CIV/APN/213/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of .

JOSAE
SECHOCHA MOTJOTJI Applicant

MATHOLANG
AXNIA MOTJOTJI 1st Respondent

BOARD OF
LIQUIDATORS OF

THE
TEACHER'S PROVIDENT FUND- 2nd Respondent

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr.Justice T S. Cotran on the '30th day of
May 1984

It' is
common cause that the applicant Josae Sechocha Motjotji is the
customary law heir to the estate of his father Nathaniel Sechocha

Motjotj'i who died in January 1983. Josae is the eldest son of his
father's first wife. The deceased Nathaniel married the 1st

respondent, his second wife, by civil rights on the 11th January
1955. We do not know if the first wife was dead or not at the
time
but she is now dead. The estate.of the deceased Nathaniel stands to
benefit some M2.000 being his entitlement from the Teacher's

Provident Fund

This is
an application by the heir Josae in which he seeks

(1) an order restraining his father's second wife (1st respondent)
from "holding out" that she was the heir and (2) an
order
directing the Board of liquidators of the Teacher's Provident Fund
(2^nd

2

respondent)
to pay the deceased's entitlement to him for the benefit of the
deceased's family including the 1st respondent if she
is entitled to
anything.

The
deceased's second wife opposes the application on the ground that she
is heir "under the common law as the marriage was
civil"

The fact
that the deceased's second marriage was by civil rights does not per
se make the wife of the second marriage heir The deceased's
estate
falls to be administered under the customary law unless it is alleged
and proved by action that the deceased had abandoned
Sesotho custom
and adopted a European way of life - s.3(b) of Administration of
Estates Proclamation No.19 of 1935. There are no
such averments in
the opposing affidavits.

It
follows that the application must be granted as prayed with costs
awarded against 1st respondent The 2nd respondent did not oppose
the
application. This application succeeds but without prejudice to the
1st respondent to sue the heir, if so advised, for a share
of her
husband's estate, or for maintenance, or for refund of expenses she
claims to have spent on the funeral

CHIEF
JUSTICE

30th May
1984

For
Applicant Mr. Pitso

For
Respondent Mr. Kambule