HIGH COURT OF LESOTHO
LEBONA 1st APPLICANT
LEBONA 2nd APPLICANT
PHAKISO LEBONA 1st RESPONDENT
LEBONA 2nd RESPONDENT
LEBONA 3rd RESPONDENT
HOEK) 4th RESPONDENT
by the Honourable Mr Justice WCM Maqutu on the 14th day of February,
was given on the 1st February, 2000, and I said written reasons will
be given later.
20th January, 2000, an ex parte application was brought before this
Honourable Court on an urgent basis. This court granted a rule nisi
in terms of which respondents were to show cause on the 25th January
2000 at an unspecified time.
11 a.m. on the 25th January, 2000, applicants asked for confirmation
nisi. This the court did, after satisfying itself that respondents
had been served.
3 p.m. the respondents appeared before court and asked for the
rescission of the Order making the rule absolute. Their reason was
that the Order was granted by mistake which applicant ought to have
noticed had applicant read his own papers and the court order
clear to the court that it had granted the final order without
realising that the time for the appearance of respondents was not
specified. Prayer (e) of the rule actually ordered respondents "to
file opposing affidavits on the 25th January, 2000 and the matter
would be heard on the 27th January, 2000. The respondents had also
duly filed their opposing affidavits on the 25th January 2000 thereby
complying with Prayer (e) of the rule. I was advised that applicants
had refused to accept respondents' opposing papers, despite the fact
that respondents had acted in terms of the court Orders contained in
the rule nisi.
court has the power in terms of Rule 45(1)(a) of the High Court Rules
to rescind mero motu or upon application of any affected party "an
order or judgment erroneously granted in the absence of any party
affected thereby". This confirmation of the rule had been made
in the absence of the respondents. Furthermore the order had been
clearly granted erroneously. Therefore the court had no option but to
rescind its final Order. It further ordered that the matter be heard
on the 27th January 2000 in terms of the Prayer (e) of the rule.
applicant was the first applicant. Her son was the second applicant,
although he was not claiming anything for himself. First applicant is
the widow of the late Jarefanteng Clement Lebona who had just died.
The crux of this application was the dispute over the right to bury
the body of first applicant's husband. She was claiming against the
first three respondents (who are members of the Lebona family) the
they should be restrained from claiming the body of her husband
(Jarefanteng Clement Lebona) for burial.
first applicant be declared the sole heiress of her said husband
with the duty to bury him.
third respondent release the banking accounts and insurance
documents of her late husband to second applicant.
27th January and the 28th January, 2000, the parties took a long time
trying to neogtiate a settlement. They eventually came before court
and told the court that they could not agree on where the deceased
should be buried. I felt the parties should try to negotiate again
and with greater seriousness as I felt the burial of the deceased
should not be allowed to be a bone of contention in the family. In
giving the parties an opportunity to reconcile and unite over the
burial of the deceased, I made the following Order:
"Matter postponed to 31st January 2000 at 2.30 p.m. Both counsel
are directed to bring the parties together and explain the case of
Mafereka v Mafereka 1993-1994 LLR 445 to them. If they cannot agree a
list of reasons should be supplied together with full heads of
31st January, 2000, I waited for litigants but they did not appear
before the court until a little before 4 p.m. when the court was
supposed to close at 4.30 p.m. They said there was no agreement. They
had neither filed in court the reasons for disagreement and heads of
argument. The matter was postponed to the 1st February 2000 at 2.30
p.m. with the direction that full heads of argument should be
1st February, 2000, the matter was heard. Both parties had filed
Applicant had filed a Notice in terms of Rule 37(2) on the 27th
January, 2000, in which she put issues for determination as follows:
1st applicant was a widow of the deceased does or does not have a
prior duty to bury the deceased.
And whether 1st respondent has such a duty in law.
any recognition at all has to be given to "LMA" to the
opposing affidavit of 1st respondent. (LMA was a letter that
according to first respondent) was from deceased authorising him to
this application should not be granted purely on the determination
of the above issues.
no dispute that both parties as relatives of deceased had a right and
duty to bury the deceased. What was in issue was who had the right to
prevail, in the event of a dispute. It is the heir who by law has the
main duty to bury the deceased.
clear that since the 27th January, 2000, first applicant stuck to
their view that she should bury her deceased husband at the place of
her choice Boinyatso Mapeleng in the district of Maseru. The
respondents on their side insisted on bury deceased at Nkhukhu Thaba
Tsoeu in the district of Mohale's Hoek. Neither side was prepared to
applicant was really not a party in that he was not asking for
anything for himself, nor was he claiming any title to sue in respect
of the right or main duty to bury his father. He was merely verifying
the contents of first applicant's affidavit in the following words:
I confirm the contents contained in 1st applicants affidavit to be
correct. I have been always a party to the meetings held between
applicant herein and the Lebona family.
