Moorosi Tsiane
A child born out of wedlock can now inherit from a deceased parent in a landmark judgment that has reshaped Lesotho’s law of succession and strengthened the rights on children.
The ruling stems from a constitutional challenge successfully brought by Tholoana Nancy Molapo, culminating in a judgment delivered on 15 December 2025 by Justice Polo Banyane. The matter was heard by Justice Banyane sitting with Justices Realeboha Mathaba and Tšeliso Mokoko who both concurred.
The case, which began in December 2023, marked a significant turning point by aligning customary law with modern statutory reforms on inheritance.
Tholoana was represented by Advocate Fusi Sehapi, while her relatives who were fighting over her father’s estate, Mankuebe Molapo and Matlole Molapo, were represented by one Advocate Sengoai.
Also cited were the Minister of Law and Constitutional Affairs Richard Ramoeletsi, the Minister of Gender, Youth and Social Development Pitso Lesaoana, Attorney General Rapelang Motsieloa, the Master of the High Court, the Land Administration Authority (LAA), and several civil society organisations, including Women in Law in Southern Africa (WLSA), the Federation of Women Lawyers, and the Child Advocacy Centre Lesotho.
At the heart of the case was a challenge to inheritance rules under customary law and statutory provisions that had, for decades, excluded children born out of wedlock, particularly females, from inheriting from their fathers.
Tholoana challenged section 19 of the Children Protection and Welfare Act (CPWA) of 2011 and section 11 of the Laws of Lerotholi, arguing that they were discriminatory and violated section 18 of the Constitution, which guarantees equality and freedom from discrimination.
Section 19 of the CPWA provides that while a child has a right to the property of their parents, a child born out of wedlock may inherit only from their biological mother. Tholoana also challenged the Act’s definition of a “child” in section 3, arguing that it unfairly excluded persons over 18, discriminated on the basis of gender through the use of the word “his”, and placed an unequal burden on women while absolving men of responsibility towards their extra-marital children.
Adv Sehapi argued that such discrimination was unreasonable and unjustifiable in a democratic kingdom founded on human dignity, equality and the rule of law.
Tholoana, who was 22 when she launched the case in 2023, is the daughter of the late Bereng Molapo and Shoeshoe Mathibeli. Her parents cohabited in 1998 and intended to marry, but the marriage never materialised.
Two months before her birth, members of the Molapo family visited her mother’s home to perform family traditions symbolising acceptance of both the mother and the unborn child. After her birth, she was named Tholoana Molapo at her father’s parental home in Leribe.
When her parents separated in 2004, her mother relocated to Mafeteng, while Tholoana remained with her father at Ha Tsolo in Maseru until his death in 2017. She briefly lived with Mankuebe in 2016.
Following Mr Molapo’s death, Mankuebe assumed control of his properties, including immovable property at Katlehong in Maseru, rented them out and allegedly benefited exclusively from the proceeds. Tholoana then approached the court seeking to be declared her father’s heir and asking that the customary law rule of male primogeniture, read together with the CPWA, be struck down as unconstitutional.
Mankuebe and Matlole raised preliminary objections, arguing that the court lacked jurisdiction. Relying on the Age of Majority Ordinance of 1829, they contended that Tholoana was an adult and therefore lacked standing to challenge legislation governing children. They also denied that she had been accepted into the Molapo family, claiming marriage negotiations collapsed after it emerged that her mother was still married to another man. Under customary law, they argued, an illegitimate child had no right to inherit from her father.
Although the matter was initially set down for judgment in March 2024, it was overtaken by a major legal development: the enactment of the Administration of Estates and Inheritance Act, 2024. The court directed the parties to address the impact of the new law, which fundamentally reformed succession and inheritance in Lesotho.
In her judgment, Justice Banyane rejected the argument that the CPWA could be interpreted to include adults, holding that the Act was designed specifically to protect children under the age of 18, in line with international conventions.
“Giving the word ‘child’ a broad and inclusive construction, as proposed by the applicant’s counsel, defeats the clear purpose of the Act,” Justice Banyane said, citing the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child.
She concluded that, as Tholoana was not a child, the CPWA did not apply to her circumstances.
Under customary law, the court acknowledged, Tholoana—being female and born out of wedlock—would not qualify as an heir. However, Justice Banyane emphasised that customary law is subject to modification by Acts of Parliament.
Turning to section 66(1)(c) of the Administration of Estates and Inheritance Act, 2024, the judge noted that the new law abolished differential treatment based on the marital status of parents and affirmed equal inheritance rights for all biological children.
While inheritance by children born out of wedlock may depend on legitimisation, the court found that Tholoana met this requirement. Her naming by the Molapo family and their acknowledgment of her were clear indicators of legitimisation under the new Act.
“In the present matter, the naming of Tholoana by the family, the family’s acknowledgment and commitment towards her are indicative of the legitimisation contemplated in section 66(1)(c),” Justice Banyane said.
The court therefore held that Tholoana qualified to inherit from her father’s estate. However, it declined to order the immediate transfer of specific properties due to insufficient documentary proof of the deceased’s title. The LAA was also not directed to issue lease documents in her name at this stage.
In its final order, the court declared Tholoana the sole heir of the estate of her late father. The estate must now be reported and administered in accordance with the Administration of Estates and Inheritance Act, 2024 – a decision expected to have far-reaching implications for inheritance disputes involving children born out of wedlock across Lesotho.
