CIV/APN/479/02
IN THE HIGH COURT OF LESOTHO
In the matter between:
NTSIE NATHANIEL MAPHATHE 1st Applicant
SAMUEL KEKELETSO MAPHATHE 2nd Applicant
AND
'MANKHATHI MAPHATHE N.O. 1st Respondent
SAMUEL MPHOLO MOJI N.O. 2ndRespondent
TLALI MAPHATHE N.O. 3rd Respondent
DANIEL JOHANNES RUDOPH SCHUTTE N.O. 4th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice G. N. Mofolo On the 22nd day of July, 2004"
HISTORICAL BACKGROUND
Dr. Maphathe is said to have born on 10 July, 1914 and it is common cause that he was born in Mafeteng, Lesotho where he lived with his first wife 'Matlali out of which marriage Tlali Maphathe (3rd respondent), Benjamin Maphathe (2nd applicant in the 2nd counter application), Ntsie Nathaniel and Samuel Kekeletso Maphathe in the main application were born.
It is recorded that in his late years Dr. Maphathe had gone to Ireland to study medicine and on his return had set up private practice also going into politics and becoming a Minister of Government. On his return his wife Matlali and himself were divorced and Dr. Maphathe had married the 1st respondent in the main application out of whom a son was bora but later died. Dr. Maphathe appears to have lived in Mafeteng, Lesotho until 1997 when, owing to ill-health he moved to"Ladybrand, Orange Free State, the Republic of South Africa.
Several bequests were made to several legatees and beneficiaries including trusts to institutions, of significance is the fact that
notwithstanding several dispositions to the 1st respondent in the main application, disposition sounding in money to 1st respondent
(para. 4.1 of the last will and Testament) reads 'the balance of all cash found in my Estate, but excluding investments on fixed deposit and in Unit Trusts in my name at any Bank or at the Old Mutual.'
Dr. Maphathe had also stipulated that his Estate be administered in terms of the Administration of Estates Proclamation No. 19 of 1935 (or any replacement legislation) for the reason that:-
2.1 I am a professional man;
2.2 1 have abandoned tribal law and custom;
2.3 I have adopted a Western mode of life; and
2.4 I have married under Western (European) law.
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Finally he had appointed the 1st, 2nd, 3 and 4th respondents in the main application as executors of his will.
Clause 9 reads:-
9.1 To my son Samuel Kekeletso Maphathe (2nd applicant in the main application)
9.1.1 My residential plot no. 23/24 also known as plot 131/132), Mafeteng Urban Area, located on the road to the Mafeteng Hospital, on condition that my said son sign all documents and do all other things reasonable necessary to transfer the lease in respect of this property into his name not later than 3 (three) months after my demise;
9.1.2 Should sufficient funds be available after all the legacies provided for in my Will have been satisfied, an amount of R200,000.00.
9.2 To my son Nathiel Ntsie Maphathe
9.2.1 My unnumbered residential/commercial plot situate at Seitlheko's village. Mafeteng district;
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9.2.2 Should sufficient funds be available after all the legacies provided for in my Will have been satisfied, an amount of R200,000.00
Also, clause 17 of the Will reads:
'For the guidance of my Executor and Trustees, I hereby declare that I have during my lifetime generously assisted my two elder sons Tlali Lebohang Maphaphe and Benjamin Radiopelo to establish their respective business ventures-----.'
Clause 22 is to the effect:-
Finally, I confirm that I desire my mortal remains to be cremated, I further confirm that I wish the ashes to be interred at the foot of the combined graves of my late parents —.'
It is also to be noted that clause 15 Annexure "A" of definitions reads:
'Should any dispute arise between the Trustees, such dispute shall be referred to arbitration—.'
According to papers before me, it would seem the estate was reported to the Master of the High Court, Bloemfontein as a result of which Letters of Executorship were issued to the 1st, 2nd, 3rd and 4th respondents by the Master, Bloemfontein on 28 June, 2000 when Dr. Maphathe had died on 22 May, 2000. It was only on, say 3 September, 2001 when the Master of High Court Lesotho signed and confirmed Letter of Executorship. It was also on 25 May, 2000 when 1st, 2nd, 3rd respondents by Power of Attorney appointed the 4th respondent in the main application as Administrator of the Estate in the Free State, South Africa.
Also, according to papers before me, a final liquidation and distribution account was submitted to the Master of the High Court, South Africa in
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February, 2001. TIali Maphathe and Ben Maphathe had lodged objections with the Master, High Court, Bloemfontein and failing had approached the Supreme Court, Bloemfontein where they also failed sometime in May, 2002.
It would seem, it is against this background that applicants have lodged their application with this court for an order:
Dispensing with the Rules on modes and periods of service on the grounds of urgency.
Ordering respondents to administer and wind up the estate in terms of the Administration of Estates Proclamation no.19 of 1935 and the Will of the deceased.
Ordering Respondents to open an estate account here in Lesotho within 14 days from the granting of this order.
Interdicting and restraining the 1st, 2nd, 3rd and 4 Respondents from removing cash belonging to the estate of the late K. T. Maphathe to South Africa and ordering Respondents to account for cash collected from the estate from the 27th November, 2000 to date.
Ordering that the costs of the Application should be paid out of the estate.
ALTERNATIVELY
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Removing Respondents from the official duties as Executors of the Estate of late K. T. Maphathe and substituting them with an executor or Executors as may be appointed by the court.
Ordering that the costs of this Application should be paid out of the estate.
Granting the Applicants such further and/or alternative relief as the court may deem fit.
There is also a certificate of urgency accompanied by grounds of urgency which read:-
"The Applicants are suffering great prejudice in that they are not realizing their bequests;
Also
'The Respondents are failing to account for the Estate and wind up the Estate, contrary to the provisions of the administration of Estates Proclamation, and this causes great prejudices to the Estate and to the Applicants' bequests.'
I have gone through respondents' Heads of Argument and their addresses to me and nowhere have I found that respondents demur about the urgency of the application save that according to respondents applicants are suffering prejudice as to their bequests. And although applicants seem to speak on behalf of other legatees and beneficiaries, I am not aware that this has been objected to necessitating joinder of other beneficiaries.
