Molapo v Gama (LC/A 8) [2019] LSHC 37 (4 November 2019)

IN THE LAND COURT OF LESOTHO HELD AT MASERU LC/APPEAL/NO.13 OF 2018 In the matter between ‘MASELOMO MOLAPO PEETE MOLAPO 1ST APPELLANT 2ND APPELLANT AND MOTSATSI GAMA (nee MOLAPO) RESPONDENT CORAM: BANYANE AJ HEARD: 01/10/19 DELIVERED: 04/11/19 ANNOTATIONS Cases Liphehlo & Another V Liphehlo & Another LC/APN/52/14. Ramatlapeng V Jessie C of A (CIV) 15 of 2016 Moteane V Moteane C of A (CIV) No.14 of 1994 Khasake V Moloi & Others CIV/APN/73/13 Ratia V Ratia CIV/APN/ 329/14 Radipeolo Maphathe V Excecutors of the late Dr K. T Maphathe & Others CIV/T/329/2005 Majara V Makhooane CIV/APN/311/06 Mokhothu v Manyaapelo CIV/APN/397/12 S V Gatebe 1963(2) SA 40 Statutes Administration of Estates Proclamation No.19 of 1935 Intestate Succession Proclamation of 1953 Land Act 1979 Land Act No.8 of 2010 Land Regulations 2011 Books MJ De Waal, MC Schoeman: law of succession, 4th Edition, 2008 W. D Geach: Handbook for executors, trustees and curators, 1st edition, 1993, Juta & Co Lourens M du Plessis, the interpretation of Statutes, 1986, Butterworths, Durban W C M Maqutu; the contemporary family Law of Lesotho 2nd Edition, _____________________________________________ JUDGEMENT SUMMARY Appeal from the District Land Court - Administration of estates - intestate succession to landed properties - the Land 2010 and regulations made thereunder presuppose nomination of an heir by the surviving family members of the deceased where none has been designated by the deceased allottee - an executor of the estate does not therefore have power to unilaterally identify intestate heirs in terms of the common Law in total disregard of the mandatory provisions of the Land Act 2010 - appeal succeeds. Introduction [1] The focal point in this appeal as depicted in the appellants’ grounds of appeal revolves around disposal of certain immovable property which the late Sehalahala Molapo (deceased) inherited from his parents in the year 2005. [2] The present appellants were respondents in the Botha Bothe District Land Court (per CIV/DLC/BB/13/2016) wherein the applicant (now respondent) sought a) an order declaring her as the rightful owner of a certain unnumbered site with four houses on it, two fields, a yard and two tree plantations, b) ejectment of the appellants from some this property and c) an interdict against the appellants. d) She also sought an order declaring whatever documentation that the appellants may have in relation to this property, invalid. [3] The District Land Court granted all these prayers hence this appeal. Background [4] The deceased Chief Sehalahala Molapo begot four children (four girls), all of which are married. The respondent is one of them. The 1st appellant is the wife to the late Sehalahala’ brother Teko. 2nd appellant is one of the four sons of the 1st appellant. During his lifetime, the deceased executed a Will in terms of which he bequeathed his immovable and movable property to Mafefeoane Molapo, the respondent’s son and one Kekeletso Molapo. This was in 2001. In 2005, the deceased, upon the demise of his Mother Masehalahala, inherited the following property that belonged to his parents; the homestead comprising of 4 houses, a cattle kraal, one yard, two tree plantations situated at Moroeroe and Mohlaka respectively, two fields situated at Tlokoeng and Moroeroe respectively. This property was not disposed of by any Will. He passed on in the year 2010. These facts are common cause. This property forms the subject matter of the dispute between the parties. Evidence in the Court a quo [5] The applicant (now respondent)‘s case is premised on the following facts; Six years after the demise of chief Sehalahala, that is, in 2016, Mafefooane authored a letter, addressed to the chief of Makopo, Letsielo Ramakatane. In essence, this letter states that the property described above is to be administered in terms of the Administration of Estates Proclamation in terms of which the children of the deceased (her mother included) are heirs who shall share the property equally. He purportedly acted in terms of the letter of administration apparently issued by the Master of the High Court on the 07th April 2010. Subsequent to the writing of this letter, the respondent’s sisters purported to renounce their “right” in favour of the respondent herein. This they did by writing a letter in that regard. It is on the basis of these letters that the respondent claimed the property as hers and sought the orders described at the prelude of this judgement. Respondents (appellants)’s case [6] It is the respondent’s case that the said property was not included in the will because it had already been given to her family in 2007 by the late Sehalahala. It is the 1st appellant’s case that she first used the disputed fields in 2002 and occupied the disputed house(s) in 2005 after Masehalahala’s demise; and that his son Peete (2nd appellant) acquired a lease in relation to a portion of one of the disputed fields during the lifetime