Mamphuto Jessie V Executrix Estate Mohapi Jessie & 2 Others (C of A (CIV/REV) No 02/2025) [2025] LSCA 47 (7 November 2025)

# Mamphuto Jessie V Executrix Estate Mohapi Jessie & 2 Others (C of A (CIV/REV) No 02/2025) [2025] LSCA 47 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/47/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/47/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/47/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/47/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Mamphuto Jessie V Executrix Estate Mohapi Jessie …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/47/eng@2025-11-07) [ Download PDF (225.7 KB) ](/akn/ls/judgment/lsca/2025/47/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (225.7 KB) ](/akn/ls/judgment/lsca/2025/47/eng@2025-11-07/source) * * * * * Report a problem __ ##### Mamphuto Jessie V Executrix Estate Mohapi Jessie & 2 Others (C of A (CIV/REV) No 02/2025) [2025] LSCA 47 (7 November 2025) Copy citation * __Document detail * __Related documents Citation Mamphuto Jessie V Executrix Estate Mohapi Jessie & 2 Others (C of A (CIV/REV) No 02/2025) [2025] LSCA 47 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 47 Copy Hearing date 22 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV/REV) No 02/2025 Judges [Dr. Mosito P](/judgments/all/?judges=Dr.%20Mosito%20P), [Sakoane CJ](/judgments/all/?judges=Sakoane%20CJ), [Damaseb AJA](/judgments/all/?judges=Damaseb%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Procedure](/taxonomy/case-indexes/case-indexes-commercial-civil-procedure) Summary ###### Flynote Review – Exceptional jurisdiction of apex court – Application to review its own final judgment – Scope and limits of review power – Distinction between review and rehearing – Patent error or gross injustice as the only grounds – Freedom 2 of testation – Trust inter vivos versus mortis causa – Whether issue raised on review was before High Court or on appeal – Finality of litigation and abuse of process – Costs in estate. Read full summary * * * Skip to document content ###### Flynote Review – Exceptional jurisdiction of apex court – Application to review its own final judgment – Scope and limits of review power – Distinction between review and rehearing – Patent error or gross injustice as the only grounds – Freedom 2 of testation – Trust inter vivos versus mortis causa – Whether issue raised on review was before High Court or on appeal – Finality of litigation and abuse of process – Costs in estate. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV/REV/02/2025 In the matter between: MAMPHUTHO JESSIE 1ST APPELLENT MPHUTO JESSIE 2ND APPELLENT And EXECUTRIX: ESTATE OF MOHAPI JESSIE 1ST RESPONDENT MASTER OF THE HIGH COURT 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT CORAM: MOSITO P SAKOANE CJ DAMASEB AJA HEARD: 22 OCTOBER 2025 DELIVERED: 7 NOVEMBER 2025 FLYNOTE: Review – Exceptional jurisdiction of apex court – Application to review its own final judgment – Scope and limits of review power – Distinction between review and rehearing – Patent error or gross injustice as the only grounds – Freedom 2 of testation – Trust inter vivos versus mortis causa – Whether issue raised on review was before High Court or on appeal – Finality of litigation and abuse of process – Costs in estate. Held: 1. The review jurisdiction of this Court is exercised only in the most exceptional circumstances to correct a patent error or gross injustice apparent on the face of its own final judgment. It is not a disguised rehearing or appeal in another form. 2. A losing party may not, under the guise of review, seek to reopen or expand issues that were neither canvassed nor adjudicated upon in the court below or on appeal. 3. The question whether a divorce order created a trust inter vivos as opposed to mortis causa was never a live controversy before the High Court, and could not properly arise for decision on review. 4. The existence of pending High Court proceedings based on the same alleged trust demonstrates that the applicants have an alternative remedy, and militates against invoking this Court’s extraordinary review power. 5. Although this Court erroneously referred to the non-existent “Trust Property Control Act 1988 of Lesotho,” the error was immaterial to the outcome and did not occasion any injustice. 