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Woman challenges inheritance law



MASERU – A young woman born out of wedlock has approached the Constitutional Court seeking the nullification of customary laws that deprived her of her father’s inheritance.

Tholoana Molapo, 22, has told the court in an urgent application that both the customary laws and civil laws of Lesotho have deprived her of her inheritance rights and are discriminatory on account of her age and sex.

If granted, the ruling could have huge implications for children born out of wedlock, especially girls who are often deprived the right to inherit their fathers’ estates under the Laws of Lerotholi and the Children’s Welfare and Protection Act of 2011.

The Laws of Lerotholi provide that “the heir in Basutoland shall be first male child of the first married wife, and 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”.

“If there is no male issue in any house the senior widow shall be the heir, but according to the custom she is expected to consult the relatives of her deceased husband who are her proper advisers,” the Laws of Lerotholi read.

The Children’s Welfare and Protection Act of 2011 blocks children born out of wedlock from inheriting the properties of their fathers, saying they can only inherit the properties of their mothers.

She is also challenging the Act’s description of a child eligible to inherit an estate as a person below the age of 18-years but the customary law gives a child beyond 18-years the right to claim a parents’ inheritance.

Molapo filed an urgent application in the court this week saying it is wrong that her paternal grandmother, ’Mankuebe Molapo, is benefitting from her late father’s estate to her exclusion.

She also asks the court to stop her paternal uncle, Matlole Molapo, from using the estate to her exclusion.

She has asked the court to direct the grandmother and uncle to restore her late father Bereng Molapo’s properties ranging from household properties and a five-roomed house and its title deed.

“I am discriminated from inheriting property by sections 11 and 19 of The Laws of Lerotholi and the Children Welfare and Protection Act, 2011 respectively,” she told the court in an affidavit.

“I have a right to approach this Honourable Court for redress under section 22 of the Constitution as the said laws violate my rights to dignity, property, equality and freedom from discrimination based on birth, sex, gender and property status,” she said.

“I am alleging violation of my freedom from discrimination based on age, sex, gender, birth and property.”

She said Section 3 of the Children’s Welfare and Protection Act discriminates between children under the age of 18 years and the children beyond 18 years of age.

Section 19 of the Act provides that a child has a right to inherit the property of his parent but the same Act does not describe her as a child because she is above 18-years.

“This is discrimination based on age in violation of section 18 (3) of the Constitution,” she argues.

She challenges Section 19 of the Act of 2011 that provides that a child born outside marriage cannot inherit the property of his or her father.

“I am born out of wedlock without my will and choice between my late father Mr Bereng Molapo and my mother Miss Shoeshoe Mathibeli,” she said.

“Excluding me from inheriting the property of my father on this ground discriminates me on the basis of birth, in violation of section 18 (3) of the Lesotho Constitution, 1993.”

Furthermore, section 11 of the Laws of Lerotholi excludes female children from inheriting the property of their parents in line with the customary rule of primogeniture (the state of being the firstborn child).

“This section violates my (right) not to be discriminated on the basis of my birth and sex,” she said.

“This discrimination is overbroad, unreasonable, and unjustified in a democracy kingdom (sic) like Lesotho based on equality and freedoms.”

She wants these laws declared invalid and unconstitutional.

She asks the court not to conflate the law regulating succession to chieftainship with the law governing succession to property.

The discrimination of a female child to succeed to chieftainship has been held to be permitted by the constitution by reason that the Chieftainship Act perpetuates this discrimination occasioned by the firstborn male’s inheritance right rule.

She argues that the discrimination hindering a female child from inheriting property is not permitted by the Constitution.

She told the court that her parents cohabited in 1998 and she was born out of wedlock in October 2000.

Her mother, she says, told her that the Molapo family made arrangements to go to Mafeteng to customarily make marriage negotiations but never showed up despite that they were expected guests.

However, she says the mother told her that before she was born the Molapos went to her home in Mafeteng to perfom traditional ceremonies for herwhile she was pregnant, which included amongst others, clothing her with selapa ( a traditional cloth) and smearing her with letsoku (ochre soil) and slaughtering a sheep to accept her into the Molapo family.

