IN THE HIGH COURT OF LESOTHO
HELD IN MASERUCIV/APN/287/2007
In the matter between
MOLEFI MAJALLE 1stApplicant
‘MALEJE MAJALLE 2nd Applicant
LINEO MAJALLE 3rd Applicant
AND
‘MARETŠEPILE MAJALLE (Maphathe) 1st Respondent
‘MALEJE MAJALLE (Kakhobwe) 2nd Respondent
MABOTE POLICE STATION 3rd Respondent
JUDGMENT
Delivered by the Honourable Mr. Justice T. E. Monapathi
on the 18th day of March 2009
I have already made a ruling in this matter. My reason thereof now follow.
It was not surprising nor unexpected that Applicants’ Counsel Mr Malefane, had to concede on three (3) out of four (4) points raised in liminein this application.
Miss Tau for Applicant had raised the following points in-limine and they were argued first as it was the right of the Respondents to insist that it be so.
Firstly, it was the point that there had been non-joinder, on two occasions, of or as regard the Master of the High Court and the Attorney General. See High Court Rule 8 (19) and Government Proceedings and Contracts Act 1965 section 3, (1) Constituency Committee LCD (Constituency No. 32) v National Executive Committee and Popane Lebesa CIV/APN/179/2002 (unreported)page 8, paragraph 10and Lesotho National Olympic Committee and others v Morolong LAC (2000-2004) 449 at 454-456. Secondly, that there had been non-disclosure of certain material facts. Thirdly, that there was a genuine dispute of certain facts which the Applicant, in launching the application, must have anticipated. See Kabi Monnanyane v SOS Childrens’ Village and Other C of A (CIV) No. 36 of 2005 at pages 6 and 7, Tšehlana v National Executive Committee – Lesotho Congress for Democracy and Another C of A (CIV) No. 18 of 2005 at page 77. Fourthly, that there were no good grounds for the Applicants having proceeded as of urgency without such grounds having been established in the Applicants’ papers. See High Court Rule 8 (22) (b). Fifthly, the existence of the Deceased and his wife’s mutual will, delinquently, not having been disclosed by the Applicants in the founding affidavit. This being against good faith (uberrima fidae).
It is only on the point on non-disclosure that the Applicants did not concede. Incidentally, in my opinion, this was the most
demonstrable of the challenges. In the circumstances one could safely say that as far as the court was concerned the die was cast.
The Applicants had asked the court that the modes and periods of service prescribed by the rules be dispensed with on account of urgency and that a rule nisi be issued calling upon the Respondents why:
The Respondents cannot be directed to refrain from interfering with the enjoyment by the Plaintiffs of the premises forming estate of their late father, Mr. Tutsoane Majalle, situated at Mazenod Ha Paki at a place known as Lishopong;
The Respondents shall not be ordered to restrain to cause any disturbance and or engage in any activity whatsoever, which may be construed as ejecting the Applicants from the business estate of late Tutsoane Majalle at Mazenod Ha Paki at a place known as Lishopong;
Directing that the 1st Applicant is the heir to the estate, for all intents and purposes, of the late Tutsoane Majalle;
Directing that the 1st Applicant alone is the sole administrator of the estate of the late Tutsoane Majalle;
Directing that Prayers 1, 2 (a) and (b) operate with immediate effect as an interim court order.
In 1994 the late Tutsoane Majalle (Deceased) and ‘Mamolefi Majalle who were husband and wife made a will which was duly
registered in the office of the Registrar-General in 1995. Tutsoane Majalle passed away and his wife passed away later in 2003. After the death of Tutsoane Majalle, the first Applicant (Tutsoane Majalle’s son) tried to claim that he was the Deceased’s
heir, but the whole family was duly advised by the second Respondent (Tutsoane Majalle’s sister) that the Deceased had a mutual will and were duly made aware of the contents thereof. These facts were not disclosed by in the Applicants’ in their founding affidavit. Hence the point-in-limineof non-disclosure that has earlier been referred to. Specifically, the Applicants do not disclose knowledge or existence of the will in their founding statement. It appeared that the Deceased’s sister, the Second Respondent had also be appointed as Executrix in the said will.
According to the contents of the will, the business premises, the subject matter of this dispute, were bequeathed to the First Respondent’s husband, Potlaki Majalle who is now late. Potlaki Majalle assumed occupation of the business during the lifetime of her mother having also been by her let and leave. When Second Applicant tried to cause trouble for Potlaki, even reporting the matter to the police, the late ‘Mamolefi told the police that according to a mutual will the property was duly bequeathed to Potlaki. According to Respondents the Applicants only assumed occupation when Potlaki was hospitalized in January, 2008. He passed away in February, 2008. After his death the family accordingly made a decision that the First Respondent was to become heir to the estate of the late Potlaki Majalle.
On their own version Applicants were prepared to concede that the said Executrix, being a layman, did offer the estate of the Deceased Tutsoane and ‘Mamolefi for directions of the Master of the High Court and for the Respondent to administer the estate after the death of Potlaki when she reported the estate to the Master. Thus the Second Respondent correctly averred that it was the duty of the Executor to take control of the estate so as to deal with it according to law i.e. to distribute it accordingly. In addition, again correctly, that this requirement applies even when there is no will, as long as the estate is administered in terms ofAdministration of Estate Proclamation No. 19 of 1935.
Indeed it is the Respondants’ case that any rights whether contingent or vesting cannot be declared or decided without the prior canvassing of its nature or directions of the Master of the High Court. That is why I agreed that the Applicants were therefore acting unlawfully by holding on to the assets of the estate and by refusing to hand over the property to the Executor.
This was the background against which the points-in-limine were raised. Having conceded so much as aforesaid it was only fitting that the application be dismissed and the rule be discharged
without awarding any costs since this dispute is a family matter.
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T. Monapathi
Judge
For Applicant : Mr. Malefane
For Respondents : Miss Tau