Sekonyela v Sekonyela and Others (CIV/APN 53 of 99) [2000] LSCA 30 (7 February 2000)

IN T HE H I GH C O U RT OF L E S O T HO CIV/APN/53/99 In the matter between M A K A T L E HO S E K O N Y E LA A P P L I C A NT A ND A N NA M A L E T S A T SI S E K O N Y E LA 1ST R E S P O N D E NT C L E M E NT S E K O N Y E LA R A N K U E N Y A NE S E K O N Y E LA S A L E M A NE P H A F A NE M A S T ER OF H I GH C O U RT A T T O R N EY G E N E R AL 2ND 3RD 4TH 5TH 6TH R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le Mr Justice S. N. Peete on the 7th d ay of February 2 0 00 On the 5th February 1 9 9 9, the present application w as m o v ed e x p a r te a nd w as granted u p on the following terms:- 1. T he rules are hereby dispensed with on periods a nd m o d es of service. 2. A rule nisi is hereby issued calling u p on the R e s p o n d e n ts to s h ow cause on the 22nd February, 1 9 99 at 9:30 a.m w hy the following order shall not be m a de absolute. 1. T he 4th R e s p o n d e nt is hereby interdicted a nd restrained from executing and administrating the Estate of the late Paul Sekonyela in terms of the Will, pending finalisation hereof and an action to be instituted within 30 days of this interim order. 2. T he 1st 2nd and 3rd Respondents are hereby interdicted a nd restrained from disposing off and or dissipating or destroying property either m o v a b le or i m m o v a b le w h e r e v er situated belonging to the Estate of the late Paul Sekonyela pending finalisation of this application and an action to be instituted by the applicant within 30 days of this interim order. 3. Ordering that all assets of the late Paul Sekonyela wherever situated should remain in the possession of the applicant pending the final determination of an action to be instituted within 30 days of granting of this order. 4. T he 3rd Respondent is hereby ordered to return forthwith property being a double bed, three sitter sofa, gas stove, gas heater and cylinder to the applicant, belonging to the Estate of the late Paul Sekonyela. 2. Prayer 1 & 2 ( a) (b) (c) & (d) to operate with immediate effect as interim relief." T he rule w as m a de returnable on the 22nd February 1999. In her founding affidavit to the notice of motion, the applicant avers that she is the lawful wife and w i d ow the late Paul Sekonyela w ho died on the 1st D e c e m b er 1998; and that the deceased a nd the applicant h ad contracted a customary law marriage in 1985 a nd s o me twenty-two herd of cattle w e re paid as bohali; a nd that four children Katleho (15), Sekonyela (12), Nthabeleng (7) a nd N t e b o h e ng (5) w e re b om of the said married. T he 1st Respondent is the mother of the late Paul Sekonyela, the second and third Respondents are the brothers of the deceased. All three respondents are beneficiaries of a will allegedly m a de by the deceased on the 17th M a r ch 1991. This will w as not registered. On the 8th February 1 9 90 the deceased and the applicant "purported" to enter into an anti- nuptial contract excluding the marital p o w er a nd c o m m u n i ty of property a nd entitling any consort to be at liberty to dispose his or her property and effects by will as he or she m ay think fit; in the anti-nuptial contract the deceased m a de certain furniture bequests to the applicant. It is again not in dispute that the deceased a nd applicant purported to enter into a civil law marriage on the 10th February 1990. T he applicant avers that they entered into this civil law marriage merely to regularise their position in the R o m an Catholic Church, which had suspended or e x c o m m u n i c a t ed t h em after their initial elopement in 1983. S he states that a f ew days before the civil marriage she w as also m a de to sign a contract the contents of w h i ch she did not k n o w. S he states that since theirs w as a customary law marriage, they could not have entered into a valid anti-nuptial contract a nd a civil rites marriage in 1990. In fact they w e re then already living as h u s b a nd and wife since 1983. S he also avers that her late husband under law could not m a ke a valid will as he has purported to have d o ne because neither w as he married by civil rites nor h ad he a b a n d o n ed the customary w ay of life. T he applicant then lists instances whereat her late h u s b a nd slaughtered beasts for traditional feasts and other occasions w h i ch s h o w ed that he h ad not a b a n d o n ed the customary w ay of life. S he states that the estate of the deceased is quite large and consists of houses, eleven buses, 14 coasters, 6 trucks, four cars, t wo caravans, six developed sites, cattle, sheep a nd goats. S he states that during his lifetime the deceased h ad caused s o me of his buses to be registered in the n a m es of the first, second and third respondents merely to h o o d w i nk the traffic authorities into believing that the buses h ad several o w n e rs w h en in fact the deceased w as the sole o w n e r. S he states that in D e c e m b er 1 9 98 the third respondent took a w ay from her h o me