CIV/APN/217/2002
IN THE HIGH COURT OF LESOTHO
In the matter of:
THABISO MAHASE Applicant
And
NTHAKOANA MATILDA KHUBEKA lst Respondent
LILIAN MANTHAKOANA MAHASE 2nd Respondent
MINISTRY OF DEFENCE 3 rd Respondent
ATTORNEY GENERAL 4th Respondent
JUDGMENT
Delivered by Honourable Mr. Justice B.K. Molai on 22nd Day of August 2005
The applicant herein filed, with the Registrar of the High Court, a notice of motion in which he moved the court, ex parte, for an order framed in the following terms:
"1. That a Rule nisi returnable on the date and time to be determined by this Honourable court calling upon Respondents to show cause (if any) why:-
First and second Respondents shall not be restrained and interdicted from interfering with the estate of late Kelly Mahase, which estate has been decreed by court as having been rightly inherited by applicant herein;
2
First and Second Respondents shall not be restrained and interdicted from receiving death benefits for the estate of late Kelly Mahase, payable by the Lesotho Ministry of Defence per authority of CIV/APN/343/2000 dated February, 08, 2001;
The rules as to form and notice shall not be dispensed with on account of urgency;
Respondents shall not be ordered to pay costs hereof only in the event of their opposing this application;
Applicant shall not be granted further and/or alternative relief.
2. That prayers (a) and (c) operate with immediate effect as an interim order."
The application was moved, ex-parte, before, and granted by, my brother Peete J. After several extensions the interim order was, on 9th September 2002, extended to 23rd September 2002. Thereafter, nothing was heard about the matter until the 22nd October 2002 when it was placed before me for further extension of the interim order. I pointed out that the interim order had long expired, on 23rd September 2002 and it was, therefore, no longer available for extension. An application for re-instatement of the interim order had first to be successfully made before it (interim order) could be further extended. For that reason, the matter was postponed sine die. The application for re-instatement of the expired interim order was, however, never made. There is, therefore, no interim order or Rule to be confirmed or discharged in this matter which now falls to be treated as ordinary, as opposed to urgent, application.
It is significant to observe that after the application and the interim order had been duly served on the respondents, only the 2nd respondent intimated her intention to oppose. The rest of the respondents did not. It may, therefore, be safely assumed that they are prepared to abide by whatever decision will be arrived at by this court.
3
Affidavits were duly filed by the parties. In as far as it is relevant, the facts disclosed by the affidavits are that the applicant is the son of 2nd respondent. However, besides the applicant, the 2nd respondent has other sons amongst whom mention may be made of Baasi Mahase and Motlatsi Kelly Mahase. Baasi Mahase, the eldest son of the 2nd respondent, passed away and was survived by a son, Tebatso Mahase who is, therefore, the overall heir in the family of 2nd respondent. Tebatso Mahase is, however, still a minor.
During the 1998 political upheavals in Lesotho, Motlatsi Kelly Mahase was killed. At the time of his death Motlatsi Kelly Mahase was still a bacholar. He was, however, a biological father of a girl, Limpho Mahase. From the age of seven (7) years, Limpho had always lived with the 2nd respondent's family which regarded her as its member. Following the death of Motlatsi Kelly Mahase, Limpho instituted, in the Magistrate Court, a civil action (CC. 284/99) in which she. inter alia, claimed, against the present 2nd respondent, a residential site described as plot no. 13291-059 at Upper Thamae, Maseru. Notwithstanding that the case was decided in her favour, Limpho approached the High Court with an application for review (CIV/APN/343/2000) in which she inter alia, prayed the court to
declare her the heiress to the entire estate of Motlatsi Kelly Mahase, her biological father. In dismissing CIV/APN/343/2000 the
High Court held that Limpho could not be the heiress to the entire estate of the late Motlatsi Kelly Mahase because she was a female. On the contrary, the present applicant, Thabiso Mahase, who was the 5th Respondent in CIV/APN/343/2000 and elder brother of Motlatsi Kelly Mahase, was declared the heir to the entire estate.
