CIV/APN/479/02

IN THE HIGH COURT OF LESOTHO

In the matter between:

NTSIE NATHANIEL MAPHATHE 1st Applicant

SAMUEL KEKELETSO MAPHATHE 2nd Applicant

AND

'MANKHATHI MAPHATHE N.O. 1st Respondent

SAMUEL MPHOLO MOJI N.O. 2ndRespondentTLALI MAPHATHE N.O. 3rd RespondentDANIEL JOHANNES RUDOPH SCHUTTE N.O. 4th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice G. N. MofoloOn the 22nd day of July, 2004"

HISTORICAL BACKGROUND

Dr. Maphathe is said to have born on 10 July, 1914 and it is common cause

that he was born in Mafeteng, Lesotho where he lived with his first wife

'Matlali out of which marriage Tlali Maphathe (3rd respondent), Benjamin

Maphathe (2nd applicant in the 2nd counter application), Ntsie Nathaniel and

Samuel Kekeletso Maphathe in the main application were born.

It is recorded that in his late years Dr. Maphathe had gone to Ireland to study

medicine and on his return had set up private practice also going into politics

and becoming a Minister of Government. On his return his wife Matlali and

himself were divorced and Dr. Maphathe had married the 1st respondent in

the main application out of whom a son was bora but later died. Dr.

Maphathe appears to have lived in Mafeteng, Lesotho until 1997 when,

owing to ill-health he moved to"Ladybrand, Orange Free State, the Republic

of South Africa.

Several bequests were made to several legatees and beneficiaries including

trusts to institutions, of significance is the fact that notwithstanding several

dispositions to the 1st respondent in the main application, disposition

sounding in money to 1st respondent (para. 4.1 of the last will and

Testament) reads 'the balance of all cash found in my Estate, but excluding

investments on fixed deposit and in Unit Trusts in my name at any Bank or

at the Old Mutual.'

Dr. Maphathe had also stipulated that his Estate be administered in terms of

the Administration of Estates Proclamation No. 19 of 1935 (or any

replacement legislation) for the reason that:-

2.1 I am a professional man;

2.2 1 have abandoned tribal law and custom;

2.3 I have adopted a Western mode of life; and

2.4 I have married under Western (European) law.

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Finally he had appointed the 1st, 2nd, 3 and 4th respondents in the main

application as executors of his will.

Clause 9 reads:-

9.1 To my son Samuel Kekeletso Maphathe (2nd applicant in the

main application)

9.1.1 My residential plot no. 23/24 also known as plot

131/132), Mafeteng Urban Area, located on the road to

the Mafeteng Hospital, on condition that my said son

sign all documents and do all other things reasonable

necessary to transfer the lease in respect of this property

into his name not later than 3 (three) months after my

demise;

9.1.2 Should sufficient funds be available after all the legacies

provided for in my Will have been satisfied, an amount

of R200,000.00.

9.2 To my son Nathiel Ntsie Maphathe

9.2.1 My unnumbered residential/commercial plot situate at

Seitlheko's village. Mafeteng district;

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9.2.2 Should sufficient funds be available after all the legacies

provided for in my Will have been satisfied, an amount of

R200,000.00

Also, clause 17 of the Will reads:

'For the guidance of my Executor and Trustees, I hereby declare that Ihave during my lifetime generously assisted my two elder sons TlaliLebohang Maphaphe and Benjamin Radiopelo to establish theirrespective business ventures .'

Clause 22 is to the effect:-

Finally, I confirm that I desire my mortal remains to be cremated, Ifurther confirm that I wish the ashes to be interred at the foot of thecombined graves of my late parents —.'

It is also to be noted that clause 15 Annexure "A" of definitions reads:

'Should any dispute arise between the Trustees, such dispute shall bereferred to arbitration—.'

According to papers before me, it would seem the estate was reported to the

Master of the High Court, Bloemfontein as a result of which Letters of

Executorship were issued to the 1st, 2nd, 3rd and 4th respondents by the

Master, Bloemfontein on 28 June, 2000 when Dr. Maphathe had died on 22

May, 2000. It was only on, say 3 September, 2001 when the Master of High

Court Lesotho signed and confirmed Letter of Executorship. It was also on

25 May, 2000 when 1st, 2nd, 3rd respondents by Power of Attorney appointed

the 4th respondent in the main application as Administrator of the Estate in

the Free State, South Africa.

Also, according to papers before me, a final liquidation and distribution

account was submitted to the Master of the High Court, South Africa in

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February, 2001. TIali Maphathe and Ben Maphathe had lodged objections

with the Master, High Court, Bloemfontein and failing had approached the

Supreme Court, Bloemfontein where they also failed sometime in May,

2002.

It would seem, it is against this background that applicants have lodged their

application with this court for an order:

1. Dispensing with the Rules on modes and periods of service on the

grounds of urgency.

2. Ordering respondents to administer and wind up the estate in terms of

the Administration of Estates Proclamation no.19 of 1935 and the

Will of the deceased.

3. Ordering Respondents to open an estate account here in Lesotho

within 14 days from the granting of this order.

4. Interdicting and restraining the 1st, 2nd, 3rd and 4 Respondents from

removing cash belonging to the estate of the late K. T. Maphathe to

South Africa and ordering Respondents to account for cash collected

from the estate from the 27th November, 2000 to date.

5. Ordering that the costs of the Application should be paid out of the

estate.

ALTERNATIVELY

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1. Removing Respondents from the official duties as Executors of the

Estate of late K. T. Maphathe and substituting them with an executor

or Executors as may be appointed by the court.

2. Ordering that the costs of this Application should be paid out of the

estate.

3. Granting the Applicants such further and/or alternative relief as the

court may deem fit.

There is also a certificate of urgency accompanied by grounds of urgency

which read:-

"The Applicants are suffering great prejudice in that they are notrealizing their bequests;

Also

'The Respondents are failing to account for the Estate and wind up theEstate, contrary to the provisions of the administration of EstatesProclamation, and this causes great prejudices to the Estate and to theApplicants' bequests.'

I have gone through respondents' Heads of Argument and their addresses to

me and nowhere have I found that respondents demur about the urgency of

the application save that according to respondents applicants are suffering

prejudice as to their bequests. And although applicants seem to speak on

behalf of other legatees and beneficiaries, I am not aware that this has been

objected to necessitating joinder of other beneficiaries.

