CIV/APN/216/2005
IN THE HIGH COURT OF LESOTHO
In the matter between:
MELATO CALEB MOKOENA APPLICANT
AND
'MAKARABO MOKOENA 1st RESPONDENT
QIBING COMMUNITY COUNCIL 2nd RESPONDENT
PRINCIPAL CHIEF OF LIKHOELE 3rd RESPONDENT
MINISTER OF LOCAL GOVERNMENT 4th RESPONDENT
ATTORNEY GENERAL 5th RESPONDENT
JUDGMENT
Delivered by the Honorable Mr. Justice W.C.M. Maqutu On the 16th January 2007
Introduction
Applicant (on the 11th November 2005) filed an application with the Registrar of the
High Court for an order in the following terms:-
Interdicting second and third respondents from reallocating the fields that used to belong to the late Thabiso Mokoena to 1st respondent.
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Declaring the first respondent ineligible to hold land in Lesotho.
Declaring the decision of 3rd respondent of 8th October 2004 ultra vires null and void.
Directing 2nd respondent to consider applicant first for re-allocation of the fields that used to belong to the late Thabiso Mokoena.
Ordering respondents to pay costs of this application jointly and severally.
Granting applicant further and/or alternative relief - as the court may deem fit.
First respondent filed a notice of intention to oppose this application on the 2nd December 2005. The other respondents who appear to have been served with this
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application did not file any notices of intention to oppose this application.
First respondent's answering affidavit was served on applicant and filed of record on the 13th January 2006. Applicant served first respondent with the replying affidavit and filed it with the registrar on the 15th June 2006.
No land ownership in Lesotho
Lesotho has a peculiar land tenure system. Land in Lesotho cannot be owned by an individual because it belongs to the Basotho people. The King holds it in trust for the Basotho or the Basotho Nation - see Chapter IX of the Constitution. Section 108 of the Constitution makes it clear that the King through state organs allocates the rights or grants rights and interest over land in trust for the Basotho nation. In other words, all rights over land are limited to occupation and use of the land only. All people who have
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been allocated land have the right to possess land and reap the fruits of their occupation of land only.
The case of Setlogelo v Setlogelo 1914 AD 221 is a case in which Africans were forbidden to have registrable rights over land. Only White South Africans had such a right. Faced with such a situation in which an African was being dispossessed Innes JA at page 227 said:-
"True, the law does not allow him to buy land, or to lease it, or to take transfer of it. But it does not forbid him from occupying it, more especially as it would seem to have devolved upon him by way of inheritance. It would indeed be a remarkable state of things if a native could be deprived of his right of occupation of land which he had honestly come by at the instance of any person who took a fancy to it, merely because he was not and could not become the registered owner."
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It would seem applicant's argument is that a foreigner may not inherit rights over land. In this case (according to applicant) a widow has lost the right to inherit the marital home of her late husband and the arable lands she was entitled to inherit because she is foreigner. Yet Section 6 (1) (b) of the Land Act 1979 gives any foreigner a right to possess land provided he or she has a permit of indefinite sojourn.
For applicant to succeed in an interdict he must have a clear and definite right to the remedy he is asking from the court. This
application is both a prohibitory and mandatory interdict. The court may not grant this application if it turns out that his claim is in law non existent see Plettenberg Bay Entertainment v Minister Van Wet en Orde 1993 (3) SA 396 at page 400 H, where the court found - it could not protect a right that did not exist. It will be interesting to investigate whether the law permits a court to inhibit the discretion of
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the land allocating authority - unless specifically authorized by law to do so.
It is therefore necessary to investigate whether the court has the power to grant applicant's application. Or whether applicant's averments entitle him to the remedies he seeks.
Citizenship and rights to land
The issue of citizenship of the late David Thabiso Mokoena has to be looked into. The reason being that it is the battering ram that is being used by applicant against the obstacles he has met before the land allocating authorities before coming to this court. Applicant's objective is to get the arable lands (masimo) and houses of the late David Thabiso Mokoena because he claims the deceased lost his right to hold land in Lesotho in 1992 during his life-time when according to applicant he became a South African citizen. David Thabiso Mokoena died in 2001.
