CIV/APN/207/02

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

SEABATA
LEPETLA Applicant

Versus

NAPO
MAKIIETHA 1st Respondent

M.K.M.
FUNERAL SERVICES 2nd Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice G. N. Mofolo On the 19th day of March, 2004

This is
an application in which after the court disposed of burial rights
some ancillary prayers were deferred. After disposing
of the burial
rights when the matter was to proceed certain problems arose among
which was Mr. Monyako who appeared for the respondent
saying as he
had disposed of the matter there was no need for him to appear in
court and this being the case was not prepared to
withdraw from the
case. Mr. Phoofolo had, however, submitted that he was now in effect
attorney of record.

Mr.
Phoofolo has submitted in perusing the file he found the application
had been opposed on the ground that 1st respondent is heir
to the
estate of the late Nts'ehiseng and that from the body of the
affidavit this was the only claim by the 1st respondent without
in
any way motivating his case and as the Answering Affidavit was bare
it was necessary to file additional affidavit(s) to motivate
1st
respondent's claim of being heir to the estate of the late
Nts'ehiseng. Mr. 1stioofolo has further submitted the remissness
of
attorney for the 1st respondent could not be visited on the 1st
respondent. The court had granted the application for filing
of
further affldavit(s) and affidavits in due course had been filed.

Facts of
this case are that the deceased Nts'ehiseng Suzan Makhetha lived with
her late husband at matrimonial home at Nts irele,
Khubetsoana;
Maseru City and when Nts'ehiseng' s husband died Nts'ehising
continued to live at the matrimonial home. Nts 'ehiseng
and her late
husband had been married by Civil Rites at the Roman Catholic Church,
the Cathedral of Our Lady of Victories, Maseru
on 29 April, 1977 and
there were no children of the marriage. It would seem Nts'ehiseng's
husband died on 26 January, 2002 when
Nts'ehiseng died on 9 April,
2002. Shortly before her death and on 12 March, 2002 it is alleged
Nts'ehiseng decided that on her
death her father Mr. Seabata Lepetla
of Nts'irele Khubetsoana under Chief Hlathe Majara bury her. Not only
this, it is also alleged
she directed that on her death all property
belonging to her be in the hands and responsibility of her father.
Further, that her
father bury her remains. She is also alleged to
have directed that her letter be regarded as conclusive evidence
before her chief
and everything was to be done in compliance with the
letter. The directions

were
stamped before the chief of Khubetsoana where both Nts'ehiseng and
her hue husband lived.

As shown
above, shortly after the directions above, Nts'ehiseng died on 9
April, 2002. And shortly after Nts'ehising's death on
9 April, 2002,
the family passed a resolution appointing one Napo Makhetha called an
heir of Makhetha's to be released to him Thabo
Monaheng Makhetha's
life policy and that of Nts'chising Suzan Makhetha. The family
decision is dated 15 April, 2002. Of course
the reason for Napo's
appointment arises from the fact (hat by reason of there being no
male heir to the entire Makhetha dynasty,
it was the reason for
appointing Napo Makhetha as universal heir of the clan. And yet
another family resolution dated 30 April,
2002 was made by the family
designating Napo Makhetha as heir to the estate of the late Thabo
Monaheng Makhetha and Nts'ehiseng
Suzan Makhetha comprising a house,
property and all monies. The family resolutions bear the official
stamp of the chief of Mapeleng

There can
be no doubt that in terms of the appointment the 1st respondent
succeeds to the property movable and immovable of Thabo
Makhetha and
his wife.

On the
contrary, it is the applicant's case that the late Nts'ehiseng
Makhetha, his daughter, appointed him as heir and successor
to his
estate. In support of his contention the applicant has relied on
annexure "A" dated 12 March, 2002 whose translated
version
reads:

I make a
decision that upon my death, my father, Mr. Seabata Lepetla of Nts
irele, Khubetsoana of chief Hlathe Majara bury me.

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I am
making a further decision that upon my death all property belonging
to me be in his hands and responsibility. I am giving him
all power
to bury my remains.

This
letter should be regarded as full evidence before my chief in this
form and everything should be done in accordance with the
same.

No
evidence was led in this matter but it would seem after her husband's
death the late Nts'ehiseng lived with and was assisted
by her father
the applicant. In his Founding Affidavit the applicant confirmed this
re:

Paragraph
7 where he says:

7.1 At
all material times prior herein, I have always been staying with the
deceased at her matrimonial home at Salang, Khubetsoana
by reason of
the fact that there was nobody to take care of the deceased during
her lifetime as her husband had passed away. In
fact I have stayed
with both deceased and her husband prior to him passing away on the
26 January, 2002.

Paragraph
8

'—I
wish to state with respect that I had taken full responsibility for
the care and well-being of both the deceased persons
who were my
children and none of Makhetha family members, in particular the 1st
respondent ever stretched a good Samaritan's hand
in providing any

assistance
whatsoever to my daughter's ill-health The 1st respondent has not
contributed in any manner whatsoever to the long sickness
of both my
son-in-law and daughter.

I have
perused the record in these proceedings including amplified and
additional affidavits and nowhere have I found that the Makhetha

family denied applicant's allegation that he was the only one who
looked after the health and welfare of applicant's son-in-law
and
daughter. As for the 1st respondent's amplified or additional
affidavit at paragraph 9 in answer to paragraph 7 above, 1st

respondent admits that applicant stayed with the deceased as alleged.
He maintains the Makhetha family did not forsake

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deceased
though by reason of the deceased being hostile to the family' it was
difficult lor the family to maintain complete care
and contact with
her.' What the lst respondent has established is that deceased was
hostile to Makhetha' s family for the reason
that the applicant
influenced the deceased against the family. The totality of 1st
respondent's case is that the deceased Nts'ehiseng
was hostile to the
Makhetha family and not least to the 1st respondent who, by his own
admission in his Additional Answering Affidavit
says 'I used also to
offer my van to take her to the doctor, but she used to decline my
offer.'