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Be this as it may, Ms. Tau on behalf of the applicants has urged that the

application be granted as prayed. In support of her arguments, Ms. Tau has

said that it was the testator's wish that the estate be governed in terms of the

Administration of Estates Proclamation no. 19 of 1935; Dr. Maphathe had

lived in Lesotho most of his life where he had property and in supporting

Ms. Tau, Mr. Mphalane for the 3rd respondent has submitted it was also Dr.

Maphathe's wish that his ashes be interred at the foot of his father's grave.

While there is no problem as to which law governs immovables, it was

important for the court to decide which law governed movables and not only

this but also to decide Dr. Maphathe's domicile at the time of his death. A

point was made that it was after his death that Dr. Maphathe was made to

assume South African domicile. Also, a point was made that the estate

should have been in the first place reported to the Master of the High Court,

Lesotho and thereafter reported to the Master of the High Court,

Bloemfontein but the reverse appears to have been the case; also, it was

incumbent on the 1st, 3rd and 4th respondents to have reported the Estate in

Lesotho since the will was deposited with them. A point was also made that

in reporting the Estate to the Master, Bloemfontein a report should have at

the same time been made to the Master, Lesotho and that in issuing a Power

of Attorney and appointing 4th respondent as Administrator a corresponding

Power of Attorney should have followed in Lesotho. In course of argument,

an arbitration clause in the Will had come into focus and it was also argued

the prescriptive period for the realization of the estate had expired

necessitating application for condonation. Also, that the adoption of

Molelekeng was a smokescreen intended to benefit the 1st respondent at the

expense of other legatees. The court has also been moved to set aside the

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adoption. Mr. Mphalane for the 3rd respondent has argued there is a dispute

of fact necessitating referral to viva voce evidence. On the contrary, Mr.

Raubenheimer S.C. for the 1st, 2nd, and 4th respondents has argued the

application is fatally defective for the inordinate delay in bringing it and

besides the order to return property to Lesotho is unenforceable as

beneficiaries may have parted with the fruits.

I will endeavour to answer the above submissions though not necessarily in

the order in which they come. Concerning the Proclamation above, it was

the testator's specific direction that the will be governed and determined in

accordance with the Administration of Estates Proclamation no.19 of 1935.

It would seem to me, according to the testament, when it was composed the

testator was in Mafeteng, Lesotho (annexure A p. 20 of the record) although

the testament was signed in Ladybrand (p.39 of the record). Not only this,

Dr. Maphathe was born and bred in Mafeteng, Lesotho and spent most of his

adult life there coming to Ladybrand in his winter months to seek medical

attention. It was his direction in his will that his cremated remains be buried

on or at the foot of his parents grave.

Unfortunately, although Dr. Maphathe's directive as to the law governing

his estate was explicit, his estate was not reported in Lesotho but was instead

reported in Bloemfontein, Free State the Republic of South Africa. A

topical question looms as to who should have reported the estate. According

to sec. 16(1) of the Administration of Estates Proclamation no.19 of 1935,

every person who has a Will in his possession at the time or at any time after

the death of the person executing the Will 'shall forthwith transmit or deliver

the will:

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(a) if it is in the district wherein the office of the Master is situated,

to the Master;

(b) if in any other district, to the District Officer of that district.

Since applicants are beneficiaries under the Will, I will assume that they had

the Will and should have reported it to the Master; if they did not have it,

certainly the 3rd respondent had it afterall I was informed he read the Will.

Not only this, it would appear the executors of the estate including the 3rd

respondent reported the Estate to the Master of the High Court,

Bloemfontein as a result of which Letter of Executorship were issued to the

executors including the 3rd respondent. Therefore, if for some reason or the

very reason that it was 3rd respondent who had the Will and had to report it, I

see no reason why applicants did not persuade 3rd respondent to deliver the

Will to the Master of the High Court, Lesotho. From papers before me, it

would appear there was good understanding between applicants and 3rd

respondent and they approved of his actions. I am fortified in this by

applicants' support of the 3rd respondent and their attitude to exculpate 3

respondent even where he appears to have gone wrong. It was, amongst

others, the 3rd respondent as administrator who reported the estate in South

Africa and appointed the 4th respondent and yet, though 3rd respondent

cooperated with the other executors in administering the estate according to

the law obtaining in South Africa, and although there is plenty of evidence

that 3rd respondent refused to sign Power of Attorney to have the Estate

administered in Lesotho, applicants refuse to accept 3rd respondents'

culpability. In my view, it was the intention of applicants to have the estate

9

reported in Lesotho, since applicants were interested parties and knew that it

was the intention of their late father to have his will governed by provisions

of the Proclamation aforesaid, it was up to the applicant's to have so

reported the estate to the Master of the High Court, Lesotho. How can I

believe that at a family meeting to discuss 3 r d respondents refusal to sign

Power of Attorney applicants did not know the estate had not been reported

in Lesotho? Why complain the estate is not being administered in terms of

the testator's wish when those on whom it was incumbent to report the estate

have not done so? I have already said I see no reason why, if it was the

applicants' wish to have the Estate reported in Lesotho to the Master of the

High Court it was not so reported. Not only did applicants not take on the

responsibility of reporting the Estate to the Master in Lesotho as they should

have done, I also find that they acquiesced in the report of the Estate in

South Africa and its administration there. Indeed it was no less the

applicants who submitted themselves to the jurisdiction of foreign and hence

South African Court to challenge the Liquidation and Distribution Account

which, according to them, contained assets from property situate in Lesotho.

In any event, this is a case of checking the wolve after harm has been done.

The Liquidation and Distribution Account for South Africa has been

finalized and this application has come to this court after an inordinately

long period has expired. Beneficiaries have consumed their fruits and I

doubt they can be made to disgorge quite apart from the fact that when the

Master of the High Court Lesotho endorsed the Foreign Letters of

Administration in terms of sec. 41 of the Administration of Estate

Proclamation no. 19 of 1935 it was to bring the Estate in Lesotho within the

ambit of the Administration of the Estate Proclamation aforesaid and all that

remains is to secure Power of Attorney to have the Estate in Lesotho

10

finalized. It follows that once a Power of Attorney has been signed an Estate

account will follow.