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Applicant's claim, if upheld, raises another problem -which is whether land that has reverted (by operation of the law) to the state or land allocating authority during the deceased's life-time can be treated as part of the deceased's estate. If applicant argument is right about David Thabiso Mokoena's loss of Lesotho's citizenship in his life-time - the other issue, following from this - will be whether he has the legal title to claim from the courts a declaration that he should be the first person to be considered by the land allocating authority - in re-allocating those lands?
In terms of Section 38 of the Constitution, every person born in Lesotho is a citizen of Lesotho - especially if he was not born while his parents were on diplomatic service in Lesotho or were enemy aliens. Section 37 of the Constitution recognizes the Lesotho Citizenship Order of 1971. However Sections 41 (1) and Section 41 (2) (a) forbid people to hold dual citizenship.
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Section 8 (1) of the Lesotho Citizenship Order 1971 reproduces what is in Section 38 and other sections of the Constitution on citizenship.
This was not different from what was Section 23 of the Lesotho Independence Order of 1966 and other sections on citizenship. It
would seem from the above that the Constitution relied on Parliament to put into effect by legislation the Constitutional provision
against dual citizenship. It is for this reason that I believe M. Maphisa v P. Lecheko & 5 Ors 1991-96 LLR 571 overstated the
position by deeming that citizenship by birth or descent could just be lost when a person in search for a job acquires South African
citizenship.
The onus of proving that the late David Thabiso Mokoena by voluntary act renounced his Lesotho citizenship when he took the South African citizenship, is on the applicant. This is because 1st respondent has said at paragraph 7.4 of her Answering Affidavit:-
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"I categorically deny that my late husband was a naturalized South African as alleged or at all - and put deponent to the proof thereof. I aver that my husband was granted the said certificate after completing ten (10) years working in South Africa. This was done to enable him to obtain his benefits from the government of South Africa and for convenience. My late husband never intended to abandon his Lesotho citizenship."
Such an important issue has to be fully ventilated and evidence heard so that the court can reach a full and well informed decision. A dispute of fact exists. This is compounded by Section 22 of the Lesotho Citizenship Order 1971 which provides that citizenship cannot just be renounced.
It is necessary to check what the Lesotho Citizenship Order 1971 says - to get guidance on the issue. Section 22 of the Lesotho Citizenship Order 1971 deals with the
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renunciation of citizenship which is direct or specific. This renunciation has to be registered with the Registrar General. In terms of Section 22 (1) of the Lesotho Citizenship Order 1971 the Minister may even refuse to accept the renunciation if its acceptance is not conducive to the public good. Parliament in its wisdom decided citizenship by birth or descent should not be lightly lost. It seems a person with a home in Lesotho cannot be deemed to have lost his birthright by taking what is deemed another citizenship to get a job while his domicile remains in Lesotho. Only citizenship of Lesotho by naturalization or registration can be lost in terms of Section 23 of the Lesotho Citizenship Order 1971 by Ministerial act.
When 1st respondent married David Thabiso Mokoena in 1975 she was entitled to citizenship of Lesotho upon taking an oath of allegiance and applying to be registered as a citizen of Lesotho in terms of Section 40 of the Constitution, Even if she had not renounced her South African citizenship
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she had a right to hold land in Lesotho by virtue of the indefinite residence that her marital status entitled her to. See Section 6 (1) (b) of the Land Act 1979.
Annexure "MCM 20" shows that the government of Lesotho has given first respondent a permit for indefinite Sojourn NO.263/2004 on the 3rd March 2004.
Death terminates a marriage but does not affect the position of a widow. A widow's rights under Basotho custom remain. She may not be deprived of the use of her late husband's arable lands or be turned out of the house she and her late husband owned.
There is no clarity as to the form of declaration a citizen of Lesotho by descent or birth has to make on the issue of residence or domicile. Form J made in terms of Section 28 of the Lesotho Citizenship Order 1971 does not specifically
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cover these cases. It is in any event in conflict with Section 22 of the Lesotho Citizenship Order 1971.
The issue of loss of citizenship under Section 8 (2) (a) of the Lesotho Citizenship Order 1971 assumes that a person who acquires another citizenship while he or she is still a citizen of Lesotho will not be a resident of Lesotho or might not be domiciled in Lesotho. It does not deal with a Lesotho citizen who is domiciled in Lesotho but acquires a citizenship of the Republic of South Africa, while he is working there. If the intention was that such a person should lose his residence and domicile, then Parliament should have specified this. It would be wrong to read into such a person's act an intention to terminate rights of domicile and residence into the Order.
