IN THE HIGH COURT OF LESOTHO JUDGMENT

Transcription

1 HELD AT MASERU IN THE HIGH COURT OF LESOTHO In the matter between:- MOSIUOA JAPHTA RAMABUSETSA MOTS ELISI RAMABUSETSA MAPULENG RAMABUSETSA THAPELO RAMABUSETSA LC/APN/92/ ST APPLICANT 2 ND APPLICANT 3 RD APPLICANT 4 TH APPLICANT AND MOFOKA MASAKALE METOLONG AUTHORITY 1 ST RESPONDENT 2 ND RESPONDENT JUDGMENT Coram : Hon. Mahase J. Date of hearing : Various dates Date of Judgment : 26 th February, 2015 Summary Land Court application Appropriation of land by the second respondent competing claims over that land by applicants and first respondent who is entitled to compensation to be paid by second respondent Heirship rights over said land to be determined family having appointed an heir. ANNOTATIONS CITED CASES: - Lethaha v. Lethaha H.C.C. 14/10/43 - Peleha v. Peleha J.C. 251/47 - Motsamai v. Motsamai and Others CIV/APN/166/2008 (unreported) - Moteane v. Moteane and Others; CIV/AN/119/93 - Mokhejane v. Seisa J.C. 155/50 STATUTES: - Land Act No. 8 of

2 - Laws of Lerotholi BOOKS - [1] The applicants in this application have approached this court in terms of the provisions of Rule 11 of the Land Court Rules No. 1 of They seek relief which appears at paragraph 5 of the originating application. [2] A pre-trial was held in terms of the provisions of Rule 63 after which the matter was argued after the provisions of Rule 64 of the said Rules were complied with. Issues for determination by this Court can be summarized as being the following:- - Whether in any case under customary law, the lawful heir can be deprived of the greater part of the estate. - Whether a South African citizen can inherit and be a holder of land rights under the laws of Lesotho. [3] The above are issues pertaining to questions of law, so that for this Court to make a determination on same, it is imperative to investigate as to which law is applicable. [4] Before doing so, one has to first make an outline of the facts which precipitated into the launching of this application. In doing so, this 2

3 court observe that it has since become clear from the pretrial conference and from the facts as outlined by parties herein in their respective papers i.e. from the originating application and the answer; that most of the said facts are of a common cause. [5] Briefly, all the applicants are the members/or simblings of the Ramabusetsa family. They are Basotho by nationality although they are currently residing in the Republic of South Africa at Vereeniging. Refer to paragraph 1 of the originating application. They were all born at Liqalaneng Ha Masakale in the district of Maseru. [6] The 1 st respondent is also a Mosotho male adult of Liqalaneng Ha Masakale in Maseru. He is the applicants cousin as clearly described at paragraph 2 of the originating application. [7] The 2 nd respondent is a body corporate duly registered and carrying on business in Lesotho and trades by the name of Metolong Authority, and it is cited herein as an authority responsible for the Metolong Project. This body, among other things, is responsible for paying compensation to various people in the Metolong area whose properties are or may be affected by the works carried on by the 2 nd respondent. [8] The properties is the applicants parents and or great parents in the form of arable land and some tree plantations have since been identified as some of the properties which are indeed affected by the works of the 2 nd respondent carried on in that area. The applicants 3

4 whose parents have since or grand parents died are the beneficiaries of such proceeds as has been outlined in their originating application. They have, as the Ramabusetsa family, appointed the first applicant as an heir to their late parents said estate. [9] The above are all matters of common cause; so also is the fact that after the death of applicants father, Mosiuoa Ramabusetsa SR, left his father home and went to reside at his younger brother s home; to (that is the applicants father). He then requested the now first respondent being his sister s son (cousin) to stay at his parental home to look after it and to also look after the applicants parental properties, now subject-matter in this application. [10] Subsequent to the above, Mosiuoa Ramabusetsa passed on, on the 28 th January He therefore left all of the applicants as the only surviving members of the Ramabusetsa family. [11] The first respondent denies the above and alleges that in fact the said Mosiuoa Mabusetsa (not Ramabusetsa) made the first respondent a donation intervoves of his residential house as well as the ploughing fields. To this extend, the first respondent has attached to his answer the said letter of donation; marked annexure1. [12] I pause to note that nowhere does the first respondent make mention of the forest or tree plantation which is allegedly situated at the Phuthiatsana river. He has also not particularized the said ploughing 4

