SUMMARY
The appeal against a judgment of the Commercial Division of the High Court is upheld. The High Court did not furnish reasons for its decision to dismiss an application by the executor of an estate to restrain the widow of the deceased from interfering with the administration of the estate. The relief should have been granted. The absence of reasons, even after a written request, is lamentable; hampers the administration of justice; and damages the legitimacy of courts
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CIV) 38/2018 CCA 0037/18
In the matter between:
THE EXECUTOR ESTATE LATE KHOMO
SOLOMON MOLAPO APPELLANT
And
‘MAMOHATO MOLAPO 1ST RESPONDENT
MASTER OF THE HIGH COURT 2ND RESPONDENT
ATTORNEY GENERAL 3RD RESPONDENT
CORAM: MUSONDA AJA
VAN DER WESTHUIZEN AJA
MTSHIYA AJA
JUDGMENT
Introduction
[1] This is an appeal against the decision of the Commercial Division of the High Court (the High Court), dismissing an application by the appellant on 20 June 2018. No reasons for the decision have been furnished thus far, even though the appellant’s counsel requested reasons in a letter of 6 February 2019.
[2] The appellant is the executor of the estate of the late Mr Khomo Solomon Molapo. The first respondent is the widow of Mr Molapo.
[3] In his founding affidavit in support of the application in the High Court the appellant set out the reasons for the relief sought. The first respondent opposed the application and filed an answering affidavit, to which the appellant replied.
[4] Before the hearing of this appeal the appellant duly filed written argument. At the call of this Court’s roll on Tuesday 12 May 2020 counsel for the appellant agreed that the matter be decided on written submissions. The office of the Registrar of this Court has no record of opposition to this appeal having been filed by any of the respondents. The respondents were not represented at the roll call. The President of this Court indicated that, in order to provide clarity, the parties must appear on the day for which the matter was enrolled, namely Friday 15 May 2020, or communicate before then with the Registrar.
[5] At and since the roll call neither this Court, nor the office of its Registrar, has been informed of the position of the respondents. Written argument has not been filed. The appellant indicated that he wished to proceed with the appeal. For practical purposes this matter is thus unopposed. It has to be decided on the founding, answering and replying affidavits, as well as the appellant’s written argument.
[6] This absence of reasons for the High Court’s decision is not satisfactory. As in other cases, the failure of the court a quo to provide reasons for an order – even when these are formally requested - renders appeal proceedings very difficult. The main and perhaps only way for courts to earn legitimacy for their judgments, is by clearly stating the reasoning behind them. Without that, court decisions are often mysteries that litigants and the public at large may well fail to abide by.
Appellant’s case
[7] As the duly appointed executor of the estate, the appellant became aware of aspects of the conduct of the first respondent. She, inter alia, collected money from the rental of properties falling within the estate, which she did not pay over to the executor. Thus debts of the estate could not be paid.
[8] The appellant approached the High Court on the basis of urgency; and asked that a rule nisi be issued, calling upon the respondents to show cause, if any, why the first respondent shall, inter alia not be –
[9] The appellant also requested that viva voce evidence be heard and that the first respondent be ordered to pay costs.
[10] In his founding affidavit the appellant set out the reasons for the relief sought and referred to actions of the first respondent
First respondent’s case
[11] In her answering affidavit the first respondent inter alia denied that the estate had debts. She added that nobody had informed her, as the wife of the late Mr Molapo, of any debts. Yet, as pointed out in the appellant’s replying affidavit, the first respondent also stated in an annexure that she had secured and organised for “Indians” to rent a site situated at Mookoli, so that the estate could pay its debts. As a whole, the first respondent’s answer was not impressive.
Conclusion
[12] On what is before this Court and in the absence of reasons for the High Court’s decision, the appellant appears to have made out a case for the relief sought in the High Court. The appellant is the duly appointed executor of the estate. The first respondent is not a co-executor. The appellant has the sole responsibility to administer the estate. This is clear from the Administration of Estates Proclamation 19 of 1935, as well as from case law. In Executor, Estate of the late Florina Likomo Khakale v Mokoto Khakale and Others LAC (2007-2008) 193 it was stated that it had been well-established in law that an heir does not acquire dominium in the estate before the executor has discharges his duties. To hold otherwise, would create chaos and lawlessness. This was echoed in other decisions.
[13] The High Court erred in refusing the relief. The appeal has to succeed.
Order
[14] The detailed interim relief sought by the applicant in the High Court in June 2018 may no longer be relevant or appropriate. In his written submissions counsel for the appellant says that the intervention of this Court is called for and that it should “interdict the 1st respondent from interfering with the applicant’s duties”. In view of the lack of opposition to this appeal, the need for a rule nisi with an opportunity to furnish reasons why the first respondent should not be interdicted seems to have faded away. A simplified order is called for.
[15] The first respondent should pay costs in the High Court, where she opposed the application, but not in this Court. The appeal was unopposed.
[16] In view of the above. The following is ordered:
_______________________________
VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
I agree:
MUSONDA
_____________________________
MTSHIYA
For the Appellant: E M Sello Attorneys
For the Respondents: (No appearance for Respondents)