of the late Sehalahala, through his assistance. It can also be distilled from the evidence that the 2nd appellant has built a house on this portion of the field. [7] On the basis of these allegations, the appellants are of the view that the learned Magistrate erred in granting an order declaring the respondent as heir to the said properties, ejectment as well as an interdict against them. The following are their grounds of appeal; Grounds of appeal • The learned magistrate erred and/or misdirected himself in Law in applying the principles of intestate succession despite the clear provisions of section 15 of the Land Act 2010. • The learned Magistrate erred and/or misdirected himself in Law by ignoring the uncontroverted evidence of appellants to the effect that the deceased did assist 2nd appellant to obtain a lease on the disputed site. • The learned Magistrate erred/or misdirected himself in Law by ignoring uncontroverted evidence of appellants that the deceased did dispose of the property at issue during his lifetime. • The learned Magistrate erred or misdirected himself by holding that the Master was correct to appoint Mafefooane Molapo as co-executor some six years after the death of the late Sehalahala. [8] I will not deal with them in the order in which they have been raised but in reverse order. I deem appropriate to start with the last. Whether the Court misdirected itself in holding that the Master of the High Court (the Master) was correct in appointing Mafefeoane as co-executor. [9] The appellants contend that the deceased never intended Mafefeoane to be his executor, and the Master therefore had no power to appoint him as such. No authority was cited for this proposition. The respondent’s counsel contend on the other hand that Mafefooane was lawfully appointed by the Master. It was contended further that he acted within his powers in terms of the letter of administration and properly distributed the disputed property to his mother and her sisters. Reliance was placed on section 31(2) and 34(2) of the Admin of estates proclamation in support. [10] The learned Magistrate upheld the applicant’s contention and concluded that Mafefooane was properly appointed as an executor and as such, he was entitled to designate four daughters of the deceased to jointly inherit their father’s property. He concluded that the provisions of the Land Act 2010 should be read with the Administration of Estates Proclamation of 1935. [11] I proceed to interrogate the relevant provisions on appointment of executors. An examination of section 34 of the proclamation shows that the Master may appoint an executor, where none has been appointed in terms of the Will or where one so appointed is incapacitated to act as an executor or where he predeceases the testator. In this instant case, it is apparent from the Will that the deceased appointed attorney G N Moiloa as an executor. Significantly he was granted the power of assumption under clause 3 of the Will. This is in line with section 33 which authorises an executor testamentary appointed to assume any other person as an executor. Assumption is essentially an authority to nominate co-executors to assist the executor. in other words, an executor testamentary is entitled to appoint someone to assist him as co-executor (MJ De Waal p 239). The Master, if satisfied that the assumption of the executor is authorised by the Will and that there is a deed by which the executor testamentary has assumed that person as an executor, shall grant letters of administration to the executor so assumed. [12] While there was no evidence led as regards the appointment of Mafefeoane because he did not participate in these proceedings, the appellants did not adduce any evidence suggesting any irregularity in the appointment of Mafefooane as a co-executor. In view of the cited provisions, the argument that the Master is not empowered to appoint an executor has no merit and ought to be rejected. It can safely be concluded, in the absence of any evidence to the contrary, that the Master acted within the scope of the Law (section 33). This disposes of this ground of appeal. [13] What seems to be the bone of contention is the power vested in an executor per letters of administration issued; whether an executor may simply distribute property in terms of intestate succession Rules in total disregard of the mandatory provisions of the Land Act prescribing down procedure on Land inheritance. This issue will be addressed later in the judgement. I now proceed to deal with the 2nd and 3rd grounds of appeal. I will start with the alleged donation. The donation of the property to the 1st appellant and her sons [14] It was argued by the appellants that the learned Magistrate erred/or misdirected himself in Law by ignoring uncontroverted evidence of appellants that the deceased did dispose of the property at issue during his lifetime. The decision of this issue would require evaluation of the evidence of the 1st appellant. [15] The 1st appellant