IN
THE HIGH COURT OF LESOTHO

HELD
AT MASERU CIV/APN/31/2008

In
the matter between:-

‘MALEHLOHONOLO
MONYAKA APPLICANT

AND

‘MASENATE
MONYAKA 1^ST
RESPONDENT

(Born
Remaketse Moleleki)

MASTER
OF THE HIGH COURT 2^ND
RESPONDENT

THE
ATTORNEY-GENERAL 3^RD
RESPONDENT

JUDGEMENT

Delivered
by the Honourable Acting Judge Mr. G.N. Mofolo

On
the 17^th
August, 2009

Applicant has
approached this court on a Notice of Motion for an order as follows:

1. 
   That the
   benefits under the estate of the late Lehlohonolo Monyaka held by
   2^nd
   Respondent be released to the Applicant as she is the rightful
   beneficiary of the late Lehlohonolo Monyaka.

   
   

2. 
   That the 1^st
   Respondent be directed to return the minor child of the family
   (Lindiwe Monyaka) to the Applicant and the property belonging
   to
   Monyaka’s family.

   
   

3. 
   Directing the
   Respondents to pay costs of application only in the event of
   opposition thereof.

   
   

4. 
   Granting
   Applicant such further or alternative relief and this Honourable
   Court may deem.

   
   

Paragraph 2 of the
Founding Affidavit reads:

1. 
   The 1^st
   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.

   
   

2. 
   The 2^nd
   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:

1. 
   The 1^st
   June 2006, my son, Lehlohonolo Monyaka died. I attach copy of the
   death certificate and mark it annexure “MM1” - the same
   is
   self-explanatory.

   
   

2. 
   At the time he
   died he worked at PB Jandrell and Son (Pty) Ltd Lesotho.

   
   

3. 
   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
   1^st
   Respondent in terms of Basotho custom. The marriage was completed
   on or the 27^th
   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 21^st
   October 1996. I must also bring to the attention of the Honourable
   Court that the 1^st
   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 deceased’s benefits was informed
1^st
Respondent was claiming them the result of which was that they were
released to 2^nd
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”.
Master’s response was marked
annexure “MM5”.

Paragraph 9.
Applicant says she’s 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 1^st
Respondent, ‘Masenate Monyaka has taken points in
limine,
namely:

1. 
   Material
   non-disclosure

   
   

2. 
   Lack of locus
   standi in judicio

   
   

3. 
   Non-compliance
   with Rules of Court

   
   

In so far as A
above is concerned, 1^st
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 1^st
Respondent as Remaketse Moleleki.

Exactly as 1^st
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:

1. 
   John Khedamile
   Monyaka

   
   

2. 
   ‘Manthabiseng
   Monyaka

   
   

3. 
   Yengaphe
   Monyaka

   
   

4. 
   ‘Malehlohonolo
   Monyaka

   
   

and it will be
seen from the original of annexure “MM2”; Applicant has signed
her name as witnessing 1^st
Respondent’s 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 court’s view,
being to either
mislead or deceive this court. Deceive this court for while
Applicant has claimed 1^st
Respondent was married by Sesotho custom, she was, according to 1^st
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, Beck’s
Theory and Principles of Pleading in Civil Actions – 5^th
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 son’s 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 1^st
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