THE HIGH COURT OF LESOTHO
In the Matter Between:-
LERATO MOKETE 1st APPLICANT
RELI TRISAH MOKETE 2nd APPLICANT
NTHABELENG MELICA MOKETE 3rd APPLICANT
AND
SEBAKENG MOKETE 1st RESPONDENT
NTOBAKI MOKETE RAPOKISA 2ND RESPONDENT
LESOTHO BANK (Butha-Buthe Branch) 3rd RESPONDENT
MINISTRY OF EDUCATION (TSD) 4th RESPONDENT
ATTORNEY GENERAL 5th RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 12th October 2007
By way of notice of motion, applicant seeks relief before this Court in the following terms:-
1st applicant shall not be appointed as curator ad litem for the 2nd and 3rd applicants.
The 3 rd respondent shall not be interdicted from releasing funds in account number 0121005412501 in its possession, an account belonging to the deceased Mokete Mokete.
1
The 4th respondent shall not be interdicted form releasing any funds whatsoever that have accrued to the deceased Mokete Mokete by virtue of his employment with them.
The 1st and 2nd respondents shall not be interdicted from interfering with the deceased's accounts and the applicant's house and children.
The 1st respondent shall not be directed to dispatch the passports and death certificate of the deceased to the Applicant who shall keep them and use them for the benefit of the minor children of the deceased.
The 1st applicant shall not be declared the rightful person to claim the deceased's benefits on behalf of the deceased's minor children.
The application is opposed and respondents raised several points in limine. However, after this Court heard arguments from both sides with regard to the said points, it ruled that it is in the best interests of the minor children that it deals with the merits without ruling on the points in limine for the reason that none of them were prejudicial to the respondents.
I might also mention that this decision was made as far back as August 2006 but due to the usual delays mostly attributable to the heavy caseload resulting in this matter being crowded out more than once after it had been allocated dates of hearing, the merits were only heard on the 21st August 2007, a year later.
Most of the facts are common cause and they are to the effect that 1st applicant and the late Mokete Mokete were married by civil rites in community of property. They were subsequently divorced by his Court on the 5th March 2001. Two children, 2nd and 3rd applicants were born of this
2
union and 1st applicant was granted their custody at the time of the divorce whilst the late Mokete Mokete was ordered to pay maintenance at the rate of M500.00 per month per child.
After the death of Mokete Mokete, 1st and 2nd respondents have taken over his estate on the ground that 1st respondent is the rightful heir per contents of a will marked annexure "BB" and the family's written instructions annexure "AA", both filed or record. Applicants are challenging this state of affairs through these present proceedings.
Applicants are represented by Ms. Thabane who argued in her verbal and written submissions that the late Mokete Mokete and 1st applicant were married and divorced under the received law so that it is the common law and not the customary law that should govern the estate of the deceased in terms of the provisions of the Administration of Estates Proclamation of 1935.
Ms Thabane added that it is in the best interests of the minor children that 1st applicant should be appointed as the curator ad litem for the reason that since their father's death, no-one has shown an interest in taking care of the children.
Further, that at common law, succession or order of inheritance is governed by the degree of relationship between the deceased and the survivors and that where there is no surviving spouse such as in the present matter, the deceased's children and their descendants per stirpes inherit first. Further
3
that it is only where there is no spouse and no children that the deceased's brothers and parents will inherit his estate.
It was Counsel's further submission that, in terms of the Intestate Succession Proclamation 2/1953 where there is a surviving spouse and children, she succeeds to the extent of the child's share but where there is no surviving spouse there is no provision that the deceased's brothers are entitled to inherit from his estate.
Lastly, Counsel for applicants made the submission that the estate of the late Mokete Mokete is liable for the support of his children. In this regard, she referred the Court to the case of Glazer v Glazer N.0.1963 (4) SA 694 AD 706-7 wherein it was held that the only persons who are entitled to maintenance from the estate of the deceased are his minor children.
Further, that in casu, 1st applicant does not claim that she be maintained out of the deceased's estate but that the minor children should be so maintained. It was her further submission that the right of children to maintenance from their late father's estate takes precedence over the rights of heirs and legatees.