5 fields neither has he disclosed their location nor their actual numbers. I will deal with this issue in due course. [13] Also notably clear, is that the first respondent refers to one Mosiuoa Mabusetsa and not to Mosiuoa Ramabusetsa; so that eventually one is at a loss as to whether Mosiuoa Mabusetsa is the same person as Mosiuoa Ramabusetsa Sr. consistently so referred to by the applicants in their originating application. [14] Further on this issue, nowhere has the surname of the Mofoka Referred to in the alleged annexure 1 been given or disclosed. How then does this Court know for certain that this Mofoka is the actual first respondent? Also and equally importantly, the figure print impression on this annexure 1, (although this annexure has not been specifically marked), has not been witnessed by anybdy. How then will this Court know for a fact that this is the finger print of the said Mosiuoa Ramabusetsa or that of Mosiuooa Mabusetsa? [15] In a nutshell, and regard being had to the issues canvassed above, the authenticity of this annexure 1 is highly suspect particularly because there is no compliance with the provisions of Proclamation No. 73 of [16] The first respondent has indeed also not denied that he is not a biological son or child of the Ramabusetsa family. Conversely, he has conceded that the rest of the applicants are indeed members of the Ramabusetsa family. Unlike the first applicant; the first respondent 5

6 has not attached to his answer any documentary proof of his nomination as an heir to the estate of the late Mosiuoa Ramabusetsa. [17] The documents which confirm the nomination of first applicant as an heir to his late father s estate and which have been signed by the other Ramabusetsa siblings and only surviving members of Mosiuoa Ramabusetsa herein attached together with the fair English translation, have not been gainsaid by the first respondent. Neither has he challenged the contents of letter written by one Khethisa Masakale, the chief of Liqalaneng. [18] What the first respondent alleges in his answer at sub-paragraph etc. does not assist to advance his case. What he is alleging about applicants being disentitled from benefitting as heirs to their biological parents estate is irrelevant particularly because he has not attached proof of such identity documents. Further on, even assuming without conceding that what he says is correct, he is not supported by any legal principle, nor is it his evidence that the first applicant as well as the rest of the applicants numbers two up to four have renounced their Lesotho citizenship. There is no documentary proof that they have actually renounced their Lesotho citizenship, in which case they would indeed no longer be considered Lesotho citizens capable of owning rights over any Land in Lesotho. [19] In particular, first applicant s averments at sub-paragraph are startling, untenable and not supported by any known legal principle, at least in this jurisdiction, moreso when the fact that the applicants are 6

7 the only surviving biological children of Mosiuoa Ramabusets Sr. has not been challenged in anyway. [20] As has been indicated above, the first respondent s alleged involvement in the burial of the late Mosiuoa Ramabusetsa is not and cannot be the basis upon which he can claim heirship over Mosiuoa s estate while the biological siblings of Mosiuoa are still alive. [21] I note also with concern that his having actively participated in the burial of Mosiuoa was so as he would use this as a leverage to disentitle the applicants of their father s estate. Also, the alleged donation intervivos referred to at sub-paragraph has not been witnessed by any member of the Ramabusetsa nor that of Mabusetsa family. [22] In effect, in both the Sesotho and the English versions of documentary evidence of this donation intervivors, the donee is written only as Mofoka with no surname. How then can one say for certain that the donee thereat is the first respondent? [23] This is in addition to the fact already alluded to above to the effect that the finger print affixed on that document, allegedly by the donor has not been confirmed, attested to nor witness by anybody. Equally, it is highly suspect that it is that of the deceased who is said to have allegedly donated the said properties to first respondent. 7

8 [24] Further on, and by some strange coincidence, this document has been certified by or at the office of the Maputsoe police some seven months after the death of the donor who died on the 28 th January This was so certified at another district well outside and away from the district of Maseru, which is the district where the parties herein and the deceased do not reside. There is also no original copy of this document exhibited in Court for the court to be satisfied that indeed such an original is in fact in existence. [25] The above applies in respect of the date-stamps on annexure 2, which is a copy of the report normally made at the chief s place immediately after the deceased s death. [26] In a nutshell, and regard being had to the contents of the applicants averments in the originating application; to wit paragraphs 4, the authenticity of the donation with regard to the donation intervivos remains highly suspect and questionable. In addition and in particular, the first respondent has not denied in anyway the contents of the applicants sub-paragraph 4.4 as to how he came to possess the deceased s said properties. [27] If indeed the first respondent had already received that property intervivos long before the death of the deceased, why then did he and not the deceased inform the applicants as well as the second respondent that it was him and not the deceased who should have been consulted and considered to receive the compensation for those pieces 8

