IN THE HIGH COURT OF LESOTHO

                 

 

                                                                     CIV/APN/111/2008

In the matter between;

 

EXECUTRIX                                                          

ESTATE ELIZABETH ’MAJULIA MWANDA             1^ST APPLICANT

PAULINA HLABI                                                               2^ND APPLICANT

 

AND

 

’MAMWANDA JOYCE MWANDA                                             1^ST RESPONDENT

MASTER OF THE HIGH COURT                                   2^ND RESPONDENT

ATTORNEY GENERAL                                                   3^RD RESPONDENT

MWANDA MWANDA                                                        4^TH RESPONDENT

 

JUDGMENT

DELIVERED BY THE HON. MRS JUSTICE K.J. GUNI

ON  THE 30^TH DAY OF MAY   2011

 

The applicants in this matter have approached this court by way of Motion proceedings.  They are seeking an order of court in the following terms:

(a)        That First Respondent account for all moneys collected as rentals from rental flats as well as butchery premises which form part of property under the Will since August 1998.

 

(b)       That First Respondent be ordered to pay to the Account No. 0121084975901 opened in the name of Estate of Late ’Majulia Elizabeth Mwanda the amount of M67,000 (Sixty seven thousands Maloti) being the money collected by First Respondent as rentals from August 1998 up to and including the present.

 

(c)        That should the First Respondent fail to give a satisfactory account or her account reflect a shortfall, 1^st Applicant be authorized to recover from first Respondent moneys owed to the Estate of late ’Majulia Mwanda.

 

(d)       That First Respondent deliver to the Executrix to the Estate of Late ’Majulia Elizabeth Mwanda a paraffin heater which belongs to the estate which is in her possession. 

 

(e)     Cost of suit.

 

(f)      Further and/or alternative relief.

 

 

The 1^st Applicant is an EXECUTRIX  to the ESTATEOF late ’MAJULIAMWANDA.  The 2^nd applicant is Paulina Hlabi a female Mosotho adult of KOLOJANE HA NKUEBEin the district of BEREA.  Although she claims to be the beneficiary under the will of the late ’MAJULIA MWANDA, her name does not appear in the list of the beneficiaries in the said will.  MARY MWANDAin her Founding Affidavit, at paragraph 5.2 has made the list of beneficiaries under the will.  These are those children who survived their late father.  They are JULIA, MARY, SUSAN and FRANCIS according to the Founding Affidavit.  These are the deceased’s children who were to inherit her property in equal undivided shares.  There is no Paulina.  The legal point on misjoinder of 2^nd applicant was well taken and must succeed.

 

It is gathered from the bits and pieces of information contained in the papers filed of record, that the Couple – EPHRAIMand ’MAJULIA MWANDAwere blessed with many children.  There were three girls:- Julia, Mary and Susan.  There were two boys:- Gerard and Francis.  A greater number of these children are now also deceased.

JULIA MWANDAis late.  She is survived by three children.

SUSAN MAWANDAis late.  She is survived by two children.

FRANCIS MWANDAis late.  He had no children.

GERARD MAWANDAis late.  He is survived by two children

 

One of them MWANDA MWANDAis the 4^th respondent in these proceedings although the claim is specifically directed at his mother – MAMWANDA JOYCE MWANDA. 

 

EPHRAIMand ’MAJULIAwere married by civil rites in church in 1933 according to the deponent in the Founding Affidavit.  There is no mention of the country where the marriage took place.  Is the marriage in church in that unnamed country, per se marriage by civil rites?  It is mentioned that the couple moved to LESOTHOin 1934.  Which law is applicable?  The law in Lesotho or the law of the country where the marriage was solemnized?  It would appear that they established their permanent residence at number 58 MANKOANENG, HLOTSE TOWNSHIP in the LERIBEdistrict, LESOTHO.  Although the site is numbered, it appears it is not registered.  All the parties in this matter also reside at that very same site.  The 1^st respondent’s husband – Gerard was, told to build his own dwelling place on that same site by his late mother during her lifetime.  Gerard therefore constructed a dwelling place on the same site.  There is no dispute to his title to built and reside on that site. His immediate family that is to say his wife – the 1^st respondent herein and their children have lived there together with their mother – ’MAJULIAtill she died in 1998.  This site is not divided.  It is one site numbered 58 MANKOANE, HLOTSE TOWNSHIP.  The husband of the 1^st respondent was during his lifetime told by his now late mother to remain on site Number 58 and improve that site by building his own house thereat.  The reason why his mother advised him to remain on that site was because he was their eldest son.  The man’s heir according to the law in this kingdom is his eldest male child.  EPHRAIM’Sheir is Gerard whose heir is the 4^th respondent herein – MWANDA MWANDA.  The succession to property follows along the male line in this kingdom - Laws of LEROTHOLI PART II.   This is the position where the holder of the land rights dies intestate under customary law.  The position is not much different under the received civil law – WILLE’S PRINCIPLES OF SOUTH AFRICAN LAW EIGHTH EDITION 360.