s o me household furniture items like a double bed, a three sitter sofa, gas stove, gas heater plus cylinder. In her answering affidavit, the first respondent admits the existence of the customary law marriage and that a civil rites marriage w as also solemnized in 1 9 90 but counters by stating that "Applicant all along sat back and never sought to invalidate the civil marriage a nd the anti-nuptial contract." S he also contends that the deceased h ad a b a n d o n ed the customary m o de of life in that he "threw parties and practised a religious life, operated a E u r o p e an style of business and lived a E u r o p e an m o de of life." It is therefore a question of fact in dispute as to whether the deceased h ad a b a n d o n ed the customary w ay of life. In her replying affidavit, the applicant contends that since her h u s b a nd h ad not a b a n d o n ed his customary w ay of life and h ad married by w ay of custom in 1 9 8 5, he could not m a ke a valid will; all he could do w as to m a ke written instructions in accordance with customary law ( L a ws of Lerotholi - 14 (1)) she also contends that the civil marriage purportedly solemnised w as of no legal force or effect along with its anti-nuptial contract. On the day of hearing M s. T au informed the court that there is a pending civil case CIV/T/68/99 in which the present applicant (plaintiff) claims:- "1. Declaring the plaintiff and the late Paul Sekonyela to be married under customary law. 2. Cancellation of the anti-nuptial contract between plaintiff and the late Paul Sekonyela. 3. Declaring the civil rites marriage between the plaintiff and the late Paul Sekonyela as null and void ab initio 4. Declaring the document purporting to be Last Will and Testament of Paul Sekonyela bequeathing all property to 1st Defendant as null and void and of no legal force and effect. 5. Declaring Katleho as the rightful heir of the late Paul Sekonyela. 6. Ordering cancellation of registration certificates of vehicles mentioned in paragraph 16 of the Declaration. 7. Declaring allocation of the site at Ha T h a m ae Mejametalane to 1st Defendant invalid. 8. Costs of suit. 9. Further and/or alternative relief," It should be pointed out that there are s o me disturbing features in these proceedings; the deceased m et a violent death on the 1st D e c e m b er 1998; the s u m m o ns w e re filed with the office of the Registrar on the 22nd February 1 9 99 and a notice of appearance to defend w as m a de on the 26th February 1999. Since then a complete lull; there has been no plea entered in terms of Rule 2 2; nor has the plaintiff taken any steps to require defendants to deliver such (Rule 26). Counsel on both sides s e em to have strangely a b a n d o n ed the action for over a year. This is rather unfortunate u p on their clients w ho are n ow being m a de to e m b a rk on fresh application proceedings, for w h i ch they pay fees! In her submissions, Ms T au contends that the will violates the spirit of Basotho custom because it tends to deprive the heir of his rightful share, a nd that the intended execution a nd administration of the estate of the deceased in terms of the last will m a de by the deceases will prejudice the rights of the applicant a nd those of the heir under custom. Ms T au submits that u p on the papers her client has established a p r i ma facie right. W i t h o ut endeavouring to indicate precisely w h at is m e a nt by a p r i ma facie right or h ow it is proved, the courts have readily accepted that w h e re the right asserted by the applicant is p r i ma facie established although o p en to s o me doubts, the applicant has fulfilled the first requirement (See P r e a t - L aw a nd Practice of Interdicts,(1996)p.52; Setlogelo vs Setlogelo - 1 9 14 AD 2 2 1; N d a u ti vs K g a mi 1948 (3) SA 27 at 36; LF B o s h o ff I n v e s t m e nt vs C a pe T o wn Municipality. 1 9 69 (2) SA 2 56 at 2 57 A - F. T he question should be whether has the applicant has established a p r i ma facie right sufficient to sustain a cause of action. This it is the so called "threshold test" w h i ch simply m e a ns a prima facie right albeit admitting of s o me doubt. Ms T au submits that since the marriage entered into by the parties in 1985 w as a customary one, the deceased could not later purport "to turn" that customary marriage into a civil one, nor enter into an anti-nuptial contract, or m a ke a will. S he submits that the estate of the deceased could not be administered in accordance with the provisions Administration of Estates Proclamation of 1 9 35 because the deceased h ad not a b a n d o n ed customary w ay of life and adopted a E u r o p e an m o de of life and h ad not married under civil law - A b r a h a ms vs A b r a h a m s - 1 9 91 - 9 6 L L R ( V o l . l ) P . l. Section 3 (b)of the Administration of Estates Proclamation reads:- "3. This Proclamation shall not apply (a) (b) to the estates of Africans w h i ch shall continue ot 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 w ho have been s h o wn to the