IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/129/1994
In the matter between:
STEPHEN LEREKO MAPESHOANE PLAINTIFF
JULIA MAPESHOANE 1ST DEFENDANT
LEBUSA MAPESHOANE 2ND DEFENDANT
THABANG LEPHEANE 3RD DEFENDANT
MASTER OF THE HIGH COURT 4TH DEFENDANT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 25th August, 2011
There is an old case in which summons was issued on 22/02/1994 by STEPHEN LEREKO MAPESHOANE against Julia Mapeshoane, Lebusa Mapeshoane, Thabang Lepheane and Master of the High Court for an order as follows:
(a) Declaring the will of the Testator dated 11 October, 1991 to be null and void;
(b) Declaring Plaintiff the customary heir and therefore entitled to a greater part of deceased’s estate;
(c) Ejecting Second Defendant from the business site at Teyateyaneng;
(d) Interdicting Third Defendant from collecting rent at the business at Teyateyaneng;
(e) Costs of suit;
(f) Further and/or alternative relief.
Pleading complete action commenced and it would seem there were several judgments entered followed by rescission for it does seem, when this court took charge in 2000 trial had not commenced in earnest.
After Plaintiff gave evidence and before he was cross-examined he took ill making himself unable to communicate and he was referred to a doctor and no sooner died necessitating substitution by his son Mathealira David Mapeshoane. Pw1 Lepolesa Samuel Mapheshoane sworn testified he was a pensioner having done Form C at school and worked in the Ministry of Communications and had grown up at Malimong Ha Mapeshoane and knew 2nd Defendant who is his elder brother being child of his paternal uncle their fathers being blood brothers with different mothers but from one father.
He attended school at Malimong Primary and Secondary School at Sacred Heart; 2nd Defendant was older than him as he was born in 1938. He knows 2nd Defendant to have attended school in Bloemfontein. Both him and 2nd Defendant herded stock on weekends. To his knowledge 2nd Defendant married at Mofeli’s and he heard he was going to pay lobola and his mother instructed him to attend 2nd Defendant’s wedding and he left Mapeshoane’s to Lenkoane’s for 2nd Defendant’s wedding two weeks in advance and present at the wedding were: Lenkoane and Koabeng wherein 2nd Defendant was a groom and Lenkoane released the bride to them. He does not remember the year and as yet he was not employed by government. He knew Celestina who was his grandmother and Lenkoane’s wife and Lebusa’s mother ‘Mamoipone who attends family functions and funerals at home of the Mapeshoane’s including 2nd Defendant who pours soil after his brother Lereko, deceased Plaintiff. ‘Mamakopoi is sitting next to Lebusa. 2nd Defendant and ‘Mamakopoi have children and he knows 2nd Defendant’s children namely Makopoi Mapeshoane and Tsiame Mapeshoane. He did not quite know Form C and Title Deed alleged in that he did not deal with them.
Except narrating family relationships, I do not see how Pw1 has advanced Plaintiff’s case at all.
Pw2 the Plaintiff sworn testified he was born in 1948 and resided at Mankoaneng Ha Lenkoane where he stayed all his life save going to school. He attended school at Gethsemane Primary School Malimong Ha Mapeshoane and from there went to Assumption High School and is son of the late Lereko Mapeshoane who was Plaintiff having substituted him as his eldest son. 2nd Defendant was his uncle coming after his brother Lereko. Growing up his uncle 2nd Defendant was at Lenkoane’s attending school at Pulane Ha Mosiuoa distant from Lenkoane’s and on holiday he repaired to Lenkoane’s otherwise residing at Pulane Ha Mosiuoa with his uncle Lereko a teacher at Pulane Ha Mosiuoa. After primary education he went to a school in Bloemfontein and then worked in Bloemfontein on railways and got married at Lenkoane’s, Lereko and Lenkoane Mapeshoane were responsible for lobola and it was decided whether after paying lobola there should be wedding and cattle were taken to bride’s home by Lenkoane accompanied by Lereko. There has been in his evidence repetition of narration of family relationships and incidence of wedding and burials which, in my view, I fail to understand how they help Plaintiff’s case. The witness has testified Lenkoane’s heir is Lereko Mapeshoane. As for the site at Ramonaheng’s he did not know it there was a Title Deed. He has testified the family did not agree to Celestina’s plan and currently the property is occupied by Lebusa being property belonging to Celestina Mapeshoane. He says he has stepped into Plaintiff’s shoes Lereko and 2nd Defendant cannot inherit the property for a decision was made in 1979 after Lenkoane’s death to the effect that Lereko was heir the family having instituted Lereko as heir. His father came to court to declare will in favour of 2nd Defendant to be null and void and so he does by virtue of having stepped into the shoes of his father. Copies of the will handed in by consent. He says it is the will he is talking about and the Title Deed. His father was buried on 01/01/2011 a Saturday and on the Sunday after he was buried, the family met electing him as heir to the estate of Lereko Mapeshoane and present were ‘Mamapeshoane Mapeshoane his mother, Posholi Mapeshoane, Samuel Lefukae Mapeshoane and he was also present 2nd Defendant being absent and Lereko’s estate was described the family saying he was also to inherit the site at Teyateyaneng and in dispute belonging to the late Celestina Mapeshoane and he aligns himself with prayer appearing in his declaration.
As for 2nd Defendant plea that the site did not belong to Celestina, the site belonged to Celestina and it belonged to Lereko customarily in that site belonged to Pelesa Mokhachane bequeathed to Celestina Mokhachane.
I am of the view imperfect in some respects as Pw2 Mathealira’s evidence is, standing alone as it is, this is not a case where it cannot be asserted there is no evidence at all or there being some evidence it is not sufficient to sustain Plaintiff’s case and I am inclined to agree with Mrs Kotelo that Plaintiff should not lightly be deprived of his remedy without first hearing what the Defendant has to say in that a Defendant who might be afraid to go into the box should not be permitted to shelter behind the procedure of Absolution from the Instance (see Supreme Service Station v Fox and Goodridge (PVT) Ltd 1971 (4) SA 90 at 93.
I am of the view there is a case to go to trial and accordingly the application is dismissed with costs to be costs in the trial.
For the Plaintiff : Mr. Nathane
For the Defendants : Mrs Kotelo
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