CIV/APN/441/2006

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

BESELE
MALAKANE APPLICANT

AND

MOSEBATHO
TSOANAMATSIE

(also
known as MOSEBATHO MALAKANE) 1st RESPONDENT

MOTETE
DUNCAN MALAKANE 2nd RESPONDENT

MONTOELI
MALAKANE 3rd RESPONDENT

SERAME
MALAKANE 4th RESPONDENT

MOHAU
MALAKANE 5th RESPONDENT

MASTER OF
THE HIGH COURT 6th RESPONDENT

THE
ATTORNEY-GENERAL 7th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice G.N. Mofolo On the 7th May, 2007

This is a
case in which the applicant approached this court on an urgent basis
asking for an order that he be declared heir to the
estate of the
late Thabo Oswin Terryson Malakane; first respondent to restore
seventeen goats and two cows belonging to the estate
of the late
Thabo Malakane; interdicting first respondent from taking rentals
from the said

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Thabo
Malakane's premises situated in Mafeteng Urban Area; interdicted from
in any way selling or alienating property belonging
to the late Thabo
Malakane's estate pending the outcome of the application and payment
of costs.

The
application was opposed and having heard counsel on either side the
court granted the application indicating full reasons would
follow.
Here now are reasons for judgment:-

It does
appear the family not knowing the whereabouts of the applicant and in
any event doubtful of his support of his late father
even in time of
illness who appears have been supported by the first respondent in
all material respects, the family set and came
out with a document on
page 27 of the Record of proceedings in this application.
Unfortunately or erroneously the document is not
translated and the
court has to make its own translation for time's sake. It is an
undesirable practice and counsel is urged to
ensure translations are
made. The fact alone that this court is Sesotho speaking and versed
in the language is not enough.

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Mr.
Makholela, the often reasonable and uncontroversial counsel that he
is has conceded that by any stretch of imagination first
respondent
is not heir according to Sesotho law and custom and the document on
page 27 above was never intended to nor did it instal
first
respondent as heir to the estate of the late Thabo Malakane save
leaving the estate in her care for safe keeping until the
applicant
surfaced.

This
court is to emphases that first respondent appears to be applicant's
sister and the late Thabo Malakane's married daughter.
The court
satisfied itself that first respondent was not appointed by the
family as heiress to Thabo Malakane's estate. However,
it was further
Mr. Makholela's submission that since first respondent's appointment
was temporary he craved leave of court to remit
matter to the family
to deal with within time and place to be fixed by the court in terms
of Section 14 (4) of the Laws of Lerotholi
.

Mr. Mohau
has strongly resisted Mr. Makholela's suggestion saying there is no
need whatsoever for referral of

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the
matter to the family which took the law into its own hands without
applicant being given an opportunity to be heard. Mr. Mohau
further
referred to a paragraph in the body of the family decision referred
to above at paragraph 27 where the family intimated
"lelapa le
tla romela lengolo le leng haufi le supang hore mang ke mang ea
lokelang ho qotheloa ka ha lelapa le leholo"
(translated, the
family will send another letter soon pointing out who will be given
what as the family is huge). Mr. Mohau has
said the family has
seriously misdirected itself in taking upon itself the right to
decide who will inherit and be entitled to
what in the late Thabo's
estate for the estate in its entirely is the sole right of the
applicant. Mr. Mohau has said it is another
reason why referral of
estate to family if resisted, being desirable that the court decide
the application now.

This
court agrees that the applicant is, in Sesotho law and custom, sole
heir to the estate of the late Thabo Malakane and it is
up to him to
decide whom and what may be given to his brother(s) and sisters. As
for the first respondent, as the

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court
remarked, it appears her remedy is to sue applicant for any expenses
she may have incurred in looking after her late father
in that there
is no provision in Sesotho law and custom allowing a female to
succeed where a male exists, is well mentally and
has not been
disinherited.

Mindful
of the fact that Mr. Makholela has rightly conceded factors alluded
to by the court above, this court has had no option
but to grant this
application and it has so granted it.

As to
costs, this is a family matter and the court is loath to settle first
respondent with costs in that while the family was acting
in the best
interest of those concerned, it was nevertheless wrong in law to have
so acted. Accordingly, there will be no order
as to costs.

G.N.MOFOLO

JUDGE

For the
Applicant : Mr. Mohau

For the
1st Respondent : Mr. Makholela

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