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Be this as it may, Ms. Tau on behalf of the applicants has urged that the application be granted as prayed. In support of her arguments, Ms. Tau has said that it was the testator's wish that the estate be governed in terms of the Administration of Estates Proclamation no. 19 of 1935; Dr. Maphathe had lived in Lesotho most of his life where he had property and in supporting Ms. Tau, Mr. Mphalane for the 3rd respondent has submitted it was also Dr. Maphathe's wish that his ashes be interred at the foot of his father's grave. While there is no problem as to which law governs immovables, it was important for the court to decide which law governed movables and not only this but also to decide Dr. Maphathe's domicile at the time of his death. A point was made that it was after his death that Dr. Maphathe was made to assume South African domicile. Also, a point was made that the estate should have been in the first place reported to the Master of the High Court, Lesotho and thereafter reported to the Master of the High Court, Bloemfontein but the reverse appears to have been the case; also, it was incumbent on the 1st, 3rd and 4th respondents to have reported the Estate in Lesotho since the will was deposited with them. A point was also made that in reporting the Estate to the Master, Bloemfontein a report should have at the same time been made to the Master, Lesotho and that in issuing a Power of Attorney and appointing 4th respondent as Administrator a corresponding Power of Attorney should have followed in Lesotho. In course of argument, an arbitration clause in the Will had come into focus and it was also argued the prescriptive period for the realization of the estate had expired necessitating application for condonation. Also, that the adoption of Molelekeng was a smokescreen intended to benefit the 1st respondent at the expense of other legatees. The court has also been moved to set aside the
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adoption. Mr. Mphalane for the 3rd respondent has argued there is a dispute of fact necessitating referral to viva voce evidence. On the contrary, Mr. Raubenheimer S.C. for the 1st, 2nd, and 4th respondents has argued the application is fatally defective for the inordinate delay in bringing it and besides the order to return property to Lesotho is unenforceable as beneficiaries may have parted with the fruits.
I will endeavour to answer the above submissions though not necessarily in the order in which they come. Concerning the Proclamation above, it was the testator's specific direction that the will be governed and determined in accordance with the Administration of Estates Proclamation no.19 of 1935. It would seem to me, according to the testament, when it was composed the testator was in Mafeteng, Lesotho (annexure A p. 20 of the record) although the testament was signed in Ladybrand (p.39 of the record). Not only this, Dr. Maphathe was born and bred in Mafeteng, Lesotho and spent most of his adult life there coming to Ladybrand in his winter months to seek medical attention. It was his direction in his will that his cremated remains be buried on or at the foot of his parents grave.
Unfortunately, although Dr. Maphathe's directive as to the law governing his estate was explicit, his estate was not reported in Lesotho but was instead reported in Bloemfontein, Free State the Republic of South Africa. A topical question looms as to who should have reported the estate. According to sec. 16(1) of the Administration of Estates Proclamation no.19 of 1935, every person who has a Will in his possession at the time or at any time after the death of the person executing the Will 'shall forthwith transmit or deliver the will:
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if it is in the district wherein the office of the Master is situated, to the Master;
if in any other district, to the District Officer of that district.
Since applicants are beneficiaries under the Will, I will assume that they had the Will and should have reported it to the Master; if they did not have it, certainly the 3rd respondent had it afterall I was informed he read the Will. Not only this, it would appear the executors of the estate including the 3rd respondent reported the Estate to the Master of the High Court, Bloemfontein as a result of which Letter of Executorship were issued to the executors including the 3rd respondent. Therefore, if for some reason or the very reason that it was 3rd respondent who had the Will and had to report it, I see no reason why applicants did not persuade 3rd respondent to deliver the Will to the Master of the High Court, Lesotho. From papers before me, it would appear there was good understanding between applicants and 3rd respondent and they approved of his actions. I am fortified in this by applicants' support of the 3rd respondent and their attitude to exculpate 3 respondent even where he appears to have gone wrong. It was, amongst others, the 3rd respondent as administrator who reported the estate in South Africa and appointed the 4th respondent and yet, though 3rd respondent cooperated with the other executors in administering the estate according to the law obtaining in South Africa, and although there is plenty of evidence that 3rd respondent refused to sign Power of Attorney to have the Estate administered in Lesotho, applicants refuse to accept 3rd respondents' culpability. In my view, it was the intention of applicants to have the estate
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reported in Lesotho, since applicants were interested parties and knew that it was the intention of their late father to have his will governed by provisions of the Proclamation aforesaid, it was up to the applicant's to have so reported the estate to the Master of the High Court, Lesotho. How can I believe that at a family meeting to discuss 3rd respondents refusal to sign Power of Attorney applicants did not know the estate had not been reported in Lesotho? Why complain the estate is not being administered in terms of the testator's wish when those on whom it was incumbent to report the estate have not done so? I have already said I see no reason why, if it was the applicants' wish to have the Estate reported in Lesotho to the Master of the High Court it was not so reported. Not only did applicants not take on the responsibility of reporting the Estate to the Master in Lesotho as they should have done, I also find that they acquiesced in the report of the Estate in South Africa and its administration there. Indeed it
was no less the applicants who submitted themselves to the jurisdiction of foreign and hence South African Court to challenge the Liquidation and Distribution Account which, according to them, contained assets from property situate in Lesotho. In any event, this is a case of checking the wolve after harm has been done. The Liquidation and Distribution Account for South Africa has been
finalized and this application has come to this court after an inordinately long period has expired. Beneficiaries have consumed
their fruits and I doubt they can be made to disgorge quite apart from the fact that when the Master of the High Court Lesotho endorsed the Foreign Letters of Administration in terms of sec. 41 of the Administration of Estate Proclamation no. 19 of 1935 it was to bring the Estate in Lesotho within the ambit of the Administration of the Estate Proclamation aforesaid and all that remains is to secure Power of Attorney to have the Estate in Lesotho
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finalized. It follows that once a Power of Attorney has been signed an Estate account will follow.
