CIV/APN/149/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

EXECUTOR,
ESTATE OF THE LATE

FLORINA
LIKOMO KHAKALE APPLICANT

AND

MOKOTO
KHAKALE 1st RESPONDENT

MAKETEKETE
KHAKALE 2nd RESPONDENT

MASTER OF
THE HIGH COURT 3rd RESPONDENT

THE
COMMISSIONER OF LAND 4th RESPONDENT

THE
ATTORNEY-GENERAL 5th RESPONDENT

MASESHEA
THABANA 6th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 30th April, 2007

This
application came before the High Court on 27 November 2006 before
Mofolo J under CIV/APN/149/2006 filed by the Executor of
the Estate
of the late Fiorina Likomo Khakale.

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Subject

1. Directing
   the first and second respondents to provide applicant with a list of
   all creditors and debtors to the estate of the
   late Fiorina Likomo
   Khakale that might have come to their knowledge while they were in
   possession of the said estate, such list
   to include the names of all
   tenants to the late Fiorina Likomo Khakale's estate rented flats to
   plot number 13284-079, Lower
   Thamae.

   
   

2. Interdicting
   the first and second respondents herein from demanding as receiving
   rentals due from tenants to the estate of the
   late Fiorina Khakale

   
   

3. Interdicting
   the first and second respondents from obstructing and/or interfering
   with the applicant therein in the discharge
   of his functions as the
   executor of the estate of the late Fiorina Khakale.

   
   

4. Interdicting
   the first respondent from processing and effecting the transfer of
   plot number 132-029 (Lower

   
   

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Thamae) into names of the first and/or the second respondents.

5. Directing
   the first and second respondents herein to pay costs hereof.

   
   

Issues
for determination

Both
before me and in his heads of arguments the applicant has listed the
following as issues to be determined by this court: -

1. Whether
   there is a material dispute of fact in the matter;

   
   

2. Whether
   the first and second respondents are entitled to obstruct an
   executor in change of a will simply because they disagree
   with the
   contents of the will;

   
   

3. Whether
   the will which is the subject matter of this application is invalid.

   
   

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The first
and second respondents have opposed the application and in doing so,
have taken certain points in limine but since these
have been argued
together with merits of the case, they will consequently be dealt
with together.

Strictly
speaking though, I understand Mr. Thoahlane as having, mainly, taken
1. above as a point in limine and to this extend would
say according
to Reverend Khakale's customary will, his wife was virtually given
everything belonging to the estate contrary to
the spirit of Sesotho
law and custom for although one may dispose property by will, the
real heir cannot be deprived of the major
share which has been fixed
by our courts in the order of 51%. This court cannot do this in this
application in that the court must
first decide whether the will is
valid having regard to the fact that in challenging the will first
respondent has produced a family
agreement by which he is appointed
heir to the estate of the late Reverend Khakale in which it appears
the testatrix was party.
The family nomination is dated 21/11/87 not
long after the decease of Reverend Khakale and two things emerge; the

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testatrix
does not appear to have contested his family nomination and what's
more, for a reasonably long time first respondent must
have had the
expectation that he would inherit if did not inherit on his
nomination. It is an expectation that cannot be taken
away from him
except by due process of law. A dispute of fact has arisen as to
whether the testatrix or first respondent is heir
to the estate of
Reverend Khakale. The court's view is that the applicant knew or was
expected to know that a dispute of fact would
arise and this
regardless the applicant elected to proceed by way of application. In
this court's view, the dispute of fact which
has arisen is so
material, this application is liable to be dismissed on this point
alone.

Regarding
2. above, first respondent and customary heir is not at all guilty of
obstruction in that as heir, he knows nothing of
the testatrix's will
and he was, in my view, entitled to protect and defend his turf.

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Three (3)
above is better decided along with the merits after all this was
argued together with the merits of this application.

