Child born out of wedlock wins late father’s estate

 

Gaborone High Court Judge Justice Leburu has ruled in favour of a child born out of wedlock over an estate against a woman who claimed to have been customarily married to the late ‘husband’.

The applicant, Neo Pearl Rapoo, in her capacity as the legal guardian to Prince Blessing Mafishane, by way of notice of motion, sought orders that: a declaratory order be and is hereby issued to the effect that there is no customary law marriage or any marriage whatsoever solemnized between the 1st respondent, Palesa Makepe and the late Boikanyo Tuelo Mafishane, A declaratory order be issued to the effect that 1st respondent, Palesa

Makepe, is not a beneficiary of the Estate of the late Boikanyo Tuelo Mafishane.

The applicant Neo Pearl Rapoo is the biological mother to Prince Blessing Mafishane. The biological father is the late Boikanyo Tirelo Mafishane (the deceased). The 1st respondent is Palesa Makepe. At some point in time, Makepe was romantically related to the deceased as girlfriend. The 2nd respondent, Tuelo Moeti Mafishane, is the Executor of the Estate of the late Boikanyo Tuelo Mafishane.

The application was brought before court for and on behalf of the minor child, Prince Blessing Mafishane, by the mother (Neo Pearl Rapoo). According to Rapoo, the minor child has direct and substantial interest in the matter as the son and heir of the deceased, who died intestate.

According to the background of the case, the deceased and Rapoo were not married. The minor child was born on the 21st November 2011. The deceased died on the 23rd July 2020. According to the applicant (Rapoo), the 1st respondent (Palesa Makepe), at the next of kin meeting held before the Master, on the 14th September 2021, asserted that she was the deceased’s wife.

As proof of the marriage, a letter from the Palapye Tribal Administration, dated 13th September 2021, was presented to the Master. In terms of the said letter, Palesa Makepe was confirmed as the daughter in law of the Mafishane family, after members of the Mafishane family, being the deceased uncle, Bob Mafishane, the deceased's mother and deceased's grandmother, confirmed that she was customarily married to the deceased.

In her case the applicant avers that the letter from the Palapye Tribal Authority does not state when the deceased and Makepe got married, or when patlo was done and therefore there was no customary marriage between the deceased and the Makepe.

'To fortify the generality of the foregoing, the applicant asserts that members of the Mafishane family are denying the contents of the said letter and in particular, the deceased's mother, Mariam Mafishane, the deceased's grandmother Ana Mafishane and Meisy Simon, through supporting affidavits filed herein.

“According to the applicant, the Master of the High Court simply adopted the said letter as proof of the alleged marriage and thus imbued the 1st respondent with the necessary interest to inherit part of the deceased estate, as a surviving spouse.

“The applicant contends that such posture by the Master was erroneous, considering that the said letter was not a court order or marriage certificate, evincing and proving the alleged marriage,” Justice Leburu said.

The judge stated that the finding by the Master that the 1st respondent is the surviving spouse, according to the applicant, meant that the interest of the deceased's son, Prince Blessing Mafishane, in the estate of his late father, will, substantially be diminished by the fact that the 1st respondent would also get half of the deceased estate. It is this interest in the estate of his father that the present application has been marshalled.

Justice Leburu stated that in his judgment, all the essential requirements for a valid customary marriage had not been established, in the form of patlo and agreement by both parties' representatives.

“Having determined that there was no marriage, it is not necessary for this court to determine whether the 1st Respondent is a beneficiary to the estate of the deceased. That is a matter for the Master to decide. The applicant has made out a case for a declaratory order to the effect that there was no customary marriage between the 1st respondent and the late Boikanyo Tuelo Mafishane.”

The judge ordered that there was no customary law marriage solemnized between Palesa Makepe and Boikanyo Tuelo Mafishane. He said Makepe has submitted that the applicant has no locus standi to bring the present application in that as a child born out of wedlock, he is not entitled to inherit from his deceased father's estate. On that basis, it was submitted that the applicant has no direct and substantial interest in the estate of the deceased.

The judge indicated that the applicant on the other hand, has submitted that as the only surviving son of the deceased, he has direct and substantial interest in the estate of his late father, even if he was born out of wedlock. As an heir, he submitted that he stands to benefit from his late father's estate and therefore he is entitled to thwart and prevent any unlawful diminution of the estate, which is prejudicial to his interest.

Justice Leburu said it is common cause that the applicant's biological father is deceased. His demise thereof means that he is unable to provide protection and care to his son, he said.

According to the judge, from the Master's Report filed in terms of Order 12 Rule 9, filed on the 7th August 2023, it is abundantly clear that the Master did not declare the 1st respondent the surviving spouse. He said the Master, basically adopted and embraced the contents of the Palapye Tribal Administration letter, without much ado.

“In my judgment, the applicant is not challenging the decision of the Master, but effectively, the contents of the Palapye Tribal Authority letter. The point of law by the 1st respondent is therefore not properly taken and raised. It was argued by the applicant that the essential elements of a Ngwato Customary law marriage have not been established, in the form of a patlo (marriage proposal) and or bogadi (bride price).

“The 1st respondent submitted that the impugned Letter was a Court order from the Tribal Authority, evincing proof of customary marriage between the 1st respondent and the deceased. Furthermore, the presumption of regularity, with respect to the said letter, further buttressed the existence of customary marriage,” the judge said.