claim that in the year 2002, she started using the disputed fields per agreement with Chief Sehalahala. When ‘Masehalahala passed on in 2004, she was then authorised by Sehalahala “to be in charge” of the disputed houses. She alleges that the late Sehalahala donated the property to her family hence the 2nd appellant obtained a lease in relation to a portion of one of the disputed fields. He built a house thereon and took occupation. The 1st appellant allege that this donation was made in a meeting held by Sehalahala, in which only the 1st appellant and his sons Selomo Molapo, Moshoeshoe Molapo, Peete Molapo (2nd appellant) and Mafa Molapo were in attendance. She said that it was in this meeting that his son Mafa was appointed as heir. She allege on appeal that this donation is the reason why the disputed property was never included in the deceased’s will. It is instructive to note that the will was executed in 2001 and at this time Masehalahala, the holder of rights over this property was still alive. It cannot therefore be true that the basis for the exclusion of the disputed property under the 2001 Will was the alleged donation. [16] Crucially, the 1st appellant’s testimony lacks necessary details. She made a general statement that the property was given to his sons but did not specify as to who was given which property. She testified that the deceased at one point asked her to” give” him one of his sons so he could make him an heir. She testified that Mafa was designated as heir by the deceased, to which property she however did not say. Allegedly this occurred after 2005. Significantly, at this time the deceased had already executed a will in which he designated his heirs. She later said the field (which one of the two, she also did not disclose) was subdivided in favour of her sons. She similarly gave no details as to the extent of the alleged subdivision in favour of each one of them. She did not similarly state how and when or in the presence of whom this was done. Her evidence in my view is insufficient and lack conviction on the material aspect, that is; the alleged donation/s. While it is true that property donated inter vivos is no longer deemed to be property of the donor, in this case the alleged donation is not supported by any evidence, either oral or documentary as already stated above. The words of W C M Maqutu, in his work” the contemporary family Law of Lesotho 2nd Edition, 2005; become relevant under these circumstances; albeit said in the context of deceased’s wishes; “The problem with the wishes of the deceased would be proof. The reason being; people in the absence of any proof tend to allege what in fact the deceased never said, hence the need to have proof of such instructions” [17] The case of Mokhothu v Manyaapelo CIV/APN/397/12 is an illustration that these wishes of the deceased ought to be publicly known, that is; known to the members of the family. In the present case, only the appellant and her sons are privy to this information because clearly this was discussed (allegedly) in what I would call a private meeting of the deceased and 1st appellant’s sons to the exclusion of other family members, who, notably were present during the nomination of Sehalahala as heir in 2005. Absence of proof or corroboration, leads to an inescapable conclusion that no such donation exists. [18] In an endeavour to buttress the existence of the donation, the appellants made a further allegation that the 2nd appellant was assisted by the deceased to obtain a lease. I immediately proceed to deal with the 2nd ground of appeal. Whether the deceased assisted the 2nd respondent to obtain a lease [19] The appellants’ contention is that the deceased assisted the 2nd appellant to obtain a lease and that the learned Magistrate erred in ignoring the appellant’s evidence in this regard. Notably, the 2nd appellant did not take the stand nor did the 1st appellant adduce any evidence to support this serious allegation. She simply relied on her say so. Crucially, the lease document, which formed part of the documents in this appeal, appears to have been issued in 2015. No details were disclosed to show the nature and extent of this alleged assistance by the late Sehalahala and the involvement of the 1st appellant (if any) in the whole process of lease application. There are no details as to when the lease document was applied for, nor why it was only issued in 2015 if indeed it was applied for during the lifetime of chief Sehalahala. This is fatal to the appellants’ case. I conclude that this bald statement can not on its own carry any weight on the alleged assistance nor the donation itself. To put it another way, this allegation does not advance the appellants’ case on the alleged donation because no evidence was adduced to substantiate this allegation. The statement on its own does not suffice as proof on the balance of probabilities that in fact Chief Sehalahala assisted the 2nd appellant to obtain a lease. These grounds too, are without merit and