It will be observed that a person's personal law is governed by his domicile in English common law and countries whose common law is The Roman Dutch law. In
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such systems citizenship and not nationality is the key. It is countries that fell under French influence whose emphasis is nationality that the lex patriae and not lex domicilii holds sway. Once a person has indefinite residence he can hold and use land. No individual owns land in Lesotho, everybody has the right to occupy and use land in Lesotho -because land belongs to the Basotho people. In Lesotho domicile not nationality is the reference point. Forsyth in Private International Law 3rd Edition at page 112 quotes Barry JP in Mason v Mason 1885 4 EDC 330 at page 337:-
"Domicile means the place or country which is considered by law to be the person's permanent home."
In Lesotho the court has to determine whether a person who has a home and arable lands in any part of Lesotho has lost his domicile even if he has become a citizen of another country. Evidence on his state of mind has to be led. An important issue such as this one of status cannot be
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dealt with by way of application. The case of Moteane v Moteane 1995-1999 LAC 309 touched on the issue of citizenship as an obiter dictum. In M. Maphisa v L Lereko & 5 Ors 1991-96 LLR 571 it was inferred to the detriment of vested rights - what was not specified in the Order. This interpretation was not necessary to determine the issue that had been before court.
It will be observed that Section 84 of the Land Act 1979 was not complied with. If this Section 84 had been complied with, the consequence of the late David Thabiso Mokoena's loss of Lesotho citizenship would have been "reversion of his interest in land to the State." - See Section 84 (2) of the Land Act 1979. In that event it would not be an issue of the law of succession. It will be shown later that these lands of the deceased are governed by Part II of the Land Act 1979.
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Nature of dispute
This is a family dispute. It began as a village dispute in the rural area of Ha Lekhari in the district of Mafeteng. The applicant is Melato Caleb Mokoena. He is the son of Thabo Mokoena, the son of Bartholomew Mokoena. The lands which are the subject of this application include the houses and residential site of the late David Thabiso Mokoena - who is the son of Bartholomew Mokoena. David Thabiso Mokoena was in life time the elder brother of Thabo Mokoena, the father of the applicant. All the above-mentioned people are deceased.
David Thabiso Mokoena died in the year 2001 leaving a widow "Makarabo Mokoena who is the first respondent herein. The widow by custom normally remains in possession of her late husband's house, site and arable lands, even if she is not the heiress. Applicant's case is that, in this case this cannot happen because David Thabiso Mokoena had acquired South African citizenship before he
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died and was living in Bloemfontein where he died and is buried. Consequently in April 2002, the Mokoena family appointed him "to take over" the residential house of the late David Thabiso Mokoena, the husband of first respondent.
According to applicant, this gave him to right to be the first to be considered when the lands of David Thabiso Mokoena were re-allocated. The decision of the family according to applicant is embodied in annexure "MCM 2" whose translation is to the following effect.
"27 April, 2002
To Chairman
Land Allocation Committee
Ha Lekhari
MAFETENG
Dear Sir,
LAND ALLOCATION: LATE THABISO D. MOKOENA
We greet you.
The family of Mokoena presents Melato C. Mokoena as the heir to the site and fields of Thabiso D. Mokoena.
Advised by the family, Melato shares the land with his younger brothers in the following manner:
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Name Area in Question
Melato C. Mokoena Field behind Ha Phepheng
Field at Sekoting
Field at Thoteng
Residential site of Bartholomew
________________________Mokoena___________________________
Moahloli J. Mokoena Field beyond Khohlo
Residential site of the late Thabiso
Mokoena
Nyakoane J. Mokoena Field at Lehoatateng next to Montsoane
________________________River______________________________
Mpho Mokoena Field behind Leralla"
This "MCM 2" is signed by applicant Melato C. Mokoena, Moahloli J. Mokoena and Nyakoane Mokoena. It is not disputed that the two others are applicant's brothers.
This is a claim based on the Basotho customary law of succession and land allocation. It is now brought to this court because the land allocation authority and the traditional customary administrative authorities did not entertain applicant's claim after initially
rejecting the manner applicant sought to be declared the deceased's heir. The thrust of his claim before this court is that the deceased had
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lost the right to his immovable property consisting of his residential site with houses and his arable lands because the deceased had become a South African citizen.
