Nalane (Nee Molapo) and Others v Molapo and Others (C of A (CIV) 10 of 8) [2008] LSCA 25 (17 October 2008)

IN THE COURT OF APPEAL OF LESOTHO Held at Maseru C OF A CIV NO ( ) .10/08 In the matter between : ‘MARELEBOHILE Nalane Nee Molapo ) ( FIRST APPELLANT ‘MASENUKU MOLAPO ‘MASEKHOBE MOLAPO SECOND APPELLANT THIRD APPELLANT and THABISO MOLAPO FIRST RESPONDENT LEHLOHONOLO MOLAPO SECOND RESPONDENT MASTER OF THE HIGH COURT THIRD RESPONDENT CORAM : RAMODIBEDI P , HOWIE AJA , HLAJOANE JA , Heard : Delivered : October 2008 October 2008 SUMMARY Administration of Estates Customary law as opposed to common law The Administration of Estates Proclamation No Conflict of - laws – – of . 19 1935. – Parties Practice Non joinder of the customary heir as essential party Application for condonation to argue a new point that the heir had waived his rights – – - . JUDGMENT RAMODIBEDI P , [1] In broad terms this appeal highlights in typical fashion , , , the nagging problem of conflict of laws in this country Is the . deceased’s estate in this matter comprising some flats for , rental and four head of cattle governed by customary law or , does it fall under common law as enshrined in the Administration of Estates Proclamation No . 19 of 1935 ( “the Proclamation” )? Ultimately the case as I see it rests on the , , question of the non joinder of the customary heir in these - proceedings . [2] The facts are fairly simple and indeed hardly in dispute . The appellants and the first two respondents are siblings . Initially there were eight siblings in all Three of them passed . away . These included one Molise Molapo “the deceased” ) ( whose estate is the subject matter of this litigation He died . intestate and childless . In fact it is said that he had never married at all in his lifetime . [3] The eldest of the siblings the late Peete Molapo begot a , , male child namely Libe Molapo who is admittedly the heir in , , the litigants’ family under customary law It is common cause . that he was not joined in these proceedings . [4] The parties are on common ground that the deceased’s death was not reported to the Master of the High Court . Instead the parties namely the five surviving siblings agreed , , , to distribute the estate amongst themselves in equal shares and this was done They shared the monthly rentals equally . . But because there were only four head of cattle at that stage , they decided to await the progeny from one of the cows in order to reach the magic figure “ ” 5 . This would then enable them to get one beast each so they thought , . [5] The first respondent had been given the responsibility by the other siblings to collect the monthly rentals and distribute them amongst the five of them It is alleged however . , that , the whole arrangement collapsed when the first respondent suddenly stopped distributing the appellants’ shares to them . It is further alleged that the second respondent collected the four head of cattle in question and refused to share them with the appellants . [6] Against this background the appellants launched an , application on notice of motion in the High Court seeking an order in the following terms :- -1-“ That applicants first and second respondents are all heirs , abintestato to the estate of the deceased Molise Molapo . -2- That applicants first and second respondents are all entitled to share equally from proceeds of the estate of the deceased Molise Molapo . , -3- That the third respondent The Master of the High Court be directed to appoint a Curator bonis to take the custody and charge of the Estate aforesaid pending the outcome of this application [ ] . -4- That the third respondent be ordered to direct the said Curator bonis to collect such debts of the estate pending the outcome of this application for distribution . -5- That the first and second respondents be ordered to pay costs of this application . -6- That applicants be granted such further and or alternative relief ” . / [7] At the hearing of the matter in the court a quo, the appellants abandoned prayers and of the notice of motion . 4 3 This was because the deceased’s death had not been reported to the Master of the High Court As a result the Master had . declined in writing from intervening . [8] After hearing submissions on the merits the court a quo , dismissed the appellants’ application with costs essentially on , the ground that customary law was applicable and that the appellants were therefore guilty of failing to join Libe Molapo as the customary heir . [9] Thereafter the appellants’ response appears to have been , characterised by a remarkable confusion as to the exact nature of their complaint In their grounds of appeal they only raised . three complaints namely :- -1-“ The court erred by holding that customary law of succession was the law applicable to this matter . -2- , By so holding the court ignored the circumstances of this case which clearly pointed to the fact that rights to the estate in dispute devolved in accordance with the common law of intestate succession The order thereby implied that an estate could devolve and be of the court aquo dealt with under two different systems of law The learned judge erred in this regard . . . -3- The court a quo circumstances entitled to an order of costs ” . erred by ordering that the respondents were in all [10] To add to the confusion in the matter the appellants have , now filed an application in this Court seeking leave to file an additional ground of appeal in the following terms :- “The court erred by disregarding the clear fact that Libe Molapo had intents and purposes waived his right and or abandoned any for all / claim of right he may have had to the estate ” . Needless to say that this application is strenuously opposed by the respondents on the ground that it is bad in law as “it seeks to argue matters which were not traversed in the pleadings or the reply to the answering affidavit in the court .aquo” [11] It will