4
Following the decision in CIV/APN/343/2000, Thabiso Mahase instituted the present application asking for relief as prayed in the notice of motion on the ground that the High Court had, in CIV/APN/343/2000, declared him the heir to the entire estate of Motlatsi Kelly Mahase. This court was, therefore, bound by the decision in CIV/APN/343/2000.
In her opposing affidavit, the 2nd respondent averred that the decision, in CIV/APN/343/2000, declaring applicant the heir to the estate of Motlatsi Kelly Mahase, was bad in law, inasmuch as, following the death of Motlatsi Kelly Mahase. she (2nd respondent) was appointed, by the family of Mahase, to be the heiress to his (Motlatsi Kelly Mahase's) estate. The family decision was reduced to writing, and the applicant himself was one of the signatories thereto. It read, in part:-
"We the undersigned, as the Mahase family, Khubetsoana, witness and confirm that Mrs Lilian Mahase is the late Kelly Mahase's parent.
The late Kelly was her 3rd child and he died a bachelor.
She is therefore the one responsible for the property and inheritance of her said son...........
Signed:- T.V. Mahase
Maseforo Mahase
Mateboho Alice Mahase
T.B. Mahase
At page 12 of Sotho Laws and Custom by Duncan, the author had this to say:-
"If there is no male heir and no widow then it was laid down in Makhejane v Seisa J.C. 115/50, the parents, if alive, inherit. If they were not alive, then the elder brother, or failing him, his widow inherit."
5
Assuming the correctness of the evidence that, at the time of his death, Motlatsi Kelly Mahase was still a bachelor and he, therefore, left neither a male heir nor a widow, it seems to me that on the authority of the above cited passage from Sotho Laws and Customs by Duncan, the family meeting correctly appointed his mother, (the 2nd respondent) to be the person entitled to inherit his estate. Further more, this court was referred, in argument, to the decision of the Court of Appeal in Moteane v Moteane LLR and Legal Bulletin 1997/98 where it was held at page 44.
"Where there is a dispute amongst the deceased family over property, it shall be referred to arbitration of the family elders in accordance with section 14 (4) of the Laws of Lerotholi." Indeed, at page 48 the Court of Appeal clearly said:
"......... it is not the Court but the family who must nominate
the heir."
In declaring the applicant the heir to the estate of the late Motlatsi Kelly Mahase, as it did, the High Court in CIV/APN/343/2000 clearly replaced the decision of the Mahase family by its own decision and did not, therefore, follow the decision of the Court of Appeal in Moteane v Moteane LLR and Bulletin 1997/98. The question that arises is which decision should this court now follow? Should it follow the decision of the High Court in CIV/APN/343/2000 or the Court of Appeal decision in Moteane v Moteane, Supra?
The Court of Appeal is the highest court. Once it has decided in Moteane v Moteane. Supra, that "it is not the court but the family who must nominate the heir," that decision is final and must be followed by the High Court and all other lower courts,
6
on the principle of Stare decisis. - see also page 6 of Wille's Principles of South African Law (Eighth Edition) where it is said:
"When once a decision has been given by the highest court in a state it is practically conclusive and final,"
In the light of what has been said above, it is clear that the view I take is that the decision of the family of Mahase, nominating the 2nd respondent to be the rightful person to inherit the estate of her son, the late Motlatsi Kelly Mahase, cannot be faulted. Assuming the correctness of my view, the 2nd respondent and not the applicant is, on the authority of the decision in Moteane v Moteane LLR and Legal Bulletin 1997/98, the heiress to the estate of her son, the late Motlatsi Kelly Mahase. The applicant cannot, therefore, be heard to say the 2nd respondent must be restrained from interfering with, or interdicted from receiving death benefits for, the estate of the late Motlatsi Kelly Mahase on the ground that he (applicant) was, per the decision in CIV/APN/343/2000, the heir to the estate of Motlatsi Kelly Mahase.
In the result, I come to the conclusion that this application ought not to succeed. It is accordingly dismissed. This being a family dispute, 1 make no order as to costs.
B.K. MOLAI
JUDGE
For Applicant : Mr. Sooknanan
For Respondents : Ms Tau
