HIGH COURT OF LESOTHO
FRANCINA RAFIRI APPLICANT
NTLOANA 1st RESPONDENT
RAFIRI 2nd RESPONDENT
of Health) 4th RESPONDENT
ATTORNEY GENERAL 5th RESPONDENT
Counsel (A.C.) Mr. N. Putsoane
the Honourable Mr. Justice T. Monapathi on the 17th day of November
application for exhumation of the body of late Mahlomola Ananias
First Respondent and her witness support the fact that the Applicant
was married though the only issue is that of the nature of marriage
and we are
that regardless of whether the marriage was by civil rites or by
custom the Applicant would still be the only person entitled and with
the prior right to bury the deceased.
that substantially the Respondents do confirm that there was marriage
between your client and the deceased?
are confirming that.
dispute is only about the nature of the marriage.
and which we are submitting would not make any difference as to
Applicant's right in this matter.
are saying according to you it has only been a civil marriage. A.C. A
consequences which would be to exclude another marriage. Even in the
alternative even if there is a finding that there is a customary
marriage you are saying your client would still reserve a prior
Because she is the first wife. It does not change anything.
me, what about that evidence of paying of head of cattle what do they
it? A.C. Yes. At that My Lord the paragraph which I referred Your
Lordship. Sub paragraph (a) at page 2 of the supporting affidavit.
Paragraph (a) not 1?
Even though it is entitled opposing affidavit also because he
suggested that the Second Respondent
What? Who says what?
Setlabocha Rafiri My Lord. It is paragraph 1, 2, 3, 4
Setlabocha says what?
says seven head of cattle were paid and delivered to the home of the
comment do you have against Setlabocha?
then the father of this very person Setlabocha namely Tlontlollo
Rafiri deposed to an affidavit in a reply
the father of Sedabocha Rafiri
Father of Setlabocha contradicts that?
contradicts that stating that in fact he never sent this boy to
deliver any-head of cattle and that in fact he was aged thirteen at
would have been, he could have been thirteen
And that he did not sent him to deliver any cattle. And he confirms
and endorsed that it cannot have been marriage cattle.
endorsed payment of abduction cattle.
not sent him, but he had sent who?
sent someone to do what?
deliver the six head of cattle.
that it is your case that those were cattle for abduction and not for
bohali. What is this document dated 17th of November?
Which year is that?
Attached to the answering affidavit.
one it relates to the marriage of the First Respondent.
Marriage of the First Respondent?
is so My Lord.
have no quarrel there?
have no quarrel with that. We are saying if that the Respondents that
is First and Second Respondents are alleging that there is any
Sesotho marriage between the Applicant and the deceased they bear the
burden of proof.
Respondents bear the burden of proof to do what?
the allegation that there was a Sesotho marriage between the
Applicant and the deceased.
there was a Sesotho marriage?
is so. And they would therefore have to prove three things.
they would have to?
three things which we consider to be the essential elements or
requirements for the subsistence of a valid Sesotho marriage.
Those are the agreements between the parties and agreement between
the parents of the parties or those in loco parentis.
then agreement as to the amount of bohali.
There were people who were affected
They had to prove.
are saying there was a Sesotho customary marriage between your client
and the deceased.
is so My Lord. We are saying there was not. So they had to prove
those three things, four in fact.
fourth one is?
Payment of in the whole or part payment of the bohali after that
agreement regarding the total amount of bohali. We are saying the
Respondent's affidavit is lacking in maternal respects in so far as
those requirements are concerned because...............
proof is to be found
Anywhere in the affidavits. Yes My Lord.
is so. H.L. I see. Is that all?
is so. On the basis of this My Lord it is clear that the First
Second Respondent were not entitled to bury the deceased. And that in
fact the body should be exhumed. Then would request Your Lordship to
make it an Order of Court that those requirements which are embodied
in the letter of the Principal Secretary should be followed strictly
in exhuming the body. And that in fact they should in fact assist
because there are some surgical musks and gloves which are needed and
that all Sir? A.C. That is so My Lord. H.L. What about costs?
should pay the cost for the application.
the Court pleases.
by the Honourable Mr. Justice T. Monapathi on the 17th day of
matter is an old matter. What I see is that the interim Court Order
was issued by Maqutu J. as long ago as the 12th June 2000. I do not
want to get very much into the reasons why there has been a delay in
having this matter heard. But it suffices to say that some of the
blame should be put at the door of this Counsel involved in this
application. Both of them. We appreciate that there may have been
problems. One of them could have been to do with certificates from
the hospital about whether the body can be exhumed consistent with
precautions against health hazards. That the exhumation of the body
should not pose a public health hazard. This certificate was finally
secured and it is dated the 9th October.
suffices to note that during today I should have heard both Counsel
before me. Mr. Mda was here this morning but I have been informed
that he released his client and did himself go away from Court
premises. He has not asked to be excused. He had not asked for
alternative arrangements from the Court. Accordingly I asked that Mr.
Putsoane must address me. His argument was recorded on tape and it
was also my intention that I should make a short ruling which will be
so I proceed as follows : I find that probabilities indicate that the
marriage between the Applicant and the deceased could only have been
Meaning that this Applicant (who had no major male heir) was entitled
to bury the deceased. I agree that there was no proof that there have
been a customary marriage between the deceased and the Applicant.
Since the Respondents asserted that there was such a marriage they
had to bear the burden of proof. I found that they have failed. This
I did in as much as I did not believe the evidence of that son of
Rafire who said seven cattle were paid. I disbelief that they could
have been paid as cattle for marriage but took the view that that
payment was for damages for abduction. Alternatively even if there
had been such a marriage I would find that in the circumstances the
Applicant still remains the first wife of the deceased meaning that
she would have the prior right to burial.
accordingly find that the First Respondent had no right to bury the
deceased. In addition to that finding that I have already made about
the absence of Sesotho customary marriage I have noted that the
essentials of such a marriage were not proved by Respondents. The
first one which is agreement between the parties that is the bride
and bridegroom. The second one being the agreement between the
parents or those in the place of the parents. The third one being
agreement as to the amount of bohali. The last one being payment of
that total bohali or part of a total. I could only find that if there
was anything paid by way of cattle it was towards abduction.
accordingly allow the prayers as accordingly sought by the Applicant
meaning that this application is allowed. My additional orders are
that the Ministry of Health I suppose it will be the ministry in the
Mafeteng district that the Third Respondent will see to it that the
guideline in the certificate of the 9th October are followed.
were about three of the above requirements or precautions mostly
only be executed by people who have the know how and people of the
4th Respondent's Ministry. For example provision of heavy duty gloves
and insecticides for destruction of flies and other insects. All in
all the Fourth Respondent must assist.
this order with an order for costs underlining that it was wrong for
the First Respondent to bury the deceased. Underlining secondly that
these are the kinds of disputes that are very unpleasant to this
Court. They are surely uncalled for. Having a body buried and having
it exhumed later is not a small task. It touches the Applicant in the
same way almost as it touches the Respondents because is an emotional
issue. That is all about this matter.
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