As to interdicting the executors from removing cash belonging to the estate

to South Africa, since applicants are beneficiaries under the Will however

limited their bequests may be and in view of the fact that they stand to

benefit should there be surplus funds, I am of the view that applicants in this

respect have a clear right to bring this application for once the Master of the

High Court, Lesotho endorsed foreign Letters of Executorship, in terms of

the provisions of the Proclamation above the estate was to be administered

according to its provisions. The only problem is that when the Master,

Lesotho endorsed the foreign letters, the estate in South Africa was already

undergoing administration and it would seem the executors including 3rd

respondent were id idem as to the administration of the estate. There is the

old, wise saying that whenever anything goes wrong, one is to speak up or

forever hold one's peace. An interdict is granted where (1), a clear right has

been established; (2) an injury committed or reasonably apprehended; (3) the

absence of protection by any other remedy. It might be said that a clear right

has been established for applicants are legatees in the Will. As to (2) above,

I cannot comprehend what injury has been committed for if I have read the

Will well, applicants have been bequeathed plots and surplus funds (clause

9.1 - 9.2.2 of the Will). Besides, according to Mr. Schutte in his Answering

Affidavit, cash paid to lstrespondent and other beneficiaries is rentals from

Patsa Centre which rentals are subject-matter of a sub-lease to Investec. The

rentals, it would seem, are paid into a Memorial Trust and capitalized and

there is letter of authority by the Master of the High Court, Bloemfontein

authorizing 4th respondent, 1st respondent and 3rd respondent as trustees of

11

the Memorial Trust. The same goes for fixed deposits and unit trusts being

collective investments listed on the Johannesburg Stock Exchange to which

in terms of the Will, 1st respondent in not entitled. The investments from

Patsa Centre, are invested in the Republic of South Africa out of reach of the

estate in Lesotho and do not form part of residue of the estate or surplus.

Now that the Master, Lesotho has endorsed foreign letters, the estate in

Lesotho stands to be wound up once a Power of Attorney is forthcoming and

I fail to gauge how applicants stand to lose or be prejudiced. Regarding (3),

the estate stands to be administered as shown above and there can be no

question of absence of protection by any other remedy. If applicants are

saying that their surplus funds will be prejudiced by remittal of funds to

South Africa, applicants have not proved that such funds are being so

removed except their word of mouth. Mr. Schutte has denied this and

accounted for investments that have benefited the 1st respondent. His story

is preferred as against that of the applicants. I am of the view though that

from the time the Mater of the High Court, Lesotho singed and sealed

foreign letters of executorship the estate in Lesotho was to be governed by

the Administration of Estates Proclamation above and that, in the unlikely

event that funds were being siphoned from Patsa Centre, such practice is to

have then ceased to operate.

Seems to me though that it is imperative to grant an interdict if the applicant

would be compelled to part with his right. See Candid Electronics (Pty)Ltd

v. Merchandise Buying Syndicate(Pty) Ltd, 1992 (2) SA at 465 B.D., c/f

fourie v. Uys, 1957 (2) SA 125 (c) at 129A. As shown above, the applicants

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are not threatened with parting with their right nor have they parted with

these rights.

I may also point out that it seems to me applicants would have me revisit

their application to the High Court in Bloemfontein, a perception which Mr.

Raubenheimber S.C. expressed. This is so because particularly in his

Replying affidavit 1st applicant keeps on expressing his dissatisfaction with

the Liquidation and Distribution Account as favouring the 1st respondent

(vide paras 8.3, 9.3 and 9.4). I am of the view that this application is a thinly

veiled attempt to have this court revisit proceedings brought by applicants

before the High Court in Bloemfontein. I am also of the view had applicants

succeeded there, they would not have come to this court; since the property

complained of is within the jurisdiction of this court, they should have come

to this court in the first place.

Whether in their personal capacity applicants have been prejudiced by the

Liquidation and Distribution Account particularly with reference to 1st

respondent whom applicants claim is favoured, this matter was subject-

matter of application by applicants and one Benjamin Raliopelo Maphathe

before the High Court, Bloemfontein. It is also common cause that the

Master High Court rejected applicants' objection to the Liquidation and

Distribution Account and applicants applied to the High Court in

Bloemfontein to set aside the Master's finding. Mr. Raubenheimer S.C. has

contended on behalf of 1st, 2nd and 4th respondents that the application was

dismissed with costs while it is applicants' case that the application was

withdrawn with costs to the estate. While it is true where an application is

dismissed costs are awarded, it is also true that even where an application is

13

withdrawn costs may be awarded. Whether or not an application is

dismissed or withdrawn is a question of evidence. Since this is an

application and applicants are litis dominus, it was up to applicants to prove

that the application was withdrawn afterall applicants are in possession of

documents relating to the application. Mr. Raubenheimer's contention that

the application failed succeeds. Noticeably, applicants are not challenging

the Liquidation and Distribution Account qua the Master, Lesotho. They

are, on the contrary, asking this court to revisit judgment of the High Court,

Bloemfontein, a judgment that can only be visited by way of review.

The judgment being a foreign one, this court has no jurisdiction over it

notwithstanding that according to Dicey (the Conflict of Laws - 8th Ed.)

quoting from Re: Trufort (1887) 36 Ch. D 600, 611, where a person at the

moment of his death is domiciled abroad, the courts of his domicile have

jurisdiction though not necessarily exclusive jurisdiction to decide upon the

right to succeed to his movables though if foreign courts exercise their

jurisdiction, English court will follow their decision. I do not see how this

court can order respondents to account for cash collected from the estate

since such cash in my view was adjudicated upon by the High Court in

Bloemfontein. I have however said and I repeat that from the time the

Master, the High Court, Lesotho endorsed the foreign letters of

Administration, the estate in Lesotho was to be administered in terms of the

Administration of Estates Proclamation aforesaid. If, as Mr. Mphalane has

contended, at the same time as reporting the estate in South Africa, a

corresponding report should have been made in Lesotho, it was those

reporting the estate in South Africa, including the 3rd respondent to have

made a corresponding report in Lesotho to the Master. Failure to have so

14

reported amounts to, in my view homologation and acquiescence by,

amongst others, the 3rd respondent.

As for the removal of Executors claimed in the alternative prayers, the

prayer cannot succeed since I have found no fault with the Executors save

3 respondent whom I intend dealing with later.