To this end Ms Thabane made reference to the work of P Q R Boberg; The Law of Persons and the Family 1977 p 287 where the learned author states that a child's claim to be supported out of his/her parent's estate is dependant upon his/her needs and that such support is not confined to the bare essentials of human existence but extends to food, clothing, lodging, medical care and education on a scale which is appropriate to their station in
4
life. She made the submission that in this case, the deceased's children are still of a tender age, attending school and as such in need of more maintenance from the estate of their late father.
It might also be worthy to mention that during her verbal submissions Ms Thabane raised the point that the purported will that respondents are making reference to was not attached in the papers and that they as applicants were also challenging its authenticity. She added that they had brought documents bearing the signature of the deceased which the Court should compare with the one which appears on the purported will.
In his response, Mr. Mahlakeng who represented respondents argued that the documents were duly filed of record and that applicants cannot be allowed to raise new matter at this stage especially since they elected to come to Court by way of motion proceedings and that they should stand or fall by their founding papers.
Counsel for respondents added that the documents they are saying they have brought to Court have not been filed and/or served on them thus denying them the opportunity to see and react to them. Further that if applicants deny the existence of the annexures, they should have insisted on seeing them before the date of hearing.
Mr. Mahlakeng also added that the document that applicants are challenging at this stage forms the crux of this matter and contended
that in terms of prayers 2 a, b, c and d in the notice of motion, applicants are seeking the property of the deceased. It was his
submission that where there
5
is an heir, he takes off where the deceased left off and becomes liable to maintain the minor children which is what 1st respondent is stating in his opposing affidavit. I will deal with this issue at a later stage.
Mr. Mahlakeng submitted that the estate that 1st applicant wants to administer has been allocated by a valid will and that the deceased
was free to dispose of his property as he deemed fit. To support his point, Counsel made reference to the work of Sebastian Poulter; Legal Dualism in Lesotho 1981 Edition p112 and that of W.C.M. Maqutu; Contemporary Family Law of Lesotho 1992 P189 as well as the cases of Mokorosi V Mokorosi 1967-70 LLR and Hoohlo v Hoohlo 1967-79 LLR.
I now proceed to deal with the first issue to wit, which law should govern the estate of the late Mokete Mokete.
In my opinion, this should depend on inter alia, the type of marriage that the deceased and the 1st applicant entered into which is undisputedly the civil rites common law marriage. They were also divorced under this law. Both parties are agreeable in this regard which in my view means that the provisions of Section 3(b) of The Administration of Estates Proclamation of 1935 are applicable herein. The said section provides as follows:-
" The proclamation shall not apply to the estates of Africans, which shall continue to be administered in accordance with prevailing African law and custom of the territory: provided that such law and custom shall not apply to the estates of Africans who have shown to the satisfaction of the Master to have abandoned tribal custom and adopted the European mode of life and who, if married, have married under European Law."
6
In terms of this law, where an African is married under European Law and satisfies all the other conditions, his estate shall not be administered under African Law but by the received law such as in casu.
Under these circumstances, the next issue for determination is whether 1st applicant should be appointed the curator ad litem in light of the fact that 1st respondent is claiming to be the rightful heir. At paragraph 7 of his opposing affidavit, he averred as follows:-
".../ am the rightful heir and the inheritor of the funds in that account as per the decision of the family and written instructions of the deceased. As the heir and inheritor of the deceased's assets, I am the person liable to maintain the children of the deceased as the deceased was doing during his lifetime. "
He continues as follows at paragraph 9:-
"The family has already convened and appointed an heir. The deceased had written instructions allocating his property including
the money with Lesotho Bank and the terminal benefits with his employee. I refer the Honourable Court to annexure "AA "
and "BB " which are the decisions of the family and the will left by the deceased
respectively."