Issues

1. Whether
   or not the purported will executed by the late Fiorina Khakale is
   valid;

   
   

2. Whether
   or not the first respondent is not the customary heir to the estate
   of the late Fiorina Khakale;

   
   

3. Whether
   or not the estate in question falls to be administered in terms of
   the Administration of Estate Proclamation 10 of 1935
   or by customary
   law;

   
   

4. Whether
   or not the executrix was capable of executing the will;

   
   

5. Whether
   or not the executrix could in law execute a will and encompassing a
   joint estate.

   
   

Facts of
the case

Facts of
the case as seen by the court gleaned from the papers before me seem
to be that:-

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1. The
   testatrix Fiorina Khakale was married by Christian rites to her late
   husband Reverend Mofolo Khakale in 1945. There is no
   dispute to
   this.

   
   

2. It
   would seem sometime on 17th November 1985, Reverend Khakale by
   codicil and written instruction bequeathed all his property
   to his
   wife "Fiorina Likomo Mofolo Khakale" adding nothing,
   including a needle, was to go astray.

   
   

3. In
   her preamble, she says "AND WHEREAS my late husband Mofolo
   Khakale had by unregistered will dated 9th June 1985 appointed
   me as
   heir". The will appears to be written instruction to the chief
   and it is stamped by the chiefs official stamp dated
   11 November,
   1995.

   
   

4. In
   paragraph 3 of her will, the testatrix cancels her letter of 10
   November, 1985 purportedly nominating and constituting first

   respondent as heir to whom

   
   

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by paragraph 6.1 she bequeaths all her movable property.

5. In a
   preamble to her will, the testatrix claims:-

   
   

1. To
   have abandoned tribal life and custom;

   
   

2. To
   have adopted a European mode of life;

   
   

3. To
   be a devout Christian and have always led a Christian way of life.

   
   

5. There
   is a letter dated 21 November, 1987 (annexure "A") with
   Chief of Thupa-Kubu's stamp showing the family set and
   appointed
   first respondent heir to Reverend Mofolo Khakale's estate following
   the late Reverend Khakale's letter designating
   his son Mokoto
   Khakale as heir. Those present included the testatrix Fiorina Likomo
   Khakale and several members of the family

   
   

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7. I
   have wondered if it was denied by members of the family and those
   present at the nomination family court that the testatrix
   Fiorina
   Likomo Khakale was not present and noting that at his paragraph 16.4
   © the first respondent deposed: "-----I
   had already been
   allotted same by my grandfather and same was confirmed by the family
   in the presence of my grandmother".
   I have gone through the
   Replying Affidavit of Karabo Mohau purportedly appointed executor of
   the estate. Mr. Mohau has not denied
   that the testatrix Fiorina
   Likomo Khakale first respondent's grandmother was present in terms
   of annexure "A" dated
   21/11/1987 and I wonder how he could
   deny not being a member of the family. His denial of the sort of
   life the testatrix led
   surprises me too because not being a member
   of the family he is not justified to speak for the testatrix. I have
   no doubt the
   reason Mr. Mohau spoke for the testatrix instead of the
   family underlines the non-cooperation Mr. Mohau received from the
   Khakale's

   
   

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family. In cause of argument it was argued annexure "A" be
handed in and Mr. Mohau be allowed a supplementary affidavit
thereon.
Mr. Mohau has submitted the supplementary affidavit is unhelpful in
that it does not pin-point the property allotted to
first respondent.
I don't agree. The translated copy of annexure "A"
(annexure "Al") shows a letter to the
Chief of Thupa-Kubu
informing the chief that on the date shown Khakale's family had a
meeting in which a letter was read wherein
Reverend Mofolo Khakale
nominated his son Mokoto Khakale as his heir. With respect, an heir
at Sesotho law and custom inherits
his father's property movable and
immovable and wherever situate. The letter merely notes those present
and it was unnecessary,
in the circumstances, for those present to
have signed. Whoever was present on the occasion would in normal
circumstances say so
and since Fiorina Khakale is no more, it would
be up to those present to object or deny she was

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present on the occasion and none of those present have denied Fiorina
was present nor have any of those present denied a letter
from
Reverend Mofolo Khakale was read. I do not think that the fact alone
that the letter by Reverend Khakale is missing helps
the applicant's
case and in any event having considered respondent's point(s) in
limine taken, the court would dismiss this application
though as said
above, the court is obliged to consider first whether the testatrix
could, in law, validly make a will for, if she
couldn't, it's the end
of the case.