6. The review was therefore dismissed as meritless, with costs to be borne by the estate. JUDGMENT P T DAMASEB AJA Introduction [1] The present ‘review application’ is intended to impugn a judgment and order of this Court (Damaseb AJA, Musonda AJA and Chinhengo AJA) handed down on 18 May 2025 - allowing an 3 appeal then before it and setting aside a judgment of the High Court. [2] The ‘review’ is brought on the professed basis that this Court’s impugned decision is vitiated by a ‘patent error’ or ‘irregularity’ that caused the applicants a grave injustice that must now be corrected and set aside. [3] The review power relied upon by the applicants is exercised only exceptionally. It is not intended to afford a rehearing to a disappointed litigant. It is now settled that: ‘This court can only exercise its review power in exceptional circumstances. This court will view circumstances as exceptional only when gross injustice and or a patent error has occurred in the prior judgment. The power of this court to review its own decisions should therefore not be a disguised rehearing of the prior appeal. It is therefore not a disguised rehearing of the prior appeal, going over it with a fine comb for the re-determination of aspects of that judgment. It is therefore not done for purposes other than to correct a patent error and or grave injustice, realised only after the judgment had been handed down.’1 [4] The applicants seek the following relief: ‘[1] The Order granted by this Honourable Court on the 8th day of May 2025 be reviewed, corrected, substituted and or set aside with the below captioned reliefs. 1 Per Mosito P in Hippo Transport (Pty) Ltd v Commissioner of Customs and Excise and Another (LAC (2017- 2018) 1784 para 22. 4 [2] Pursuant to the grant of the Order in Prayer 1 above: That it be declared that the Court Order dated 1st June 2022 created a Trust inter vivos. [3] That is be declared that the Last Will and Testament dated 16th January 2023 is to apply to the property acquired post to the divorce phase of the deceased Mohapi Jessie and ‘Mamphuto Jessie. [4] Alternatively, to Prayer 3 above: That it be declared that the Last Will and Testament dated 16th January 2023 is without prejudice to the trust inter vivos by the Court Order dated 1st June 2022. [5] The costs be awarded only in the event of opposition to the present matter.’ [5] It bears mention that what is sought is the setting aside of the entire order of 8 May 2025. This is important to state at the outset because some submissions made by Mr Rasekoai on behalf of the applicants during oral argument cannot be reconciled with the relief sought in prayer 1. More about this presently. [6] The application is opposed. The question that arises is whether the applicants have satisfied the test for this Court to assume its exceptional and extraordinary jurisdiction. [7] The stringent test for review needs emphasis in light of the disturbing and worrisome trend whereby applications seeking review of this Courts’ previous judgments is fast becoming a litigation strategy. Successful litigants are entitled to finality and 5 the fruits of final judgments especially by the apex court. To string with them along with all manner of review applications is not in the interest of the administration of justice. A losing litigant has no right, under the guise of a review, to re-argue (or re-litigate) a matter finally disposed of by this court. [8] The present application for review is not only an attempt to re-litigate issues finally determined by this Court, but to in fact expand the scope of the dispute and issues that were subject of the appeal in C OF A (CIV/67/2021). [9] During the appeal the applicants’ focal point was the validity of the Will and the vires of the appointment of the first respondent as executrix. The applicants’ primary concern in the court a quo was that since the Will had not identified beneficiaries it was invalid.2 [10] Their further complaint was that the late Mohapi Jessie’s freedom of testation was removed by the divorce Order. Finally, due to the invalidity of the Will, the appointment of the executor was a nullity.3 In fact, the above is the basis on which they succeeded before Khabo J.4 2 Vide para [1] of the appeal judgment. 3 Vide para [10] of the appeal judgment. 4 Vide paras [17] [18] of the appeal judgment quoting paras [18]-[20] of Khabo J’s reasons; including the executive part of Khabo J’s judgment. 6 [11] On appeal by the first respondent to this Court, all the complaints that the applicants raised for determination before Khabo J were decided in favour of first respondent. In other words, the applicants’ contentions which found favour with the High Court were rejected by this Court. The issues are addressed in the appeal judgment at paras [32]-[35]. [12] Needless to mention, the grounds of appeal to this Court were based on the judgment and Order of High Court.5 If the appellants were unhappy with any aspect of the High Court’s order they should have noted a cross-appeal. [13] In this ‘review’, the applicants’ central focus is that they had, allegedly, asked this Court on appeal to decide that the property that devolved unto the divorcing husband (late Mohapi Jessie) and wife (the first applicant in the review) became part of a trust inter vivos and not mortis causa. For that reason, it is said, it could not form part of the estate over which the executrix had or could assume jurisdiction. [14] In other words, the executrix’s jurisdiction could only obtain to the extent of properties obtained by the late Mohapi Jessie post the divorce Order; and that this was enough to ‘warrant interrogation [on appeal] of the matter beyond the interrogation of the validity of Last Will and Testament’. 