According to applicant, 1st respondent came in December 2002 and claimed the fields in question and the house of the deceased belong to her. The land allocating authority or to be precise - the Chief of Lekhari ordered the family to sit again and make another decision. To put this in applicant's words:- The Chief of Lekhari "made a decision that the family should re-sit and coerced me to call another distant family to make a fresh decision as to who should be considered for re-allocation of the fields of that belonged to my late uncle". It was at this family meeting that one portion of the family favoured applicant and another favoured first respondent. The court is referred to annexure "MCM 3". The translation of "MCM 3" provided by applicant is to the following effect.
3 February, 2003
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To Chief Kosa Lekhari
Mafeteng
In connection with the above subject, the following people were present here at home:
Pita, Karabo, "Makarabo, 'Maneo, Nyekoane, 'Mapopane, "Mankalimeng, "Mapheello, Melato and Moahloli.
One faction of those present agreed that the land of the Thabiso Mokoena has to pass to 'Makarabo. Another faction agreed with letters of the 27 April 2002 and 29 April 2002.
We request a correct decision.
Thank you.
Melato C. Mokoena
'Makarabo Mokoena
Moahloli Mokoena
Nyekoane Mokoena
"Mapheello Mokoena
Almost a year passed before this matter was pursued. On the 21st January 2004 a letter was written to the Chairman Qalabane Rural Council, whose translation is provided by the applicant and is marked annexure "MCM 5" - which reads:-
21st January, 2004
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Chairman
Qalabane Rural Council
C/O District Secretary
Mr. Molefi Shale,
RE: LAND OF LATE BARTHOLOMEW MOKOENA AND THABISO DAVID MOKOENA
We inform you that we are the legal representatives of Mr. Melato Caleb Mokoena who has instructed us to address this letter to you.
Mr. Mokoena informs us that he reported the death of the late Thabiso David Mokoena, and advised that the family has appointed him as the heir of the late David Mokoena and Bartholomew Mokoena, by custom, had to share with his brothers. We annex copies of letters of the family for ease of reference.
Mr. Mokoena now informs us that he has been awaiting the committee's reply to allocate him the land according to the law, but even today there is no reply.
We therefore request you to reply in terms of the law, so that the allotees can have relevant documents and to make developments.
We shall expect your reply within fourteen (14) days from the date of writing this letter.
Yours faithfully,
M.G. TAU
MOFOLO, TAU-THABANE & CO.
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It will be observed that nowhere is the issue of citizenship of the late David Thabiso Mokoena and that of his wife raised before the chiefs and the land allocating authority. The matter was dealt with as if they were still subjects of the Chief of Lekhari and citizens of Lesotho. Why this was not done throughout, is puzzling - unless applicant realized that if the late David Thabiso Mokoena was deemed to have removed from the place of Lekhari his houses, sites and lands would revert to chieftainship and they could not inherit them. If Section 84 applies to this deceased's houses, sites and arable lands, then David Thabiso Mokoena and his wife were at the date of loss of Lesotho citizenship -in terms of Section 84 (2):-
"entitled to receive the value of improvements lawfully made upon expiry of the 12 months period and the then consequent reversion
his interest to the state".
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What was before the chiefs was succession to the deceased David Thabiso Mokoena's estate. The matter went to the Principal Chief of Likhoele as an issue of succession. It was never suggested or alleged that the late David Thabiso Mokoena has lost his rights to arable lands and houses.
Because these lands, sites and houses still belonged to the late David Thabiso Mokoena, the matter went before the Principal Chief of Likhoele - the third respondent who made the decision "MCM 7" dated 8/10/2004 translated by applicant as follows:-
"FAIR TRANSLATION ANNEXURE "MCM 7"
RULING
DISPUTE BETWEEN 'MAKARABO EVELYNE MOKOENA
(DIBAKISO EVELYNE MOKOENA)
MELATO MOKOENA
DISPUTE: FIELDS, HOUSES AND HOUSEHOLD PROPERTY
OF DAVID MOKOENA"
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Before the offices of the Principal Chief of Likhoele, there was a dispute between the Mokoena children who are answerable to Chief Kosa Lekhari.
Dispute involves fields of the late David Mokoena who married Dibakiso Evelyne Mokoena who is now 'Makarabo Evelyne Mokoena including houses and household property.