In this regard Mr. Raubenheimer SC has quoted from Lawsa (First Re-Issue)

Vol. 31, p.280 and Sackville West v. Nourse, 1925 AD 516 at 527 where it

was said:

'Where it is sought to remove an executor from office it must appear that theacts complained of are such as to stamp the executor as a dishonest, grosslyinefficient or untrustworthy person whose future conduct can be expected toexpose the estate to actual loss, or of administration in a way notcontemplated by the Will. Hostility between the executor and other interestedparties or even negligence on the part of the executor is not sufficient groundfor removal. The test is whether the continuance of the executor in office willprejudicially affect the future welfare of the estate placed in his care.'(underlined for emphasis).

I do not think and I have no reason to believe that the continuance of the

executors except possibly the 3rd respondent will prejudicially affect the

future welfare of the estate. Besides, in terms of sec.l01(inserted by 28 of

1938) executors can be removed by reason 'of his absence from the

Territory or other avocations, or failing health, or other sufficient cause —'

unfortunately, I have found no sufficient cause except for the 3rd respondent

as indicated.

15

This application was complex and many issues arose for the decision by this

court and since the applications were consolidated, I wish to go into these

several issues namely:

(!) What law governs movables;

(2) At the time of death, where was Dr. Maphathe domiciled? Was hegiven South African domicile after his death?

(3) Was the estate to have been first reported in Lesotho instead ofSouth Africa as it happened?

(4) Was it incumbent on 1st, 3rd and 4th respondents to have reportedthe Will to the Master, the High Court Lesotho since the Will wasdeposited with them?

(5) Should at the same time as the Will was reported in South Africa acorresponding report to have been made to the Master the HighCourt, Lesotho and on issuing a Power of Attorney to appoint 4th

respondent as Administrator of the Estate in South Africa to havemade a corresponding appointment in Lesotho? Was the Power ofAttorney to appoint 4th respondent as Administrator of the Estate inSouth Africa to have made a corresponding appointment inLesotho? Was the Power of Attorney influenced by 1st respondentto benefit herself at the expense of other legatees?

(6) Exactly what was the position of the adopted child Molelekeng,was she adopted to benefit 1st respondent and was 1st respondentinfluential in her adoption? Can this court on present papers setaside the adoption?

(7) Is the application hopelessly out of time?

(8) What about the arbitration clause in the Will?

(9) Has the prescriptive period for the realization of the Estate expirednecessitating application for condonation?

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As to (1) supra, Dicey above at p.503 says succession to movables is in

general governed by the lex domicilii of the deceased whereas in general

succession to immovables is governed by lex situs. AB Edward's conflict of

Laws (Lawsa 2nd Ed. (re-issue) is no different from the above exposition

except that the ground is expanded to include unitary and scission principles

conforming to both Roman-Dutch, Anglo-American and Commonwealth

law to the extent that it separates immovable from movable property in

succession to an estate subjecting immovable property to lex situs and

upholding the unitary principle only to the extent that it subjects all movable

property, wherever situate, to the same regime namely, usually that of the

testator's domicile. I got a strong and unmistakable impression from Mr.

Raubenheimer S.C. for the 1st, 2nd and 4th respondents that at the time of his

death Dr. Maphathe was domiciled in the Republic of South Africa. -It is the

reason Ms. Tau for applicants implored the court to decide the law

governing movables and Dr. Maphathe's domicile at the time of his death. It

is Mr. Mphalane for the 3rd respondent who asserted that it was after Dr.

Maphathe's death that he was awarded South African domicile. Unless I am

mistaken, Mr. Raubenheimer's claim that Dr. Maphathe was domiciled in

South Africa at the time of his death had to do with defending movable

assets and particularly money from Patsa Centre, Mafeteng to benefit 1st

respondent. As we have seen though, authorities are agreed that lex loci

domicilii governs movables and lex situs governs immovables and with these

I agree.

4 Respondent is desirous of liquidating and finalizing the estate in Lesotho.

I wonder if it is in respect of immovable property alone or immovable

property plus movable property. I say movable and immovable property

17

because while immovable property remains intact, it is claimed inroads have

been made into movable property. Since movables are governed by lex loci

domicilii wherever they may be but the administration of the estate was dealt

with in a reverse fashion, what's going to happen? Are we going to say

since the law that applied was South African it applies with equal force

wherever movables may be situate?

Law is peculiar, peculiar in that in respect of the same subject-matter, there

exist sometimes, contradictory propositions. Thus in Cammell vs. Sewell

(1860) 5H. & N. 728, 744-5, the Court of the Exchequer had found: 'if

personal property is disposed of in the manner binding according to the law

of the country where it is, that disposition is binding everywhere. And yet,

on the other hand, Page Wood Viscount in Simpson v. Fogo (1863) IH & M

195,222 laid down the equally sweeping but flatly contradictory proposition

that 'a good title acquired in one country is a good title all over the world.'

The finding by Viscount Page Wood translated into the instant application

would mean that a good title acquired by the 1st respondent is a title in rem

prevailing against all comers.

It would also appear, in modern times modern judges have discarded the test

of domicile saying that all that the maxim mobilia sequutur personam means

today is that succession to movables is governed by the personal law of the

deceased, (see Provincial Treasurer for Alberta v Kerr (1933) A.C. 240,

721 (P.C.) CF Bank voor Handel v. Slatford (1953) l.O.R. 248, 257. As to

transfer of goods, there can be no doubt that the law is lex situs. It has been

said it all has to do with the rule which looks at the law of the situs for it has

the merit of adopting the jurisdiction which has the actual control of the

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goods and the merit or certainty as the American judge said (see Lees v.

Harding, Whitman & Co. (1905) 68 NJ. Eq. 622, 629; 60A, 352, 355.

It would also seem, where there is doubt as to which law a testator is 'mostly

connected with' other than the law of his domicile or habitual residence, the

answer may be found in the system of law in force in that part of the state

where most of his property is situate. There can be no doubt that most of Dr.

K. T. Maphathe's property is situate in Mafeteng, Lesotho.

As to Dr. Maphathe's domicile at the time of his death, there is irrefutable

evidence that Dr. Maphathe came to Ladybrand for health reasons.

The law as to invalids can be stated as follows:

A person who for the time being is detained in a country because he is too ill

to be moved, or goes to a country for the temporary purpose of undergoing a

course of medical treatment does not, by any account, acquire a domicile of

choice there as opposed to a person who determined to settle in a new

country because he believes he will enjoy better health may well intent to

live there permanently or indefinitely though he hasn't got the necessary

intention. It has been suggested that a distinction be drawn between persons

who move from one country to another as dictated by immediate danger to

his health and may want to remain after the danger has passed; it has also

been said a person who is mortally ill may well move from one country to

another to alleviate suffering without any intention of abandoning his old

home - see Hoskins vs. Mattehews (1855) 8 Dr. G.D. & G.I3; Hitchison v.