9 of land. Why wait to lay such a claim only after the death of the deceased? [28] Also the first respondent did not inform the applicants about this donation to him by the deceased but he just proceeded ahead to submit his name claiming to be the heir to the deceased estate. This he did only after the death of the deceased. Why? In fact, it is a fallacy that the first respondent is an heir of the deceased herein. There is nothing on record indicating that he was ever appointed an heir by the Ramabusetsa family members at any time over the estate of the deceased, Mosiuoa Ramabusetsa SR. [29] Heirship rights and rights which one acquired through a donation are treated differently, so also are the procedures through which such rights are acquired. In the instant matter, there is proof that subsequent to the death of the said Mosiuoa Ramabusetsa the only surviving members of that family appointed the first applicant as an heir to his estate which comprises the property, subject-matter in this application. [30] There is neither any such documentary proof annexed to the answer of the first respondent; neither has first respondent approached an appropriate court of law to challenge the appointment of the first applicant as an heir to the said estate of the deceased, Mosiuoa Ramabusetsa SR. 9

10 [31] The first respondent relies on the document, (annexure 1) which he argues to constitute a donation intervivos between deceased and himself. This Court has already dealt with the shortcomings of this document above. [32] Donation means a contract whereby one person called the donor who is under no obligation whatsoever, but acting out of pure liberality promises to give to another, called the donee, something without wishing to get anything in return or stipulating for anything in his own favour. [33] Donations may be divided into two principal classes, viz; (a) donations mortis causa (donations made in contemplation of death); and (b) donations intervivos (donations made otherwise than mortis causa) [34] The applicants story is that the deceased, Mosiua Ramabusetsa,had before his death registered with the second authority as the person entitled to receive compensation for the expropriation by the second respondent of his said properties but that he died before he could receive same. This has not been challenged and or denied by the first respondent. [35] The first respondent has in fact not disclosed to Court the circumstances under which the deceased made to him a donation intervivos of his property. He only says he submitted his name as heir to the estate of Mosiuoa Mabusetsa (and not Ramabusetsa) but ends 10

11 here. Why would the deceased submit his name as a beneficiary if he had already donated that property to 1 st respondent? The averments of the applicants as contained in sub-paragraphs 4.7 and 4.8 remain admitted and unchallenged. [36] The first respondent has also sort to rely, in support of his case on the judgment of the Sefikeng Local Court in which the Chief of Ha Masakale had sued him, seeking to have him (1 st respondent) evicted from the property of the deceased Mosiuoa Mabusetsa Sr. (annexure 5). Apart from the fact that subject-matter therein was a vegetable garden and a poplar forest; obviously not comprising of the deceased s other arable and residential plots, neither the deceased nor any of the immediate blood relatives of the deceased and applicants herein were parties to that case. [37] If indeed the said donation between the deceased and the first respondent had been made, accepted and registered with the chief of the area in question in 1998 one wonders why:- - The first respondent did not challenge the deceased when the deceased; prior to his death in January 2008, submitted his name to the second respondent as a beneficiary of the compensation referred to above. Why did he not do so, since according to him he had already accepted that donation from the deceased? The only reasonable answer to this question is that, it is because no such donation to him had ever been made by the deceased. He had no right to such property of the deceased. As a principle of the law, since the first respondent 11

12 would have already accepted that donation way back in 1998 (according to the chief s date stamp) and since there is no allegation that such a donation had been revoked by the donor prior to his death, the first respondent has a legitimate right to have challenged the deceased when he suddenly submitted his name as a beneficiary as explained in applicants sub-paragraph 7. - Why has the first respondent not annexed any documentary proof indicating his having been appointed an heir by the Ramabusetsa family and or by any members of the extended family referred to in the contents of sub-paragraph of his answer? [38] The first respondent has also not disclosed in his answer who these extended family members are nor what he means by that. Does that include or exclude the applicants? [39] As a principle of the law, a donation is never presumed. The intention to make a donation must be clear and manifest from the acts and language of the donor, and cannot be inferred from an indefinite expression of a desire to make a gift. [40] The fact that the deceased, who is alleged to have made a donation of his property, subject-matter herein to the first respondent is negatived by his subsequent submission of his own names to the second respondent as the person entitled to receive compensation for the 12

13 expropriation of his said pieces of land just prior to his death on the 28 th January [41] It is trite that there is a strong presumption in law against gifts, as nobody is presumed to throw away or squander his property. [42] Regard being had to the circumstances of this case, in particular to the fact that the first respondent, unlike the applicants, is not related by blood with the deceased, and also to the fact that there is an unchallenged evidence that the applicants are the only surviving direct relatives and members of the deceased s family, it remains doubtful and untenable that the deceased could have donated his said pieces of land as well as his residential home to the first respondent to the total exclusion of his children and or the immediate children of his own brother. [43] Also the mere fact that the first respondent makes a bare allegation that the applicants are now citizens of South Africa is not and cannot be enough for this Court to conclude that that indeed is the obtaining situation. [44] The first respondent has not placed before court any proof of any kind confirming that indeed the applicants are holders of the South African identity documents and most importantly, there is no proof indicating that they have formally renounced their Lesotho citizenship. 13

