IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/APN/31/2008
In the matter between:-
MALEHLOHONOLO MONYAKA APPLICANT
AND
MASENATE MONYAKA 1ST RESPONDENT
(Born Remaketse Moleleki)
MASTER OF THE HIGH COURT 2ND RESPONDENT
THE ATTORNEY-GENERAL 3RD RESPONDENT
JUDGEMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 17th August, 2009
Applicant has approached this court on a Notice of Motion for an order as follows:
That the benefits under the estate of the late Lehlohonolo Monyaka held by 2nd Respondent be released to the Applicant as she is the rightful beneficiary of the late Lehlohonolo Monyaka.
That the 1st Respondent be directed to return the minor child of the family (Lindiwe Monyaka) to the Applicant and the property belonging to Monyakas family.
Directing the Respondents to pay costs of application only in the event of opposition thereof.
Granting Applicant such further or alternative relief and this Honourable Court may deem.
Paragraph 2 of the Founding Affidavit reads:
The 1st Respondent is Masenate Monyaka (Remaketse Moleleki) female adult and the Applicant does not know her whereabouts now but she can be served at her maternal home being Mafeteng. Her father is Tsietsi Matete, Mafeteng town near Mafeteng Police Station.
The 2nd Respondent is the Master of the High Court cited herein in her capacity as the custodian of the estate of the late Lehlohonolo
Monyaka.
Paragraph 4 reads:
The facts that precipitated the institution of this application are in a nutshell as follow:
Paragraph 5:
The 1st June 2006, my son, Lehlohonolo Monyaka died. I attach copy of the death certificate and mark it annexure MM1 - the same is self-explanatory.
At the time he died he worked at PB Jandrell and Son (Pty) Ltd Lesotho.
It is necessary at this stage to bring to the attention of this Honourable Court that my son at one stage got married to the 1st Respondent in terms of Basotho custom. The marriage was completed on or the 27th April 1991. This is evidenced by the agreement of bohali cattle. The letter is attached together with its fair translation and marked annexure MM2 and it is self-explanatory. The marriage was blessed with one child on the 21st October 1996. I must also bring to the attention of the Honourable Court that the 1st Respondent left the matrimonial home on or around December 1997. She left together with the minor child of the family. She never came back to the matrimonial home until my son died emerging immediately after the death of my son.
Paragraph 6. In course of employment, my son had appointed me as sole beneficiary and records were kept by his employer I attach the death claim Proceed Beneficiary Form from his employer and mark it annexure MM5. The same is self-explanatory.
According to paragraph 7, Applicant on claiming deceaseds benefits was informed 1st Respondent was claiming them the result of which was that they were released to 2nd Respondent to deal with them and Applicant was referred to the Master of the High Court.
Paragraph 8 is to the effect confronting the Master of the High Court with annexure MM3 together with a family letter the Master refused to release the benefits saying my son was wrong to appoint me as beneficiary while he had a wife and a child. Masters response was marked annexure MM5.
Paragraph 9. Applicant says shes been advised every one has a right to appoint whosoever he loves to be beneficiary of his estate without restriction.
The application was opposed. In opposing it the 1st Respondent, Masenate Monyaka has taken points in limine, namely:
Material non-disclosure
Lack of locus standi in judicio
Non-compliance with Rules of Court
In so far as A above is concerned, 1st Respondent has alleged she was married to the deceased by civil rites and in community of property; secondly, that she was appointed and nominated by the family introduced by the Monyaka family including the Applicant as heiress to the estate of her late husband. I have perused the record and find that by annexure MM1, Lehlohonolo Monyaka married Remaketse Moleleki by civil rites and in community of property on 2 May 1992 at Mafeteng in the Parish of the Methodist and incidentally it will be observed from her Notice of Motion, Applicant acknowledges 1st Respondent as Remaketse Moleleki.
Exactly as 1st Respondent has alleged MM2 translated version of family appointment reads:
To the Chief of Mohlakeng,
Chief with greatest respect. We as family of Monyaka we confirm that Masenate Monyaka is our daughter in law. She is the wife of Lehlohonolo Monyaka. She is the heiress.
We will appreciate your assistance Chief.
John Monyaka
Witnesses:
John Khedamile Monyaka
Manthabiseng Monyaka
Yengaphe Monyaka
Malehlohonolo Monyaka
and it will be seen from the original of annexure MM2; Applicant has signed her name as witnessing 1st Respondents appointment as heiress to the estate of the late Lehlohonolo Monyaka.
I am satisfied on this ground alone, that Applicant is guilty of material non-disclosure the intention, in this courts view, being to either mislead or deceive this court. Deceive this court for while Applicant has claimed 1st Respondent was married by Sesotho custom, she was, according to 1st Respondent, married by civil rites.
I would further caution in applications the general rule is that an Applicant must not conceal any material fact the utmost faith being necessary (see In re Leydsdorp and Pietersburg Transvaal Estates in Liquidation 1903 TS 254 and other cases on sub-note 5 of paragraph 5, Becks Theory and Principles of Pleading in Civil Actions 5th Ed also considering, if material facts are kept back the disclosure of which might influence the decision of the court, the court has a discretion to set aside the order (De Jager v Heilbron and Others, 1947(2) SA 415 (W).
I am also of the view in associating herself with the family decision to appoint Applicant as heiress to the estate of her husband, Applicant either ceded her claim to Applicant or abandoned it and she is estopped from claiming otherwise quite apart from the fact that her appointment as heiress to her sons estate infringes the concept of the inalienable community right inherent in the relationship between the Applicant and her deceased husband considering the fact that such right as would vest in Applicant by reason of her appointment would seriously jeopardize and prejudice interests of the minor child of the marriage.
As indicated above, on this point of law alone, the court has not hesitated to dismiss this application with costs and confirm 1st Respondent as heiress to the estate of her late husband.
G.N. MOFOLO
PUISNE JUDGE
For the Applicant : Mr. Sepiriti
For the Respondents : Mr. Shale
8