Court victory for Nkoya

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  • as court blocks Thabane and ‘Maesaiah from selling Lipolelo’s property

Mohalenyane Phakela

FORMER Prime Minister Thomas Thabane’s daughter ‘Mabatšoeneng Hlaele (nee Nkoya Thabane) has been granted an interim order barring Mr Thabane and his wife, ‘Maesaiah, from selling any of the land Mr Thabane acquired together with his slain ex-wife, Lipolelo.

The order is valid until 14 August 2020 when it is expected that a final judgement would be delivered on the matter.

High Court Judge Keketso Moahloli delivered the verdict on Monday.

Justice Moahloli heard arguments from the applicants’ and respondents’ lawyers on 6 July 2020 and reserved judgement to Monday 13 July 2020.

Adv Hlaele (nee Nkoya Thabane) and Attorney Kuili Ndebele are the applicants in the matter. Nkoya is represented by Advocate Christopher Lephuthing while Mr Ndebele is represented by Mr Monaheng Rasekoai.

‘Maesaiah, Mr Thabane, the Master of High Court, the Attorney General (Haae Phoofolo), Toka Thabane, Potlako Thabane, Pulane Borotho (nee Thabane), the Land Administration Authority (LAA) and the Minister of Social Development ‘Matebatso Doti are the first to ninth respondents respectively. Save for Mr Thabane who is represented by Mr Qhalehang Letsika, the other respondents are represented by Adv Salemane Phafane.

Mr Thabane and ‘Maesaiah are accused of murdering Lipolelo on 14 June 2017. At the time of her assassination, Mr Thabane and Lipolelo were estranged from each other and their divorce had not been finalised. Mr Thabane married ‘Maesaiah just two months after Lipolelo’s murder.

In her court application, Nkoya claims that after Lipolelo’s murder, Mr Thabane and ‘Maesaiah have taken over Lipolelo and Mr Thabane’s joint estate. She alleges they are even selling off some of the properties thereby prejudicing Lipolelo and Mr Thabane’s adopted children, Regina Retšelisitsoe Thabane and Kekeletso Joseph Thabane.

Nkoya says she is the legal guardian of Regina, a minor aged 17 but just a month shy of attaining the legal age of majority. Kekeletso is 32 but is said to suffer from autism.

Nkoya wanted the High Court to issue an interim order interdicting ‘Maesaiah and Mr Thabane from “transferring and or transacting over any sale of land rights and interest in respect of immovable properties registered in their (Lipolelo and Mr Thabane’s) names with the LAA pending finalisation of this matter”.

She wanted the LAA to be ordered to provide all the records of the land registered in the names of ‘Maesaiah and Mr Thabane pending the finalisation of the main case.

She also wanted the court to order the Minister of Social Development, ‘Matebatso Doti, to order social workers to assess Regina Thabane and present a report within 14 days of the order. She wants the court to grant her interim custody of Regina pending finalisation of her application.

In terms of the final relief, she wants an order declaring that “all properties (movable and or immovable) registered in the names of ‘Maesaiah Thabane and Thomas Motsoahae Thabane and which were acquired and or allocated prior to their marriage do not form part of their joint estate but that of Thomas Motsoahae Thabane and the late Lipolelo Thabane”.

She also wants the court to compel Mr Thabane to forfeit a quarter of Lipolelo’s estate to Regina and Kekeletso.

She wants to be awarded custody over Regina “and or any alternative remedy or remedies be made by this court in respect of what is in the best interests of Regina”.

Justice Moahloli granted her interim prayers except for the prayer to order Ms Doti to order social workers to assess Regina Thabane. He did not say why the prayer was not granted.

The respondents’ lawyers had argued that Nkoya did not have the legal authority to institute the proceedings as she had been “wrongfully” granted guardianship of Regina by the Master of High Court when her adoptive parent, Mr Thabane, was still alive. They also argued that the High Court did not have the jurisdiction to preside over matters they said were within the exclusive purview of the Children’s Court.

However, Justice Moahloli ruled that the Master of the High Court was correct to appoint Nkoya Thabane as Regina’s guardian because even by ‘Maesaiah’s own submission, Mr Thabane could not handle her affairs as he was incapacitated due to dementia and other terminal illnesses.

‘Maesaiah made the claims in her bail application which was granted on 29 June 2020.

“In the present case, I am satisfied that the applicants (Nkoya and Mr Ndebele) have identified an applicable right that exists in law, and not a mere interest.

“They have shown that the adoptive children have a right to a share of the joint estate of their deceased mother (Lipolelo) and their surviving father (Mr Thabane), either in terms of the common law rules of interstate succession or the celebrated Sesotho law principle of “Malapa ha jane” (loosely translated to mean ‘another family cannot take over another’s inheritance’).

“They have also shown that their wards (Regina and Kekeletso) have the right and urgent need to protect whatever property is due to devolve to them against unlawful dissipation…

“I am satisfied that the applicants have satisfied the requirements for the grant of the interim interdict.

“It is not true that the High Court has no jurisdiction in every matter concerning custody and guardianship of children. For instance, the High Court routinely deals with custody in divorce proceedings, without referring it to Children’s Court… The applicants are not seeking to challenge Ntate Thabane’s right to parenting but merely seeking to safeguard the adoptive children’s personal rights to the intestate estate of their deceased adoptive mother, Lipolelo.

“It is common cause, on the first respondent’s (Ms ‘Maesaiah Thabane’s) own version, that Ntate Thabane, the surviving parent/father of the child Regina, is incapacitated… In my view, the Master of the High Court was consequently justified to appoint Ms Hlaele as her guardian at least in respect of the estate. This court unreservedly endorses the Master’s decision…The interests of the minor child are always paramount…

“In my view, the main purpose of this application is to safeguard the rights of the adopted children, Regina and Kekeletso, to their lawful share of the joint estate of their adoptive parents, Ntate Thabane and the deceased Ms Lipolelo Thabane,” Justice Moahloli said.

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