She said the Molapo family named her ’Matholoana Molapo after giving birth but later her father changed the name to Tholoana because he had issues with the old woman she had been named after.

She produced her identity document bearing her given names and her address as Katlehong, in Maseru, where her father had properties.

In 2004 her parents separated but she continued living with her late father at Ha-Tsolo in the Maseru Urban Area.

Her mother, Shoeshoe Mathibeli, went to stay at her parents’ home in Mafeteng.

She said she used to visit her mother and grandmother in Mafeteng.

She lived with her father until 2017 when he died.

She says in 2016 her father was struggling to support and take proper care of her as he was unemployed and his rented house at Katlehong was struggling to find tenants.

Realising that he was struggling to take good care of her, the father requested his mother ’Mankuebe Molapo to take care of her.

“Despite his struggle and putting me under the guardianship of my grandmother, my father used to support and maintain me with the little he had,” she said.

“My mother never supported me during the lifetime of my father. My father was always there for me showing me his unwavering love and support.”

After his death, she says, her grandmother took the lease document of the house situated at Katlehong.

“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,” she says.

“I was deprived of my father’s household property sounding in beds, mirrors, wardrobes, tables, fridge, washing machine, hover, other household properties and the landed property aforesaid.”

“I have used and enjoyed this household properties during the lifetime of my late father.”

She says her grandmother stopped supporting her and now she is the one collecting rentals from the rented property.

“My mother is struggling to make a living for me despite working in the kitchens in the Republic of South Africa in an endevour to support me, where she earns a pittance which hardly covers her own needs,” she told the court.

“This application will not bring floodgates of properties already passed to male heirs to be returned to female children liable to inherit property.”

She says the court may limit such a possibility by directing that the orders to be issued operate retrospectively in relation to her alone.

Caswell Tlali

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Lawyer in trouble



A local lawyer, Advocate Molefi Makase, is in soup after he flew into a rage, insulting his wife and smashing her phone at a police station.

It was not possible to establish why Adv Makase was so mad at his wife. He is now expected to appear before the Tšifa-li-Mali Magistrate’s Court on Tuesday.

Earlier on Tuesday, he was released from custody on free bail on condition that he attends remands.

Magistrate Mpotla Koaesa granted Advocate Makase bail after his lawyer, Advocate Kefuoe Machaile, pleaded that he had to appear for his clients in the Court of Appeal.

Advocate Makase is facing two charges of breaching peace and malicious damage to property.

According to the charge sheet, on October 5, 2023, within the precincts of the Leribe Police Station, Advocate Makase allegedly used obscene, threatening, or insulting language or behaviour, or acted with an intent to incite a breach of the peace.

The prosecution alleges that the lawyer shouted at his wife, ’Mamahao Makase, and damaged her Huawei Y5P cell phone “with an intention to cause harm” right at police station.

During his initial appearance before Magistrate Koaesa, Advocate Makase expressed remorse for his actions and sought the court’s leniency, pleading for bail due to an impending appearance in the Court of Appeal.

His lawyer, Advocate Machaile, informed the court that an arrangement had been made with the police to secure his release the following day, as he had spent a night in detention.

Advocate Machaile recounted his efforts to persuade the police to release him on the day of his arrest.

He noted that the police had assured them of his release the following day, which indeed came to fruition.

Following his release, he was instructed to present himself before the court, which he dutifully complied with.

Advocate Machaile underscored Advocate Makase’s standing as a recognised legal practitioner in the court.

Notably, he was scheduled to appear in the Court of Appeal but had to reschedule his commitment later in the day to accommodate his court appearance.

Advocate Machaile asserted that Advocate Makase presented no flight risk, as he resides in Hlotse with his family and has no motive to evade his legal obligations.

He respectfully petitioned the court for his release on bail, emphasising that he had demonstrated his ability to adhere to the court’s conditions.

The Crown Counsel, Advocate Taelo Sello, expressed no objection to the bail application, acknowledging that the accused had a forthcoming matter in the Court of Appeal.