7. Ordinarily,
   Basotho are not eligible to make a will except when they have
   abandoned Sesotho law and custom in which case they
   would fall under
   Administration of Estates Proclamation 19 of 1935 whose Section 3
   reads, this Proclamation shall not apply:-

   
   

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2. to
   the estate of Africans which shall continue to be administered in
   accordance with the prevailing African law and custom of
   the
   territory; provided such law and custom shall not apply to estates
   of Africans who have been shown to the satisfaction of
   the Master to
   have abandoned tribal custom and adopted a European mode of life,
   and who, is married, have been married under
   European law.

   
   

9. The
   case is now before this court which must decide whether as the
   testatrix has alleged, among other things. "I -----
   have
   abandoned tribal life and custom, "I have adopted a European
   mode of life". African way of life is interesting
   if not
   amusing, some of them will clothe themselves like Europeans, live
   in European homes; go to school and churches prompting
   one to ask
   the question, are they endeared to European customs, really? Not a
   whit. Consider those who will exorcise evil spirits
   by

   
   

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spearing an animal? This is not what the testatrix did after all she
was wife of a Reverend gentleman but first respondent who
knows
better of his family has deposed at paragraph 16.4 (a)-(d) "my
grandfather's family mode of life was customary and after
the death
of my late grandfather the estate was never reported to the Master of
the High Court and was administered according to
custom". Indeed
if there was a will by Reverend Khakale it is expected that the
estate would have been reported to the Master.
That it was not
reported proves one or two things (1) that there was no will or there
being one, custom was preferred the reason
the family met in the
presence of the testatrix Fiorina Khakale and first respondent was
appointed heir. The court's view is that
in the absence of evidence
negating the testatrix's presence when the family appointed first
respondent heir to Reverend Khakale's
estate, since the earlier act
of Reverend Khakale was customary followed by another customary act,
it would seem

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the latter act was intended to cancel the earlier act even were it
valid in law.

10. And
    yet, despite my remarks above, this can hardly be the end of the
    story. At paragraph 13, the first respondent alleges the
    will is
    void and it will be an injustice to grant the order sought. He says
    he is an old man who survives "by such rentals
    only". At
    paragraph 16.2 first respondent has alleged his grandfather died in
    1985 and before his death he had already written
    his wishes in
    accordance with customary law. He had also "told me that I am
    to be his heir". In this respect a problem
    which faces this
    court is that these are assertions in an application of which I have
    doubted Mr. Mohau's ability to deny them.
    Apart from collecting
    rentals, it will be noted first respondent has not said for how long
    he has occupied the premises and collected
    rentals to the knowledge
    of his grandmother, the testatrix. He had occupied the premises,
    collected

    
    

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rentals to the knowledge of his grandmother the testatrix and the
latter had raised no objection; if so, and this is not denied,
it
stands to reason the latter approved and in any event if there was
peace at all material times while first respondent used the
property
openly as his during the lifetime of the testatrix there being no
clash of interest between the testatrix and first respondent,
clash
of interest arising after the testatrix's death, this court is of the
view anybody claiming the property to be his or hers
would be
estopped. The problem is that first respondent alleges to the
knowledge of the testatrix and during her lifetime he used
the
property as his and as I have said, I do not think a denial by Mr.
Mohau is denial from the right quarter.

10. At
    best what the Reverend Khakale left was a customary will by which
    his wife the testatrix would enjoy only the usufruct or fruits
    on
    her death the property vesting in the heir as the family decided.

