Contentious customary law on heirs rears its head again



MASERU – The Customary Law (Laws of Lerotholi) provision that children out of wedlock and girl children cannot be heirs to their biological fathers has been challenged. The High Court (sitting as the Constitutional Court) has been asked to nullify Section 11 (1) of the Laws of Lerotholi as well as to broaden the legal definition of a child as defined by the Children Welfare and Protection Act of 2011. A child, according to the Act, is a person under the age of 18 while illegitimate children are children born of parents who are not legally married.

Section 11 (1) of the Customary Law states that the heir in Basutoland shall be the first male child of the first married wife, and that if there is no male in the first house, then the first born male child of the next wife married in succession shall be the heir while Section 19 of the Children Welfare and Protection Act of 2011 explicitly states that a child born outside marriage cannot inherit the property of his or her father. Tholoana Molapo, a 22-year-old adult female from Katlehong, in the outskirts of Maseru CBD claims she is unable to inherit her late father’s property because of the two laws. She has asked for the court’s interference and is suing her grandmother ’Mankuebe Molapo who she claims is in illegal possession and use of her father’s property. She says her grandmother has taken over her father’s property and is as a result unable to benefit from it. The disputed property includes five rented rooms at Katlehong. Tholoana is asking the court to invalidate these two legal provisions blocking her inheritance and also wants the court to declare her as the sole heir and owner to the properties. According to papers filed in court, Tholoana’s parents were never married but cohabited from 1998 until they separated in 2004. When they separated, she says she remained and stayed with the father who provided for her until he met his death in 2017.

Tholoana tells the court in an affidavit that, she stayed with her father throughout, until the time that he was struggling and unable to provide well for her in 2016 and put her under the grandmother’s guardianship. Tholoana says she then moved to live with the grandmother who took care of her including meeting her school needs. Even when she was living with the grandmother, she says her father provided for her with the little he could and would often visit her. According to Tholoana, part of the money used to support her was from rental collections from her father’s rented rooms but she has since been deprived of the benefit since her father’s passing. The rented rooms had been transferred to her father by his elder brother who was in charge of the estate of their parents. However, she says things changed after her father’s passing.

“There was a family meeting following my father’s death concerning, amongst others, succession to my father’s estate and I was never informed of any decisions taken thereat save to state that following this meeting of the family council, I was deprived of my father’s household property including beds, mirrors, wardrobes, tables, fridge, washing machine, hover, other household properties and the landed property…” Tholoana argues that her grandmother is in illegal possession of her father’s land and is now collecting rentals for her own benefit. Nevertheless, in terms of the Customary Law, an illegitimate child and is not entitled to her father’s property hence her constitutional challenge. Even section 19 of the of Children Welfare and Protection Act of 2011 is clear that a child born outside marriage cannot inherit from the property of his or her father.

She contends that Section 11 (1) of the Customary Law discriminates against her and girls or women from inheriting and administering property on the basis of their sex or gender. Not only that, even for Section 3 of the Children Welfare and Protection Act of 2011 describes a child as a person under the age of 18 she argues is discriminatory and narrow, she says it should be broad enough to include children beyond the 18 years of age. Tholoana says the definition has the legal effect of disinheriting her and children in her position their rights to inherit properties of their parents.   “A child will always be a child to his or her parent despite age.” She also cites the civil law definition of a child under intestate succession to property where children are entitled to the child share from the estate of their parents despite their age and marital status.” She further states that the rule envisaged in Section 11 of the Laws of Lerotholi provides that only male children may inherit property of their parents which renders boy children competent and superior to female children. By so doing, Tholoana argues that it renders female children incompetent to inherit and administer property by reason of their gender alone.

“It renders female children or women minors for the rest of their lives. And that their biological fathers, their husbands and/or male heirs to the estates of their parents are their fathers and guardians liable to take care of them.” On top of that, she says the Customary law recognises only male children beyond the age of 18. This, she argues, is discriminatory, unreasonable, unnecessary and unconstitutional. All these provisions, she argues “serve no legitimate purpose, but to punish innocent children like me on grounds beyond their control i.e. sex and birth status. It also discriminates between men and women who bear children out of wedlock. Women who bear children outside marriages are burdened with liability to provide property open for inheritance by their illegitimate children.” If anything, she argues that that the law removes the responsibility from men who bear illegitimate children.

“Men who bear illegitimate children are unreasonably and unjustifiable spared from providing property for inheritance of their illegitimate children. This law perpetuates the discrimination based on birth, sex/gender and property, and continues to subject poor women to unremitting marginalisation and indignity.” In as far as Section 19 is concerned, Tholoana says she was born out of wedlock without her will therefore excluding her from her father’s property because of that status discriminates against her on the basis of birth is in violation of Section 18 (3) of the Lesotho Constitution. Section 18 (3) of the constitution speaks to discrimination and explains it as affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

’Mankuebe (the grandmother) disputes all of Tholoana’s allegations and asked the court not to entertain her application. ’Mankuebe argues that she is not in illegal possession of the property but that by virtue of seniority in the family, she is the overseer of the said property. Furthermore, she says she is customarily entitled to the contested property by virtue of her being married to the heir and oldest son of the original owners. Tholoana never inherited Bereng Molapo (late Father) nor was she entitled to the property according to ’Mankuebe. “The applicant herein being born out of wedlock, has no claim to institute against Bereng or any property relating of Bereng or even the Molapo family…” She adds that while she had passed the contested property to Bereng, it reverted back to her upon his passing adding that the ties she had with the complainant were the fulfillment and assistance to Bereng towards his maintenance to her daughter. ’Mankuebe maintains that she had no legal obligation to look after Tholoana but only did it out of her will.

She is asking the court not to accede to Tholoana’s demands saying “striking down laws as discriminatory will open floodgates in that legal position in regard to inheritance between children born out of wedlock and in the marriage will no longer be distinguishable. “I aver that Section 19 of the Children Welfare and Protection Act of 2011 is not discriminatory. I am advised that the purpose of the legislature here was to protect those illegitimate children who wrongfully and unlawfully would be denied rights they want within the family of their mothers. ’Mankuebe believes Tholoana does not have locus standi (legal right) to sue under Children Welfare and Protection Act of 2011 because she has reached a maturity age as she is above 21. High Court Judge Polo Bonyane will sit with Justices Realeboha Mathaba and Tšeliso Mokoko to hear the application on February 20, 2023.

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