Dixon (1870) L.R. 10 Eq. 589; Bradfield v. Swanton (1931) LR. 446; Att.

19

Gen. v. Fitzgeral (1856) 10 App. Cas. 692, 740 and see Winans v. Att. Gen.

(1904) A.C. 287 where, however, this point was not much relied on. It

would also seem, if a person is told that he will die in six months if he stays

in the country of his present domicile, but will live for ten years if he goes to

another country, it is likely that he will form the intention of residing

permanently or indefinitely in the adopted country thus acquiring a domicile

there. Dr. Maphathe's case is different. He went to Ladybrand for the

temporary purpose of undergoing a course of medical treatment. He never

had the animus manendi to reside permanently in Ladybrand. Perhaps

Hoskins case above will help drive the point home where an invalid

domiciled in England established his home in Italy because he thought the

warm climate would be good for his health. He acquired domicile of choice

in Italy, a far cry from the case of Dr. Maphathe who went to Ladybrand to

be near doctors and at the same time directing that his Will be governed by

his domestic law and his remains be interred in the country of his birth. Dr.

Maphathe did not acquire domicile of choice in the Republic of South

Africa.

The answer to (3) above is yes having regard to the testator's direction that

his Will be governed by his domestic law. The testator chose his domestic

law because he had not abandoned his domicile of origin. It is the testator's

executors who twisted his wishes and direction for reasons of their own. If

the estate had been reported to the Master, the High Court, Lesotho 1st

respondent would not have benefited from the estate as she did and the

executors, all of them, are responsible for benefitting the 1st respondent if

she was benefited. Sec. 16(1) of the Proclamation above is to the effect that

'every person who has a Will in his possession at the time or any time after

20

the death of a person executing the same shall deliver or transmit the Will to

the Master or in any other district to the District officer. I have already said

above that applicants have given this court the impression that relations

between them and 3rd respondent were cordial and warm so that even if

applicants were not in possession of the Will at least 3rd respondent was in

possession and it was not difficult for applicants to persuade the 3rd

respondent to lodge the Will with the Master, Lesotho if applicants were

serious that the Estate be administered in terms of the Proclamation

aforesaid. Actually, all else failing, I cannot understand why applicants did

not press that on the Will being read, it be at the same time delivered to the

Master, the Lesotho High Court. I am of the view that applicants' insistence

that the Will should have been in the first place reported to the Master of the

High Court, Lesotho is an afterthought.

As to (4) above, the answer is yes because according to sec. 15(1) of the

Proclamation above it is 'any person—' and 'every person' as meaning not

necessarily executors of the Will 'any person' and 'every person' meaning

persons who have an interest in the Will. Also, concerning (4) above, in

terms of sec. 41 of the Administration of Estate Proclamation above, letters

of administration of an estate granted in a foreign state 'to and a copy

thereof deposited with the Master by a person in whose favour those letters

have been granted, those letters may be signed and sealed by the Master and

the letters shall have the same force and effect in the territory in respect of

the estate therein as if the letters have been letters of administration granted

by the Master.' It become abundantly clear that an estate not having been

reported to the Master, Lesotho, persons in whose favour letters have been

granted in a foreign estate can deposit such letters with the Master, Lesotho

21

with consequent application as the statute has shown. Seems to me there is

no specific prohibition by the Proclamation as to reporting the estate nor are

there any hard and fast rules for in their discretion executors may report the

estate to a foreign master as they did; I see nothing binding on them to have

in the first place reported or delivered the Will to the Master, Lesotho. (5)

above is rather repetitive but suffice it to say that in terms of sec. 41 of the

Proclamation above and as it happened, on the Will being reported in South

Africa it was, in fact, at the same time, no matter how long it took, reported

to the Master in Lesotho. It was up to interested parties including 3

respondent and others interested in the Will to have ensured speedy process.

Mr. Schutte has alleged in his papers that 3 respondent frustrated efforts to

have a Power of Attorney signed designed to speed up winding up of the

Estate. There is not an iota of evidence that 1st respondent exerted influence

on executors to appoint 4th respondent as Administrator of the Estate in

South Africa or to benefit herself at the expense of other legatees and I have

rejected the contention with the contempt it deserves. Moreover, in our law

nobody is allowed to benefit by his own error.

Regarding (6) above I have found as a fact that Molelekeng was adopted by

the testator by virtue of Dr. Maphathe being Molelekeng's grandfather.

Besides, there is no application before this court to set aside Molelekng's

adoption.

As far as (7) above is concerned, Dr. Maphathe died on 22 May, 2000,

Special Power of Attorney was issued on 25 May, 2000 and the Master,

Bloemfontein issued Letters of Executorship on 28 June, 2000. Applicants

went to court in Bloemfontein on or about 19/12/01 and the Liquidation and

22

Distribution Account is dated 14 February, 2001. It is to be noticed that the

only time the 3rd respondent jumped up was in response to Webber

Newdigate (per Mr. Liebetrau) letter of 1st July, 2002 raising Tlali (3rd

respondent) Maphathe's unwillingness to sign Power of Attorney. It is also

to be noticed that when the Master, Lesotho signed and sealed foreign

Letters of Administration it was after a period of just over fifteen (15)

months (28.06.00 - 03.09.01) from the time the estate was reported to the

Master, Bloemfontein and applicants, if dissatisfied with turn of events in

Lesotho estate, had done nothing.

It is in the discretion of the Court to decide whether or not a party is out of

time in the absence of specific stipulation or as it were time clause as to

when an undertaking may be completed. I am of the view though (sec. 68(2)

of the Proclamation) that the Liquidation and Distribution Account is to be

lodged within six (6) months from the date on which letter of administration

have been issued. Even were it claimed that Letters of Administration were

issued regarding the Lesotho estate on 03 September, 2001, it is more than

six (6) months, according to the Proclamation, the Liquidation and

Distribution Account should have been lodged with the Master and, in my

view, no sufficient cause was shown to persuade the Mater to extend the

period. I am of the view this application is hopelessly out of time and that

applicants are barred and estopped from claiming otherwise.

