CIV/APN/19/2OO7
IN THE HIGH COURT OF LESOTHO
In the matter between:-
'MARETHABILE MOILOA APPLICANT
and
MPELI MAHANETSA 1st RESPONDENT
SELLO MAHANETSA 2nd RESPONDENT
MASTER OF THE HIGH COURT 3rd RESPONDENT
ATTORNEY-GENERAL 4th RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 21st January 2008
In this matter, the applicant came to Court seeking an order couched in the following terms:-
That the normal periods and modes of service prescribed by the rules of Court should be dispensed with on the grounds of urgency of this matter.
That a rule nisi be issued calling upon the Respondents to show cause, if any, on a date to be determined by the honourable Court why;
the 2nd Respondent and/or the 1st Respondent shall not be restrained from collecting and using moneys and other assets of the estate of the late Komello Mahanetsa pending finalization hereof;
The applicant and/or any of the respondents shall not be ordered to give the Master of the High Court all the necessary
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notices in terms of the Administration of Estates Proclamation of 1935;
The assets of the estate of the late Komello Mahanetsa shall not be shared equally amongst all heirs after settlement of all the liabilities.
That prayers 1 and 2 (a) operate with immediate effect as an interim order pending finalization hereof;
Granting applicant costs of suit in the event of opposition;
Granting applicant further and/or alternative relief.
The application is opposed by the 1st and 2nd respondents. To support her case, the applicant made the following assertions in her founding affidavit especially at paragraphs 2.3 and 2.4 respectively:-
"I turn now to the issue of my father's death. As I have already indicated my father died at the beginning of this year. Before his death my father led a modern lifestyle in that he had businesses, operated banking accounts and did all other things, which are associated with modern lifestyle. My father had always wanted to execute a valid will and would always indicate to me that he wanted his estate to be administered in accordance with the common law upon his death so that all his children would benefit My father used to tell me that he would be happy if all his children, including my younger sister, could benefit from his estate. I wish to inform the honourable court that my father considered himself free from the operation of traditional law." (my emphasis)
Facts that appear to have precipitated this application are contained in parts of the applicant's founding affidavit and they are stated as follows:-
-3.1-
".... My two brothers, who are respondents herein, together with my sister, Storey Mahanetsa and I agreed to delegate that power to make arrangements for the burial to Sello. In this regard we considered it prudent that he had authority to claim the deceased's moneys to be able to carry out his functions effectively.
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-3.2-
I confirm that Sello Mahanetsa continues to make representations to all the debtors of the deceased that he is the lawful heir, when he knows that this is not the case. He uses the said letter to the disadvantage of the estate because he does not account to anyone about the moneys he has collected.... As I depose to this affidavit I have discovered that he has already received huge sums of money from the insurance companies, which he has not declared to us as the joint beneficiaries of the estate.
-3.3-
.... It is important to point out at this stage that since our father died intestate his estate will be administered in accordance with the provisions of the Intestate Succession Proclamation of 1957 and the common law to the extent that this is necessary.
-3.4-
.... First, the 2nd respondent is dissipating the assets of the deceased at an alarming rate and to the detriment of all the legatees and creditors of the estate...."
In the answering affidavit filed by the 1st respondent and supported by the 2nd respondent, applicant's averments insofar as which system of the law should apply are denied. To this end, the 1st respondent made the following counter-assertions: -
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"My father never led any modern lifestyle. He was a Mosotho man in every respect; had a cattle post, carried a stick, ploughed
fields. As far as I know, he never had any businesses.
As for his wish for his estate to be administered in accordance with the received law, I aver that he would have simply executed a will to see to it that his wish is carried out. I never heard him saying that he wanted to make one though.
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.... My father never considered himself free from the operation of traditional law. For all I know, he had married my late mother by custom and died living a customary mode of life.33
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The 1st respondent also disputed that he has been receiving monies from any debtors and or dissipating assets from the late Komello Mahanetsa's estate or that he had refused to cooperate with his siblings. He added that the family had resolved that the matter should be dealt with after the removal of the mourning cloth and that the estate would be administered in accordance with the customary law.
In their submissions on behalf of the parties, Counsel were agreed that against this background, the issue for determination by this Court is whether the estate the subject matter herein falls to be determined by the common or customary law.
On the one hand, Mr. Letsika who appeared on behalf of the applicant argued that the applicant has set out facts that indicate that her father led a modern lifestyle. He pointed out that it is common cause that the deceased kept a bank account and invested the moneys by way of unit trusts. Further that the late Komello kept the company of high powered people such as his Majesty the King.
Counsel for the Court made the submission that from these facts and the fact that he slept on a bed and had built a modern house, the deceased led a modern lifestyle so that his estate falls to be determined by the common law and the Intestate Succession Proclamation. He added that on a balance of probabilities the deceased had abandoned the traditional mode of life. To support his case, Mr. Letsika referred the Court to the case of Mokorosi vs Mokorosi 1967-70 LLR p 6 and that of Hoohlo v Hoohlo 1967-70 LLR p 318.