As to interdicting the executors from removing cash belonging to the estate to South Africa, since applicants are beneficiaries under the Will however limited their bequests may be and in view of the fact that they stand to benefit should there be surplus funds, I am of the view that applicants in this respect have a clear right to bring this application for once the Master of the High Court, Lesotho endorsed foreign Letters of Executorship, in terms of the provisions of the Proclamation above the estate was to be administered according to its provisions. The only problem is that when the Master, Lesotho endorsed the foreign letters, the estate in South Africa was already undergoing administration and it would seem the executors including 3rd respondent were id idem as to the administration of the estate. There is the old, wise saying that whenever anything goes wrong, one is to speak up or forever hold one's peace. An interdict is granted where (1), a clear right has been established; (2) an injury committed or reasonably apprehended; (3) the absence of protection by any other remedy. It might be said that a clear right has been established for applicants are legatees in the Will. As to (2) above, I cannot comprehend what injury has been committed for if I have read
the Will well, applicants have been bequeathed plots and surplus funds (clause 9.1 - 9.2.2 of the Will). Besides, according to Mr. Schutte in his Answering Affidavit, cash paid to lstrespondent and other beneficiaries is rentals from Patsa Centre which rentals are subject-matter of a sub-lease to Investec. The rentals, it would seem, are paid into a Memorial Trust and capitalized and there is letter of authority by the Master of the High Court, Bloemfontein authorizing 4th respondent, 1st respondent and 3rd respondent as trustees of
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the Memorial Trust. The same goes for fixed deposits and unit trusts being collective investments listed on the Johannesburg Stock
Exchange to which in terms of the Will, 1st respondent in not entitled. The investments from Patsa Centre, are invested in the
Republic of South Africa out of reach of the estate in Lesotho and do not form part of residue of the estate or surplus.
Now that the Master, Lesotho has endorsed foreign letters, the estate in Lesotho stands to be wound up once a Power of Attorney is forthcoming and I fail to gauge how applicants stand to lose or be prejudiced. Regarding (3), the estate stands to be administered as shown above and there can be no question of absence of protection by any other remedy. If applicants are saying that their surplus funds will be prejudiced by remittal of funds to South Africa, applicants have not proved that such funds are being so removed except their word of mouth. Mr. Schutte has denied this and accounted for investments that have benefited the 1st respondent. His story is preferred as against that of the applicants. I am of the view though that from the time the Mater of the High Court, Lesotho singed and sealed foreign letters of executorship the estate in Lesotho was to be governed by the Administration of Estates Proclamation above and that, in the unlikely event that funds were being siphoned from Patsa Centre, such practice is to have then ceased to operate.
Seems to me though that it is imperative to grant an interdict if the applicant would be compelled to part with his right. See Candid
Electronics (Pty)Ltd v. Merchandise Buying Syndicate(Pty) Ltd, 1992 (2) SA at 465 B.D., c/f fourie v. Uys, 1957 (2) SA 125 (c) at 129A. As shown above, the applicants
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are not threatened with parting with their right nor have they parted with these rights.
I may also point out that it seems to me applicants would have me revisit their application to the High Court in Bloemfontein, a perception which Mr. Raubenheimber S.C. expressed. This is so because particularly in his Replying affidavit 1st applicant keeps on expressing his dissatisfaction with the Liquidation and Distribution Account as favouring the 1st respondent (vide paras 8.3, 9.3 and 9.4). I am of the view that this application is a thinly veiled attempt to have this court revisit proceedings brought by applicants before the High Court in Bloemfontein. I am also of the view had applicants succeeded there, they would not have come to this court; since the property complained of is within the jurisdiction of this court, they should have come to this court in the first place.
Whether in their personal capacity applicants have been prejudiced by the Liquidation and Distribution Account particularly with reference to 1st respondent whom applicants claim is favoured, this matter was subject-matter of application by applicants and one Benjamin Raliopelo Maphathe before the High Court, Bloemfontein. It is also common cause that the Master High Court rejected applicants' objection to the Liquidation and Distribution Account and applicants applied to the High Court in Bloemfontein to set aside the Master's finding. Mr. Raubenheimer S.C. has contended on behalf of 1st, 2nd and 4th respondents that the application was dismissed with costs while it is applicants' case that the application was withdrawn with costs to the estate. While it is true where an application is dismissed costs are awarded, it is also true that even where an application is
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withdrawn costs may be awarded. Whether or not an application is dismissed or withdrawn is a question of evidence. Since this is an application and applicants are litis dominus, it was up to applicants to prove that the application was withdrawn afterall applicants are in possession of documents relating to the application. Mr. Raubenheimer's contention that the application failed succeeds. Noticeably, applicants are not challenging the Liquidation and Distribution Account qua the Master, Lesotho. They are, on the contrary, asking this court to revisit judgment of the High Court, Bloemfontein, a judgment that can only be visited by way of review.
The judgment being a foreign one, this court has no jurisdiction over it notwithstanding that according to Dicey (the Conflict of Laws - 8th Ed.) quoting from Re: Trufort (1887) 36 Ch. D 600, 611, where a person at the moment of his death is domiciled abroad, the courts of his domicile have jurisdiction though not necessarily exclusive jurisdiction to decide upon the right to succeed to his movables though if foreign courts exercise their jurisdiction, English court will follow their decision. I do not see how this court can order respondents to account for cash collected from the estate since such cash in my view was adjudicated upon by the High Court in Bloemfontein. I have however said and I repeat that from the time the Master, the High Court, Lesotho endorsed the foreign letters of Administration, the estate in Lesotho was to be administered in terms of the Administration of Estates Proclamation aforesaid. If, as Mr. Mphalane has contended, at the same time as reporting the estate in South Africa, a corresponding report should have been made in Lesotho, it was those reporting the estate in South Africa, including the 3rd respondent to have made a corresponding report in Lesotho to the Master. Failure to have so
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reported amounts to, in my view homologation and acquiescence by, amongst others, the 3rd respondent.
As for the removal of Executors claimed in the alternative prayers, the prayer cannot succeed since I have found no fault with the Executors save 3 respondent whom I intend dealing with later.