Having said this, I am fully aware that the prescriptive period in these sort of

affairs is three (3) years and that considering that the estate was reported to

the Master, Bloemfontein on 28 June, 2000 and the application to this court

is dated 17 October, 2002, it cannot be said that the prescriptive period has

23

run. This notwithstanding, the court has considered that the period within

which the realization of the estate should be completed is six (6) months as I

have shown above and further, there has been no application to the Master to

extend the period. This apart, I am of the view that the delay may cause

depreciation of some assets and in any event prejudice interests of other

legatees.

(8) Above has to do with the arbitration clause. I don't think the point was

well taken considering that we are here dealing with executors and not

trustees who are different and distinct entities.

As for (9) above, the answer is to be found in (7) above though I am of the

view that 4th respondent was frustrated in his duties necessitating

condonation and extension of the period as I have done intra.

1 come now to the first Counter-Application seeking an order as follows:

1. Dispensing with the forms and service in terms of the Rules andgranting leave for the hearing of the matter as one of urgency at theabove time and place.

2. Directing that the fourth Respondent, or his duly authorized agent, beauthorized:

2.1 to open bank account in Lesotho in the name of the deceased estateof K. T. Maphathe and to sign and endorse all cheques drawn;

2.2to frame, sign and lodge all liquidation and Distribution accounts;

2.3to sign and also execute any receipts and discharges in connectionwith the said estate;

24

ALTERNATIVELY:

3. Declaring that the special Power of Attorney signed at Bloemfonteinon 25th day of May, 2000 by the four Respondents (annexure "Ds 2"to the answering affidavit in the main application) is of full force andeffect in Lesotho and is applicable to the administration of the estate'sassets in Lesotho and that the fourth Respondent is authorized by suchPower of Attorney to, amongst others, open a bank account for theestate in Lesotho and to frame, sign and lodge all liquidation accountin this estate.

4. Directing that Samuel Kekeletso Maphathe must sign all documentsand or all other things reasonably necessary to transfer the lease inresidential property no. 23/24 into his name within a time limit asdetermined by this Honourable court and the provision in the Will ofKenneth Thulo Maphathe (that this is to be done within three (3)months after the demise of the said Kenneth Thulo Maphathe) bedispensed with.

5. Directing that the costs of this counter-application be costs - theestate.

6. Granting such further/or alternative relief as the Honourable Courtmay deem just and establish.

The counterclaim was opposed. In his affidavit accompanying the counter

application 4th respondent has deposed that it is desirable that the estate be

wound up considering some beneficiaries are impacted because of delays

occasioned in the finalization of the winding up of the estate. Mr. Tlali the

3rd respondent has opposed the counter application saying he denies the 4

respondent encountered any difficulties in administering the estate.

I don't know what 3rd respondent means in his paragraph 4 of the opposing

affidavit to the counterclaim that "I wish to reiterate that I was never

25

informed from the onset as an appointed co-executor in the administration of

my late father's estate.'

And in the next paragraph (4.2) he says:

'I wish to reiterate that I have always not been in position to co-operate evenif I were invited since I realize that my father's Will is in fact a nullity —'

With respect this is self-defeating. In any event it is the same Tlali

Maphathe who was appointed executor by the Master of the High Court,

Bloemfontein and also appointed 4th respondent as administrator of the Will.

I have said above Mr. Tlali Maphathe has not challenged his Letters of

Executorship nor has he applied to the Master or the High Court,

Bloemfontein for removal of the 4th respondent and I have found Mr. Tlali

Maphathe guilty of acquiescence with the rule as to personal bar or estopped

operating against him. In my view it was up to executors of the will

including the 3rd respondent to have ensured that the will was reported in

Lesotho. I see no reason whatsoever why Mr. Tlali Maphathe as an

appointed executor by his father, did not report the Will to the Master of the

High Court, Lesotho save that, it would seem, he was harbouring negative

perceptions as to his father's Will intending, at some point known to him, to

challenge the validity of the will. 1 have already said that amongst other

factors, it was Mr. Tlali Maphathe who delayed the winding up of the state.

It is of special significance that the 1st applicant in the main application has

provided what he calls an Answering Affidavit to the counter-application

thus, in my view, supporting the 3rd respondent in his opposition to the

counter-application. The 1st applicant like the 3rd respondent prays for the

dismissal of the application. Oddly, though, it is not the 2nd applicant who

asks for the order which favours him but the 1st applicant who has nothing

26

whatsoever to do with the order. The court is faced with a situation where

brothers agree and disagree and the one who should speak up is silent and it

is not explained why the situation is this confused. I fear there is some

chicanery in this and that the court is being taken for a ride. I cannot but

reject 3 respondent's and 1st applicant's objection to the counterclaim.

As for the second counter-application, the 3rd respondent in the main

application and one Ben Maphathe have applied for an order in the

following terms:-

1. Dispensing with the periods and mode of service of this application onthe grounds of urgency.

2. That the will and together with its subsequent codicil of the lateKenneth Thulo Maphathe signed and executed on the 14th day of May,1997, 10th June, 1998, 15th April, 1999, 21st April, 1999, 12th August,1999, 11th October, 1999 and 8th March, 2000 respectively should bedeclared null and void and of no force and effect.

3. Declaring the purported Power of Attorney alleged to have beensigned by the 1st applicant on the 25th May, 2000 as nullity.

4. That 'Mankhati Maphathe, Samuel Mpho Moji and Daniel JohannesRudolph Shutte removed from the office as executes testamentary ofthe late Kenneth Thulo Maphathe's estates.

5. That respondents be ordered to pay costs of this application.

6. Granting such further and/alternative relief as the above HonourableCourt may deem fit.

27

The application is opposed. I wish to confine myself to orders 2, 3, 4 and 5

prayed for above. It is to be noted that at the time of this application dated

25 February, 2003 the testator whose will is being challenged had died on 22

May, 2000 almost 2 years 9 months ago and that during this period the

applicant had not challenged the will or executors of the Will not

withstanding that he had been appointed executor of the estate of his father

in Ladybrand, the Free State; had not declined the appointment and instead

by his own hand and by Power of Attorney appointed the 4th respondents as

Administrator of his late fathers estate in Ladybrand, the Free State. I have

already remarked about the applicant (3rd respondent in the main and 1st

applicant in the counter-application) above expressing the view, as I hereby

do, that applicant's application cannot be entertained for the reason that he is

guilty of acquiescence though were evidence led, perhaps a different

complexion to the case would emerge. Anticipating this, Mr. Mphalane has

applied that since the issues are in dispute the matter be referred to viva voce

evidence. As far as the 2nd applicant Ben Maphathe is concerned, the only

time he challenged the Will via the1 s t respondent in the main application is

in the High Court in Bloemfontein where he failed.