On the other hand, Mr. Ratau, Counsel for the 1st and 2nd respondents argued that the applicant had relied heavily on the mode of life test but added that she had failed to bring any evidence to support her
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contention. It was his submission that the Intestate Succession Proclamation 2 of 1957 in no way contains provisions that the applicant can rely on to sustain her claim not to mention that it makes provision for surviving spouses of persons who die wholly or partly intestate.
It was also his submission that while Section 3 of the Administration of Estate Proclamation of 1957 could be relied on by the applicant to support her case, there is no evidence before this Court that the late Komello Mahanetsa had abandoned the customary way of life and adopted a European mode of life. Further that the applicant's assertions in paragraphs 2.3 and 2.4 of her founding affidavit were merely allegations without any substantial proof. To this end, Mr. Ratau made reference to the judgment of his Lordship Ramodibedi in the case of Mokatsanyane & One v Thekiso & 2 Others C of A No. 23 of 2004 (unreported).
Mr. Ratau further pointed out that it is trite that an applicant has to make his case in the founding papers per a plethora of authorities. It was his submission that the applicant cannot be permitted to substantiate her case at the replying stage by making fresh allegations that the deceased led a modern life and had accordingly abandoned the Sesotho way of life. In addition, that the success or failure of the test whether a deceased had abandoned the Sesotho mode of life or not does not per se resolve the matter. To support his contention Counsel added that there is a further requirement to Section 3 to wit, not only should a deceased be shown to have abandoned customary life, but he should also if married, have been married under European law.
Mr. Ratau made the submission that in the present case, even thought the estate must be reported, the 3rd respondent does not have to
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ascertain whether or not the deceased had abandoned tribal custom and lived according to European standards because one of the essential features for the Master to be involved is missing in casu since there is no dispute that the parties' late parents were married by custom.
It was also argued on behalf of the respondents that the applicant's claim is not clear for the reason that she averred to be an heiress, a creditor and legatee to the estate. To that extent, Mr. Ratau submitted that she cannot succeed on any of these categories because the estate has to devolve according to the customary law of succession which excludes her from the line of succession. He added that the fairness or otherwise of this factor is immaterial.
With regard to her assertion that she is a creditor because she contributed towards the burial in the amount of M18, 000. 00, it was Mr. Ratau's submission that the applicant failed to bring any evidence in that regard, not to mention that she also failed to disclose the fact that the other siblings also contributed to the burial despite the existence of annexure "A" being the MKM burial policy of the 2nd respondent and from which payout the 2nd respondent took care of some of the burial expenses such as the casket, mortuary costs and transport. He added that if the applicant's claim were to be believed she would have produced
receipts and/or notes evincing her expenses.
Lastly, Mr. Ratau made the submission that the applicant was seriously mistaken in claiming to be a legatee for the reason that in terms of the common law, a legatee is a person to whom a testator has bequeathed a specific thing or collection of things or sum of money and the benefit thus received is known as a legacy. In this regard, Counsel quoted a passage from A. J. Oosthuizen's The Law of Succession 1982 p. 2.
In his reply, Mr. Letsika made the submission that the applicant has used the term legatee loosely for the reason that a legacy was left by the late Komello Mahanetsa. He added that the issue of the type of marriage is neither the test nor the determinant factor but simply one of the factors for consideration by the Court. On this, he referred the Court to the work of S. Poulter, Legal Dualism p 33.
I now turn to deal with the question of under which system of law the estate in casu should devolve.
There is little doubt that the operation of the legal dualism in Lesotho has always been problematic in this country. This is especially the case where as in casu, the Court has to make a determination in respect of devolution of the estate of a deceased person who arguably appears to have to led a combination of both the customary and the modern ways of life. Indeed, this phenomenon is prevalent in most families. My reasons for saying this are that on the one hand, many people still get married by customary rites, keep livestock, own cattle-posts, plough fields, cut their hair and wear the morning cloth after a next of kin's burial, slaughter animals in honour of their ancestors etc.
On the other hand, the same people wear European clothes, live in modern houses complete with state of the art gadgets, their children go to school and marry by Christian rites, they keep bank accounts, sleep on beds, attend church, drive flashy cars, travel abroad, go on holidays, etc. In my opinion, this makes if very difficult for anyone to categorically state that a person had abandoned the one mode of life and adopted the other in terms of the provisions of Section 3(b) of the Administration of Estates Proclamation 29 of 1935. The section provides as follows:-
This proclamation shall not apply- to the estates of Africans which shall continue to be administered in accordance with
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the prevailing African law and custom of the Territory: Provided that such law and custom shall not apply to the 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, if married, have married under European law."
In order to determine whether a person can be said to have abandoned tribal custom and adopted a European mode of life, the Courts have over time applied what has come to be known as the mode of life test in inter alia, the cases of Mokorosi v Mokorosi 1967-70 LLR p. 1 and Hoohlo v Hoohlo 1967-70 318 respectively, quoted to this Court.