In this regard Mr. Raubenheimer SC has quoted from Lawsa (First Re-Issue) Vol. 31, p.280 and Sackville West v. Nourse, 1925 AD 516 at 527 where it was said:
'Where it is sought to remove an executor from office it must appear that the acts complained of are such as to stamp the executor as a dishonest, grossly inefficient or untrustworthy person whose future conduct can be expected to expose the estate to actual loss, or of administration in a way not contemplated by the Will. Hostility between the executor and other interested parties or even negligence on the part of the executor is not sufficient ground for removal. The test is whether the continuance of the executor in office will prejudicially affect the future welfare of the estate placed in his care.' (underlined for emphasis).
I do not think and I have no reason to believe that the continuance of the executors except possibly the 3rd respondent will prejudicially
affect the future welfare of the estate. Besides, in terms of sec.l01(inserted by 28 of 1938) executors can be removed by reason
'of his absence from the Territory or other avocations, or failing health, or other sufficient cause —' unfortunately, I have found no sufficient cause except for the 3rd respondent as indicated.
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This application was complex and many issues arose for the decision by this court and since the applications were consolidated, I wish to go into these several issues namely:
What law governs movables;
At the time of death, where was Dr. Maphathe domiciled? Was he given South African domicile after his death?
Was the estate to have been first reported in Lesotho instead of South Africa as it happened?
Was it incumbent on 1st, 3rd and 4th respondents to have reported the Will to the Master, the High Court Lesotho since the Will was deposited with them?
Should at the same time as the Will was reported in South Africa a corresponding report to have been made to the Master the High Court, Lesotho and on issuing a Power of Attorney to appoint 4th respondent as Administrator of the Estate in South Africa to have made a corresponding appointment in Lesotho? Was the Power of Attorney to appoint 4th respondent as Administrator of the Estate in South Africa to have made a corresponding appointment in Lesotho? Was the Power of Attorney influenced by 1st respondent to benefit herself at the expense of other legatees?
Exactly what was the position of the adopted child Molelekeng, was she adopted to benefit 1st respondent and was 1st respondent influential in her adoption? Can this court on present papers set aside the adoption?
Is the application hopelessly out of time?
What about the arbitration clause in the Will?
Has the prescriptive period for the realization of the Estate expired necessitating application for condonation?
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As to (1) supra, Dicey above at p.503 says succession to movables is in general governed by the lex domicilii of the deceased whereas in general succession to immovables is governed by lex situs. AB Edward's conflict of Laws (Lawsa 2nd Ed. (re-issue) is no different from the above exposition except that the ground is expanded to include unitary and scission principles conforming to both Roman-Dutch,
Anglo-American and Commonwealth law to the extent that it separates immovable from movable property in succession to an estate subjecting immovable property to lex situs and upholding the unitary principle only to the extent that it subjects all movable property, wherever situate, to the same regime namely, usually that of the testator's domicile. I got a strong and unmistakable impression from Mr. Raubenheimer S.C. for the 1st, 2nd and 4th respondents that at the time of his death Dr. Maphathe was domiciled in the Republic of South Africa. -It is the reason Ms. Tau for applicants implored the court to decide the law governing movables and Dr. Maphathe's domicile at the time of his death. It is Mr. Mphalane for the 3rd respondent who asserted that it was after Dr. Maphathe's death that he was awarded South African domicile. Unless I am mistaken, Mr. Raubenheimer's claim that Dr. Maphathe was domiciled in South Africa at the time of his death had to do with defending movable assets and particularly money from Patsa Centre, Mafeteng to benefit 1st respondent. As we have seen though, authorities are agreed that lex loci domicilii governs movables and lex situs governs immovables and with these I agree.
4 Respondent is desirous of liquidating and finalizing the estate in Lesotho. I wonder if it is in respect of immovable property alone or immovable property plus movable property. I say movable and immovable property
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because while immovable property remains intact, it is claimed inroads have been made into movable property. Since movables are governed by lex loci domicilii wherever they may be but the administration of the estate was dealt with in a reverse fashion, what's going to happen? Are we going to say since the law that applied was South African it applies with equal force wherever movables may be situate?
Law is peculiar, peculiar in that in respect of the same subject-matter, there exist sometimes, contradictory propositions. Thus in Cammell vs. Sewell (1860) 5H. & N. 728, 744-5, the Court of the Exchequer had found: 'if personal property is disposed of in the manner binding according to the law of the country where it is, that disposition is binding everywhere. And yet, on the other hand, Page Wood Viscount in Simpson v. Fogo (1863) IH & M 195,222 laid down the equally sweeping but flatly contradictory proposition that 'a good title acquired in one country is a good title all over the world.' The finding by Viscount Page Wood translated into the instant application would mean that a good title acquired by the 1st respondent is a title in rem prevailing against all comers.
It would also appear, in modern times modern judges have discarded the test of domicile saying that all that the maxim mobilia sequutur personam means today is that succession to movables is governed by the personal law of the deceased, (see Provincial Treasurer for Alberta v Kerr (1933) A.C. 240, 721 (P.C.) CF Bank voor Handel v. Slatford (1953) l.O.R. 248, 257. As to transfer of goods, there can be no doubt that the law is lex situs. It has been said it all has to do with the rule which looks at the law of the situs for it has the merit of adopting the jurisdiction which has the actual control of the
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goods and the merit or certainty as the American judge said (see Lees v. Harding, Whitman & Co. (1905) 68 NJ. Eq. 622, 629; 60A, 352, 355.
It would also seem, where there is doubt as to which law a testator is 'mostly connected with' other than the law of his domicile or habitual residence, the answer may be found in the system of law in force in that part of the state where most of his property is situate. There can be no doubt that most of Dr. K. T. Maphathe's property is situate in Mafeteng, Lesotho.
As to Dr. Maphathe's domicile at the time of his death, there is irrefutable evidence that Dr. Maphathe came to Ladybrand for health reasons.
The law as to invalids can be stated as follows:
A person who for the time being is detained in a country because he is too ill to be moved, or goes to a country for the temporary purpose of undergoing a course of medical treatment does not, by any account, acquire a domicile of choice there as opposed to a person who determined to settle in a new country because he believes he will enjoy better health may well intent to live there permanently or indefinitely though he hasn't got the necessary intention. It has been suggested that a distinction be drawn between persons who move from one country to another as dictated by immediate danger to his health and may want to remain after the danger has passed; it has also been said a person who is mortally ill may well move from one country to another to alleviate suffering without any intention of abandoning his old home - see Hoskins vs. Mattehews (1855) 8 Dr. G.D. & G.I3; Hitchison v. Dixon (1870) L.R. 10 Eq. 589; Bradfield v. Swanton (1931) LR. 446; Att.