The younger brother of the late David Mokoena, namely Melato Mokoena is the one claiming the property. And the decision I have made is that Melato Mokoena does not have a right to the things and the property of David Thabiso Mokoena. The one who has a right is the wife of the deceased, namely 'Makarabo.
This is the ruling of the office of the Principal Chief of Likhoele and whoever disputes it should approach the courts. Ruling made by: Principal Chief of Likhoele
I corrected the penultimate paragragh because it was unintelligible. As Sesotho is my language - I could compare the Sesotho original and the English translation.
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Removal
Land has been scarce in Lesotho for many years. As Duncan in Sotho Laws and Customs has shown a chief was only obliged to provide land for his subjects. At page 68 Duncan Sotho Laws and Customs if a person says he is going to live under another chief, this is tantamount to removal. In that event the land reverts to chieftainship for re-allocation. This aspect of custom is not free from controversy. Consequently, it is no more automatic for a man who lives under a second chief - in another part of Lesotho to lose his lands under his original chief, so long as he continues to pay tax.
Applicant's case is not simplified by the fact that the houses and lands of David Thabiso Mokoena are in a rural area. These lands are governed by Part II of the Land Act 1979. These lands are not automatically registrable unless they were registrable in terms of the then existing law. See Section 9 of the Land Act 1979. It is only lands such as
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business sites situated in rural areas, that had to be registered could be converted into leases in terms of Section 10 of the Land Act 1979. Lands under Part II of the Land Act 1979 are held under allocation, and allocation committees presided over by chief deal with them. These lands are not administered by the Minister and the Commissioner of Lands. They are administered in accordance with Basotho custom as modified by statute.
In rural areas Duncan Sotho Laws and Customs page 68 has made the following observation in respect of rights to land of people no more residing in the village:-
"A person may leave Basutoland for many years, but if even one member of the family remains, and if ploughing is done regularly, he may not be treated as a remover."
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It is also significant that "a remover must before leaving the area of the chief, go to the chief and greet him and inform him that he is moving." - Duncan Sotho Laws and Customs page 68. The procedure of removal states what a remover may take and what he may leave behind so that it may revert to chieftainship. If David Thabiso Mokoena removed from village of Ha Lekhari, applicant is not entitled to any of his lands which reverted to chieftainship. Applicant was not David Thabiso Mokoena's dependant. The site, after David Thabiso Mokoena has removed his windows, door frames, roof and other improvements revert to chieftainship, together with his arable lands. - Duncan Sotho Laws and Customs page 68 to 69.
If we assume applicant's submissions are correct, then they do not help applicant's application, because they destroy the very basis of applicant's application.
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If the deceased's houses and site have reverted to the chieftainship, the land allocating authority or the state -then the application of applicant must fail. The reason being that David Thabiso Mokoena according to applicant's annexure" 4" David Thabiso Mokoena should have lost his right to hold or use land in Lesotho on the 17th June 1992 when the Director of Home Affairs issued David Thabiso Mokoena with the Certificate of Naturalisation. Consequently, twelve months after David Thabiso Mokoena got South African citizenship by naturalization, his rights to land reverted to the state or to chieftainship or the land allocating authority. If this is the position the Mokoena family had lost the right to be considered when the land was reallocated. All the State had to do was to compensate David Thabiso Mokoena or his wife as from July 1993.
What I am saying is that applicant's own argument defeats his own case. Second and third respondents' hands cannot be tied in any way in re-allocating these lands.
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Applicant may not claim the right to be the first to be considered if lands of the late Thabiso Mokoena were reallocated. The reason being that their claim could not be based on the law of succession. If first respondent cannot have any rights to the lands - because it long got out of the hands of the Mokoena family, then they have no specific legal interest to the lands of the late David Thabiso Mokoena. This self-defeating argument does not; however dispose of the issue, because the matter is not as simple as that.
Succession
What is undoubtedly clear is that this matter was treated as one of succession before the chief. Applicant has rights of succession to his late elder brother David Thabiso Mokoena estate - but after the members of David Thabiso Mokoena's family. That being the case, applicant may not touch that estate while David Thabiso Mokoena's widow is alive. When applicant came before this court, what he
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submitted amounted to claiming his late elder brother or his late cousin was a remover. This fresh ground had not been thought through - because this mode of proceeding would dispossess the Mokoena family and vest the property in the hands of the land allocating authority or chieftainship, because it would no more form part of the deceased's estate. If that is so, what we have to find out first, is whether the land allocating authorities erred in their approach to the law of succession.
