IN
THE HIGH COURT OF LESOTHO CIV/APN/53/99

In the matter between

MAKATLEHO SEKONYELA APPLICANT

AND

ANNA MALETSATSI SEKONYELA 1^ST RESPONDENT

CLEMENT SEKONYELA 2^ND RESPONDENT

RANKUENYANE SEKONYELA 3^RD RESPONDENT

SALEMANE PHAFANE 4^TH RESPONDENT

MASTER OF HIGH COURT 5^TH RESPONDENT

ATTORNEY GENERAL 6^TH RESPONDENT

JUDGMENT

Delivered by the Honourable Mr Justice S. N. Peete on
the 7^th day of February 2000

On the 5^th February 1999, the present
application was moved exparte and was granted upon the following
terms:-

1. The rules are hereby dispensed with on periods and
modes of service.

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2. A rule nisi is hereby issued calling upon the
Respondents to show cause on the 22^nd February, 1999 at
9:30 a.m why the following order shall not be made absolute.

1. 
   The 4^th Respondent is hereby interdicted and
   restrained from
   executing and administrating the Estate of the
   late Paul
   Sekonyela in terms of the Will, pending finalisation
   hereof and
   an action to be instituted within 30 days of this
   interim order.

   
   

2. 
   The 1st 2^nd and 3^rd Respondents
   are hereby interdicted and
   restrained from disposing off and or
   dissipating or destroying
   property either movable or immovable
   wherever situated
   belonging to the Estate of the late Paul
   Sekonyela pending
   finalisation of this application and an action
   to be instituted by
   the applicant within 30 days of this interim
   order.

   
   

3. 
   Ordering that all assets of the late Paul Sekonyela
   wherever
   situated should remain in the possession of the
   applicant
   pending the final determination of an action to be
   instituted
   within 30 days of granting of this order.

   
   

4. 
   The 3^rd Respondent is hereby ordered to
   return forthwith
   property being a double bed, three sitter sofa,
   gas stove, gas
   heater and cylinder to the applicant, belonging to
   the Estate of
   the late Paul Sekonyela.

   
   

3 2. Prayer 1 & 2(a) (b) (c) & (d) to operate
with immediate effect as interim relief."

The rule was made returnable on the 22^nd
February 1999. In her founding affidavit to the notice of motion, the
applicant avers that she is the lawful wife and widow the late
Paul
Sekonyela who died on the 1st December 1998; and that the deceased
and the applicant had contracted a customary law marriage
in 1985 and
some twenty-two herd of cattle were paid as bohali; and that four
children Katleho (15), Sekonyela (12), Nthabeleng (7)
and Nteboheng
(5) were bom of the said married.

The 1st Respondent is the mother of the late Paul
Sekonyela, the second and third Respondents are the brothers of the
deceased. All
three respondents are beneficiaries of a will allegedly
made by the deceased on the 17^th March 1991. This will was
not registered.

On the 8th February 1990 the deceased and the applicant
"purported" to enter into an anti-nuptial contract
excluding the
marital power and community of property and entitling
any consort to be at liberty to dispose his or her property and
effects by
will as he or she may think fit; in the anti-nuptial
contract the deceased made certain furniture bequests to the
applicant. It is
again not in dispute that the deceased and applicant
purported to enter into a civil law marriage on the 10th February
1990. The
applicant avers that they entered into this civil law
marriage merely to regularise their position in the Roman Catholic
Church,
which had suspended or excommunicated them after their
initial elopement in 1983. She states that a few days before the
civil marriage
she was also made to sign a contract the contents of
which she did not know. She states that since theirs was a customary
law marriage,
they could not have entered into a valid anti-nuptial
contract and a civil rites marriage in 1990. In fact they were then
already
living as husband and wife since 1983. She also avers that
her late husband under law could not make a valid will as he has
purported
to have done because neither was he married by civil rites
nor had he abandoned the

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customary way of life. The applicant then lists
instances whereat her late husband slaughtered beasts for traditional
feasts and other
occasions which showed that he had not abandoned the
customary way of life.

She states that the estate of the deceased is quite
large and consists of houses, eleven buses, 14 coasters, 6 trucks,
four cars,
two caravans, six developed sites, cattle, sheep and
goats.