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Gen. v. Fitzgeral (1856) 10 App. Cas. 692, 740 and see Winans v. Att. Gen. (1904) A.C. 287 where, however, this point was not much relied on. It would also seem, if a person is told that he will die in six months if he stays in the country of his present domicile, but will live for ten years if he goes to another country, it is likely that he will form the intention of residing permanently or indefinitely in the adopted country thus acquiring a domicile there. Dr. Maphathe's case is different. He went to Ladybrand for the temporary purpose of undergoing a course of medical treatment. He never had the animus manendi to reside permanently in Ladybrand. Perhaps Hoskins case above will help drive the point home where an invalid domiciled in England established his home in Italy because he thought the warm climate would be good for his health. He acquired domicile of choice in Italy, a far cry from the case of Dr. Maphathe who went to Ladybrand to be near doctors and at the same time directing that his Will be governed by his domestic law and his remains be interred in the country of his birth. Dr. Maphathe did not acquire domicile of choice in the Republic of South Africa.
The answer to (3) above is yes having regard to the testator's direction that his Will be governed by his domestic law. The testator chose his domestic law because he had not abandoned his domicile of origin. It is the testator's executors who twisted his wishes and direction for reasons of their own. If the estate had been reported to the Master, the High Court, Lesotho 1st respondent would not have benefited from the estate as she did and the executors, all of them, are responsible for benefitting the 1st respondent if she was benefited. Sec. 16(1) of the Proclamation above is to the effect that 'every person who has a Will in his possession at the time or any time after
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the death of a person executing the same shall deliver or transmit the Will to the Master or in any other district to the District officer. I have already said above that applicants have given this court the impression that relations between them and 3rd respondent were cordial and warm so that even if applicants were not in possession of the Will at least 3rd respondent was in possession and it was not difficult for applicants to persuade the 3rd respondent to lodge the Will with the Master, Lesotho if applicants were serious that the Estate be administered in terms of the Proclamation aforesaid. Actually, all else failing, I cannot understand why applicants did not press that on the Will being read, it be at the same time delivered to the Master, the Lesotho High Court. I am of the view that applicants' insistence that the Will should have been in the first place reported to the Master of the High Court, Lesotho is an afterthought.
As to (4) above, the answer is yes because according to sec. 15(1) of the Proclamation above it is 'any person—' and 'every person' as meaning not necessarily executors of the Will 'any person' and 'every person' meaning persons who have an interest in the Will. Also, concerning (4) above, in terms of sec. 41 of the Administration of Estate Proclamation above, letters of administration of an estate granted in a foreign state 'to and a copy thereof deposited with the Master by a person in whose favour those letters have been granted, those letters may be signed and sealed by the Master and the letters shall have the same force and effect in the territory in respect of the estate therein as if the letters have been letters of administration granted by the Master.' It become abundantly clear that an estate not having been reported to the Master, Lesotho, persons in whose favour letters have been granted in a foreign estate can deposit such letters with the Master, Lesotho
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with consequent application as the statute has shown. Seems to me there is no specific prohibition by the Proclamation as to reporting the estate nor are there any hard and fast rules for in their discretion executors may report the estate to a foreign master as they did; I see nothing binding on them to have in the first place reported or delivered the Will to the Master, Lesotho. (5) above is rather repetitive but suffice it to say that in terms of sec. 41 of the Proclamation above and as it happened, on the Will being reported in South Africa it was, in fact, at the same time, no matter how long it took, reported to the Master in Lesotho. It was up to interested parties including 3 respondent and others interested in the Will to have ensured speedy process. Mr. Schutte has alleged in his papers that 3 respondent frustrated efforts to have a Power of Attorney signed designed to speed up winding up of the Estate. There is not an iota of evidence that 1st respondent exerted influence on executors to appoint 4th respondent as Administrator of the Estate in South Africa or to benefit herself at the expense of other legatees and I have rejected the contention with the contempt it deserves. Moreover, in our law nobody is allowed to benefit by his own error.
Regarding (6) above I have found as a fact that Molelekeng was adopted by the testator by virtue of Dr. Maphathe being Molelekeng's grandfather. Besides, there is no application before this court to set aside Molelekng's adoption.
As far as (7) above is concerned, Dr. Maphathe died on 22 May, 2000, Special Power of Attorney was issued on 25 May, 2000 and the Master, Bloemfontein issued Letters of Executorship on 28 June, 2000. Applicants went to court in Bloemfontein on or about 19/12/01 and the Liquidation and
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Distribution Account is dated 14 February, 2001. It is to be noticed that the only time the 3rd respondent jumped up was in response to Webber Newdigate (per Mr. Liebetrau) letter of 1st July, 2002 raising Tlali (3rd respondent) Maphathe's unwillingness to sign Power of Attorney. It is also to be noticed that when the Master, Lesotho signed and sealed foreign Letters of Administration it was after a period of just over fifteen (15) months (28.06.00 - 03.09.01) from the time the estate was reported to the Master, Bloemfontein and applicants, if dissatisfied with turn of events in Lesotho estate, had done nothing.
It is in the discretion of the Court to decide whether or not a party is out of time in the absence of specific stipulation or as it were time clause as to when an undertaking may be completed. I am of the view though (sec. 68(2) of the Proclamation) that the Liquidation and Distribution Account is to be lodged within six (6) months from the date on which letter of administration have been issued. Even were it claimed that Letters of Administration were issued regarding the Lesotho estate on 03 September, 2001, it is more than six (6) months, according to the Proclamation, the Liquidation and Distribution Account should have been lodged with the Master and, in my view, no sufficient cause was shown to persuade the Mater to extend the period. I am of the view this application is hopelessly out of time and that applicants are barred and estopped from claiming otherwise.