ought to be dismissed. I now revert to the first and main ground of appeal. The Land Act on nomination of an heir against intestate succession Rules [20] The general rule is that property of the deceased must devolve by will or, where there is no will, in accordance with the Rules of intestate succession (Radipeolo Maphathe V Excecutors of the late Dr K. T Maphathe & Others CIV/T/329/2005, para 16). Where the person dies without leaving a valid will, or should a person die leaving a will which nevertheless does not dispose of the whole of his estate, his estate or that portion of it not disposed of by a will must be distributed in accordance with the Laws governing intestate succession. (WD Gearch; p132). [21] In Lesotho, various Acts and regulations govern deceased estates. For purposes of this case, the following are applicable; [22] The Administration of Estates Proclamation of No.19 of 1935; a broad basic legislation governing administration and distribution of estates of deceased persons. It is only applicable however, to Africans who have abandoned the tribal custom and adopted European mode of life. [23] Intestate Succession Proclamation of 1953 essentially declares a surviving spouse as an intestate heir according to certain rules on sharing the estate with the deceased’s descendants. It similarly does not apply (in terms of section 3) to any African unless the estate of such African is required to be administered in accordance with the provisions of the Administration of Estates Proclamation. [24] Apart from these mentioned above, the Land Act 2010 and Land Regulations 2011 should also be noted in view of the effect which they have of property rights with regard to Land forming part of a particular deceased estate. [25] It is common cause that the disputed property was never disposed of by a will. The respondent’s case is that in terms of the Administration of Estates Proclamation, Mafefooane correctly distributed the property to the deceased’s children as the heirs while the appellants’ case is that nomination of an heir in relation to landed property is the prerogative of an allottee’s Family in terms of section 15 of the Land Act 2010. [26] The main issue raised by this ground of appeal is the applicability of the Land Act provisions vis a vis nomination of an heir and principles of intestate succession where the estate concerned is administered in terms of the Administration of Estates Proclamation. [27] I propose to first deal with provisions of the Administration of Estates Proclamation in order to find out how estates should generally be administered. I will thereafter address the effect of the provisions of the Land Act 2010 and Regulations made thereunder on inheritance to Land. General Administration of estates under the proclamation [28] Section 31 provides; The estates of persons dying either testate or intestate shall be administered and distributed, according to law, under letters of administration granted by the Master. [29] This should be read with section 68 which essentially enjoins the executor to administer and distribute the estate in respect of which he is appointed, according to Law and provisions of any valid will relating to that estate. [30] My reading of section 31 and 68 elucidate a significant aspect; that an executor, in the execution of his functions under the administration of estates proclamation, has to act, both in terms of the Will and the Law. The ‘Law’ referred to above, is in my view, not limited to the Act under which the estate is being administered but also includes other legislation related to Land inheritance, in this instance, the Land Act 2010. [31] In terms of the Will, the respondents nor her sisters have been designated as beneficiaries or heirs. The question that arise is therefore whether the executor, was empowered by the letter of administration to designate the respondent and her sisters as heirs. The determination of the question lies in the provisions of the Land Act, to which I now turn. The inheritance of Landed property under the Land Act 2010 [32] The provisions of the Land Act that deal with inheritance of Landed property are sections 15 and section 35. These should be read with regulation 43 of the Land Regulations 2011. Section 15(3) reads; Notwithstanding subsection (2), where an allottee of land dies, the interest of that allottee- a) Shall in the case of spouses married in community of property and where there is no surviving spouse, pass to the person designated by the deceased; b) Where paragraph (a) does not apply the interests of the deceased allottee shall pass to the person nominated as the heir of the deceased allottee by the surviving members of the deceased allottee’s family…”. [33] The Regulation 43 of the Land Regulations, 2011 provides; “(1) Whenever an allottee dies intestate, the nearest relative or connection of the deceased or in default of any such relative, the person who at or immediately after the death has the control of the land formerly held by