She states that during his lifetime the deceased had
caused some of his buses to be registered in the names of the first,
second and
third respondents merely to hoodwink the traffic
authorities into believing that the buses had several owners when in
fact the deceased
was the sole owner. She states that in December
1998 the third respondent took away from her home some household
furniture items
like a double bed, a three sitter sofa, gas stove,
gas heater plus cylinder.

In her answering affidavit, the first respondent admits
the existence of the customary law marriage and that a civil rites
marriage
was also solemnized in 1990 but counters by stating that
"Applicant all along sat back and never sought to invalidate the
civil
marriage and the anti-nuptial contract." She also contends
that the deceased had abandoned the customary mode of life in that
he
"threw parties and practised a religious life, operated a
European style of business and lived a European mode of life."
It is therefore a question of fact in dispute as to whether the
deceased had abandoned the customary way of life.

In her replying affidavit, the applicant contends that
since her husband had not abandoned his customary way of life and had
married
by way of custom in 1985, he could not make a valid will; all
he could do was to make written instructions in accordance with
customary
law (Laws of Lerotholi - 14 (1)) she also contends that the
civil marriage purportedly solemnised was of no legal force or effect
along with its anti-nuptial contract.

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On the day of hearing Ms. Tau informed the court that
there is a pending civil case CIV/T/68/99 in which the present
applicant (plaintiff)
claims:-

"1. Declaring the plaintiff and the late Paul
Sekonyela to be married under customary law.

2. 
   Cancellation of the anti-nuptial contract between
   plaintiff and the late Paul
   Sekonyela.

   
   

3. 
   Declaring the civil rites marriage between the
   plaintiff and the late Paul
   Sekonyela as null and void ab initio

   
   

4. 
   Declaring the document purporting to be Last Will and
   Testament of Paul
   Sekonyela bequeathing all property to 1st
   Defendant as null and void and of
   no legal force and effect.

   
   

5. 
   Declaring Katleho as the rightful heir of the late Paul
   Sekonyela.

   
   

6. 
   Ordering cancellation of registration certificates of
   vehicles mentioned in
   paragraph 16 of the Declaration.

   
   

7. 
   Declaring allocation of the site at Ha Thamae
   Mejametalane to 1^st Defendant
   invalid.

   
   

8. 
   Costs of suit.

   
   

9. 
   Further and/or alternative relief,"

   
   

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It should be pointed out that there are some disturbing
features in these proceedings; the deceased met a violent death on
the 1st
December 1998; the summons were filed with the office of the
Registrar on the 22nd February 1999 and a notice of appearance to
defend
was made on the 26th February 1999. Since then a complete
lull; there has been no plea entered in terms of Rule 22; nor has the
plaintiff
taken any steps to require defendants to deliver such (Rule
26). Counsel on both sides seem to have strangely abandoned the
action
for over a year. This is rather unfortunate upon their clients
who are now being made to embark on fresh application proceedings,
for which they pay fees!

In her submissions, Ms Tau contends that the will
violates the spirit of Basotho custom because it tends to deprive the
heir of his
rightful share, and that the intended execution and
administration of the estate of the deceased in terms of the last
will made by
the deceases will prejudice the rights of the applicant
and those of the heir under custom. Ms Tau submits that upon the
papers her
client has established a prima facie right. Without
endeavouring to indicate precisely what is meant by a prima facie
right or how
it is proved, the courts have readily accepted that
where the right asserted by the applicant is prima facie established
although
open to some doubts, the applicant has fulfilled the first
requirement (See Preat-Law and Practice of Interdicts,(1996)p.52;
Setlogelo
vs Setlogelo -1914 AD 221; Ndauti vs Kgami 1948 (3) SA 27
at 36; LF Boshoff Investment vs Cape Town Municipality. 1969 (2) SA
256
at 257 A-F. The question should be whether has the applicant has
established a prima facie right sufficient to sustain a cause of
action. This it is the so called "threshold test" which
simply means a prima facie right albeit admitting of some doubt.
Ms
Tau submits that since the marriage entered into by the parties in
1985 was a customary one, the deceased could not later purport
"to
turn" that customary marriage into a civil one, nor enter into
an anti-nuptial contract, or make a will. She submits
that the estate
of the deceased could not be administered in accordance with the
provisions Administration of Estates Proclamation
of 1935 because the
deceased had not abandoned customary way

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of life and adopted a European mode of life and had not
married under civil law -Abrahams vs Abrahams-1991 -96LLR(Vol.l)P.l.
Section
3 (b)of the Administration of Estates Proclamation reads:-

"3. This Proclamation shall not apply

(a)

(b) to the estates of Africans which shall continue ot
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 been shown to the
satisfaction of the
Master to have abandoned tribal custom and
adopted a European mode
of life, and who, if married, have married
under European law."

