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Archaic inheritance law wiped out


Mohloai Mpesi

The Ministry of Law and Justice made a bid to purge away the ancient colonial Estate Proclamation that denied Basotho intervention and services from Master of High Court if clued to traditions.  

The Bill was presented before the National Assembly this week by the Minister of Law and Justice, Lekhetho Rakuoane to amend the 87-year-old law which denied Basotho services of property if not practicing the European tradition or style of living.

“This proclamation shall not apply to the estates of Africans which shall continue to be administered in accordance with the prevailing African law and custom of the territory; provided that such law and customs shall not apply to the estates of Africans who have been shown to the satisfaction of the Master to have abandoned tribal customs and adopted a European mode of life, and who, if married, have married under Europeans law,” reads Section 3 (b) of the law. 

The amendment to this law gives the Master of the High court powers to control property of the deceased, minor, lunatic, person permanently absent from the territory without lawful representative and whose whereabouts is unknown, or person under curatorship, and persons certified ill and incapable of managing their own affairs, thus erasing section 3 (b).  

“The Act shall be cited as the Administration of Estate (Amendment) Act 2022 and shall come into operation on the date of publication in the Gazette,” Rakuoane said.

Adding that the main purpose of the bill is to amend Administration of Estates Proclamation 1935 by deleting the section 3 (b) which caused a conflict on the choice of the law applicable to the administration of property of the deceased Estates.

It is said that Section 3 (b) introduced the mode of life test as a standard to be used to decide the choice of law applicable for administration of deceased estate. The bill further enhances the powers and duties of the Master of High Court to administer all estates under both civil and customary law.

“The bill extends reporting period of thirty (30) days and removes the offences and penalty associated with late reporting of estates and substitute with schedule of administrative fees based on the size of estates to be administered by the Master of High Court.

“A person who fails to comply with the provisions of sub-section (1) shall pay fees as set out in the schedule; amount of M50 for estates value of M1000 to M10 000, amount of M150 for estate value of M10 000 to M50 000. M250 for the value of M50 000 to M100 000 while the amount of M500 to be paid for estate value of M100 000 to M500 000 and M1000 for estate value of M500 000 to M1million and M1500 for the worth of M1million and above.

“A person who fails to comply with the provisions of section 16, 20, 21, 22, 24, 44, 85 and 118 (1) or (2) commits an offence and is liable on conviction to a fine not exceeding Forty Maloti or to imprisonment for a period not exceeding three months,” he said.

The Deputy Master of High Court, Tholoana Hlasipi backed the move to adopt the Bill citing that they dismiss many cases of Basotho who have not abandoned their customary lives but gave preference to the foreigners as they do not practice the Sesotho old-style of living.  

“This amendment means Master of High Court will have powers over the estates of people who are living in a traditional ways including traditional marriage who were erstwhile disregarded and denied services.

“We were mostly serving the foreigners like Chinese people before because they are not Basotho and are not practicing our custom, which is unfair when we are an independent country but give priority to foreign nationals.

“The wills cannot be made by everyone; it is made by only those who are supported by the proclamation. It will only apply when this Bill has been adopted by Parley,” she said.

She further said they have had many cases where people fight over the deceased’s estate especially in the absence of a will.

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