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Woman challenges inheritance law

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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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