By Thoboloko Ntšonyane
MAFETENG – There are always ongoing dilemma where the deceased had left their property without having clearly stated how they like their assets to be distributed at their death, this particularly plague many families if both husband and wife are deceased.
It is suggested that freedom of testation, the power to make a will, is exercised when the person is alive.
There are many cases of families and siblings fighting for the estate of their parents.
Advocate Fusi Sehapi says despite that the constitutional project endeavors to provide the society “free of all forms of discrimination” but warned that the discrimination accruing from the application of the customary laws is sanctioned by the constitution.
The prominent lawyer said according to the provisions of the Land Act of 1979, the girl child was discriminated against on the basis of sex, as she is not catered for in as the successive customary heir.
He however said all is not lost as the Constitution empowers the Parliament with powers to enact laws that do away with all forms of discrimination.
“Traditionally, female gender, whether minor, married or single had no rights to inherit landed property under the laws of Lesotho. This custom and tradition was reduced to writing under section 11 (1) of the LawsofLerotholi.
Accordingly to this section only male children were entitled to inherit property. The widow was regarded as the minor and a dependent of the heir of her late husband,” he said.
In 2006, the government enacted the Legal Capacity of Married Persons which removes the minority status of women and empowers them accordingly.
Advocate Sehapi said there is a common practice not only in Lesotho but prevalent in many parts of Africa where the first male child becomes an apparent heir to the estate of his late father. He showed that the family council was “bound” to accede to this norm, and contrary nomination would did not prevail as the family council had “no powers to create [an] heir” rather theirs was to endorse that who has been “created by the customary rule of male primogeniture.”
He argued further: “Although most lawyers, judicial officers, public and private institutions plus ordinary citizens are still in denial that the law of succession to landed property is still hinged on family or blood relationship and customary law rule of male primogeniture, the opposite is unfortunately true.
Once there is no surviving spouse the family council has vast powers to nominate as heir any person, citizen or foreigner, natural or legal, female or male, family member or outsider, young or old, as long such person has capacity to hold title to land under the LandAct, No. 8 2010.”
Meanwhile one of the preconditions for Lesotho to sign the second compact of the multi-million, $300 million Millennium Challenge Corporation (MCC) is to repeal certain provisions of Lerotholi Laws, customary laws that bear restrictions on women.