Private law

• Author: M. Mosito
• Pages: 75-94
• Date: 01 January 2016
• Published date: 01 January 2016
• DOI: 10.10520/EJC196794

PRIVATE LAW

Mosito, M⃰

KOPANO ‘MOTA V ‘MALINEO ‘MOTA AND OTHER S (C

OF A (CIV)/12/15)

INTRODUCTI ON

The law of succession concerns itself with principles that

determine what should become of a person’s e state upon their

death. These principles also prescribe who the beneficiaries

are and what they are entitled to take as inherita nce.

The rights a nd duties of individuals are also prescribed by the

law of succession. These principles are applicable whether one

dies with or without leaving a valid will or any testamentary

document. If one leaves a valid will, the rules of the law of

testate succession (Successio ex testamento) are applied to deal

with his estate and for one who dies without s uch a

document, the rules of the law of intestate succession

(Successio ab intestato) will be applied.

1

The latter set of rules

forms the basis of t his paper fo r the reason that the deceased

in the matter died intestate. The Court of Appeal ha d to

determine who is entitled to landed property that formed part

⃰ Lecturer, Procedur al and Ad jectival Law (Nation al Unive rsity of

Lesotho); BA Humanities, LL.B (National University of Lesotho); LLM

University o f Kent in Can terbury (UK).

1

De Waal, M. J., and Schoeman -Malan M. C., Law of Succession, 4 th ed ,

Cape Town, Juta & Co, 2008, at 3.

76 LL J Vol. 24 No. 2

of the estate of the deceased. It is the aim of t his paper to make

a comment on the manner in which the Court interpreted and

applied the relevant intestate succession principles to the

estate that was in contention.

FACTS OF TH E CASE

‘Malineo ‘Mota, (hereinafter referred to as the 1st resp ondent)

and the late Tumo ‘Mota (hereinafter referred to as the

deceased) were married by civil rites. Three children were

born of their marriage with Kopa no ‘Mota (hereinafter referre d

to as appellant) being the only male issue . The deceased and

the 1st respondent had a n estate that included landed property

in the form of leased residential sites and fields. Tumo ‘Mota

died in 2012 without leaving a will. In 2014 the appellant who

was an applicant in th e court a quo instituted an ur gent

application in the High Court seeking an order firstly,

declaring him the customary heir of his father as he was t he

only male issue in that family and secondly, declaring null

and void ab initio transactions carried out by the 1 st

respondent concerning assets of the estate of the deceased

without consulting him.

Alternatively, he prayed firstly, that the 4th res pondent

(Master of t he High Court), be directed to appoint an executor

to administer the deceased’s estate accordingly. Secondly, that

the transactions carried out by the 1st respondent concerning

the assets of the estate of the deceased before the execut or

gives the beneficiaries their shares, be declared null and void.

His last prayer was that the 1st, 2nd and 3rd respondents

(Commissioner of Lands and Land Administration Auth ority,