HIGH COURT OF LESOTHO
BATERE 1st RESPONDENT
NTANYELE 2nd RESPONDENT
MORTUARY 3rd RESPONDENT
by the Honourable Mr Justice S.N. Peete on the 22nd August, 2001.
12th July 2001 her Ladyship Hlajoane A.J. granted a Rule Nisi couched
in the following terms:-
the Rules pertaining to he periods and modes of service be dispensed
with on account of urgency.
Rule Nisi be issued and returnable on the date and time to be
determined by this Honourable Court calling upon the respondents to
show cause (if any) why:-
1st and 2nd respondents shall not be interdicted and restrained from
burying the body of the late SEKHOTHALI RALEBITSO pending the
outcome of this application.
shall not be declared the rightful person to bury the deceased,
3rd Respondent shall not be interdicted and restrained from
releasing the body of the late SEKHOTHALI RALEBITSO to anybody
including 1st and 2nd respondents pending he outcome of this
applicant shall not be allowed to bury the body of the late
SEKHOTHALI RALEBITSO at the time and place of his own choice.
prayers 1 and 2 (a) and (c) operate with immediate effect as interim
date was the 18th July 2001.
the matter was ultimately argued before me the respondents had filed
their answering papers in opposition. In his founding affidavit, the
applicant states that he is a male mosotho adult of Ha Ramosoeu, Ha
Shoepane in the district of Maseru.
he claims that the deceased Sekhothali is his daughter-in-law in that
she was the lawful wife of Gerard Ralebitso, the son of late Tsebo
Augustinus Ralebitso and Clementina Tankiso Ralebitso. He alleges
that Augustinus and Clementina married civilly on the 18th July 1956,
and that Gerard Ralebitso was born in 1961 from this marriage; he
goes on to allege that Clementina then deserted the matrimonial home
to cohabit with one Thabo Ntanyelo taking the young Gerard along with
onwards Gerard was raised by the Ntanyelo family. It is common cause
that on the 15th August, 1984 when Clementina and Thabo Ntanyelo
married, Gerard must have been a mature man because the receipt
"bewys" for Gerard's bohali to Sekhothali (deceased) is
court has not been shown that prior to their marriage there had been
any bohali paid for Clementina. Thabo and Clementina merely
cohabited. It is quite clear therefore that when Clementina and Thabo
got married in 1984, Gerard was already an adult. The question is
whose child was he?
ordered that viva voce be led on this specific issue in terms of Rule
8 (14). It was the contention of the respondents that Gerald was born
and raised in the Ntanyelo family and that his bohali cattle were
even paid for by the Ntanyelo in 1982. It could not be established
with certainty as to when Augustinus passed away. The evidence of the
applicant is to the effect that after Augustinus Ralebitso and
Clementina (born Seleke) wedded in 1956, two children were born but
they unfortunately passed away. Gerard was then born in 1961 at Ha
Kori. Clementina then disappeared with Gerard. He says Augustinus was
still alive. As it came out from Moanakuena Kori, Clementina is
reported to have said "ke ilo bereka banna ba tsoheloang"
(I am going to look for men who can have a penile erection.) When she
came back she was cohabiting with one Thabo Ntanyelo of Ha Metsing.
that Gerard who was then working in Gauteng once came to him asking
him to welcome him back into the Ralebitso family and that a feast
was later made and a
slaughtered to welcome Gerard and his wife Sekhothali back into
Ralebitso family. He told the court that Gerard died some time in
1994/95 and was buried by the Ralebitso family at Lithabaneng where
he had built his homestead.
cross examination he maintained that when welcomed back into the
Ralebitso family, Gerard was already married to Sekhothali, though he
did not know when - He says that he never knew that Sekhothali had
once had a child who passed away at Morija Hospital. Sekhothali, he
says, died on 26th June 1998 without child.
the court that the 2nd respondent is the father of Sekhothali; and
that when she was very ill, her father agreed to nurse her and did so
until she passed away in June 2001.
admitted that after Sekhothali's death, the 2nd respondent refused to
release her body and clothing, and that he forcibly took away her
clothing after finding that her body already been conveyed to
Setente Letsatsi, the Roman Catholic priest at St Rodrique was called
to give evidence and later made to produce a Baptismal Register from
which he wrote out a hand-written certificate to confirm that Gerard
Tefelo Ralebitso was born on 27/3/67 and baptised on 15th May 1962 by
Father Alexander La Fois in the presence of Clementina Ralebitso and
one Ignatius as parents and Raphael Setipe as sponsor.