It has
been argued on behalf of the 1st respondent that the testament in
favour of the applicant is a forgery the reason advanced
being that
at the time Nts'chiseng was totally blind. If it is meant that an
otherwise literate person turning blind cannot write,
with this I
disagree save for the fact that he or she cannot see what he or she
writes nor can he or she tell if his or her signature
is awry. 1 do
miss my signature and have to correct if from time to time. In my
view if it was complained that the signature is
not Nts'ehiseng's, it
was up to the 1st respondent to prove this since the onus is on him
who asserts. It having not been proved
that the signature is not
Ntsdiiseug's, I reject the allegation that the signature is a
forgery. I am to be understood, it could
well be that the testament
is a forgery though, to be deemed as such, there should have been
evidence to the effect since this
court is not an expert on
handwriting. Importantly, Nts'ehiseng wrote the testament on 12
March, 2002 and according to papers before
me she died on 9 April,
2002 less than a month after writing the testament. The testament
bears chief of Khubetsoana's official
stamp and was witnessed by one
Thabang Neliai. Since Nts'ehiseng died shortly after the testament, I
am of

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the view
that this was her last wish. I do not see how it could have been
otherwise for by 1st respondent's own admission, Nts'ehiseng
was
hostile to Makhetha's family and the 1st respondent.

1st
respondent's case is that though illegitimate and coming from
Nts'ehiseng's husband's sister who was never married, he was
nevertheless appointed by the family to succeed to Nts'ehising's
estate.

As to the
appointment, 1st respondent in his original papers, namely Answering
Affidavit says at para. 2

Applicant
is related to deceased who was my step-mother and brought me up.

In this
context, I understand reference to deceased as meaning Nts'ehiseng.
There is no need for authority as to who is a step-mother
for a
step-mother is a woman married after the first wife has died and 1st
respondent is saying that after her mother who was married
to
Monaheng died. Nts'ehiseng was married. In his additional affidavit
1st respondent does his best to evade this issue though,
in paragraph
10 of his Answering Affidavit he more or less comes out of his shell
alleging 'I also took care of my sister-in-law
if I may call her
that'.

According
to papers before me, 1st respondent is neither step-child to
Nts'ehiseng nor is Nts'ehiseng 1st respondents sister-in-law
for 1st
respondent was born of a sister to Monaheng, Nts'ehiseng's husband,
the reason it is common cause that 1st respondent is
illegimale.

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I lake
exception to the fact that 1st respondent has not only contradicted
himself but that he has lied, lied by saying that Nts'ehiseng
was his
stepmother. He lied to give the impression that he was closely
related to Nts'ehiseng when, in fact, he was not so closed
related
for, at paragraph 11 of his Additional Answering Affidavit the 1st
respondent also comes out of his shell by admitting:

My
biological mother is Monaheng's younger sister and she was never
married 1st respondent has confirmed his status by saying he
has
annexed family resolution marked 'NM1' and a fair translation of the
same. He has also said he has annexed resolution marked
'NM3"
and the translation marked 'NM4 " But unfortunately these were
not annexed having been annexed in the Replying
Affidavit marked
annexures "A", "B", and "C" though
there are no annexures "A", "B"
and "C"
in my file save annexures 'Nm' and 'NM' dated respectively 15 April,
2004 and 30 April, 2002 encompassing the
entire estate.

In an
application, all material facts are to be disclosed in the original
papers; this goes for the Founding and Answering Affidavit;
if they
are not so disclosed and come later in replying affidavits, these are
taken as an afterthought and are excluded. In fact,
not appearing in
the original papers, there is always the suspicion that they are
resorted on in order to close gaps.

Since
Nts'ehiseng and Monaheng were married by civil rites and appear to
have led European way of life and there being no evidence
to the

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contrary,
I have resolved to decide this matter basing myself of principles of
the received civil law.

Boberg at
p. 342 (The Law of Persons and Family) quoting from several sources
is of the view that on intestacy an illegitimate child
succeeds to
his mother and her relations in the same way as a legitimate child
does. Now, the 1st respondent is Monaheng's sister's
child born of an
unmarried sister and it would appear on this basis the 1st respondent
is liable to succeed to Nts'ehiseng's and
Monaheng's estate and
despite lst respondent's misrepresentations, as lst respondent
belongs to the Makhetha family, it would only
be fair and just that
1st respondent succeed. On 1st respondent's way, however, stands the
applicant who claims Nts'ehiseng testament
was to the effect that he
take control of the estate. After the demise of Monaheng,
Nts'ehiseng's husband, undoubtedly the family
property devolved on
Nts'ehiseng who was, on death, entitled to dispose of it as she
wished. I am of the view that at custom she
could not do this for at
custom death does not terminate marriage while at civil law death
terminates marriage.

Since I
am of the view that the 1st respondent failed to prove that
Ntsehiseng's testament is a forgery, it follows that this
applications
ought to succeed.

Accordingly,
the interim court order is confirmed and the application is granted
as prayed with costs.

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G.N.
MOFOLO

JUDGE

For the
Applicant: Mr. Nathane

For the
1st respondent: Mr. Phoofolo

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