 

There is no evidence that the site in question - 58 MANKOANENG HLOTSEbelonged to ’MAJULIAalone.  It is only alleged that at the time of the death of her husband the site was not developed.  It was developed by the testator alone after the death of her husband.  The question is how did the widow now deceased – MAJULIA MWANDA  succeed and/or inherited that site after her husband’s death?  There has been no will produced to show the court that the site was left to her by her late husband by will.  There is no evidence that the estate of late EPHRAIM MWANDAwas in fact reported to the MASTER OF THE HIGH COURT.   It is in the common cause that he died intestate. There is no evidence to establish that EPHRAIM MWANDA’Sestate was distributed in terms of the civil law.   Therefore it is probable that the estate of the late EPHRAIM MWANDAwas administered in terms of the customary law.  Two different legal systems, i.e. customary law and civil law, cannot be applied in the administration of one deceased estate.  Hoohlo V Hoohlo Lesotho Law Reports 1967 – 1970 page 318.  Only one legal system is applied to administer one deceased estate not both systems.

 

It therefore can only be presumed that MAJULIA inherited the site in question through SESOTHO customary law.  THATHO V NTSANE.  The wife of a man who has been allocated land remains on the said land after the husband’s death.  She is entitled to occupy and use that land as if the husband is still alive.  SECTION 92 LAND AMENDMENT ACT 92.  It is apparent from the facts of this case that  MAJULIA MWANDA, inherited the occupation and use of that site in terms of the SESOTHOcustom.  She is not entitled to dispose of it. 

 

 

This Testator and her husband are both late.  The testator’s husband – EPHRAIMMWANDAdied in 1961 intestate.  His widow – ’MAJULIA ELIZABETH MWANDAdied thirty seven years later in 1998 testate.  It is not alleged nor proved that they were married in or out of community of property.  It is also not alleged nor proved that there was an anti-naptual contract.  There is no anti-naptual contract document produced before this court.  There is no marriage certificate either.

 

 

After the death of her husband; did ’MAJULIA ELIZABETHMWANDAbecome intestate heir of their joint estate?  If so under which law?  Lesotho has dual legal system of law. (1) The Lesotho Customs and traditions form one part.  (2) The received civil law – Roman Dutch law forms the other part. The relations between spouses are governed by statute in particular their proprietary rights.  “SECTION 3 (B) PROCLAMATION 19 of 1935 [ADMINISTRATION OF ESTATES].  The relevant portion for determination of the present matter reads as follow, “This Proclamation shall not apply –

 

(b) to the estates of Africans which shall continue to be administered in

accordance with 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 shown to the satisfaction of the master to have abandoned tribal custom and have adopted European mode of life.”

 

The first thing that comes out from the reading of this provision is that there is a choice of law applicable in the administration of estate as far as Africans in LESOTHOare concerned.  Those who enter into the marriage by civil rites and abandon their customary and traditional way of life, and adopted instead a European mode of life, they are considered to have made a choice of civil law for the administration of their estate.  Those who enter their marriage by way of SESOTHOcustom and continue in their lifestyle of SESOTHOcustom and tradition, they are considered as having made a choice of law that should be applied in the administration of their estate, as SESOTHOcustomary law.  NTSANE V THATHO.

 

 

 

The lifestyle should be that of the couple and perhaps with their children later as time goes on.  Therefore in our present case, it is not only ’MAJULIAwho should be proved to have abandoned the SESOTHOtraditional and customary lifestyle.  There must be evidence to show that both husband and wife abandoned the Sesotho customary way of life and have adopted a European mode of life.  MOKATSANYANE & ONE V THEKISOand Another.  The mere production of the will does not meet the requirements set out in SECTION3 (b)PROCLAMATION19 of 1935.  There is an allegation that they [EPHRAIM and ’MAJULIA] had abandoned the SESOTHO customary way of life.  There is a further allegation contradicting that.  1^st respondent has alleged that during her lifetime ’MAJULIAperformed SESOTHO TRADITIONAL CEREMONIES of “PHA-BALIMO”.  These being motion proceedings the parties stand by their papers.  This dispute of fact cannot be resolved on these papers alone.  In terms of RULE 8 (14) HIGH COURT RULES 1980this application must fail.   Where the court is not able to resolve the dispute between the parties on papers before it, it must dismiss the application.  It is a crucial issue of fact in these proceedings whether or not the MWANDAShad during their lifetime abandoned tribal custom and had adopted a European mode of life.  HOOHLO V HOOHLO 1967 – 1970 LESOTHO LAW REPORTS.  There must be evidence that shows the court the actual lifestyle of the couple – not a mere allegation without proof, that Majulia testatrix had herself abandoned the traditional way of life.

 

It would appear that these parties have been before this court on the same matter before.  In CIV/APN/401/06. That application failed because the claim of a portion from the undivided site could not be determined.  This claim by the applicants that there are portions of the site number 58 which are bequeathed to the rest of the surviving children of EPHRAIM AND ’MAJULIAexcluding their heir to the whole site cannot be determined on the whole undivided site.  The testatrix, without evidentiary proof of an abandonment of Sesotho traditional way of life is not entitled to make the will – SECTION 3 (B) PROCLAMATION 19 OF 1935.  It is in the common cause that Gerard – being the eldest male child of EPHRAIMand ’MAJULIA MWANDA, is their heir.  These applicants are in fact claiming items and/or portions of that estate.  This application must fail.  It is dismissed with costs.

 

K.J. GUNI

JUDGE

 

 

 

For Applicant: V.V. Kotelo & Co.

For 1^st & 2^nd Respondents – Mr Teele (KC)