Reverend admitted that he mistakenly wrote down the name "Augustinus"
when in fact "Ignatius" was written in the Baptismal
Register. [It was agreed that the Church Baptismal Register is not a
public document and cannot be handed in to prove the date of birth of
Gerard. - See Hoffman - Law of Evidence 4th Ed. page 151]. While it
cannot prove the date of birth, the evidential worth of this register
is to show that Clementina Ralebitso presented Gerard for baptismal
on 15th May 1962.
called was chieftainess Mashoaepane Shoaepane who told the court that
she remembered the marriage ceremony between Augustinus and
Clementina in 1956 and that Gerard was born to their marriage in 1961
(same year as her own daughter Mamello). She says that Gerard was
born long before Clementina deserted and came back with another man
Lefa Mpalipali and that she later cohabited with Thabo Ntanyelo. All
these were, in my opinion, illicit affairs.
that Gerard then already a mature man once came to her informing her
that he wished to go back to the Ralebitso family. She says a
welcoming ceremony was held by the Ralebitso family and a cow
slaughtered at the feast at which Gerard made a speech saying "I
am now old - Khomo boela haeno," and everyone clapped hands
welcoming Gerard and his wife into the Ralebitso family. The
Ntanyelos were absent.
that on the occasion when Clementina returned from her desertion
Augustinus took her to task, but Clementina said "U itse ke ilo
sebetsa, ...he title ke berekile monna!" Augustinus said 'Wo,
you said I am too old!" Clemetina disappeared again and came
back with Thabo Ntanyelo.
insisted that Gerard was born before Clementina deserted and when she
cohabited Thabo Ntanyelo, Augustinus Ralebitso was still alive and
they only wedded in 1984 after Augustinus had died.
Kori, the chief of Ha Kori gave evidence stating that he knew
Augustinus and Clementina who got married in 1956. He says the couple
had three children two of whom passed away. He says that Gerard was
born and survived.
the court that Clementina then left Augustinus claiming that
Augustinus "...is too old and can no longer have an erection -
it just brushes! .." "It was better to go and hunt for a
man with a firm penis (molamu)". He says he never met Thabo
the court that he knew when Gerard made a ceremony where the
Ralebitso family had been called to welcome him into their family.
Gerald was already a married man. He categorically denied that Gerard
was not born when Clementina deserted from her matrimonial home.
respondents Tlebere Batere gave evidence. He told the court that
Sekhothali was his daughter and that she had married Gerald Ntanyelo
in 1982 customarily, and indeed what purported to be a bewys for
bohali cattle was shown to the court. In it Gerard was marrying as a
son of Thabo Ntanyelo and was marrying Sekhothali Batere. He further
went to say that in all seven head of cattle were paid by the
Ntanyelo family towards the chobeliso and bohali. He says Gerard was
buried by the
at Lithabaneng Ha Shoaepane and that he was even asked to speak as a
"mokhotsi". He goes further to say that when Gerard died
the Ntanyelos poured soil as the family of the deceased. The
Ralebitso family were not there.
when Sekhothali was ill she informed the Ntanyelo family as his
in-laws; he never informed Ralebitso's about her death.
