IN THE HIGH COURT OF LESOTHO
HELD IN MASERU
CIV/APN/0039/2025
In the matter between:
‘MAHLAO RAHLAO 1ST APPLICANT
PEETE MASUPHA 2ND APPLICANT
TUMAOLE MASUPHA 3RD APPLICANT
And
‘MAMPINE MASUPHA 1ST RESPONDENT
LESOTHO FUNERAL SERVICES 2ND RESPONDENT
Neutral Citation: Rahlao & Others v. Masupha and Another [2025] LSHC 76 Civ (31 March 2025)
CORAM: S. P. SAKOANE CJ
HEARD: 10 AND 12 MARCH 2025
DELIVERED: 31 MARCH 2025
Summary
Applicants seeking to compel the widow to bury her deceased husband • Allegation that the widow is putting up a fight to inherit property of the deceased in the possession of 1st applicant whom she purported to marry under custom while still married under civil law to the widow • Widow’s defence that she needs to sell the property in order to raise funds for preparation of the burial • Application dismissed on basis that applicants have no locus standi to compel the widow to exercise her burial rights.
ANNOTATIONS
CASE CITED
LESOTHO
Makata v. Makata LAC (1980-84) 198
Masakale v. Masakale and Others [2024] LSHC 213 CIV (8 November 2024)
Ratia v. Ratia CIV/APN/389/2014
BOOKS
Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa 4th edition
JUDGMENT
I. INTRODUCTION
[1] This is an application for burial of the deceased brought on an urgent basis on 10th March. It was partly heard and thereafter postponed to the 12th March to enable counsel for the applicants to provide the Court with further information about the property of the deceased in the possession of the 1st applicant.
[2] On the 12th, no such information was placed before Court. The following order was then made with reasons to follow:
“Having read the papers and heard oral evidence by the 1st respondent;
And having heard submissions by Mr. Khoboko for the applicants and Mr. Makhetha for the 1st respondent;
The following order is made:
- The application is dismissed.
- The 1st applicant must release the deceased’s property in her possession to the 1st respondent.
- The 2nd respondent must release the corpse to the 1st respondent on request for burial.
- Applicants should pay the 1st respondent’s costs of suit individually and severally, the one paying the others to be absolved.”
[3] These are the reasons for the issuance of the order.
[4] The 2nd respondent and the deceased entered into a civil marriage on 3rd October 2004. They lived apart from 2011 until the passing of the deceased on 20 January. During their separation, the deceased purported to enter into a customary marriage with the 1st applicant. When he passed on, he was living together with the 1st applicant.
[5] The 2nd and 3rd applicants are a junior brother and cousin of the deceased respectively.
[6] A dispute arose regarding the burial of the deceased. It could not be resolved despite attempts by the family, intervention by the area chief and the police. The applicants then turned to this Court for urgent judicial resolution.
Relief
[7] The applicants sought the following orders:
“A. 1. URGENT RELIEF – URGENT INTERDICT
THAT the Applicants’ failure to comply strictly with the Rules of the Honourable Court relating to service and time frames be and is hereby condoned and permission be and is hereby granted to the Applicants to bring this application as a matter of urgency as contemplated in Rule 72 of the Rules of Court and in terms of the time frames provided for hereinafter.
2. INTERIM AND FINAL ORDERS:
In light of the above, I (sic) respectively request this Honourable Court might consider to grant an order:
- Directing the 1st Respondent to proceed with the burial of the deceased within a strictly prescribed period as determined by this Honourable Court.
- Authorizing the Applicants, in the event of non-compliance by the 1st Respondent, to take all necessary steps to ensure that the deceased is buried with dignity and respect.
- Interdicting the 1st Respondent from using the deceased’s body to ventilate claims for inheritance and directing that such matters shall be dealt with separately under the relevant statutory provisions, to wit; Administration of Estates & Inheritance Act, 2024.
3. COSTS AND SUCH FURTHER OR OTHER RELIEFS AS THE COURT DEEMS JUST AND PROPER:
- An order that any costs incurred due to the delay in burial, including but not limited to the storage fees at the 2nd Respondent’s mortuary, be reimbursed from the estate or borne by the party responsible for the delay; 1st Respondent in this case.
- Ordering any further relief that this Honourable Court deems just and appropriate in the circumstances.”
Locus standi
[8] The applicants acknowledge that the 1st respondent is the lawful wife of the deceased. Her marriage with the deceased was a civil one and preceded the one that the 1st applicant entered into with the deceased under custom. They say that they “share an equal and direct interest in ensuring that the burial of the late Habofanoe Masupha, proceeds without unlawful or unreasonable delay.”
[9] They allege that “the 1st Respondent, who is claiming and indeed has burial rights as the lawful spouse of the deceased, has refused to proceed with the burial unless she is granted immediate control over the deceased’s estate.” The property claimed includes vehicles registered in the names of the deceased.