As for acquiescence, I have already said 1st applicant set seemingly by as his

father's estate was administered without raising a finger much as he was a

participant in the entire process. It is to be noticed that he led his co-

executors on the wrong garden path without so much as to protest for well-

neigh 2 years and 9 months and it is after the Liquidation and Distribution

Account for the South African estate has been finalized that he comes to

court not on his own steam but on a counter-application? If it was the

intention of the applicants to challenge the will and other issues related to

28

the Will, I see no reason why the applicants have waited for such a long

period only to come to court hanging on others' tail coats. These are serious

issues and if it was intended to prove them the applicants should have

foreseen these conflicts of fact arising and proceeded by means admitting of

viva voca evidence.

As for estopped and acquiescence, according to the judgment in Van der Byl

and Hanpt v. Scholtz (1987) 14 SC 483, persons who have acted upon the

will or acquiesced in it may be estopped from thereafter attacking its

validity, as for example, where a beneficiary with knowledge of patent

defects takes transfer of property bequeathed to him under a Will. The lapse

of time may afford proof of acquiescence but it has been said it is not

conclusive where a reasonable and satisfactory explanation is forth coming.

It has also been said although as a rule a beneficiary who has accepted a

benefit under a will is precluded from subsequently seeking to set aside the

will, such beneficiary will be permitted to do so where the benefit was

accepted under the excusable error and in ignorance of the facts or the

beneficiary's legal rights. Thus where a beneficiary had knowledge of the

circumstances under which a will was executed and had adialed but was

ignorant of the requirements of the Wills Act, the beneficiary's ignorance

was excused and the Will was, at the instance of the beneficiary, set aside on

the ground that the requirements of the Act had not been complied with. It

has also been said the court will act with great caution and will not lightly

set aside a will which has been accepted by the Master and has been given

effect to, especially where a considerable period of time has elapsed between

the date of the testator's death and the date of the application to set the will

aside.

29

Although the applicants have not taken transfer of property bequeathed to

them under the Will, I have found that while applicants have acquiescenced

in the will, in particular 1st applicant has frustrated its winding up by not

signing the Power of Attorney. I have already said that a considerable

period of time has elapsed between the testators death and date of this

application. As for reasonable explanation, I will come to this later but

suffice it to say that above I have said if it was the intention of applicants to

offer a reasonable explanation they should have initiated proceedings that

would afford them such a reasonable explanation. Applicants certainly had

knowledge of the circumstances under which the will was executed and

adiated and I cannot accept that in doing so they were ignorant of the

requirements of the Will Act for in particular 1st applicant was appointed

executor by the testator along with 3rd respondent (4th respondent in the main

application) ostensibly for the 3rd respondent to guide the other executors.

Even if this is not so, there is no reason why the 1st applicant could not seek

guidance from the 3rd respondent. This will has been accepted by the Master

both in the Free State and Lesotho and the estate in the Free State has long

been wound up with the estate in Lesotho in process of being wound up. I

repeat as said above, considerable period has elapsed between the testator's

death and this application.

As for the application that this matter be referred to viva vova evidence , Mr.

Mphalane has so applied because he is well aware there isn't enough

evidence for the granting of the application. In any event, whether or not to

grant such an application is in the discretion of the court and my view is that

such an application can only succeed if not much has happened to the estate

30

and the period between the application and deceased's demise is not that

long. As I have already shown above, the space in time between these two

extremes is very long, so long that I wonder how well advised it would be to

grant the application.

Generally speaking, referral to oral testimony in many cases is where a court

has felt the issues cannot be decided on paper and on occasion the court has

itself referred matter to oral evidence. In this application the court is of the

view that 'the legal issues are so crisp and so far removed from the conflict

of fact that it would not be fair for parties involved to allow' evidence

thereon — (see Fax, Directories (Pty) Ltd v. SA Fax Listings C C , 1990

(2) SA 164 at 167 I-J (D) I also do not think it is either convenient or

desirable to hear viva voca evidence nor do I think it is appropriate or

competent for the purpose of deciding real issues to hear oral evidence. Fact

cannot be lost sight of the fact that the estate is being determined in terms of

the Administration of Estates Proclamation no. 19 of 1935 and that

Liquidation and Distribution Accounts for the estate in the Free State, South

Africa have been finalized and the account for Lesotho had been drawn and

is in the pipe line.

I am of the view that at least the applicants in the counter claim should have

shown that there are prospects of success at the trial. I am also of the view

that applicants are on a fishing expedition lending credibility to the fact that

they would have the matter referred to evidence to amplify their affidavits

by additional evidence.

31

The issues in this application came by way of application and I do not think

it is just, having regard to the fact that there is no real dispute of fact, that

this application should interpose itself and delay the hearing of legitimate

trials. (see Khumalo v. Director-General and Co-operative and

Development & Others, 1991(1) SA 158 (A) at 167G-168B.

My view is that this is not a proper case for hearing oral evidence and there

being no evidence to sustain prayer 2 of the counterclaim, this also stands to

fail.

So far as prayer 3 of the counterclaim is concerned, the Power of Attorney

appears to have been freely signed by the participants including the 1st

applicant to this counter-claim. I do not see how I can accept 1st applicant's

excuses for signing the Power of Attorney considering that at the same time

as 1st applicant and other executors signed the Power of Attorney, the

applicant Tlali Maphathe also signed an undated choice of domicilian

pursuant to sec. 41(A) of the Administration of the administration of Estates

Proclamation No. 19/1935 in which 1st applicant acknowledged his

appointment as Executor by the High Court, Bloemfontein and that 'we are

about to apply to the Master of the High Court, Lesotho to sign and seal

Letters of Executorship in terms of sec. 41of the Proclamation.' Unless I am

mistaken, 1st applicant Tlali Maphathe has not referred to this document so

seriously discrediting him. How can I believe that he was cheated or taken

advantage of? Since applicants request to court to have matter referred to

viva voce evidence has failed, I don't see how I can grant this prayer which

also stands to be dismissed. As for removal of executors contained in prayer

4 of the counter-claim, reference is made to my remarks thereon on pages

32

14-15 of this judgment the result of which being that this prayer also stands

to be dismissed.