There are two systems of law that govern the deceased estates. See Section 3 (b) of the Administration of Estates Proclamation of 1935. What law applies to the deceased's estate is governed by whether he had abandoned the African mode of life and adopted the European way of life. In rural areas and the villages almost all people are governed by African custom because in general they have not abandoned the African way of life and adopted a European way of life. The applicant was introduced as heir according to Basotho
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custom - which implies the estate of David Thabiso Mokoena was deemed to be administered according to custom. If that was the case then the rights of the widow had to be respected. If they are, then it becomes difficult to see how the decision of second respondent and the third respondent the Principal Chief of Likhoele could be wrong.
It was vigorously argued by Miss Tau for the applicant that the chief or land allocating authority has to accept what the family says about the disposal of the deceased's estate. If it says a particular person is the heir, the chief, by custom - the land allocating authority may not question that. This argument is founded on an error. The family may not overturn the law and make its favourite the heir. It only arbitrates where there are problems - but it is bound to follow Basotho law and custom.
The chief or land allocating authority has to wait for the formal introduction of the heir by the family, because it
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knows its members. If they depart from the law, their recommendation or introduction of the heir should not be followed. The position of the widow is crisply summarized by Duncan in Sotho Laws and Customs page 15 - where he makes reference of the Laws of Lerotholi I Section 14 (2) as follows:-
"14. WIDOW'S 'USUFRUCT' OF ESTATE. According to LLI:14(2) 'A widow who has no male issue in her house shall have the use of all the property allocated to her house ... provided that no widow may dispose of any of the property without the prior consent of her guardian'. Note that for 'consent' the Sotho version has "therisano' (consultation). In Matela v Mphana, J.C. 625/52, the English version was preferred, possibly as being more equitable."
Because heirs have a tendency of dispossessing their mothers, courts do not permit the heir to take away the
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property of the estate of the widow's husband from her possession while she is alive. The widow enjoys the usufruct even when she has male issue. It becomes difficult to understand how applicant could expect the chief or the land allocating authority to allow applicant to deny the widow the use of her husband's houses and arable lands.
Even the Section 8 (3) of the Land Act 1979 protects this general usufruct that a widow has by providing that:-
"Notwithstanding Subsection (2) a surviving spouse or minor child of the deceased allotee shall be entitled to remain in occupation of the land allocated to the deceased allotee until his own decease."
That being the case, a family may not make a recommendation that violates this provision.
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In the same way as the estate of the deceased is reported to the Master of the High Court under the received law and the Administration of Estates Proclamation of 1935, Basotho customary estates are reported to the chief and the land allocating authority. Like the Master of the High Court the chief does not have to accept a wrong decision as to who is the heir. The chief often knows who the heir is. In 'Meli Ntsoele v Chieftainess M. Ramokhele 1974-75 LLR 130 at pages 136 and 137 it was held by Mapetla CJ that where the family introduces the wrong person as heir or successor to Chietainship, the senior chief can be persuaded to reject that nomination if it is contrary to custom. The dissatisfied person does not have to set aside the family nomination in a court of law.
In Meli Ntsoele v Chieftainess M. Ramokhele the family had nominated 'Meli Ntsoele as the successor to chieftainship and not the widow of the deceased. By law they ought to have nominated the widow as the heir to
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chieftainship. The senior chiefs refused to endorse that family decision because it was wrong in law. In the same way the Principal Chief of Likhoele and the Chief of Lekhari have declined to accept that any other person (other than the widow) could be nominated the heir of her husband in place of her. See also Section 14 of the Laws of Lerotholi I.
In conclusion, applicant has based his claim on forfeiture of land rights by the deceased on grounds of loss of citizenship of Lesotho.
I have shown, if applicant approaches this matter from the citizenship angle - he would have no title to sue - where forfeiture
of rights to land is deemed to have taken place nine years before the deceased died. The reason being that the discretion of the land allocating authority when it allocates that land ought not to be fettered. It is only fettered in respect of land that was still in the hands of the deceased because of the law of succession and responsibility of deceased to his dependants.