14 [45] The basis upon which the first respondent avers that the applicants are South African citizens and that they all live in South Africa permanently has no foundation nor lawful foundational basis; because of lack of evidence proofing that fact as against all of the applicants. His averments to this effect cannot be relied upon in court without such documentation having been annexed to his answer as proof of this fact, and without proof of their having formally renounced their citizenship of Lesotho. [46] The applicants and other family members of the Ramabusetsa have since appointed the first applicant; Mosiuoa Japhta Ramabusetsa of Ha Masakale and not of Vereeniging in the Repubic of South Africa, an heir to the estate of the deceased Mosiuoa Ramabusetsa Sr. and nobody else. The first applicant has inherited this property ex lege. [47] This appointment has to date not been challenged in anyway by the first respondent. He cannot have it challenged on any basis because it is trite that at least in this jurisdiction matters pertaining to such appointments are the domain of the particular family concerned. [48] The first respondent is a member of the Masakale family; as such he has no say in the family affairs and dealings of property of the Ramabusetsa family. He cannot therefore be permitted or allowed to interfere with the decision made by the Ramabusetsa family members, except by due process of the law should he be aggrieved by their said appointment of the first applicant as an heir. 14

15 [49] He has to date not challenged the applicants appointment of the first applicant as an heir to the estate of the late Mosiuoa Ramabusetsa Sr. (the deceased). Until such time that such an appointment is challenged successfully in a court of law, it will stand and nobody; not even the chiefs of both Ha Masakale and Boithatelo and or any other chiefly authority in their respective hierarchy can undo it unilaterally and without recourse to the law. [50] The first respondent has not pleaded issuably to the applicants averment to the effect that there is in existence a letter through which they have proofed that the first applicant has been appointed an heir to the estate of the deceased Mosiuoa Ramabusetsa, and that such an appointment has been done by the surviving members of the said family. He only states that he has noted contents of the applicants at subparagraph 4.13 of the originating application. He neither admits denies and or refutes same. He contents himself with only making reference to the alleged letter of donation referred to above. The issue with regard to this letter has already been dealt with above. [51] The first respondent s reliance on the judgment of the Sefikeng Local Court, in CC40/13 of the 14 th June 2013 cannot advance his case any further because among others, in terms of the provisions of the relevant Land Act 2010 and the appropriate Land Court Rules Nos. 2 and 1 of 2012, the local and central courts have no jurisdiction to adjudicate over matters such as in the present application. Refer to the interpretation sections of both sets of Land Court and District Land Court Rules. 15

16 [52] In the premises, it is the considered view of this Court that the chief of Boithatelo has no right or power to interfere in any way with the appointment by the Ramabusetsa family of the first applicant as an heir to the estate of the late Mosiuoa Ramabusetsa Sr. (the deceased). [53] He is accordingly ordered to cancel and expunge from his records the letter allegedly appointing the first respondent an heir to the said estate; subject-matter herein. [54] He is further ordered to accept, endorse and sign the letter of appointment of first applicant as an heir to the whole estate of the said Mosiuoa Ramabusetsa Sr. (deceased) who is the younger brother of the applicant s father. He is further ordered to assist the said first applicant to process by lawful means the payment to him (first applicant) by the second respondent of the compensation money or benefits which would otherwise be due to the late Mosiuoa Ramabusetsa SR. [55] The second respondent is ordered to stop interfering with the affairs of and between the Ramabusetsa family and the second respondent. The alleged letter of donation intervivos is also declared unlawful and without no force of law. 16

17 [56] The Court declines to order prayer 5.2 because it has no jurisdiction to do so in the existence of a clear appointment of the first applicant as heir to the estate in question. This Court could interfere in this regard only if the appointment of the Ramabusetsa family of an heir referred to above had been challenged before a court of law. [57] The first respondent, who has unnecessarily compelled the applicants to incur costs of this application is ordered to pay costs to the applicants. [58] This order of court, must be served upon the second respondent for it to accordingly process and pay compensation for the expropriation by it of the pieces of and other related properties subject-matter to the first applicant forth with. This matter is long overdue. M. Mahase For Applicants: For Respondent: Adv. M.V. Khesuoe 17

18 For first Respondent: Adv. K.M. Thabane For second Respondent: No appearance 18