The result is that the main application in its substantive and alternative form

is dismissed with costs to the estate. It may seem odd why the application is

dismissed as a whole. The application is so dismissed because in this court's

view prayer 2 of the substantive prayer which the court was disposed to

grant is academic for the reason that once the Master, the High Court,

Lesotho, endorsed the foreign Letter of Executorship by operation of the law

the estate commenced to be administered in terms of the Estates

Proclamation 1935 aforesaid in which case prayer 3 could follow suit.

Concerning the 1st counterclaim, at English law they speak of a Personal

Representative who, in our law, is an Administrator. According to English

rules, the administration of a deceased person's assets is governed wholly by

the law of the country from which the personal representative derives his

authority to collect them. Thus assets in the hands of an English personal

representative, wherever collected, are liable for all the debts of the deceased

wherever incurred in England or in a foreign country.

At English law it also appears a foreign personal representative has a good

title in England to any movables of the deceased whether tangible or

intangible choses in action to which he has in a foreign country acquired a

good title under the let situs. Of importance is that at English law a foreign

representative cannot represent a deceased until he has obtained English

letters of administration (see Dicey above at p.57). In our case the 4th

respondent Mr. Schutte is a foreign executor though, to be exact, he was

33

appointed by the deceased to be executor of his Will and had the 3rd

respondent Mr. Tlali Maphathe co-operated in signing the Power of

Attorney, there can be no doubt the estate in Lesotho could have been

finalized. Mr. Tlali Maphathe has not co-operated as we have seen, and he

has challenged the deceased's Will and failed and it would be a worthless

exercise and unfair to order him to sign the Power of Attorney. Mr. Schutte

has suggested no alternative executor and the court is unwilling to run

another gauntlet or rock the boat considering the unseemly delay that has

occurred in the winding up process. Accordingly, the substantive prayer(s)

are not allowed and instead the alternative prayer 3 is granted with costs in

the estate the period of winding up the estate being extended for three (3)

months with the effect from the date of this judgment. Prayer 4 of the

alternative prayer is also granted provided the residential property is

transferred to Samuel Kekeletso Maphathe within three (3) months of the

date of this judgment.

The second counterclaim is dismissed with costs. Has to be with costs

because the applicant has claimed costs against his opponents.

JUDGE

For the Applicants in the main Application: Ms. Tau

For Respondents 1, 2 and 4: Mr. Raubenheimer, S.C.

Mr. Molyneaux

For the 3rd Respondent: Mr. Mphalane

34

CIV/APN/249/00

IN THE HIGH COURT OF LESOTHO

In the matter between:

ALBERT MOEKETSE MARANYANE Applicant

VS

MINISTRY OF FINANCE 1st Respondent

TRIBUNAL 2nd RespondentATTORNEY-GENERAL 3rd Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice G. N. MofoloOn the 22nd July. 2004

This matter has come to this court by way of review. The applicant

having been convicted by the Adjudicator appealed to the Public Service

Tribunal in respect of Counts 3 and 4 and the Tribunal had upheld the appeal

in respect of Count 4 and dismissed the appeal in respect of Count 3. The

applicant has come on review in respect of Count 3.

Now, Count 3 is to the effect:

l

The charged officer is charged with contravention of sectionI6(l)(a) and (b) and section 14(l)(c) of the Act read with section 18(c)of the Public Service Act, 1995 in that during the period 14 January,1993 to 4th August, 1993, the officer had been receiving cheques in theamount ofM900.00from Lesotho Clothing, which is in contravention ofthe provision of section 14(l)(c) read with section 18(l)(c) of the PublicService Act, 1995.

Section 16(1) specifically prevents a public servant from being

employed outside government or accepting any reward for services outside

the scope of his employment for if he does so (sec. H(1)(c)) he brings the

public service into disrepute and is liable (sec.18(1) to disciplinary

proceedings. There can be no doubt that the applicant was properly charged

before the Adjudicator. On this count the Tribunal also found the applicant

was so properly charged. There was evidence and the Tribunal found that

Lesotho Clothing Industries was making monthly deposits of M900.00 into

the applicant's account and the applicant has not disputed this save his

counsel arguing that the depositor or drawer of the cheque(s) should have

been called to verify payment. The fact of the matter is that there was such

payment into applicant's bank account it not being denied that such payment

was made and the 1st Respondent has alleged that such payment given the

fact that applicant is a public servant is irregular unless there is explanation

to the contrary. The Tribunal has found that except for applicant's extra

judicial explanation of why the money was paid into his account, the

applicant did not avail himself of the opportunity to refute the 1st

respondent's allegations of why the money was so paid and 1st respondent's

evidence not having been contradicted by the applicant there was no reason

why the 1st respondent could not be believed and with this, this court entirely

agrees. Counsel for the applicant has contended that it was irregular for the

2

Adjudicator to have passed the buck instead of herself imposing sentence as

she should have done.

Section 27(1) of the Public Service Act, 1995 in my view authorizes

an Adjudicator to impose punishment on an officer who has committed a

breach of discipline and this being the original legislation the Adjudicator

should have applied it. Not only this, a person is indicted and punished

under the same legislation where the legislation makes provision for such

procedure.

Section 18(1) is to the effect 'a public officer commits a breach of

discipline and is liable to disciplinary proceedings and punishment if that

officer—'

a )

b)

c) by any act or omission fails to comply with the general rules of

conduct specified in sec. 14; — .

The applicant was charged under the section which stipulates that if

found guilty of the breach of discipline he is liable to punishment and the

punishment can be no more than as outlined in section 27(1) of the statute.

I do not agree with the Tribunal that there is an element of conflict

between the Public Service Act, 1995 and the Constitution in that while the

Public Service Act empowers an Adjudicator to impose punishment, the

Constitution gives the Public Service Commission power to remove public

3

servants from office, for the position if that, where a court of law or for that

matter an Adjudicator imposes punishment of dismissal on a public servant

from the Public Service, the Public Commission would in any event be

required to approve such punishment.

Our law is that where a court has no necessary power, a matter is referred

to higher authority to deal with the matter or as it were to impose

punishment. In the instant case the Adjudicator referred punishment to

higher authority not because the Adjudicator did not have the capacity to

impose punishment.

In the result while on review the Tribunal's finding is confirmed, the

sentence is set aside and it is ordered that the matter be referred to the

Adjudicator to impose proper sentence.

G.N. MOFOLOJUDGE

For the Applicant: Mr. Lebusa

For the Crown; Ms. Jaase

4