[10] They also contend that “The 1st Respondent’s actions violate the legal and customary principle that burial arrangements should not be entangled with property disputes.”
[11] From what has been alleged, the applicants do not contest the 1st respondent’s burial rights as the lawful wife of the deceased. Their alleged shared interest is to compel her to proceed with the burial and be interdicted “from using the deceased’s body to ventilate claims for inheritance.”
[12] The question that arises is whether the applicants’ alleged shared interest is sufficient to clothe them with locus standi to claim a coercive order to bury and an interdict against the 1st respondent. In my respectful view, the answer is in the negative and it is the following:
12.1 An applicant will have locus standi if the right on which s/he bases a claim for an interdict is one that s/he enjoys personally or has sufficient interest in the person whose rights s/he seeks to protect and it is impossible or impractical for that person to approach the court himself[1].
12.2 The deceased’s rights can be championed by the widow. Nothing is said about it being impossible or impractical for her to approach the court. There is, therefore, no space for intervention by the applicants.
12.3 It is an uncontestable fact that the 1st respondent was legally married to the deceased. Thus, the purported customary marriage of the deceased and the 1st applicant is a nullity[2]. The 1st applicant does not have locus standi to either to compel the 1st respondent to bury or to interdict her from taking any step in the preparation of the burial.
12.4 The 2nd and 3rd applicants’ duty is to assist their sister-in-law (i.e. the widow) to get the deceased’s property and not to join the 1st applicant in the suit.
[13] It follows that all the applicants lack locus standi to compel the 1st respondent to bury the deceased, let alone at a time of their choosing and to interdict her from claiming the deceased’s property. The application falls to be dismissed on the basis of lack of locus standi only.
[14] But the judgment need not rest on lack of locus standi in view of the applicants’ serious allegation that the burial is held hostage by the widow’s insistence that the property of the deceased in the possession of the 1st applicant be surrendered.
II. MERITS
[15] After Mr. Khoboko had moved the application, I enquired about the whereabouts of the 1st respondent who had not filed any opposing papers and her lawyer, Mr Makhetha had not arrived in court to put himself on record. After signaling her presence in court, I asked her to take the witness stand to clarify the issues around the alleged claim of inheritance. I made this call in order to get to the bottom of the real reason behind the delayed burial of the deceased.
[16] Her testimony was that after the deceased’s death, she met with the extended family and informed it that she does not have resources to bury the deceased. She pleaded with the family to persuade the 1st applicant to surrender the property of the deceased in the nature of a field and two motor vehicles so that she could sell some of it to raise funds for the burial.
[17] The family, including the 2nd and 3rd applicants, did not come to her assistance and was not even prepared to provide resources for the burial. They seemed to take the side of the 1st applicant. This accounts for the delay in the burial.
[18] Counsel for the applicants was given an opportunity to cross-examine the 1st respondent. He could not move her from the position that it is lack of finances that accounts for the delay and not a claim to inherit.
[19] The hearing was adjourned to the 12th to enable Mr. Khoboko to put before court information on the properties, any bank accounts and burial policies of the deceased in the possession of the 1st applicant. Come the 12th, he informed the court that one vehicle had been sold. He, however, could not produce proof thereof. He said the other vehicle was in the process of being sold but could not produce anything in the form of a sale of agreement.
[20] I got the distinct impression that there was a stratagem by the 1st applicant not to surrender any of the deceased’s property despite her professed interest in the speedy burial of the deceased. In any event, if the vehicles had been sold, it would not have been difficult for Mr. Khoboko to place before court the sale agreements, prices and proof of payments.
Burial rights and inheritance
[21] In Ratia[3] and Masakale[4], this Court analysed the jurisprudence on competing claims for burial rights on the mistaken understanding that whoever buries has an automatic right to inherit from the estate of the deceased.
[22] The principle that is established is this: bury first and claim inheritance later. This means that the right and duty to bury should be exercised first and speedily as a matter of equity and public policy. Corpses should not be used as pawns in fights over inheritance.
[23] This venerable principle does not apply in casu because there is no contestation of burial rights. They belong to the first respondent. There is also no credible denial of her claim that she wants the property as a resource to use in preparation of the burial. This much is acknowledged in the founding affidavit[5] and was not challenged under cross-examination.
[24] The 1st respondent is merely seeking the surrender of the deceased’s property which is part of the property in a marriage in community. The assertion for the return of that property for the noble purpose of raising funds to bury her husband cannot be frustrated by the applicants.
[25] It is for these reasons that I made the order in para [2] above.
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S. P. SAKOANE
CHIEF JUSTICE
For the Applicants: K.S. Khoboko
For the 1st Respondent: M. Makhetha