Children born out of wedlock entitled to inheritance– Moroka
Lebogang Mosikare | Monday August 26, 2024 06:00
This came to the fore recently when Justice Lot Moroka delivered judgment in the Lebogang Botsalo versus Lesego Sehunelo case. Moroka said: “The matter before this court is fairly straightforward. The Applicant who is the mother of the minor child begotten with the deceased, Moruti Sehunelo, seeks registration of the estate of the deceased Moriti Sehunelo principally so that the interests of the minor child to his father's estate are secured by the Master of the High Court. For her to register his estate, she seeks two documents allegedly in custody of the Respondent: the deceased person's death certificate and identification document. Under normal circumstances, the request of the Applicant that the estate of the deceased Moriti Sehunelo be registered with the Master So that a fair and equitable distribution of the estate to all deserving persons be achieved, should be no problem.” The circumstances, Moroka noted, are not normal as it is apparent from the set of exhibits filed by both parties that there is no common understanding on the fundamental issue which in my view is the best interests of the minor child.
“The Respondent is opposed to the application and has filed an answering affidavit. The Respondent raises several questions in her answering affidavit. These are: that the Applicant has no locus standi (a right to appear in a court) to bring up the application; the capacity of the Respondent to be sued and that she is not in the custody of the death certificate and identification card. The Respondent does not deny that the Applicant is the mother of a minor child begotten with the deceased Moriti Sehunelo. She denies that the Applicant lived with the deceased until he died,” said Moroka. To clear the mist surrounding the dispute at hand, Moroka said that he will first deal with whether the Applicant has locus standi to bring the application. “The Applicant is the mother to a minor child. It is not disputed that the deceased Moriti Sehunelo is the biological father to the minor child. As a biological father to the minor child, the deceased Moriti Sehunelo had a duty to support the minor child. Upon his demise, the duty fell to his estate. Let us first get the issue of the Applicant's capacity to sue out of the way. The Applicant is the mother to a minor child begotten with the deceased Moriti Sehunelo. She says at paragraph 6 of her founding affidavit: “This is an application to compel the Respondent to release the deceased's omang/identification card and death certificate to enable me to register his estate for distribution, on behalf of the deceased's minor child...in my capacity as her biological mother and guardian.
My attorneys of record advised me which advice I believe to be true that I can bring this application in the interests of the minor child to ensure that she is maintained and inherits from the deceased’ estate.” In terms of the Roman-Dutch common law, which is the common law applied in Botswana, both the mother and the father of an illegitimate child are obliged to support that child according to their respective means, Moroka clarified and cited Justice Isaac Lesetedi’s previous case that dealt with a similar issue which said: “Since they have a right of claim for maintenance or support from the estate, the children become creditors to the estate for converse to that right in favour of the children stands a duty on the estate to render that support. The right to support of course includes the right to have the estate pay for the educational expenses of the children. This would give their guardian the required locus standi to seek an order to have the estate submitted before the Master so that its full extent should be ascertained for the proper figure of maintenance to be arrived at, regard must not only had to be reasonable needs of the children but also to the extent or size of the estate.”
The case that Lesetedi cited, Moroka said, answers the question of the Applicant's capacity to sue on behalf of the minor child for payment of maintenance and or the creditor to his deceased father's estate. “Therefore, the mother of a child born out of wedlock has the locus standi to register the estate of the child’s deceased father with the office of the Master. When denying that she is in custody of the death certificate and identity document belonging to the deceased, the Respondent is opposing the registration of her deceased brother's estate with the Master. She says the family has amicably decided to devolve his estate in accordance with customary law. She does not disclose who in the family did so. The Respondent is by her own admission privy child's entitlements from her deceased father's estate. As mother and guardian to the minor child the Applicant has locus standi to sue on this also clarifies the child's position vis-à-vis the estate of his deceased father. The minor child stands on the same footing as to the decision of the family to distribute the estate of the deceased, Moriti Sehunelo,” said Moroka. While not disputing that the deceased had a minor child with the Applicant, Moroka continued, the Respondent does not at all say what arrangements have been made for the maintenance of the minor child or possible inheritance from her father's estate. “This exclusion of the minor child from her father's estate is precisely the reason why the balancing hand of the Master is required. Her denial of being in possession of the documents does not find any material dispute of fact warranting the application of the Plascon-Evans rule. The central issue is safeguarding the best interests of the deceased's minor child. From the reading of the Respondent's affidavit, nowhere does she say what arrangements for the maintenance and upkeep of the deceased person's minor child with the Applicant have been made by the family. For the umpteenth time, in terms of the law, a minor child of a deceased person stands on the same footing as a creditor to his or her estate and is entitled to have it registered with the Master,” Moroka pointed out.
Moroka concluded: “As Justice Lesetedi pointed out in Sam vs Seakaera “the Master has under the Act exclusive powers over the administration of estates of all deceased persons. The family’s distribution of the deceased’s person’s estate to the prejudice and exclusion of his minor child is in violation of the law; and to be precise, of many laws. This court is competent as an upper guardian of the minor child to order the registration of the estate with the office of the Master. Instead of the dilatory orders for the issuance of the documents, it is just that I order that the estate be registered. The application succeeds. The following orders are hereby issued: The Master of the High Court is hereby ordered to register the estate of the deceased, Moruti Sehunelo.”