Consequently, the court granted Advocate Makase bail without any financial conditions, with the stipulation that he must not tamper with state witnesses and must fully participate in the trial process until its conclusion.

’Malimpho Majoro

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Trio in court for killing ‘witches’



THREE elderly women were all stabbed to death with a spear during a deadly night after they were accused of being witches.

Three suspects, all from Ha-Kholoko village in Roma, appeared in the High Court this week facing a charge of murder.
They are Jakobo Mofolo, Oele Poto, and Pakiso Lehoko.

They accused the elderly women of bewitching one of Poto’s relative who had died.

The stunning details of the murder was unravelled in court this week, thanks to Tlhaba Bochabela, 32, who is the crown witness.

Bochabela told High Court judge, Justice ’Mabatšoeneng Hlaele, last week that he had been invited to become part of the murder group but chickened out at the last minute.

Bochabela said in March 2020, he was invited by Rethabile Poto to come to his house in the evening.

He said when he went there, he found Mofolo, Poto, and Lehoko already at the house. There were two other men who he did not identify.

“I was told that the very same night we were going to do some task, we were going to kill some people,” Bochabela told Justice Hlaele.

He said he asked which people were going to be killed and was told that they were ’Malekhooa Maeka, ’Mathlokomelo Poto, ’Mampolokeng Masasa.

They said the three women had successfully bewitched Rethabile Poto’s uncle leading to his death.

Bochabela said after he was told of this plot, he agreed to implement it but requested that he be allowed to go to his house to fetch his weapon.

He said Lehoko was however suspicious that he was withdrawing from the plot and mockingly said “let this woman go and sleep, we can see that he is afraid and is running away”.

Bochabela said the only person he told the truth to, that he was indeed going to his home to sleep instead of going to murder the three elderly women was Mofolo who also told him that he was leaving too.

He said he told Mofolo that he felt uncomfortable with the murder plan.

Bochabela said he left and when he arrived at his place he told his wife all about the meeting and the plot to kill the women.

He said his wife commended him for his decision to pull out.

“I told my wife to lock the door and not respond to anyone that would come knocking looking for me,” Bochabela said.

He said later in the night, Rethabile Poto arrived at his place and called him out but they did not respond until he left.

Bochabela said in the morning they discovered that indeed the men had carried out their mission.

The village chief of Ha-Kholoko, Chief Thabang Lehoko, told Justice Hlaele that it was between 11 pm and 12 midnight when he received a phone call from one Pakiso Maseka who is a neighbour to one of the murdered women.

Chief Lehoko said Maseka told him to rush to ’Mampolokeng Masasa’s place to see what evil had been done to her.

“I rushed to Masasa’s place and on arrival I found Pakiso in the company of Moitheri Masasa,” Chief Lehoko said.

He said he found the old lady on the bed, naked with her legs spread wide.

“I was embarrassed by the sight of the old lady in that state, naked and covered in blood,” the chief said.

He said he went out and asked Maseka what had happened but Maseka referred him to Moitheri Masasa.

Chief Lehoko said Masasa told him that there were people with spears who had threatened to kill him if he came out of the house.

He said Maseka said he knew that Masasa’s neighbour, ’Malekhooa Maeka, was a light sleeper and she could have heard something.

The chief then sent one Patrick Lehoko to Maeka’s house to check if she had heard anything but Patrick came back saying Maeka was not at her house.

“I immediately stood up and went to ’Malekhooa’s place,” Chief Lehoko said.

He said when he arrived, he knocked at her door but there was no response so he kicked the door open, went in and called out ’Malekhooa Maeka by name.

Chief Lehoko said he then lit his phone and saw her lying in bed covered in blankets.

He said he then went closer to her and shook her but she was heavy.

Chief Lehoko said he tried to shake her again one last time while still calling her out but he touched blood.

He said he immediately left and went back to tell others that Maeka seemed to be dead too.

“I decided to go and buy airtime from the nearest shop which I had passed through near ’Matlhokomelo Poto’s home.”

He said on his way he met one Sebata Poto who asked him who he was.

