IN
THE HIGH COURT OF LESOTHO

HELD
IN MASERU
CIV/APN/287/2007

In
the matter between

MOLEFI
MAJALLE 1^st
Applicant

‘MALEJE
MAJALLE 2^nd
Applicant

LINEO
MAJALLE 3^rd
Applicant

AND

‘MARETŠEPILE
MAJALLE (Maphathe) 1^st
Respondent

‘MALEJE
MAJALLE (Kakhobwe) 2^nd
Respondent

MABOTE
POLICE STATION 3^rd
Respondent

JUDGMENT

Delivered by
the Honourable Mr. Justice T. E. Monapathi

on the 18^th
day of March 2009

1. 
   I
   have already made a ruling in this matter. My reason thereof now
   follow.

   
   

2. 
   It
   was not surprising nor unexpected that Applicants’ Counsel Mr
   Malefane, had to concede on three (3) out of four (4) points
   raised
   in limine
   in
   this application.

   
   

3. 
   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.

   
   

4. 
   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 10
   and
   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).
   
   

   
   

5. 
   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.

   
   

6. 
   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:

   
   

1. 
   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;

   
   

2. 
   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;

   
   

3. 
   Directing
   that the 1^st
   Applicant is the heir to the estate, for all intents and purposes,
   of the late Tutsoane Majalle;

   
   

4. 
   Directing
   that the 1^st
   Applicant alone is the sole administrator of the estate of the late
   Tutsoane Majalle;

   
   

5. 
   Directing
   that Prayers 1, 2 (a) and (b) operate with immediate effect as an
   interim court order.

   
   

7. 
   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-limine
   of
   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.

   
   

8. 
   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.

   
   

9. 
   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 of
   Administration
   of Estate Proclamation No. 19 of 1935.

   
   

10. 
    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.

    
    

11. 
    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.

    
    

--------------------

T.
Monapathi

Judge

For
Applicant : Mr. Malefane

For
Respondents : Miss Tau