She also submits that if the customary marriage entered
into in 1985 by the deceased and applicant is regarded as valid, then
the
purported civil ceremony in 1990 has no legal force and effect.
Section 42 of the Marriage Act No 10 of 1974 states:-

"This Act shall apply to all marriages solemnised
in Lesotho save and except marriages contracted in accordance with
Sesotho
law and custom and nothing herein contained shall be taken as
in any manner affecting or casting doubts upon the validity of any
such last mentioned marriages contracted before or after coming into
operation of this Act."

8 Section 29(1) reads:-

"No person may marry who has previously been
married to any other person still living unless such previous
marriage has been
dissolved or annulled by the sentence of a
competent court of law."

The comments of Lehohla J in Ohobela vs Ohobela are
quite opposite in the regard. Ms Tau also submits that unless the
interim relief
is granted the applicant has a well-grounded
apprehension that she will suffer irreparable harm if the estate is
administered in
accordance with the will; she says this would consume
the buses, cattle, sheep and goats and other important items of
property; she
lastly contends that the balance of convenience also
favours the applicant who has reasonable prospects for success in the
main action.
It is however unfortunate that their action has been
left in limbo for over a year. The court is owed a full explanation
for this
sad state of affairs; for I am of the opinion that pleadings
in the action could have long been closed and matter set down for
hearing.
Of what use is issuance of summons if the file falls into a
state of neglect or oblivion?

Mr Mahao (who is also a constitutional analyst of
repute) for the Respondent submits in the main that section 3 (b) of
the Proclamation
has been made by the High Commissioner to "make
provision for the administration of the estates of the deceased
persons, minors
and lunatics and of derelict estates and to regulate
the rights of beneficiaries under the mutual wills made by persons
married in
community of property." He contends in his two
pronged argument that this section in the Proclamation is
inconsistent with the
section 4 and section 5 of the Law of
Inheritance Act No.26 of 1873.1 should point perhaps out in passing
that Mr Mahao seemed to
be contending that the Administration of
Estates Proclamation is a law subordinate to the Law of Inheritance
Act and that it was
a Proclamation made by the High Commissioner
under the authority of the abovementioned Act. This is not so because
since

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1884, Basotholand was protectorate being governed by
Great Britain through its High Commissioner and the Proclamations
they decreed
were statutory enactments on their own right.
Legislative omniscience implies that when passing the Proclamation
the High Commissioner
had knowledge of the existence of a prior law
like the 1873 Law of Inheritance and purposely excluded Africans from
its operation.

These
sections read:

"4. No legitimate portion shall be claimable of
right by anyone out of the estate of any person who shall die after
the taking
effect of this Part.

5. Every person competent to make a will shall have full
power by any will executed after the taking effect of this Part to
disinherit
or omit to mention any child, parent, relative or
descendant without assigning any reason for such disinheritance or
omission, any
law usage or custom now or heretofore in force in
Basutoland notwithstanding: and no such will as aforesaid shall be
liable to be
set aside as invalid, either wholly or in part, by
reason of such disinheritance or omission as aforesaid."

Mr Mahao submits that sections 4 and 5 of the
Inheritance Law guarantee what has been referred to as "freedom
of testation".
That may indeed be so but these sections must
however be read purposively whilst noting that there is no saving
clause in the Law
of Inheritance Act which excludes Africans from its
operation; according to Mr Mahao, the Law of Inheritance is therefore
of general
application; he contends that section 3 (b) of the
Proclamation infringes and limits this freedom guaranteed the Law of
Inheritance.
He also argues strenuously that section 3 (b) of the
Proclamation violates sections 11,13,14 and 18 of the Lesotho
Constitution in
that it generally restricts the Basotho to make wills
solely on the ground that they are Africans and because they have not
adapted
European mode of life; he quotes in support of this
submission the case of Hlaul: vs Hlauli (CIV/Adoption/1/98) where the
learned
Chief Justice Kheola said:-

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"There is no doubt in my mind that the word
"African" used in section 14 of Adoption Proclamation is a
racial description.
It is based on colour - the black people of
Africa. It is therefore clear that section 14 of the Proclamation is
discriminatory of
itself and in its effect."