be convenient first to address the appellants’ point , , relating to waiver . I should commence this exercise by pointing out that waiver is a question of fact As such it must . be pleaded Furthermore the onus is on the party relying on . , waiver to show that the other party with full knowledge of his , right decided to abandon such right either expressly or by , , conduct plainly inconsistent with the intention to enforce the right in question Authorities in this regard are legion starting . , with the case of Laws v Rutherfurd 1924 AD 261. See also Hepner v Roodepoort Maraisburg Town Council – 1962 (4) SA 772 ( A ) at 778; Montesse Township & Investment Corporation Pty Ltd And Another v Gouws NO And ) ( Another 1965 (4) SA 373 ( A ) at 381. [12] I observe at once that nowhere in their affidavits did the appellants allege or make out a case for waiver . Indeed in their founding affidavit they made no mention of Libe Molapo at all They failed to disclose the material fact that he is the . customary heir On the contrary Libe Molapo’s name appeared , . for the first time in the respondents’ answering affidavits . Therein they made the case that he is the customary heir and that he should have been joined as such Libe Molapo himself . deposed to an affidavit in which he supported the respondents’ case that the appellants’ claim be dismissed with costs There . is therefore no basis in the circumstances for any suggestion , , that Libe Molapo waived his rights as the customary heir . [13] As can be seen from the above considerations , the question of waiver was neither canvassed nor investigated in evidence in the court a quo . Accordingly the point relating to , waiver which is raised for the first time on appeal must fail . , , The application for leave to file an additional ground in that regard is consequently dismissed with costs . [14] The point of non joinder is short and can quickly be - disposed of . The starting point in my view is to determine , , which law is applicable . Is it customary law or the common law of intestate succession under the Proclamation ? Section 3 b of the Proclamation is decisive in determining which law is ( ) applicable This section provides as follows . :- 3.“ This Proclamation shall not apply – )a ( (b) ……… to the estates of Africans which shall continue to be administered in accordance with the prevailing African Provided that such law law and custom of the Territory and custom shall not apply to the estates of Africans who have been shown to the satisfaction of the Master of the [ : ] High Court to have abandoned tribal custom and adopted a European mode of life and who if married , have married under European law ” . , [15] As is apparent from this section the estates of Africans , fall to be administered in accordance with customary law unless it is shown to the satisfaction of the Master of the High Court that such Africans have abandoned tribal custom and have adopted a European mode of life and also that if married , , they have married under common law . See for example Makata v Makata 1980-1984 LAC at 198 200; Ntsane v Thatho 2000-2004 LAC 248 at 252; T š epo Mokatsanyane & Another v Motsekuoa Thekiso Others C of A CIV No . & ( ) 23/04; The Executor Estate of the Late Florina Likomo , Khakale v Mokoto Khakale & 10/07. Others C of A CIV No . ) ( [16] In fairness to them the appellants have readily conceded , that the applicable law in this matter is customary law and not common law . This concession was , in my view correctly , made having regard to the facts of the case , . There was simply no evidence to show that the appellants had abandoned tribal custom and had adopted a European mode of life Once . this conclusion is reached it follows that Libe Molapo is the , heir in terms of customary law The appellants conceded this . point as well in this Court As pointed out previously they , . simply sought to rely on waiver without more . [17] The appellants do not seriously dispute the proposition that as the customary heir Libe Molapo should have been , , joined in these proceedings . It is indeed well established in - our law that a party which has a direct and substantial interest in the litigation is an interested party It must as such be . joined in the litigation Similarly this Court views the question , . of non joinder in such a serious light that it will not hesitate to - raise it meromotu. This is because as this Court has said the , , Court cannot allow orders to stand against persons who may be interested but who had no opportunity to present their , case See for example . Matime and Others v Moruthoane and Another 1985-1989 LAC 198. See also Lesotho District of the United Church v Reverend Mothonyana Lawrence Moyeye Others C of A CIV No ( ) . 12/06 and the & cases cited therein . [17] It follows from the foregoing considerations that the court a quo was , in my view fully justified in dismissing the , appellants’ application on the ground of non joinder - . [18] So far as costs are concerned there is no reason why , these should not follow the event In any case an award of , . costs is a matter pre eminently within the discretion of the trial - court An appellate court is slow to interfere with the exercise . of such a discretion in the absence of a misdirection No such . misdirection has been shown to exist . [19] In the result the following order is made : , (1) (2) The appeal is dismissed with costs to the first and second respondents to be paid by the appellants jointly and severally , to be the one paying the others absolved . Such costs to include the costs of the appellants’ application for leave to file an additional ground of appeal . ____________________ . M M RAMODIBEDI PRESIDENT OF THE . COURT OF APPEAL I agree : _____________________ . C T HOWIE . ACTING JUSTICE OF APPEAL I agree : _____________________ A M HLAJOANE . . JUSTICE OF APPEAL For Appellants : Adv S Ratau . For Respondents : Adv T Mothibeli . .