the deceased, shall within 6 months thereafter notify the allocating authority of the death. (2) Whenever a lessee dies intestate leaving land held under a lease evidenced by a deed of lease and such leased land is not governed by any written law relating to succession, a person who believes he is the lawful heir or any other interested person shall within 6 months of the death of the deceased lessee cause a notice of death to be delivered on transmitted to the Commissioner. (3) The notice referred to in sub-regulation (1) shall show: a. the date of death, place of origin and the last place of residence of the deceased; b. the relationship of the informant to the deceased; c. the name and sex of the heir of the deceased; d. the names and particulars of the heir and whether the heir was nominated by the allottee or family members of the deceased allottee; e. whether the allocated land is to be occupied by the minor children of the deceased; and f. relevant particulars to identify the locality of the allocated land.” [34] In order to properly construe these provisions, the cardinal Rule for the construction of Acts of Parliament should be applied. It is that; enactments should be construed according to the intention of Parliament (S V Gatebe 1963(2) SA 40. It has been said that the intention of the legislature should be sought even at the cost of the application of certain basic Rules and principles of Justice which emanate from the Roman-Dutch common law. (Lourens Du Plessis p 21). [35] The Legislative intention of the Land Act 2010, in terms of its preamble, is to govern mainly the granting and securing of title to Land. Inheritance is one of the methods through with title/rights to Land may be acquired, of course subject to certain prerequisites. When the Land Act was enacted, the legislature was aware of the both the Customary and Common Law intestate succession principles, the presumption being that; the legislature is presumed to have knowledge of an existing Law. (S V Gatebe supra). [36] It is my considered view that the Land Act is a special Legislation in which provision is made for the passing of Land rights through inheritance. The Court of Appeal in Ramatlapeng V Jessie C of A (CIV) 15 of 2016 aptly stated that Inheritance to Land is governed by the Land Act 2010 and regulations made thereunder. The Act should therefore serve as a point of departure where issues of inheritance to Land arise, be it, under testate or intestate succession. [37] The reading of the quoted provisions show that the Legislature intended to regulate inheritance to Landed property; and that an heir to landed property should either be identified in any testamentary writing or nominated by the surviving family members, save where succession to title is granted ex lege such as in favour of minor children and widows. To put it another way, for purposes of land inheritance, one does not automatically become an heir either under customary Law or common Law. He should be nominated as such as required under the Land Act. (Ratia V Ratia CIV/APN/329/14). [38] It should be emphasised that while rights to Land are inheritable like any other property, there are procedures and conditions attached to passing of rights to another person. There is no automatic Land inheritance as alluded to above, either on the basis of customary Law or common Law. The applicable principles under these two systems merely guide the family in identifying an heir. The Land Act supersedes such other Laws on issues on Land inheritance. 38.1 By way of illustration where one is a first born male child entitled to inherit under customary Law, or a descendant of the deceased under common Law, such a person would only qualify to hold Land if he/she is citizen of Lesotho. Meaning that; even if in accordance with these Rules (customary Law or common Law), a person may be entitled to inherit, validity of such inheritance is subject to provisions of the Land Act. (see Moteane V Moteane C of A (CIV) No.14 of 1994. 38.2 One other significant observation to illustrate how the Land Act superseded custom is in relation to the male primogeniture Rule of Customary Law which impedes the capacity of women to inherit Land. This was discussed in the case of Liphehlo & Another V Liphehlo & Another LC/APN/52/14. 