Having said this, I am fully aware that the prescriptive period in these sort of affairs is three (3) years and that considering that the estate was reported to the Master, Bloemfontein on 28 June, 2000 and the application to this court is dated 17 October, 2002, it cannot be said that the prescriptive period has
23
run. This notwithstanding, the court has considered that the period within which the realization of the estate should be completed is six (6) months as I have shown above and further, there has been no application to the Master to extend the period. This apart, I am of the view that the delay may cause depreciation of some assets and in any event prejudice interests of other legatees.
(8) Above has to do with the arbitration clause. I don't think the point was well taken considering that we are here dealing with executors and not trustees who are different and distinct entities.
As for (9) above, the answer is to be found in (7) above though I am of the view that 4th respondent was frustrated in his duties necessitating condonation and extension of the period as I have done intra.
I come now to the first Counter-Application seeking an order as follows:
Dispensing with the forms and service in terms of the Rules and granting leave for the hearing of the matter as one of urgency at the above time and place.
Directing that the fourth Respondent, or his duly authorized agent, be authorized:
2.1 to open bank account in Lesotho in the name of the deceased estate of K. T. Maphathe and to sign and endorse all cheques drawn;
2.2to frame, sign and lodge all liquidation and Distribution accounts;
2.3to sign and also execute any receipts and discharges in connection with the said estate;
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ALTERNATIVELY:
Declaring that the special Power of Attorney signed at Bloemfontein on 25th day of May, 2000 by the four Respondents (annexure "Ds 2" to the answering affidavit in the main application) is of full force and effect in Lesotho and is applicable to the administration of the estate's assets in Lesotho and that the fourth Respondent is authorized by such Power of Attorney to, amongst others, open a bank account for the estate in Lesotho and to frame, sign and lodge all liquidation account in this estate.
Directing that Samuel Kekeletso Maphathe must sign all documents and or all other things reasonably necessary to transfer the lease in residential property no. 23/24 into his name within a time limit as determined by this Honourable court and the provision in the Will of Kenneth Thulo Maphathe (that this is to be done within three (3) months after the demise of the said Kenneth Thulo Maphathe) be dispensed with.
Directing that the costs of this counter-application be costs - the estate.
Granting such further/or alternative relief as the Honourable Court may deem just and establish.
The counterclaim was opposed. In his affidavit accompanying the counter application 4th respondent has deposed that it is desirable that the estate be wound up considering some beneficiaries are impacted because of delays occasioned in the finalization of the winding up of the estate. Mr. Tlali the 3rd respondent has opposed the counter application saying he denies the 4 respondent encountered any difficulties in administering the estate.
I don't know what 3rd respondent means in his paragraph 4 of the opposing affidavit to the counterclaim that "I wish to reiterate that I was never
25
informed from the onset as an appointed co-executor in the administration of my late father's estate.'
And in the next paragraph (4.2) he says:
'I wish to reiterate that I have always not been in position to co-operate even if I were invited since I realize that my father's
Will is in fact a nullity —'
With respect this is self-defeating. In any event it is the same Tlali Maphathe who was appointed executor by the Master of the High Court, Bloemfontein and also appointed 4th respondent as administrator of the Will. I have said above Mr. Tlali Maphathe has not challenged his Letters of Executorship nor has he applied to the Master or the High Court, Bloemfontein for removal of the 4th respondent and I have found Mr. Tlali Maphathe guilty of acquiescence with the rule as to personal bar or estopped operating against him. In my view it was up to executors of the will including the 3rd respondent to have ensured that the will was reported in Lesotho. I see no reason whatsoever why Mr. Tlali Maphathe as an appointed executor by his father, did not report the Will to the Master of the High Court, Lesotho save that, it would seem, he was harbouring negative perceptions as to his father's Will intending, at some point known to him, to challenge the validity of the will. 1 have already said that amongst other factors, it was Mr. Tlali Maphathe who delayed the winding up of the state. It is of special significance that the 1st applicant in the main
application has provided what he calls an Answering Affidavit to the counter-application thus, in my view, supporting the 3rd respondent
in his opposition to the counter-application. The 1st applicant like the 3rd respondent prays for the dismissal of the application. Oddly, though, it is not the 2nd applicant who asks for the order which favours him but the 1st applicant who has nothing
26
whatsoever to do with the order. The court is faced with a situation where brothers agree and disagree and the one who should speak up is silent and it is not explained why the situation is this confused. I fear there is some chicanery in this and that the court is being taken for a ride. I cannot but reject 3 respondent's and 1st applicant's objection to the counterclaim.
As for the second counter-application, the 3rd respondent in the main application and one Ben Maphathe have applied for an order in the following terms:-
Dispensing with the periods and mode of service of this application on the grounds of urgency.
That the will and together with its subsequent codicil of the late Kenneth Thulo Maphathe signed and executed on the 14th day of May, 1997, 10th June, 1998, 15th April, 1999, 21st April, 1999, 12th August, 1999, 11th October, 1999 and 8th March, 2000 respectively should be declared null and void and of no force and effect.
Declaring the purported Power of Attorney alleged to have been signed by the 1st applicant on the 25th May, 2000 as nullity.
That 'Mankhati Maphathe, Samuel Mpho Moji and Daniel Johannes Rudolph Shutte removed from the office as executes testamentary of the late Kenneth Thulo Maphathe's estates.
That respondents be ordered to pay costs of this application.
Granting such further and/alternative relief as the above Honourable Court may deem fit.
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The application is opposed. I wish to confine myself to orders 2, 3, 4 and 5 prayed for above. It is to be noted that at the time of this application dated 25 February, 2003 the testator whose will is being challenged had died on 22 May, 2000 almost 2 years 9 months ago and that during this period the applicant had not challenged the will or executors of the Will not withstanding that he had been appointed executor of the estate of his father in Ladybrand, the Free State; had not declined the appointment and instead by his own hand and by Power of Attorney appointed the 4th respondents as Administrator of his late fathers estate in Ladybrand, the Free State. I have already remarked about the applicant (3rd respondent in the main and 1st applicant in the counter-application) above expressing the view, as I hereby do, that applicant's application cannot be entertained for the reason that he is guilty of acquiescence though were evidence led, perhaps a different complexion to the case would emerge. Anticipating this, Mr. Mphalane has applied that since the issues are in dispute the matter be referred to viva voce evidence. As far as the 2nd applicant Ben Maphathe is concerned, the only time he challenged the Will via the1st respondent in the main application is in the High Court in Bloemfontein where he failed.