satisfaction of the Master to have abandoned tribal custom and adopted a E u r o p e an m o de of life, and w h o, if married, have married under E u r o p e an law." She also submits that if the customary marriage entered into in 1985 by the deceased and applicant is regarded as valid, then the purported civil c e r e m o ny in 1 9 90 has no legal force and effect. Section 42 of the Marriage Act No 10 of 1 9 74 states:- "This Act shall apply to all marriages solemnised in Lesotho save and except marriages contracted in accordance with Sesotho law and custom and nothing herein contained shall be taken as in any m a n n er affecting or casting doubts u p on the validity of any such last mentioned marriages contracted before or after c o m i ng into operation of this Act." Section 2 9 ( 1) reads:- " No person m ay marry w ho has previously been married to any other person still living unless such previous marriage has b e en dissolved or annulled by the sentence of a competent court of law." T he c o m m e n ts of Lehohla J in O h o b e la vs O h o b e la are quite opposite in the regard. Ms T au also submits that unless the interim relief is granted the applicant has a well- grounded apprehension that she will suffer irreparable h a rm if the estate is administered in accordance with the will; she says this w o u ld c o n s u me the buses, cattle, sheep a nd goats a nd other important items of property; she lastly contends that the balance of convenience also favours the applicant w ho has reasonable prospects for success in the m a in action. It is h o w e v er unfortunate that their action has b e en left in limbo for over a year. T he court is o w ed a full explanation for this sad state of affairs; for I am of the opinion that pleadings in the action could h a ve long b e en closed a nd matter set d o wn for hearing. Of w h at use is issuance of s u m m o ns if the file falls into a state of neglect or oblivion? Mr M a h ao ( w ho is also a constitutional analyst of repute) for the Respondent submits in the m a in that section 3 (b) of the Proclamation has b e en m a de by the H i gh C o m m i s s i o n er to " m a ke provision for the administration of the estates of the deceased persons, minors a nd lunatics and of derelict estates and to regulate the rights of beneficiaries under the mutual wills m a de by persons married in c o m m u n i ty of property." He contends in his t wo pronged argument that this section in the Proclamation is inconsistent with the section 4 and section 5 of the L aw of Inheritance A ct N o . 26 of 1873.1 should point perhaps out in passing that Mr M a h ao s e e m ed to be contending that the Administration of Estates Proclamation is a law subordinate to the L aw of Inheritance A ct and that it w as a Proclamation m a de by the H i gh Commissioner under the authority of the abovementioned Act. This is not so because since 1884, Basotholand w as protectorate being governed by Great Britain through its H i gh C o m m i s s i o n er and the Proclamations they decreed w e re statutory enactments on their o wn right. Legislative omniscience implies that w h en passing the Proclamation the H i gh C o m m i s s i o n er h ad k n o w l e d ge of the existence of a prior law like the 1 8 73 L aw of Inheritance and purposely excluded Africans from its operation. T h e se sections read: " 4. 5. No legitimate portion shall be claimable of right by a n y o ne out of the estate of any person w ho shall die after the taking effect of this Part. E v e ry person competent to m a ke a will shall h a ve full p o w er by any will executed after the taking effect of this Part to disinherit or omit to mention any child, parent, relative or descendant without assigning any reason for such disinheritance or omission, any law usage or custom n ow or heretofore in force in Basutoland notwithstanding: a nd no such will as aforesaid shall be liable to be set aside as invalid, either wholly or in part, by reason of such disinheritance or omission as aforesaid." Mr M a h ao submits that sections 4 and 5 of the Inheritance L aw guarantee w h at has b e en referred to as "freedom of testation". That m ay indeed be so but these sections m u st h o w e v er be read purposively whilst noting that there is no saving clause in the L aw of Inheritance A ct w h i ch excludes Africans from its operation; according to Mr M a h a o, the L aw of Inheritance is therefore of general application; he contends that section 3 (b) of the Proclamation infringes and limits this freedom guaranteed the L aw of Inheritance. He also argues strenuously that section 3 (b) of the Proclamation violates sections 11,13,14 a nd 18 of the Lesotho Constitution in that it generally restricts the Basotho to m a ke wills solely on the ground that they are Africans a nd because they have not adapted E u r o p e an m o de of life; he quotes in support of this submission the case of H l a u l: vs Hlauli (CIV/Adoption/1/98) w h e re the learned Chief Justice K h e o la said:- "There is no doubt in my m i nd that the w o rd "African" used in section 14 of A d o p t i on Proclamation is a racial description. It is based on colour - the black people of Africa. It is therefore clear that section 14 of the Proclamation is discriminatory of itself a nd in its effect." T he learned C h i ef Justice also discussed the effect of the subsection 4 (b) of section 18 of the Lesotho Constitution a nd in c o m i ng to the conclusion that there is no provision in the Constitution w h i ch prohibits Basotho people f r om exercising their rights of adoption under the A d o p t i on of Children Proclamation he w as of the opinion that the w o r ds "it shall not apply to Africans" w e re obnoxious, discriminatory a nd absurd. He w e nt on to state:- "I h a ve interpreted section 18(4)(b) of the Constitution of Lesotho a nd h a ve c o me to the conclusion that it does not allow the legislature to pass discriminatory laws. It merely safeguards the application of certain personal laws of the Basotho. It does not use the w o rd "Africans." I h a ve c o me to the conclusion that section 14 of the A d o p t i on of Children Proclamation N o. 62 of 1 9 52 is unconstitutional a nd I declare it as void." Perhaps, the s a me line of reasoning c an be adopted in attacking the constitutionality of section 3(b) of the Administration of Estates Proclamation. It is h o w e v er no imperative u p on me as of n ow to m a ke a final decision on this very important constitutional point, because the present proceedings are only interlocutory a nd this constitutional point is certainly going to be argued in full in the m a in action. All I c an only say at this stage that there is a very strong prima facie a nd valid point of law. Mr M a h ao submits that it is totally irrelevant whether the deceased married civilly or customarily; the deceased h ad the full capacity a nd right to m a ke the will as he did. In reply Ms T au notes that the deceased seems to have m a de his last will whilst labouring under the impression that section 3 (b) w as a valid provision for he declares:- "(a) I have abandoned tribal custom and have adopted a European m o de of life. (b) I have married under European law." This m ay be a valid point but one which falls a w ay if these obnoxious passages are excised from the will (Ex parte van der Spuy NO 1966 (3) SA 169). T he will is not rendered invalid by the insertion of the statutory wording of an obnoxious piece of legislation, the portions can be excised from the will without affecting the true intention of the testator. In coming to the facts of the application I should state that this court has a discretion whether or not to grant the application for an interim relief pendente lite and in doing so it should consider all the circumstances of the case and in particular the probabilities of success of the applicant in the main action; it also considers the nature of the injury which each party will suffer if the application is granted on one hand or refused on the other. Whereas the respondents have very good prospects in the main action, I am however of the view that the status quo must be maintained pending the finalization of the main action. T he applicant is unlikely to dissipate and squander recklessly property which she m ay ultimate acquire in the event of her being successful in the main action. I am not satisfied that the respondents are likely to suffer prejudice if application is granted because in granting the application, this court has power to impose certain terms and conditions and indeed to regulate further proceedings (Chopra vs Avion C i n e ma SA (Pty) Ltd 1974 (1) SA 469; Ndauti vs K g a mi & Others - 1948 (3) SA 27; Shoprite Checkers Ltd vs Blue R o u te Property M a n a g e rs (pty) Ltd & others - 1994 (2) SA 172 (c) at 184 H - 185D. T he success or failure of the applicant as plaintiff in the m a in action s e e ms to revolve u p on a very important constitutional question w h i ch I have, advisedly, elected not to m a ke any final decision on to avoid pre-empting the decision in the m a in action. I do not wish to complicate this important case with problems of res iudicata. In exercise of my discretion therefore I grant the application and impose the following terms and conditions in order to protect the rights of the respondents in the event they are successful in the m a in action. 1. T he Registrar of this court will cause to be m a de a full inventory of all properties in the estate of the deceased affected by the proceedings. 2. T he applicant is directed not to alienate, destroy or dissipate in any m a n n er whatsoever the said inventoried properties till the finalisation of the m a in action. 3. T he applicant's and respondents' attorneys directed to cause the filing of pleadings in the main action to be Gnalised before the end of M a r c h, w h e r e u p on the Registrar is directed to set the case for hearing as a matter of priority. T he issue of costs is deferred until the end of the m am action. S. N. P E E TE J U D GE For Applicant For Respondents : : Ms T au Mr M a h ao 13