C of A
(CIV) No 22 of 2005

IN THE
COURT OF APPEAL OF LESOTHO

In the
matter between

MASECHABA
SEKHOANE Appellant

and

MOTHUPI
SEKHOANE Respondent

Held at
Maseru

CORAM :
Ramodibedi JA

Grosskopf JA

Kumleben JA

SUMMARY

Application
on notice of motion for minor child to be declared intestate heir -
the principle of primogeniture according to African
law and custom
confirmed and applied.

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JUDGMENT

KUMLEBEN
J.A

The
applicant, now the appellant, brought this matter before the High
Court on notice of motion. The relief sought was primarily
a
declarator that the appellant's minor son, Malakia Sekhoane, is the
heir to the deceased estate of Kuni and 'Mateboho Sekhoane
and that
arising from such fact certain sequential relief by way of interdicts
should be granted. The appellant sues in her personal
capacity and on
behalf of her minor son, the said Malakia. The respondent, the
brother-in-law of the appellant, opposes the relief
sought and claims
to be the beneficiary of the estate in question. It is not necessary
- as will later emerge - to set out in detail
his grounds for this
assertion. The customary three sets of affidavits were lodged -
founding, answering and replying - and the
matter was argued before
Nomngcongo J. on the return day of a rule nisi. The application was
dismissed with costs. The sole ground
for doing so - as it would
appear - was that a case for urgency was not made out for the reason,
as stated in the judgment, that:

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"With full knowledge of this state of affairs the applicant did
nothing from April nothing until the end of October when she
rushed
to this court claiming urgency. It is clear that, in my view nothing
presented itself with any urgency in the circumstances."

This
reasoning that relies on a deliberate delay and inaction for some
seven months to refute any question of urgency is ill-founded.
April
2003 features in the founding affidavit as the time of Mateboho
Sekhoane's death and is not the date where the appellant
acquired
knowledge of the "state of affairs". It cannot therefore
for this reason be said that applicant was in any was
dilatory and
one must accept that on her allegations of the misconduct on the part
of the respondent urgency was self-evident.
Consequently this reason
for dismissing the application on grounds of urgency cannot be
upheld.

In
addition, and apart from any question of urgency, the judgment reads
as follows:

"Now
the Applicant in her founding affidavit describes herself as an
accountant by profession. She lives in Khubetsoana Urban
Area and she
was married by civil rites as evidenced by the marriage certificate
annexed to the founding affidavit. Her affidavit
indeed exudes a
modern woman who conducts her affairs in a manner that cannot be
regarded as customary. Thus once again the spectra
of our legal
dualism rears its ugly head. We have here an Applicant who invokes
customary law as her personal law, but whose lifestyle
does not
appear to conform to custom, with radically different legal
consequences.

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At first
blush it would appear that the Applicant, having abandoned the
customary mode of life, cannot call in aid customary law
in the
conduct of her affairs (See Sec. 3 of the Administration of Estates
Proclamation 19/1935; THOKA V. HOOHLO 1978 LLR 375.
MOKOROSI V.
MOKOROSI 1967 - 1970 LLR1). In that case the estate would fall to be
administered in terms of the Common Law and the
Administration of
Estates Proclamation (supra) and the Applicant's son could never
under those laws be entitled to the extensive
relief that he claims
whereas under customary law that would have been possible, as, with
certain qualifications, the heir takes
all (See CONTEMPORARY FAMILY
LAW OF LESOTHO - W.C.M. MAQUTU p. 168). I mention this, not to
determine which law is applicable in
this case but simply to show
that the applicant has failed to establish which law should be
applicable to her and her son. That
in my view [amounts] to a failure
to establish a clear right. For that reason also she cannot succeed."

I have
quoted this passage in the judgment fully since it is somewhat
umbrageous. The last two sentences do not properly indicate
whether
this ground for the rejection of the claim is an obiter dictum or a
further ground for dismissing the application. Be that
as it may, I
deal, with it briefly. This reasoning relies on the provisions of s.
3(b) of the Administration of Estates Proclamation
No 19 of 1935.

It reads
as follows:-

"This proclamation shall not apply -

2. to
   the estates of Africans which shall continue to 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

   
   

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Master to have abandoned tribal custom and adopted a European mode of
life, and who, if married, have married under European law."

Thus the
quoted passage from the judgment indicates that the proviso is - or
may be, - applicable and that in that event the issue
of succession
is not to be determined according to the prevailing African law and
custom. The only ground for this view relied
upon in the judgment is
that the appellant is "an accountant" and that "her
affidavit exudes a modern woman who
conducts her affairs in a manner
that cannot be regarded as customary." Whether these are valid
grounds for invoking the proviso
is neither here nor there. The point
is that at no stage was this consideration (whether the proviso in s
3(b) applies) raised
on the papers by either the appellant or the
respondent. Had it been, it would have been fully canvassed by facts
that would have
justified a decision one way or the other. In the
result, to the extent that the proviso is relied upon, the learned
judge erred.

Before us
Mr Seotsanyana, who appeared for the respondent, advanced an argument
not put forward in the court a quo. He

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accepted
that primogeniture was the principle of the customary law of
intestate succession, namely, that a deceased estate devolves
from
eldest son to eldest son. (See s11 (1) of Part I of the Laws of
Lerotholi; and Poulter "Family Law and Litigation in
Basotho
Society page 225.) In the instant case, applying this rule of
succession, the estate devolves from grandfather, Kuni Sekhoane
(A),
on his death to his son Tholeng Sekhoane (B), and on his death to the
minor child Malakia Sekhoane (C). Counsel, however,
submitted that if
the death did not occur successively as set out above, that is, if B
died before A a different order of succession
results. To answer this
submission one must revert to the facts, in paragraph 5 of the
founding affidavit appellant avers that

"I am a daughter in law of Kuni Sekhoane (A) and 'Mateboho
Sekhoane both of who are now late. I was married to their eldest
son
Tholeng Sekhoane (B) who is now also late and one child Malakia, (C)
was born of our said marriage." (Emphasis added.)

These
facts are admitted in the answering affidavit. What is said in this
paragraph is in no way ambiguous. Its manifest meaning,
having
particular regard for the phrase emphasised, is that B died after A.
Thus the premise on which counsel relies for this submission
is
baseless. It is therefore unnecessary to

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I agree

GROSSKOPF

JUDGE OF
APPEAL

Date of
Judgment : 20 October 2005

Counsel
for Appellant : Adv Mr K.K. Mohau

Counsel
for Respondent : Adv Mr M.K. Seotsanyana