    
    

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The biggest problem as I keep on saying faced by this court is that
after the Reverend Khakale's death the family instituted the
first
respondent as his heir and the testatrix is shown as a participant.
There is no contrary evidence that the testatrix did
not participate
and moreover, there is no evidence whatsoever that the testatrix
contested first respondent's succession. This
being the case, it is
amply clear that first respondent's succession after the death of the
Reverend Khakale was not contested
and this court is of the view it
has not been contested because Mr. Mohau is not a member of the
family and has received no support
from the family. I have already
said that the customary will the Reverend Khakale conferred on his
wife can amount to no more than
a usufruct terminable on her death
and that having enjoyed a usufruct could not validly make a will
apart from the fact that it
appears her late husband, the Reverend
Khakale had, at time of making his customary will, had not

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abandoned Sesotho law and custom. Indeed, even if the testatrix had
herself abandoned Sesotho law and custom (which is doubted)
she could
not herself make a will by reason of the fact that in law she was
incapable of doing so.

10. From
    the time the family instituted first respondent as heir, there can
    be no doubt as I said above that from then on first respondent

    enjoyed succession rights and had legitimate expectation that he
    would succeed therein even after the testatrix's death. Evidence

    before this court suggests that first respondent enjoyed succession
    rights of the estate and the evidence has not been refuted.

    Importantly, the first respondent did not have an inkling that his
    right to succession would be taken away from him -see Council
    of the
    Civil Service, 1984 (3) ALL ER 395.

    
    

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10. In
    Cholo v Cholo LLR 1926, 250, a widow purported to transfer land to a
    younger son claiming he supported her as against her elder
    son. The
    court held a mother had no capacity to transfer land. Nor could
    under any guise whatsoever, the testatrix transfer land
    since the
    land Act permitting women to transfer land has come much later in
    1992. This has to do with immovable property deposed
    to by will on
    the testatrix.

    
    

10. Much
    was made of the fact that both the Reverend Khakale and the
    testatrix had abandoned tribal custom and adopted a European
    mode of
    life. I cannot see how the Reverend Khakale had abandoned tribal
    custom since his will was customary having been directed
    to his
    chief; if anything, the testatrix also participated in custom by
    accepting and enjoying customary testation. It does not
    stop here;
    the testatrix participated in family appointment of first respondent
    as heir to the

    
    

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estate of the Reverend Khakale. In Mokorosi v Mokorosi and Others,
LLR 1967-70 at p.6 Roper J concerning Administration of Estates,

Proclamation, 1935 vide 3 (b) says the proviso appears to entail two
meanings namely first, as to the meaning of "tribal custom"

and the learned judge has concluded that what the draughtsmen meant
was something other than a body of customary law, not a code
of law
but "a way of life" meaning the customary way of life of
the Basuto tribesmen. The learned judge also considered
the second
requirement of the proviso namely, the meaning of the phrase "to
have abandoned tribal custom and adopted a European
mode of life"
and the learned judge came to the conclusion that the two acts one of
abandonment of "tribal custom"
and another of "European
mode of life did not entail two processes but was one process the
underlying meaning being that the
person concerned has forsaken one
mode of life in favour of the other".

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15. The
    learned Roper J then went into the features which characterize
    "customary way of life" or the "tribal custom
    of the
    Basuto" and found the main characteristic is the control
    exercise of the chiefs personally or through their sub-chiefs
    and
    headmen. Also, no woman having right of succession ab intestato save
    where there are no male heirs of her house in which
    case she has
    some right of usufruct. Indeed these are main features which
    distinguish Basotho tribal way of life from that of
    Europeans in
    that Europeans have no chiefs and their women are able to inherit
    irrespective of gender. I have already said that
    the Reverend
    Khakale drew a customary will and the testatrix participated in
    customary institution of first respondent as heir
    to the estate of
    Reverend Khakale. I am consequently not able to say that in terms of
    the Administration of Estates Proclamation
    1935 the testatrix in
    drawing her will she led

    
    

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European mode of life having abandoned tribal custom.

15. This
    was a highly contested application in which the first respondent had
    prayed that the court find that the will by the testatrix
    is
    invalid.

    
    

15. Taking
    all factors into consideration, this court finds that the will by
    the testatrix is invalid and of no force or effect and
    consequently
    the application is dismissed with costs to the first respondent.

    
    

G.N.MOFOLO

JUDGE

For the
Applicant : Mr. Mohau

For the
Respondents : Mr. Thoahlane

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