With regard to annexure "AA", the document evincing the decision of the family to appoint 1st respondent as the heir, it is my view that in terms of the provisions of the Administration of Estates Proclamation as quoted above, it cannot be accepted by this Court for the reason that it is a document that was drawn in accordance with the precepts of the customary and not the common law. The latter system does not recognize appointment of an heir by the family of the deceased. I accordingly find that it does not take 1st respondent's case anywhere.
7
This brings me to the annexure "BB", the will. In this regard, Mr. Mahlakeng made the submission that the will appoints 1st respondent as the heir rather then the deceased's children and that he is entitled to do so by the law and he referred this Court to the Law of Inheritance Act 26/1873.
Indeed Part II section 5 provides as follows:-
"Every person competent to make a will shall have full power by will... to disinherit or omit any such person, child, parents,
relative or descendants without assigning any reason... any law, usage of custom, now or heretofore in force in Basutoland notwithstanding, and no such will as aforesaid shall be liable to be set aside as invalid, either wholly or in part, by reason of such disinheritance or omission as aforesaid."
It is unquestionable that in terms of the above quoted provision, every person who is governed by the common law enjoys the freedom of testation. This means that in the present matter, since it is not denied that that the applicable regime is the common law, the late Mokete Mokete had the right to dispose of his property as he pleased before his death.
I have already mentioned that Ms Thabane raised the question of authenticity of the deceased's will during her verbal submissions in Court to which Mr. Mahlakeng responded that it is contrary to the rules governing motion proceedings in that applicant has to stand and fall by her founding paper and that respondents never had the benefit of seeing the documents which she wanted to admit at that stage. I entirely agree with Mr. Mahlakeng's submission.
8
However, as the Court and as the upper guardian of the minor children, it is my view that whatever decision I make in casu, I should have satisfied my self that it is based on proper evidence and/or information that has been placed before me including the said will.
While I am cognizant of the fact that there is no particular format and/or shape that a will has to follow and/or take before it can be regarded as valid, a cursory glance at the will in the present case leaves me with some doubt with regard to its authenticity. This is because it bears neither the date nor the place where it was purportedly made yet it is typed meticulously and styled along the format of a formal will.
In the absence of these two important things, especially the date, I find it difficult to conclude that it was in fact made by the deceased Mokete Mokete during his lifetime. In my opinion, it could have been authored by anybody even after the institution of these proceedings. In other words, ex facie, it gives me absolutely no idea when and where it was written.
To illustrate my point, in the work by Corbett et al; The Law of Succession in South Africa p30, the learned authors state as follows;
"A will is a statement of intention by the testator in regard to devolution of his property on his death. The date upon which the will is made is the relevant date for determining the formal validity of the will and the capacity of the testator and the witnesses." (my underlining)
In light of the above, it is my view that the issue of the date when a will was supposedly made, is very crucial in determining inter alia, its authenticity
9
and/or validity. In casu, this is especially important when account is taken of the fact that despite the alleged existence of the will, the family decided to meet and appoint 1st respondent as the heir to the deceased' estate which is the crux of his case in his answering affidavit as already quoted above. This begs the question why was it necessary for them to so appoint him if the will was already in existence. I find this particular evidence suspect.
On the basis of the above-mentioned points, I find the will invalid and/or void for lack of authenticity and for the reason that when considered together with the family's instructions, it suggests that it was authored after these proceedings were instituted just so that it could substantiate 1st respondent's case.
Accordingly, I find that the late Mokete Mokete died intestate and that as a result his estate should devolve wholly to his two minor children as the rightful heirs. See also Lee and Honore in Family, Things and Succession 1983 2nd Edition p378 where they postulate that the children of the deceased and their descendants by representation per stirpes without limit succeed to the whole inheritance. Since these minor children are in the custody of their mother 1st applicant, then it follows that she is the rightful person to be appointed as the curator ad litem.
In light of this finding, I find it unnecessary to consider the issue of the children's entitlement to maintenance out of their late father's estate. For these reasons, the application is granted as prayed for in terms of the prayers as they are stated in the notice of motion with costs.
10
JUDGE
For applicants : Ms N. Thabane
For respondents : Mr. T. Mahlakeng
11