I pray that she be granted prayers as set out in the Notice of
case of Apaphia Mabona v Khiba Mabona CIV/APN/280/86 (un reported)
following the case of Khatala v Khatala 1963-66 HCTLR 97 Molai J
"The question whether the deceased's marriage had been concluded
according to Sesotho law and custom or by civil rites plays no
because all deceased estates of the Basotho have to be administered
by Basotho law and custom unless it is shown to the satisfaction of
the Master of the High Court that they have abandoned the African
mode of life and adopted a European way of life. Since nothing has
been said about the European mode of life by any of the litigants,
the Administration of Estates Proclamation 1935 and the received
Roman-Dutch law have no application. Every issue will be viewed from
the vantage point of Basotho law and custom.
generally accepted that the Laws of Lerotholi (brief as they are) are
regarded as by most people in Lesotho as a good statement of Basotho
custom. Consequently they are the first point of reference in dealing
with their custom. Consequently where they are not followed, reasons
must be given.
four issues on which this matter revolved. These were
first applicant was the sole heir of deceased with principal duty to
bury the deceased.
deceased had left instructions as to burial.
the heir should consider the rights of others with a duty to bury.
far should the living go before they are deemed to be showing
disrespect to the deceased.
deal with these issues a seriatim.
in this case the widow is sole heir
of Lerotholi I at Section 11 provide:-
heir in Basutoland shall be the first male child of the first
there is no male issue in any house the senior widow shall be
as there was a son in first applicant's marriage with deceased,
applicant is not the heir. Her son Malebanye is. She could only be
the "sole heir" if she had no son. In the received Roman
Dutch law (which does not apply in this case) she could not be the
sole heiress in intestacy as she has a son.
first applicant has no locus standi to come before this court and
claim she is the sole heiress with the principal right and duty to
bury deceased because there is Malebanye Lebona who is her son and is
"a Mosotho male adult". See paragraph 2 of first
applicant's founding affidavit. In the case of Apaphia Mabona v Khiba
Mabona CIV/APN/280/86 Molai J dealing with a burial dispute said:
"The widow's wishes prevail where she is the heiress and not
where the deceased has died leaving an heir. It is trite law that in
Lesotho the eldest son of the deceased person is his heir.... The
applicant must of necessity fail in her prayer that
the deceased's body be exhumed and be buried in a place of her
deceased left instructions as to burial
It is a
historical fact that in Basotho society literacy is a recent
development. Indeed at least twenty per cent (20%) may still be
illiterate. Consequently the deceased used to distribute his property
verbally. In the early part of the twentieth century as literacy
began to spread it was recognised that the deceased might leave
written instruction as to how his property should be allocated to his
descendants after death. Ven when this happened, the Basotho had not
adopted the practice of making wills into their customs. This is not
surprising because even today no marriage certificates are issued
when the Basotho marry, but that does not bar the writing of some
transactions during the marriage process. It is therefore not
surprising that Section 14(1) on allocation of property during
"If a man...dies leaving written instructions regarding the
allotment of property, his wishes must be carried out, provided the
heir according to Basotho custom has not been deprived of the greater
part of his father's estate."
follows in my view that the deceased need not make a will concerning
his burial. All he might do is to leave written instructions. A
letter to this effect might suffice.
First respondent at paragraph 6 of his answering affidavit says
deceased had left "written instructions which inter alia relate
to the disposal and or burial of his corpse. Fair copy of the said
instructions is hereto annexed and marked "LMA".
replying affidavit first applicant at paragraph 4 said:-
"I have been advised by my counsel and verily believe same to
be true and correct that the contents of paragraph 6 are hearsay.
Thus I am unable to respond thereto issuably "LMA" is
hearsay. It is not a will."
All I can
say is that the advice given by first applicant's counsel was an
oversimplification of the legal position, in the light of what
had been said above. At paragraph 5 of her replying affidavit first
applicant glibly dismissed as an "abuse of court process"
the statement from first respondent that at a meeting of the family
(at which first applicant was present) it was stated that the
deceased wished to be buried at Thaba-Tsoeu. It was a mistake for
first applicant to do so; the reason being that even if the
instructions of the deceased had been given verbally, if this could
be proved by credible evidence, effect would have to be given to the
first applicant considered the deceased's wishes to be irrelevant
merely because she had not made a will. First applicant does not
challenge the fact that this fact of deceased's wishes was drawn to
her attention together with deceased's written instructions. Her view
was that despite what deceased might have said authorising the first
respondent and others to bury him, "they really have no right,
whatsoever to bury my husband as long as I live"—see
paragraph 7 of her replying affidavit. I have already said even if
she was the heiress (which she is not) she was bound to respect the
heir has to consider rights of others
agree that in matters of burial, it is the males who by custom have
to dig the grave, symbolically put soil in the grave according to
seniority in the family tree, I do not agree with first respondent's
assertion that women are entirely excluded. They have to cut hair and
wear mourning cloth as well. They have to be consulted and to make
views known and considered in the decision making as to place and
time of burial.
that the widow as the chief mourner who has to wear mourning cloth
for up to a year (when others only wear it for a month) is
particularly important. Her concurrence has to be sought, although
she does not have to prevail if she is not the heir in the event of a
dispute. Even so, as much as possible an attempt is made to reach a
consensus in family matters.