The learned Chief Justice also discussed the effect of
the subsection 4 (b) of section 18 of the Lesotho Constitution and in
coming
to the conclusion that there is no provision in the
Constitution which prohibits Basotho people from exercising their
rights of adoption
under the Adoption of Children Proclamation he was
of the opinion that the words "it shall not apply to Africans"
were
obnoxious, discriminatory and absurd. He went on to state:-

"I have interpreted section 18(4)(b) of the
Constitution of Lesotho and have come to the conclusion that it does
not allow the
legislature to pass discriminatory laws. It merely
safeguards the application of certain personal laws of the Basotho.
It does not
use the word "Africans." I have come to the
conclusion that section 14 of the Adoption of Children Proclamation
No. 62
of 1952 is unconstitutional and I declare it as void."

Perhaps, the same line of reasoning can be adopted in
attacking the constitutionality of section 3(b) of the Administration
of Estates
Proclamation. It is however no imperative upon me as of
now to make a final decision on this very important constitutional
point,
because the present proceedings are only interlocutory and
this constitutional point is certainly going to be argued in full in
the
main action. All I can only say at this stage that there is a
very strong prima facie and valid point of law. Mr Mahao submits that
it is totally irrelevant whether the deceased married civilly or
customarily; the deceased had the full capacity and right to make
the
will as he did. In reply Ms Tau notes that the deceased

11

seems to have made his last will whilst labouring under
the impression that section 3 (b) was a valid provision for he
declares:-

"(a) I have abandoned tribal custom and have
adopted a European mode of life.

(b) I have married under European law."

This may be a valid point but one which falls away if
these obnoxious passages are excised from the will (Ex parte van der
Spuy NO
1966 (3) SA 169). The will is not rendered invalid by the
insertion of the statutory wording of an obnoxious piece of
legislation,
the portions can be excised from the will without
affecting the true intention of the testator.

In coming to the facts of the application I should state
that this court has a discretion whether or not to grant the
application
for an interim relief pendente lite and in doing so it
should consider all the circumstances of the case and in particular
the probabilities
of success of the applicant in the main action; it
also considers the nature of the injury which each party will suffer
if the application
is granted on one hand or refused on the other.
Whereas the respondents have very good prospects in the main action,
I am however
of the view that the status quo must be maintained
pending the finalization of the main action. The applicant is
unlikely to dissipate
and squander recklessly property which she may
ultimate acquire in the event of her being successful in the main
action. I am not
satisfied that the respondents are likely to suffer
prejudice if application is granted because in granting the
application, this
court has power to impose certain terms and
conditions and indeed to regulate further proceedings (Chopra vs
Avion Cinema SA (Pty)
Ltd 1974 (1) SA 469; Ndauti vs Kgami &
Others - 1948 (3) SA 27; Shoprite Checkers Ltd vs Blue Route Property
Managers (pty) Ltd
& others - 1994 (2) SA 172 (c) at 184 H -
185D.

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The success or failure of the applicant as plaintiff in
the main action seems to revolve upon a very important constitutional
question
which I have, advisedly, elected not to make any final
decision on to avoid pre-empting the decision in the main action. I
do not
wish to complicate this important case with problems of res
iudicata.

In exercise of my discretion therefore I grant the
application and impose the following terms and conditions in order to
protect the
rights of the respondents in the event they are
successful in the main action.

1. 
   The Registrar of this court will cause to be made a
   full inventory of all
   properties in the estate of the deceased
   affected by the proceedings.

   
   

2. 
   The applicant is directed not to alienate, destroy or
   dissipate in any
   manner whatsoever the said inventoried
   properties till the finalisation
   of the main action.

   
   

3. 
   The applicant's and respondents' attorneys directed to
   cause the filing
   of pleadings in the main action to be Gnalised
   before the end of March,
   whereupon the Registrar is directed to
   set the case for hearing as a
   matter of priority.

   
   

The issue of costs is deferred until the end of the mam
action.

S. N. PEETE
JUDGE

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For Applicant : Ms Tau
For Respondents :
Mr Mahao