As for acquiescence, I have already said 1st applicant set seemingly by as his father's estate was administered without raising a finger much as he was a participant in the entire process. It is to be noticed that he led his co-executors on the wrong garden path without so much as to protest for well-neigh 2 years and 9 months and it is after the Liquidation and Distribution Account for the South African estate has been finalized that he comes to court not on his own steam but on a counter-application? If it was the intention of the applicants to challenge the will and other issues related to
28
the Will, I see no reason why the applicants have waited for such a long period only to come to court hanging on others' tail coats. These are serious issues and if it was intended to prove them the applicants should have foreseen these conflicts of fact arising and proceeded by means admitting of viva voca evidence.
As for estopped and acquiescence, according to the judgment in Van der Byl and Hanpt v. Scholtz (1987) 14 SC 483, persons who have acted upon the will or acquiesced in it may be estopped from thereafter attacking its validity, as for example, where a beneficiary with knowledge of patent defects takes transfer of property bequeathed to him under a Will. The lapse of time may afford proof of acquiescence but it has been said it is not conclusive where a reasonable and satisfactory explanation is forth coming. It has also been said although as a rule a beneficiary who has accepted a benefit under a will is precluded from subsequently seeking to set aside the will, such beneficiary will be permitted to do so where the benefit was accepted under the excusable error and in ignorance of the facts or the beneficiary's legal rights. Thus where a beneficiary had knowledge of the circumstances under which a will was executed and had adialed but was ignorant of the requirements of the Wills Act, the beneficiary's ignorance was excused and the Will was, at the instance of the beneficiary, set aside on the ground that the requirements of the Act had not been complied with. It has also been said the court will act with great caution and will not lightly set aside a will which has been accepted by the Master and has been given effect to, especially where a considerable period of time has elapsed between the date of the testator's death and the date of the application to set the will aside.
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Although the applicants have not taken transfer of property bequeathed to them under the Will, I have found that while applicants have acquiescenced in the will, in particular 1st applicant has frustrated its winding up by not signing the Power of Attorney. I have already said that a considerable period of time has elapsed between the testators death and date of this application. As for reasonable explanation, I will come to this later but suffice it to say that above I have said if it was the intention of applicants to offer a reasonable explanation they should have initiated proceedings that would afford them such a reasonable explanation. Applicants certainly had knowledge of the circumstances under which the will was executed and adiated and I cannot accept that in doing so they were ignorant of the requirements of the Will Act for in particular 1st applicant was appointed executor by the testator along with 3rd respondent (4th respondent in the main application) ostensibly for the 3rd respondent to guide the other executors. Even if this is not so, there is no reason why the 1st applicant could not seek guidance from the 3rd respondent. This
will has been accepted by the Master both in the Free State and Lesotho and the estate in the Free State has long been wound up with the estate in Lesotho in process of being wound up. I repeat as said above, considerable period has elapsed between the testator's death and this application.
As for the application that this matter be referred to viva vova evidence , Mr. Mphalane has so applied because he is well aware there isn't enough evidence for the granting of the application. In any event, whether or not to grant such an application is in the discretion of the court and my view is that such an application can only succeed if not much has happened to the estate
30
and the period between the application and deceased's demise is not that long. As I have already shown above, the space in time between these two extremes is very long, so long that I wonder how well advised it would be to grant the application.
Generally speaking, referral to oral testimony in many cases is where a court has felt the issues cannot be decided on paper and on occasion the court has itself referred matter to oral evidence. In this application the court is of the view that 'the legal issues are so crisp and so far removed from the conflict of fact that it would not be fair for parties involved to allow' evidence thereon — (see Fax, Directories (Pty) Ltd v. SA Fax Listings CC, 1990 (2) SA 164 at 167 I-J (D) I also do not think it is either convenient or desirable to hear viva voca evidence nor do I think it is appropriate or competent for the purpose of deciding real issues to hear oral evidence. Fact cannot be lost sight of the fact that the estate is being determined in terms of the Administration of Estates Proclamation no. 19 of 1935 and that Liquidation and Distribution Accounts for the estate in the Free State, South Africa have been finalized and the account for Lesotho had been drawn and is in the pipe line.
I am of the view that at least the applicants in the counter claim should have shown that there are prospects of success at the trial. I am also of the view that applicants are on a fishing expedition lending credibility to the fact that they would have the matter referred to evidence to amplify their affidavits by additional evidence.
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The issues in this application came by way of application and I do not think it is just, having regard to the fact that there is no real dispute of fact, that this application should interpose itself and delay the hearing of legitimate trials. (see Khumalo v. Director-General and Co-operative and Development & Others, 1991(1) SA 158 (A) at 167G-168B.
My view is that this is not a proper case for hearing oral evidence and there being no evidence to sustain prayer 2 of the counterclaim, this also stands to fail.
So far as prayer 3 of the counterclaim is concerned, the Power of Attorney appears to have been freely signed by the participants including the 1st applicant to this counter-claim. I do not see how I can accept 1st applicant's excuses for signing the Power of Attorney considering that at the same time as 1st applicant and other executors signed the Power of Attorney, the applicant Tlali Maphathe also signed an undated choice of domicilian pursuant to sec. 41(A) of the Administration of the administration of Estates Proclamation No. 19/1935 in which 1st applicant acknowledged his appointment as Executor by the High Court, Bloemfontein and that 'we are about to apply to the Master of the High Court, Lesotho to sign and seal Letters of Executorship in terms of sec. 41of the Proclamation.' Unless I am mistaken, 1st applicant Tlali Maphathe has not referred to this document so seriously discrediting him. How can I believe that he was cheated or taken advantage of? Since applicants request to court to have matter referred to viva voce evidence has failed, I don't see how I can grant this prayer which also stands to be dismissed. As for removal of executors contained in prayer 4 of the counter-claim, reference is made to my remarks thereon on pages
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14-15 of this judgment the result of which being that this prayer also stands to be dismissed.