case, the onus is upon the applicant to show on a balance of
probabilities that Gerard was born before his mother Clementina
deserted Augustinus. Most of the witnesses in this case were
illiterate or semi-literate and could not recall important dates; for
example, when did Augustinus die? When did Clementina desert? We have
mutually destructive stories on the important issue of Gerard's
paternity. One has therefore to look at the facts objectively in this
inquiry. For example, when Clementina and Thabo Ntanyelo married in
1984, where was Gerard? How old was he? The answer is clear and
simple: Gerard was already a nature man whose bohali had been paid
for in 1982! When was he born? There is no clear proof because
Clementina has since died, and the baptismal register is not helpful
in this regard; but I am of the view that even though not a public
document, and not admissible as evidence as to prove the date of
birth of Gerard, this register shows that in 15th May 1962 a child
Gerard Ralebitso was baptised by Father La Fois OMI and Clementina
was present using a Ralebitso surname. I have no reason to doubt the
authenticity or genuineness of the priest's entries. Even if Gerard
was born during the time when his mother illicitly cohabited Thabo
Ntanyelo, he could not be a Ntanyelo because Clementina and Thabo
then were not yet married. I could safely assume that Clementina's
marriage to Augustinus subsisted still even when Clementina deserted
who was still alive but probably "impotent". The fact that
Sekhothali used the Ntanyelo surname is neither here or there because
it is common cause that Gerard was raised in the Ntanyelo's family
after his man - hunting mother deserted along with him. A passport -
like a baptismal certificate - cannot establish the parentage issue.
circumstances of this case, I come to the conclusion that Gerard was
born in 1961 to Clementina when she was still living and married to
Tsebo Augustinus Ralebitso; and that Gerard's mother deserted the
matrimonial home and that Gerard lived and was raised by the Ntanyelo
family. Even if born after desertion took place, Gerard was
Augustinus' son under the maxim "pater est quern nuptiae
demonstrant"(a child born during the existence of a valid
married is legitimate). A valid civil marriage subsists until (a) it
is set aside by order of a competent court, (b) death of one of the
spouses. It was for the respondents to allege and show that when
Thabo Ntanyelo married Clementina in 1984, Augustinus Ralebitso had
the issue of Gerard's birth, I am of the opinion that the "ancient
document rule" applies.
Principles of South African Law (1991) p.210-211 where it is noted
that only the mother of the child and her husband are allowed to
rebut the presumption and that the presumption cannot be challenged
by a third party.
case of Nolan vs Povall & Others - 1953 (2) SA 202, the "ancient
document rule" was discussed as an exception to the hearsay rule
quoting Scobble - Law of Evidence p.36-
"Documents thirty years old and produced from proper custody,
and otherwise free from suspicion, prove themselves, that is to say
there is a presumption in favour of their validity and no evidence of
their execution need be given although the attesting witness is alive
and in court."
Baptismal register proves, not the date of birth of Gerard, but that
Gerard Ralebitso was amongst the children who were baptised by Father
La Fois at St. Rodrique on the 5.5.1962. As usual, the priest was not
interested in the accuracy of the dates of birth but in the baptismal
of the child presented at the altar. I do not imagine that Clementina
Ralebitso would fabricate the name of a child Gerard
therefore the Baptismal register produced before this court, is an
"ancient document", as it over thirty years old and
admissible to prove the fact of Gerard's baptismal in May 1962 - and
not his birth and that Clementina still used the Ralebitso surname.
presented greatest difficulty is the legal status of Gerard's
marriage to Sekhothali in 1982. If, as I have held, Gerard belonged
to the Ralebitso family, could the Ntanyelos validly negotiate bohali
as "Gerard's parents?" Section 34 (1) of the Laws of
marriage by Basuto custom in Basutoland shall be deemed to be
is agreement between the parties to the marriage,
is agreement between the parents of the parties or between those who
stand "in loco parentis" to the parties and as to the
amount of bohali,
is payment of part or all of the bohali."
in his book Family Law and Litigation in the Basotho Society (1976)
pages 83 and 142-4 discusses the problem. In my view, the Ntanyelos
could not stand "in loco parentis" to the Ralebitso from
whom Clementina had unceremoniously deserted. I therefore hold that
the Ntanyelos were not competent to negotiate the bohali and marriage
between Gerard and Sekhothali. This brings me to the invitable
conclusion that no valid customary existed between Gerard Ralebitso
therefore ordered that the body of Sekhothali be buried in accordance
with the wishes of the First Respondent only. This means that the
Second Respondent has no right whatsoever in the whole matter.
under prayer 2 (a) is consequently partly discharged and partly
confirmed. Prayed (b) is discharged. The third respondent is ordered
to release the body of Sekhothali to the first respondent and Prayer
(d) is discharged.
Applicant : Mr Fosa
Respondents : Legal Aid
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