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The rights of the widow
It has to be noted that Section 18(4) of the Constitution recognizes that there are areas of discrimination of our law. These particularly affect women adversely most of the time. As Section 18(4) (b) of the Constitution notes - these may occur in respect to "adoption,
marriages, divorce, devolution of property on death or other matters..." In particular in terms of Section 14(4) (e) of the
Constitution, the permissible discrimination may be in:-
"the application of customary law of Lesotho with respect to any matter in the case of the law of person who, under that law, are subject to that law."
The disabilities under which married women suffer under custom go with certain advantages. For an example the widow even if she is not the heiress may not be turned out of her husband's house. She also must remain in
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possession of her husband's lands and live on its produce until she dies. She has permanent residential rights at her marital home among her husband's people. Her husband's heir may not deprive her of the use of the property her late husband left her with.
The widow has a customary law right to expect her late husband's relatives to protect her and the property that her husband left her with. Applicant as her late husband's cousin or brother (according to Basotho custom) is expected to plough the deceased's David Thabiso Mokoena's lands for his widow - the first respondent. It is contrary to Basotho culture, good conscience and a sense of what is right in the African sense - that applicant should be attempting to deprive the widow of her house and arable lands (masimo). It is not botho or ubuntu to dispossess a widow. It would seen therefore in terms of Section 14 (2) of the Laws of Lerotholi I, that applicant has to wait for the death of the widow before he can claim her home at Ha Lekhari and her
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arable lands. Consequently what applicant is doing violates Basotho customary law.
The test of whether what second and third respondents have done is lawful is governed by Section 9 (a) of the Central and Local Courts Proclamation 62 of 1938 (as amended) which provides that they shall administer:-
"the native law and custom prevailing in the country, so far as it is not repugnant to justice and morality or inconsistent with the provisions of any law in force in the territory."
It would seem to me that even under the value system embodied in the common law, dispossessing widows cannot be said to be in accordance with good conscience and morality. Seizing other people's property rights without compensation, on the grounds that they are not citizens of Lesotho is not supported by any law or legal practice. Even
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the Land Act of 1979 does not support such behaviour. It becomes very difficult to justify how this court can be used to aid this process. The land allocating authority's discretion to allocate the scarce resource such as land, is governed by the needs of the village. Courts cannot interfere with the use of such powers unless they are exercised contrary to law or some legally established principle of equity.
Revocation of land allocation
Applicant in bringing this application has overlooked that the power to allocate or revoke land allocations rests in chief and their land allocation committees. If the late David Thabiso Mokoena had lost the right to hold land in Lesotho -then he had (during his life-time in 1993) to be called and heard in terms of Section 13 of the Land Act 1979. Only then would the land allocation authority revoke his rights to land. Seeiso Sehloho v Tumo Majara 1971-73 LLR 194.
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If the said land had reverted to the land allocating authority's possession. It was free to allocate it as it sees fit. This power exists in respect of all removers. A man, who owes allegiance to another chief, loses his right to his arable lands masimo. By custom he has to get a letter of removal from the chief and demolish his houses before he removes from the jurisdiction of his current chief. Becoming a citizen of another country is similar to removal. If the chief deems a person to have removed, and wishes to take his land rights - he has to invite him to a hearing.
It is therefore wrong for applicant to invite this court to interfere with the powers of second and third respondents to revoke David Thabiso Mokoena's rights to land according to Section 13 of the Land Act 1979 . This court has no power to do so. If the late David Thabiso Mokoena had lost his rights to land in Lesotho - before his lands are formally taken, he had to be heard. Arbitrary revocations of land
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rights are no more permitted by law. The reason is that this power was extensively abused in the past.
As this is not a matter of succession, according to applicant's allegations but that of removal, applicant has no right to claim a right of land on re-allocation. The land allocating authority or the chief is free to allocate land to whoever he feels he should allocate those lands, depending on the needs of its subjects. This is a matter courts may not interfere with.
Applicant cannot have it both ways. He cannot say the late David Thabiso Mokoena has lost land rights, and still claim succession rights over the same land rights. If he wants to succeed to that land, he has to wait until the widow dies. In which situation he would have rights of succession. If David Thabiso Mokoena became a remover in 1992, then the land should have long reverted to the state or
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chieftainship. When the deceased died in 2001 it could not be part of his estate.
Court Order
For the above reasons, applicant's application is dismissed with costs.
W.C.M. MAQUTU
JUDGE
For Applicant : Miss Tau
For 1st Respondent : Mr. Shale
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