In the Mokorosi case, some of the characteristics that were accepted as proof that the deceased had abandoned tribal custom and adopted a European way of life are that "he wore European clothes, and ate and slept and lived with his family in the European way. He belonged to a Protestant Church, none of his children had been circumcised (if boys) or put through initiation school (if girls). All his children who were married had been married by Christian rites, and neither in the case of his own marriage nor of those of any of his children had Bohali been paid.... He was in the habit of consulting a firm of attorneys in Wepener about his business affairs and used to bank his money through the firm.... His will was drawn by the firm of attorneys."
However, because of the inherent inconclusive nature of this test, subsequent developments in later cases introduced yet another theory to wit, an improved Mosotho. The case in point is that of Thoka v Hoohlo 1978 LLR p 375 wherein a medical doctor gave evidence that despite also being a university graduate, living in a modern house and using modern technology he had never abandoned the Sesotho way of life and had no intention to do so. Interestingly, this theory was not rejected by the Court. This in my opinion strengthens my point that proving on a balance of probabilities that a person had abandoned the one mode and adopted another is a very difficult hurdle to surmount.
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To further illustrate my point, I can only respectfully quote one of the passages in the work of W.C.M Maqutu Contemporary Family Law of Lesotho p 178 where in his critical analysis of the mode of life test he has this to say:-
It is hard to imagine why tribal Mosotho cannot be expected to wear European clothes, sleep on a bed, do his ploughing with a tractor,
cover greater distances with a motor car, have ten-roomed mansion with electricity and modern conveniences, if such a Mosotho has the means...."
Be that as it may, in the present matter, although the applicant avers that the deceased used to inform her that he wished to draw up a will and that he wanted his estate to be administered under the received law, it is common cause that the deceased died intestate. It is however worthy to note that if he really wished so, there is no reason why the deceased neither drew a will nor informed all of his children about his intentions for avoidance of doubt. None has been given by the applicant safe to aver that he told her because they had a special relationship.
It was also the applicant's case, which the respondents disputed that the deceased had abandoned his customary way of life and adopted a modern life. To this end, the applicant stated that her father "had businesses, operated banking accounts and did all other things." On the other hand, the respondents averred that the deceased never abandoned tribal custom for the reason that he had married by customary rites, had a cattle-post, carried a stick and ploughed fields. They also denied that he had businesses.
The fact of the deceased having abandoned the customary mode of life and adopting a European one is therefore clearly disputed and in my opinion, the applicant ought to have foreseen this yet, she chose to
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approach the Court on motion proceedings. In the light of the principle that was laid down in the case of Plascon-Evans Paints v Van Riebeeck 1984 (3) SA 623 I accordingly accept the version of the respondents as being more probable.
The applicant unfortunately has to live with the consequences of her choice. In light of this, it follows that the Court will make a finding that the applicant has not successfully supported her case with sufficient evidence. In any event, for the reasons I have already stated above, I do not think that operating bank accounts and investing money in unit trusts is per se, enough evidence that a person has necessarily abandoned his customary way of life.
Further, it is also not disputed that the deceased and his wife had married in accordance with custom. One of the requirements for the Administration of Estates Proclamation to apply is that the deceased should have married under European law over and above having abandoned his customary way of life. Clearly, this part of the proviso has not been satisfied in this case and for this reason, I have no basis to find that the Proclamation should apply to the estate of the deceased herein.
It therefore follows that that the submission that was made on behalf of the respondents that the Intestate Succession Proclamation 2 of 1935 is not applicable in this case is correct because the provisions of section 3 thereof clearly state that it "shall not apply to any African unless the estate of such African is required to be administered in accordance with the provisions of the Administration of Estates Proclamation 19 of 1935 ..." whose requirements I have already found have not been satisfied in casu.
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With regard to the applicant's claim that she is a creditor for the reason that she contributed the amount of Ml8, 000.00 towards the deceased's burial, I accept the submission made on behalf of the respondents that this is a bare assertion unsupported with any evidence especially because it is disputed by the respondents. Indeed, the applicant should have kept some form of record either receipts or any document that would prove how much money and for what that she paid. In the absence of those, her claims remain unsubstantiated. In this regard the remarks of Ramodibedi J.A. in Mokatsanyane's case (supra) at p 12 bear reference.
Lastly, 1 also accept as correct, the submission that the applicant has no basis to claim that she is a legatee as the deceased died intestate. Although Mr. Letsika's contention was that the term was used loosely, unfortunately it is a legal term with particular consequences and it would be improper for the Court to allow it to be used "loosely" in this kind of case.
Indeed, as Mr. Ratau correctly pointed out, a legatee is a person to whom the testator has bequeathed a specific thing, collection or quantity of things or a specified sum of money. In The Law of Succession in South Africa, p 222, Corbett et al, state that:-
"It is the specificity of benefit given to him that distinguishes a legatee from an heir who receives the residue of the estate
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after debts and legacies have been paid (debts ranking before legacies), and who is therefore also referred to as a residuary legatee."
In light of all the above reasons, I find that the applicant has failed to make out her case and accordingly dismiss the application with costs.
N. MAJARA
JUDGE
For applicant : Mr. Q. Letsika
For respondents : Mr. Ratau
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