5 Vide para [19] of the appeal judgment. 7 [15] The further allegation is made that it was apparent that the relevant instrument filed by the Master of the High Court a quo was considered to be a Trust mortis causa. It is then stated that the divorce order created a Trust inter vivos with beneficiaries and the trustees being the late Mohapi Jessie and the first applicant – as the parties to the divorce settlement. [16] I wish to point out at the outset that an appeal to this Court is confined to the record of the proceedings in the court below. I have already shown what the issues were on appeal by reference to Khabo J’s reasons and the subsequent order she made. Khabo J was not called upon to decide that the divorce order created a trust inter vivos as opposed to one mortis causa. She had to decide whether the Will executed by the deceased Jessie was valid for want of beneficiaries and inconsistency with the divorce Order. The learned judge decided the matter in favour of the applicants on the basis that deceased Jessie’s freedom of testation was extinguished by the divorce settlement. This Court rejected their contentions comprehensively. [17] For the issue to have crystallised for decision on appeal as either a Trust inter vivos or mortis causa as now suggested in the ‘review’ - and with great gusto by Mr. Rasekoai in his heads of argument and oral argument - it must have been a live controversy in the High Court in the manner that it has now been raised in this Court. 8 [18] To ask this Court to decide the matter on the basis put forward on ‘review’ is to expand the scope of the issue that was before the High Court and resultantly on appeal. Had this Court on appeal done so it would have decided the issue of an inter vivos trust as opposed to one mortis causa as a court of first and final instance. That is not permissible because that was never an issue before Khabo J. There is not even the slightest suggestion in the learned judge’s written reasons that it was an issue before her. [19] It had also emerged from the answering affidavit by the executrix that after this Court’s appeal judgment, the applicants instituted urgent proceedings in the High Court in which, amongst others, the following relief is sought: ‘The 1ST RESPONDENT [the executrix] is interdicted and or barred from purporting to exercise any statutory function as the TESTAMENTARY EXECUTIX (E25/2024) over the joint estate of the LATE MOHAPI JESIE and ‘ MAMPHUTO JESSIE…’ [20] I can only assume that this relief is predicated on the presently professed basis that the property over which the executrix assumed jurisdiction had not become part of Mohapi Jessie’s estate as it had devolved upon a Trust inter vivos – the very same premise being advanced in the review. [21] That application in the High Court, we were informed during oral argument, was struck from the roll for lack of urgency and will 9 thus proceed in the normal course in the High Court. As counsel for the respondent correctly suggested, the pursuit of that relief in the High Court, amongst others, means that by their own showing the applicants have alternative redress to address what they perceive to be an injustice occasioned by this Court’s judgment on appeal. Secondly, the danger exists that this Court’s judgment on the issues that have now been raised on ‘review’ might well render nugatory the pending proceedings in the High Court. [22] During argument of the review, Mr Rasekoai submitted that the order made by this Court on appeal setting aside the High Court’s order that the Will was a nullity, is correct. On the other hand, as I adumbrated at the outset of this judgment, the order sought in the review is to set aside all the orders (without any exception) granted by this Court on appeal. The two cannot co-exist. [23] This review is meritless and stands to be dismissed. [24] Finally, I want to point out that this Court’s statement at para [20] of the appeal judgment that the applicable law in Lesotho is the Trust Property Control Act 1988 was clearly wrong as no such law exists in Lesotho. Although unfortunate and regrettable, that patent error did not influence the outcome of the appeal. Mr Rasekoai conceded as such much to his credit. Costs 10 [25] Although counsel for the executrix suggested that the applicants must be personally mulcted in costs for the meritless review, in the exercise of our discretion we take the view that costs must be in the estate. Order [26] In the result: 1\. The review application is dismissed. 2\. Costs shall be in the estate. _____________________________ P T DAMASEB ACTING JUSTICE OF APPEAL I agree _________________________ K E KANANELO PRESIDENT OF THE COURT OF APPEAL I agree __________________________ SP SAKOANE CHIEF JUSTICE 11 FOR THE APPLICANT: MR. M RASEKOAI FOR THE RESPONDENTS: ADV. 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