Mbabane head of CID wins court battle against widow

Sihlongonyane was taken to Court by Marcella Sihlongonyane (née Motsa) together with 20 other applicants. All the applicants in the matter are Sihlongonyanes; namely Thulile, Alpheus, Donald, Philip, Sabelo, Dumsani, Ncane, Esther, Zanele, Mbongiseni, Vincent, Lungile, Ntombifuthi, Xolile, Lomgidvo, Sukulwenkhosi, Lonkhosi, Phindile, Ngabisa and Thembeni.

The respondents were also all Sihlongonyane, namely, Minah,Celiwe, Thandi, Philanjani, William and Njabuliso. The master of the High Court and the Attorney General were also respondents.

The applicants in the matter wanted the court to declare the last will and testament of Sibonangaye Mathambo Langwenya, dated May 26, 2006, null and void. They wanted the court to declare that Langwenya died without having signed any will.

The applicants in the matter are widows and children of the late Langwenya and they filed the application against other children and widows of the same. Marcella stated in her affidavit that the applicants wanted the court to declare the will null and void because when Langwenya signed it, he was not in a state of mind fit to sign a valid will. She said he was rendered incapable of appreciating the nature of his act or the contents of the will. She stated that he was allegedly suffering from physical illnesses; being sugar diabetes and high blood pressure.

Further, Marcella said Langwe-nya was illiterate and did not appreciate the contents of the will which was recorded in English. She also stated that the will was invalid in that the witnesses and the testator (Langwenya) did not sign the will in the presence of each other. Furthermore, Marcella stated that the will was invalid because the legal advisor, one Felix Nhlabatsi, drafted the will and registered himself as a beneficiary.

The will was also alleged to have been invalid because it purported to give Nhlabatsi and the successors of his law office the right to nominate the executor of Langwenya’s estate. Marcella said that this was against the testate laws. The applicants stated that the will was unconstitutional as it did not provide equally for the three families and heirs of the deceased. Lastly, Marcella stated that the signature of Langwenya, which appears on the will, was not authentic.

When the matter was brought before court, Marcella stated that she was the widow of Langwenya and that after his death, she and other members of his family attended a reading of the will in some offices in Manzini. She told the court that according to the will, the deceased left her with a homestead at Maliyaduma which she said comprised two buildings which had fallen into disrepair and had to be rebuilt by her children.

Her daughter, Esther, also recounted before court that she and her mother went to an office in Manzini and were told by one Fakudze that he had come across an unregistered will and asked them to read it. Nhlabatsi had, by that time, passed on. According to Esther, Clement, who was also present, read the will to himself and instructed the attorney, one Fakudze, whom they found there, to register the will.

The last witness in the matter was Mbongiseni who told the court that it was evident that the will did not cater for all the deceased’s children and that he was one of those who were left out.

At the close of the evidence, lawyers Mandla Mkhwanazi, who represented Minah, and Ben Simelane, who represented Clement, argued that the applicants have not proven before the court that their clients had any case to answer.

In her judgement, Judge Mabel Agyemang agreed with the arguments of the defence. She said; "A person stands and falls by his pleadings. A case fought on pleadings ensures that the material facts of the case are set in the pleadings. Where matters are thus pleaded by a party, the material facts set out therein must be supported by the evidence."

She stated that the applicants failed to lead evidence on the matters set out in the pleadings. One of the matters which are alleged in the pleadings was that Langwenya signed the will while he was suffering physical illnesses. The judge noted that ‘no evidence such as the evidence of his medical history, a mental evaluation report, or even from persons close to him was led.’

Another matter which had been raised by the applicants was that the will did not provide equally for some of his children. Agyemang stated that "It is doubtful if a will of a testator which is a solemn declaration of how he wants to deal with his self-acquired properties may be declared invalid by reason of lack of bequest to adult children not found to be incapable of supporting themselves by reason of physical and mental disability."

Judge Agyemang then ruled that she was satisfied that at the close of the plaintiff’s case, there was no case which the respondents had to answer. The applicants were represented by lawyer Mbuso Simelane.

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