Chief Lehoko said he only replied by telling him that the two women, Masasa and Maeka, had been murdered.

He said Sebata Poto told him that “’Matlhokomelo has been stabbed with a spear too”.

Chief Lehoko said he rushed to ’Matlhokomelo Poto’s house where he found her seated in the middle of the house supported by her children with blood oozing from her chest, gasping for air.

“I stepped out and went to get airtime, but I found her dead when I returned from the shop,” the chief said.

The case continues.

Tholoana Lesenya

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Opposition fights back



THE opposition is launching a nasty fightback after Prime Minister Sam Matekane defanged their no-confidence motion by roping in new partners to firm up his government.

Matekane’s surprise deal with the Basotho Action Party (BAP) has trimmed the opposition’s support in parliament and thrown their motion into doubt.

But the opposition has now filed another motion that seeks to get Matekane and his MPs disqualified from parliament on account that they were elected when they had business interests with the government.

The motion is based on section 59 of the constitution which disqualifies a person from being sworn-in as an MP if they have “any such interest in any such government contract as may be so prescribed”.

Section 59 (6) describes a government contract as “any contract made with the Government of Lesotho or with a department of that Government or with an officer of that Government contracting as such”.

Prime Minister Matekane’s Matekane Group of Companies (MGC) has a history of winning road construction tenders. Other Revolution for Prosperity (RFP) MPs, most of whom were in business, had had business dealings with the government.

It is however not clear if the MPs were still doing business with the government at the time of their swearing-in.
Matekane’s MGC Park is housing the Independent Electoral Commission (IEC), which is a government institution established by the constitution, getting its funds from the consolidated funds.

The motion was brought by the Popular Front for Democracy (PFD) leader Lekhetho Rakuoane who is a key figure in the opposition’s bid to topple Matekane.

The motion appears to be a long shot but should be taken in the context of a political game that has become nasty.
Advocate Rakuoane said the IEC’s tenancy at the MGC is one of their targets.

“The IEC is one of the government departments,” Rakuoane said.

“It is currently unethical that it has hired the prime minister’s building.”

“But after the motion, he will have to cut ties with the IEC or he will be kicked out of parliament.”

The Democratic Congress (DC) leader, Mathibeli Mokhothu, said although the IEC is an independent body, it can still be regarded as part of the government because it gets its funding from the consolidated fund.

The Basotho Covenant Movement (BCM)’s Reverend Tšepo Lipholo, who seconded the motion, said the Matekane-led government “is dominated by tenderpreneurs who have been doing business with the government since a long time ago”.

“Now they have joined politics, they must not do business with the government,” Lipholo said.

He said some of the MPs in the ruling parties are still doing business with the government despite their promises before the election to stop doing that.

“Those who will not abide by the law should be disqualified as MPs,” Lipholo said.

“Basotho’s small businesses are collapsing day-by-day, yet people who are in power continue to take tenders for themselves.”

He applauded the Abia constituency MP Thuso Makhalanyane, who was recently expelled from Matekane’s RFP for rebellion because he withdrew his car from government engagement after he was sworn in as an MP.

“He set a good example by withdrawing his vehicle where it was hired by the government,” Lipholo said.

Rakuoane said during the past 30 years after Lesotho’s return to democratic rule, section 59 of the constitution has not been attended to even when it was clear that some MPs had business dealings with the government.

“This section stops you from entering parliament when doing business with the government. Those who are already members will have to leave,” he said.

Rakuoane said they are waiting for Speaker Tlohang Sekhamane to sign the motion so that the parliament business committee can set a date for its debate.

“The law will also serve to assist ordinary Basotho businesses as they will not compete with the executive,” he said.

“There are many Basotho businesses in business these MPs are in. They must get those tenders instead.”

The new motion comes barely a week after a court application aimed at disqualifying Mokhothu.

The government-sponsored application sought the Constitutional Court to declare Mokhothu unfit to be prime minister because he was convicted of fraud in 2007.

Mokhothu has been suggested as Matekane’s replacement should the motion of no confidence pass in parliament.

Nkheli Liphoto

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