… Parliament accused of trading customary laws for foreign donations
Staff Reporter
The Administration of Estates and Inheritance Act, 2024, recently enacted by the Lesotho Parliament, is now under legal scrutiny in the High Court.
Lawyers challenging the law accuse parliament of sacrificing the country’s customary laws in exchange for foreign donations.
Napo Mokitimi is challenging Section 69 of the Act, arguing that it nullifies the application of customary law on inheritance and the allocation of property to heirs for a deceased person’s estate.
Mokitimi further contends that the law mandates the estate be shared equally among the deceased’s children. He informed the court in his papers that he is the customary heir to his parents’ estate, which now faces potential extinction due to his sister’s intention to liquidate and sell the estate for her share.
“The Applicant seeks an interdict against the anticipated sale of the estate pending the final determination of the constitutionality of the impugned section,” the court papers filed in July state.
Section 69 of the Act stipulates that “the customary law on inheritance, and allocation of property to an heir shall not be applicable to an estate of a deceased person.”
It further specifies that, subject to the aforementioned paragraph, all children of the deceased—whether under civil or customary marriage, male or female, regardless of age—shall be beneficiaries in equal shares to their parents’ estate, except where a will or written instructions exist.
In cases of polygamous marriages, the Act mandates that all children from each household, irrespective of gender or age, shall inherit equally in the absence of a will or written instructions.
If a parent dies leaving behind a minor beneficiary, the appointed guardian and estate administrator must maintain a written record of the estate’s administration, which must be accessible for inspection by the Master’s office and the relatives.
Additionally, a surviving parent, guardian, closest relative, or any community member must obtain permission from the Master before alienating, disposing of, or selling a minor’s property.
Violating this section constitutes an offense, with penalties upon conviction.
The Act also clarifies that “notwithstanding a provision of the Land Act 2010, in matters of inheritance, siblings shall have co-ownership of land, and the inherited arable land shall not be subjected to subdivision.”
Mokitimi implored the court to examine and determine whether Section 69 is a justifiable limitation on the rights of customary heirs. He questioned: “Whether this section, to the extent of its broad letter and effect of abolishing the entire customary law of inheritance system, remains necessary, given the legitimate rationale that underpins the maintenance of the customary heir to an extent of preserving families’ stead and legacies that have to stay intact under the watchful eye of the heir.”
Mokitimi further stated that the he seeks the intervention of the court to determine “whether or not the impugned section undermines the basic structure of the Basotho customary law of inheritance and the reasons that underpin such law.”
He added: “Given the implications of Section 18 (4)(c) of the Constitution, which protects and permits differential treatment based on customary law, Section 69 deserves to be declared unconstitutional to the extent of its distortion and abolition of customary law that is protected by the Constitution.”
Mokitimi also argued that the case is urgent, as his sister has already approached the office of the Master of the High Court to appoint an executor to realise, sell, and terminate the estate of the late ‘Manapo Mokitimi.
He noted that the Master has already issued a notice to implement this procedure, and once it begins, he will not be afforded substantial redress in due course. He emphasised the urgency, pointing out that if the court vindicates him after the estate has been sold, the estate in question cannot be recovered.
Mokitimi seeks a court declaration affirming him as the lawful and rightful customary heir to the estate of his late parents, both at Matelile in the district of Mafeteng and Lithabaneng in the district of Maseru.
He is also requesting “an order striking down Section 37 of the Administration of Estates and Inheritance Act, 2024, to the extent of its inconsistency with Sections 43 and 44 of the Land Regulations of 2011.”
Section 37 states that where a person – (a) has died without having, by valid will, nominated a person to be his executor; and (b) duly nominated to be the executor of any deceased person has predeceased him or refuses or resigns or becomes incapacitated to act as an executor or within such reasonable time as the Master may consider sufficient or refusal to act, fails to obtain letters of administration, the Master shall cause to be published in the Gazette, and in such other manner as he thinks fit, a notice calling upon the surviving spouse, the heirs, legatees, and creditors of the deceased to attend before him, at a time and place to be specified in the notice, for the purpose of proposing a person to be appointed by the Master as an executor dative.
It further states that the Master shall appoint a person as he considers fit and proper to be an executor dative of the estate of the deceased person, and shall grant letters of administration accordingly, unless it appears to him necessary or expedient to postpone the appointment and to publish another notice under subsection (1), where a person – (a) has died without having by any valid will nominated any person to be his executor; and (b) duly nominated to be the executor of any deceased person has predeceased him or refuses or becomes incapacitated to act as executor or within such reasonable time as the Master may consider sufficient, fails to obtain letters of administration.
In the certificate of urgency, Mokitimi’s lawyer, Kelebone Monate, certified that he had carefully considered the matter and believed it warranted the court’s urgent intervention.
Monate then listed the grounds for seeking urgent relief.
He explained that the National Assembly recently passed the Administration of Estates and Inheritance Act, 2024, which, through Section 69, distorts and effectively abolishes the customary law governing inheritance.
He argued that the laws of Lerotholi form the bedrock upon which Lesotho derives its character as a State, as fully set out in Section 1(1) of the Constitution.
“Section 45 of the Constitution provides that the College of Chiefs, established in terms of Section 104, shall have the power to designate the successor to the throne in accordance with the customary law of Lesotho,” he stated.
Monate further argued: “The customary law of Lesotho, as referred to in the Constitution, is the same law that Section 69 of the Act seeks to wash away, to the detriment of the Applicant in this case. I highlight this point to submit that there is no rational and justifiable basis for the promulgation of Section 69 of the Administration of Estates and Inheritance Act, 2024. If any rationale exists, it is too broad in its scope, attempting to abolish the entire system of customary law inheritance.”
He asserted that, as reflected in Section 69 of the Act, Mokitimi’s rights under customary law are likely to be eroded if this matter is not urgently addressed.
“Now that the Members of Parliament have traded off the rights of customary heirs in Lesotho in exchange for donations when they passed this controversial law, it is in the public interest, and it will benefit the broader public, to achieve legal certainty regarding what the National Assembly sought to gain by passing this law,” he added.
Monate further argued that Sections 1(1), 44, 45, 104, and 154 of the Constitution are entrenched by the provisions of Section 85 and require a referendum before any amendment.
He said the legality of parliament’s decision to pass a law that disrupts the basic structure of customary law is highly controversial and infringes upon the Mokitimi’s constitutional rights, making recourse to the court under Section 22(1) of the Constitution necessary.
