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:-

1. 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.

   
   

2. 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;

   
   

1. 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;

   
   

2. 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;

3. The
   assets of the estate of the late Komello Mahanetsa shall not be
   shared equally amongst all heirs after settlement of all
   the
   liabilities.

   
   

3. That
   prayers 1 and 2 (a) operate with immediate effect as an interim
   order pending finalization hereof;

   
   

3. Granting
   applicant costs of suit in the event of opposition;

   
   

3. 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.

2

-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.

-7-

.... 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.

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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.

8

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

9

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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