The result is that the main application in its substantive and alternative form is dismissed with costs to the estate. It may seem
odd why the application is dismissed as a whole. The application is so dismissed because in this court's view prayer 2 of the substantive
prayer which the court was disposed to grant is academic for the reason that once the Master, the High Court, Lesotho, endorsed the foreign Letter of Executorship by operation of the law the estate commenced to be administered in terms of the Estates Proclamation
1935 aforesaid in which case prayer 3 could follow suit.
Concerning the 1st counterclaim, at English law they speak of a Personal Representative who, in our law, is an Administrator. According to English rules, the administration of a deceased person's assets is governed wholly by the law of the country from which the personal representative derives his authority to collect them. Thus assets in the hands of an English personal representative, wherever collected, are liable for all the debts of the deceased wherever incurred in England or in a foreign country.
At English law it also appears a foreign personal representative has a good title in England to any movables of the deceased whether
tangible or intangible choses in action to which he has in a foreign country acquired a good title under the let situs. Of importance is that at English law a foreign representative cannot represent a deceased until he has obtained English letters of administration (see Dicey above at p.57). In our case the 4th respondent Mr. Schutte is a foreign executor though, to be exact, he was
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appointed by the deceased to be executor of his Will and had the 3rd respondent Mr. Tlali Maphathe co-operated in signing the Power of Attorney, there can be no doubt the estate in Lesotho could have been finalized. Mr. Tlali Maphathe has not co-operated as we have seen, and he has challenged the deceased's Will and failed and it would be a worthless exercise and unfair to order him to sign the Power of Attorney. Mr. Schutte has suggested no alternative executor and the court is unwilling to run another gauntlet or rock the boat considering the unseemly delay that has occurred in the winding up process. Accordingly, the substantive prayer(s) are not allowed and instead the alternative prayer 3 is granted with costs in the estate the period of winding up the estate being extended for three (3) months with the effect from the date of this judgment. Prayer 4 of the alternative prayer is also granted provided the residential property is transferred to Samuel Kekeletso Maphathe within three (3) months of the date of this judgment.
The second counterclaim is dismissed with costs. Has to be with costs because the applicant has claimed costs against his opponents.
JUDGE
For the Applicants in the main Application: Ms. Tau
For Respondents 1, 2 and 4: Mr. Raubenheimer, S.C.
Mr. Molyneaux For the 3rd Respondent: Mr. Mphalane
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CIV/APN/249/00
ALBERT MOEKETSE MARANYANE Applicant
VS
MINISTRY OF FINANCE 1st Respondent
TRIBUNAL 2nd Respondent
ATTORNEY-GENERAL 3rd Respondent
Delivered by the Hon. Mr. Justice G. N. Mofolo On the 22nd July. 2004
This matter has come to this court by way of review. The applicant having been convicted by the Adjudicator appealed to the Public Service Tribunal in respect of Counts 3 and 4 and the Tribunal had upheld the appeal in respect of Count 4 and dismissed the appeal in respect of Count 3. The applicant has come on review in respect of Count 3.
Now, Count 3 is to the effect:
l
The charged officer is charged with contravention of section I6(l)(a) and (b) and section 14(l)(c) of the Act read with section 18(c) of the Public Service Act, 1995 in that during the period 14 January, 1993 to 4th August, 1993, the officer had been receiving cheques in the amount ofM900.00from Lesotho Clothing, which is in contravention of the provision of section 14(l)(c) read with section 18(l)(c) of the Public Service Act, 1995.
Section 16(1) specifically prevents a public servant from being employed outside government or accepting any reward for services outside the scope of his employment for if he does so (sec. H(1)(c)) he brings the public service into disrepute and is liable (sec.18(1) to disciplinary proceedings. There can be no doubt that the applicant was properly charged before the Adjudicator. On this count the Tribunal also found the applicant was so properly charged. There was evidence and the Tribunal found that Lesotho Clothing Industries was making monthly deposits of M900.00 into the applicant's account and the applicant has not disputed this save his counsel arguing that the depositor or drawer of the cheque(s) should have been called to verify payment. The fact of the matter is that there was such payment into applicant's bank account it not being denied that such payment was made and the 1st Respondent has alleged that such payment given the fact that applicant is a public servant is irregular unless there is explanation to the contrary. The Tribunal has found that except for applicant's extra judicial explanation of why the money was paid into his account, the applicant did not avail himself of the opportunity to refute the 1st respondent's allegations of why the money was so paid and 1st respondent's evidence not having been contradicted by the applicant there was no reason why the 1st respondent could not be believed and with this, this court entirely agrees. Counsel for the applicant has contended that it was irregular for the
Adjudicator to have passed the buck instead of herself imposing sentence as she should have done.
Section 27(1) of the Public Service Act, 1995 in my view authorizes an Adjudicator to impose punishment on an officer who has committed a breach of discipline and this being the original legislation the Adjudicator should have applied it. Not only this, a person is indicted and punished under the same legislation where the legislation makes provision for such procedure.
Section 18(1) is to the effect 'a public officer commits a breach of discipline and is liable to disciplinary proceedings and punishment
if that officer—'
a) -----------
b)-----------
c) by any act or omission fails to comply with the general rules of conduct specified in sec. 14; —.
The applicant was charged under the section which stipulates that if found guilty of the breach of discipline he is liable to punishment
and the punishment can be no more than as outlined in section 27(1) of the statute.
I do not agree with the Tribunal that there is an element of conflict between the Public Service Act, 1995 and the Constitution in that while the Public Service Act empowers an Adjudicator to impose punishment, the Constitution gives the Public Service Commission power to remove public
servants from office, for the position if that, where a court of law or for that matter an Adjudicator imposes punishment of dismissal on a public servant from the Public Service, the Public Commission would in any event be required to approve such punishment.
Our law is that where a court has no necessary power, a matter is referred to higher authority to deal with the matter or as it were to impose punishment. In the instant case the Adjudicator referred punishment to higher authority not because the Adjudicator did not have the capacity to impose punishment.
In the result while on review the Tribunal's finding is confirmed, the sentence is set aside and it is ordered that the matter be referred to the Adjudicator to impose proper sentence.
G.N. MOFOLO
For the Applicant: Mr. Lebusa
For the Crown; Ms. Jaase