38.3 The effect on this primogeniture rule can easily be distilled from the objectives of the Land Act 2010 as stated in the Act. One of them is to achieve gender balance in Land dealings (objectives H & J of the Act), an observation having been made that one of the shortcomings in the Land Act 1979 is inequality between boy and girl Child. [39] There however seems to be little authority on the question whether women married in community of property with their husbands are entitled to inherit their paternal landed property. [40] Makara J in the case of Khasake V Moloi CIV/APN/73/13 expressed his views on land inheritance to Women married in community of property. He remarked as follows at paragraph [35] of the judgement; “ It sounds illogical for the applicants to claim the heirship of the homestead land and yet they are presumably married in community of property with their respective husbands. The result of the issuance of a declaratory order to that effect would be to facilitate for the alienation of the land from the Khasake family to their matrimonial homes. There has to be certainty as to the person who is the heir to the land rights. It cannot be said that a multiplicity of natural persons have inherited the land rights…”. [41] In this appeal, I was not called upon to determine the entitlement or otherwise of the respondent and her siblings to inherit the disputed property. It is not necessary to therefore express a concluded view on this aspect. [42] Suffice for purposes of this case to state that the indiscrimination in Land inheritance discussed above does not however automatically confer a right to the respondent to inherit the disputed property. The prerequisites for Land inheritance in terms of the quoted provisions of the Land Act and the Regulations are undoubtedly peremptory and cannot in anyway be dispensed with. They are clear that for one to inherit rights to Land, they have to be identified or designated as such by the deceased, if not, the family’s role under such circumstances is to then nominate such a person. [43] It follows in my view that whether the basis of heirship is either customary or common Law, testate or intestate succession, The Land Act provisions relevant to succession of title takesprecedence. The fact that the estate of chief Sehalahala was administered under the Administration of estates proclamation, is no licence to an executor to disregard the provisions of the Land Act. [44] Another aspect which I find important in this case is that in terms of both the Administration of Estates Proclamation, and the Land Regulations, time is of essence. It is undeniable that the regulations require that the reporting of death to the Land allocating authority and the nomination of an heir should be done within a period of 6 months after the death of the allottee. Sadly in the present case, the letter forming the crux of the applicant’s case, was authored in 2016, 6 years after the demise of chief Sehalahala and there is no explanation accounting for the delay of six years which I find grossly unreasonably. In any case the letter of administration on the basis of which the respondent and her sisters were identified as heirs, was in my view intended for administration of the property disposed of under the will; And because the Master has no role in intestate succession, (Majara V Makhooane CIV/APN/311/06) this explains why the letter on which the respondent relies, was not forwarded to the Master but to the chief. [45] The said letter cannot be a licence or authority for Mr Mafefooane to usurp the functions of the family council as spelt out in the Act. Only the family is competent to nominate an heir to Landed Property. I should hasten to add that, the phrasing “surviving members of the allottee’s family” should not, in my opinion be interpreted to mean the allottee’s descendants only. In the present case, the late Chief Sehalahala involved the appellant’s family as interested family members in the affairs of Molapo family. This is evinced by the 2005 family letter in terms of which the late Sehalahala was nominated as heir to the disputed property. Disposition [46] In the light of the foregoing analysis, I come to the conclusion that the distribution of the disputed Landed property to the respondent without the requisite nomination in terms of section 15 of the Land Act read with the Land Regulations 2011 is invalid. The learned Magistrate therefore erred in declaring the applicant as the rightful owner of the disputed property in view of the fact that he even concluded that the letter on which the applicant relies does not fulfil the requirements of section 15(3) of the Land Act 2010’. The appeal should therefore partially succeed. [47] By parity of reasoning, the learned Magistrate erred by granting eviction and interdict, and an amount of M 20 000 as compensation against the appellants on the basis of an invalid decision / distribution of the property in question. [48] I am also unpersuaded that the Land in question was donated to the appellants nor that the deceased assisted the 2nd appellant to apply for a lease in relation to a portion of a field at Makopo. The appellants mere occupation and use of the disputed property does not confer any title to them. [49] In the result the appeal is upheld. The judgement of the Court a quo is set-aside and replaced with the following order; a) The application is dismissed b) The nomination of an heir to the disputed property can only be made by the surviving family members of the deceased as required by the Land Act 2010. c) This being a family dispute, no order as to costs is made. ______________ P. BANYANE ACTING JUDGE For Appellants: Mr Matooane For Respondent: Adv. Nhlapho 21