as head of the family ultimately makes a ruling for the benefit of
all where opposing views cannot be reconciled. It should be noted
that any dispute among the deceased's family was supposed to be
"referred for arbitration) to the brothers of the deceased and
any other persons whose right it is under Basotho custom to be
consulted. If no agreement is arrived at by such persons, or if
either party wishes to contest their decision, the dispute shall be
taken to the appropriate court by the dissatisfied party" .—Laws
of Lerotholi I Section 14(4). The family might over-rule the heir,
but the heir or any dissatisfied party might seek redress in an
appropriate court. Every family is expected to do its utmost to
settle its disputes equitably in matters of succession. It was
therefore not very helpful for first applicant to say in paragraph 3
of her replying affidavit:-
"Thus, the issue like who deserted, and the kind of marriage
adopted by the parties becomes irrelevant. I reiterate that I have a
right over the corpse of the late Clement by virtue of being his
widow and only widow."
case of Matsotang Mafereka v Tjomelane Mafereka & Ors 1991-1996
LLR 445 this court at page 451 faced with a similar attitude from a
widow who was the heiress said:
"In African society most rights are collective not individual.
The sacred aspect
of burial is collective. It seems to me the widow was wrongly
classical Roman law burial was recognised to have some religious
significance. See B Nicholas Roman Law(1962) at page 236 to 237 who
says the deceased "ensured that there would be someone on whom
the duty of maintaining the family sacra would devolve".
custom of the Basotho the obligation to bury (though it is one of the
duties of the heir) is not always part and parcel of the deceased
estate. This moral and religious duty is shared with other members of
the family who has no rights to inherit from theve deceased. Even in
Roman law Zuletta in Part II Commentary to the Institutes of Gains
(1953) at page 83 says:
"It is doubtful how far obligations owed to or by the deceased
originally descended along with his corporeal property; the
obligation of keeping the family worship (sacra) emphatically did
descend, but it may be that purely patrimonial obligations were not
part of the hereditas, though there is evidence that they were
attached to it by the Twelve Tables."
of the family (sacra) which surrounds burial appears to have been
tied together with succession because it could involve expenditure.
If that is so then in Lesotho it became a patrimonial obligation of
the heir for the same reasons as it did in classical Roman law
although it need not have been. In Basotho custom where the cult of
the family manifests itself in the extended family structure, it is
all the more important to respect and accommodate the rights of
others who are obliged by custom to bury the deceased and to
participate in the burial of the deceased for no gain except except
honouring the dead in the family tradition. It has become an
unsettling practice to use burials as skirmishes in battles that are
later fought over the estates of deceased persons.
for the dead
of the deceased and their burial as pawns to gain access to assets of
deceased estates in a developing succession dispute has led to the
insistence of this court that there should be respect for the dead.
This principle was first expressed in Chemane Mokoatle v Senatsi
Senatsi & Ano. CIV/APN/163/91 where the greed of litigants who
were fighting over the corpse of the deceased led Cullinan CJ to say:
"This is a question of public policy...I consider this
application an unhappy one, bordering on the morbid, if not ghoulish
at places, and contrary to a custom, common to all mankind...namely
respect for the dead."
been over the years a growing need that "this court ought to
protect the dead and their dignity from being used as a pawn by the
living".—See Ramahloli v Ramahloli CIV/APN/479/93
(unreported). The court in considering the merits of applications of
this nature now find themselves increasingly compelled to consider
the deceased when the living used the deceased's corpse as a means of
proving they are heirs to the property of the deceased. This practice
has become so bad in Lesotho that virtually every week there are
cases in which the right to bury the deceased is in issue. Behind
these applications are greed or revenge on the deceased or the family
that gave some offence or failed to give enough bohali or lobola for
the marriage of the deceased. Our custom in terms of which marriage
is not an event but a process promotes these disputes because there
is often uncertainty on whether a Basotho customary marriage can be
deemed to have taken place and when.
emotionally charged burial case of a woman T Metsing v S Nkao &
Ors. CIV/APN/328/99 (unreported) Peete J found that evidence of
marriage was equivocal. He avoided making a finding on the issue of
marriage in order to enable one of the
who was in possession of the deceased's body to bury it. He added:-
"In view of the acutely contradicting versions regarding the
existence of the marriage, the order which this court intends to make
will not finally determine whether or not there is a marriage.
...this is a sad case in which the most important document evidencing
agreement has been lost by both sides and it is quite clear that
witnesses for one or both sides were not telling the truth."
the court allowed the deceased to be buried while permitting the
litigants to ventillate their grievance some other time under
appropriate conditions. By so doing the deceased corpse ceased to be
a pawn for the living.
1st February 2000 after hearing Mrs Majeng Mpopo I therefore made the
following order: -
discharged. There is no order as to costs. First applicant has no
locus standi to sue. Second applicant who is the heir is not claiming
anything save to support his mother's averments as to facts. As
deceased left an uncontested letter containing instruction as to
place of burial, deceased is to be buried at Thaba-Tsoeu in the
Mohale's Hoek district.
applicants : Mrs S Majeng-Mpopo
respondents : Mr GG Nthethe
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law