Nephew loses inheritance battle

Sharon Mathala

An inheritance feud that has dragged on since 2016 finally came to a conclusion this week with the Lobatse High court awarding a disputed piece of land to the deceased’s children.

The court battle between Ontiretse Tlhajwane (son to deceased) and David Mokgalajwe (nephew to deceased) ensued soon after the death of Tlhajwane’s father, Shemela Motshogwe, back in 2016.

Mokgalajwe’s contention was that Tlhajwane and his siblings were illegitimate children as their father had not legally married their mother.

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The marathon case which started at Mogoditshane customary court was appealed to the Molepolole customary court, then the Customary Court of Appeal before it was escalated to the Lobatse High Court.

With the inheritance law brought into sharp focus, the case also shed some light into the dark realities of cohabitation and bearing children out of wedlock.

The background of the matter is that soon after the death of Motshogwe, his nephew was temporarily given his inheritance as the deceased’s children were minors at the time.

When the children came of age, Tlhajwane refused to hand over the inheritance claiming that they were not legitimate as his uncle never married their mother.

However, Tlhajwane argued that he was the biological son of the deceased and that he and his siblings were entitled to their father’s estate notwithstanding the fact that they were all born out of wedlock.

During trial the deceased’s sister testified in court that they had initially made the mistake as family by awarding the inheritance to Mokgalajwe and that soon after realising their mistake they made it clear to him that the property belonged to Tlhajwane and his siblings, and that he was to keep it for them until they were of age.

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She told the court that as far as she knew, her brother was not married but had promised to marry his customary wife, Tlhajwane’s mother.

Initially the lower Mogoditshane customary court ruled that the inheritance belonged to both parties and that it should be subdivided.

Unsatisfied with the customary court findings, Tlhajwane appealed to a higher court which found that the inheritance belonged to him and his siblings.

Mokgalajwe further appealed to the Customary Court of Appeal on June 2018.

And after hearing both parties the Customary Court of Appeal ruled that children born out of wedlock according to Setswana tradition are illegitimate and have no claim to the father’s property unless such child was legitimized through marriage of their parents or unless ‘bogadi’ (dowry) was paid for by the father.

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The Customary Court of Appeal held that Tlhajwane and his siblings had no claim over the property and accordingly gave the rights to the deceased’s nephew.

This decision was overturned by the Lobatse High Court.

In its judgment the High court highlighted that there is a factual distinction between a co-habitation arrangement and a Sekwena customary law marriage. “We live in an era where tradition, culture and modernity often come into conflict with one another,” the court observed.

The court further observed that, because of societal and economic pressures, often couples that are not married live together, sometimes out of convenience without necessarily being incumbered with legal consequences of marriage.

“The Customary Court of Appeal decided against Tlhajwane primarily on the basis that he could not inherit from the deceased’s estate as he was an illegitimate child. In so finding I hold that the court erred in law as it gave effect to a customary rule that is no longer enforceable. I accordingly set aside and hold that for the reasons that a deceased died intestate without having being married and by the appellant and his siblings as his only children, they are entitled to inherit their deceased father’s estate,” the High court ruled.