HIGH' COURT OF LESOTHO
matter of :
by the Hon. Mr. Justice B.K. Molai on the 25th day of March, 1985.
March, 1985, the applicant filed with the Registrar of this Court an
ex-parte application in which he moved the Court for
a rule nisi
calling upon the respondent to show cause why he shall not be
from burying the corpse of one 'Masechaba Mathibeli contrary to her
to release forthwith the corpse of the said 'Masecbaba Mathibeli to
the applicant in order that the said 'Masechaba Mathibeli
in accordance with her wishes.
shall be directed to pay the costs of this application.
the applicant such further and or alternative relief as this
Honourable Court may deem fit.
Rule 1(a) and (b) operate with immediate effect."
the rule in terms of prayers 1(a) to (c) only and fixed the return
date as 25th March, 1985. The respondent opposed confirmation
the facts disclosed by the affidavits were that in 1962, the
respondent got married to the deceased, 'Mantepe Ramothello
'Masochaba Mathiboli, according to the Sesotho Law and Custom and 13
cattle were paid towards the bohali. The fact of the
Ramothello the head of the family of Ramothello, at Khanyane Ha
Moliboea in the district of Leribe, who also attached
supporting affidavit a letter written by the chief of Khanyane to the
effect that the respondent's family and no other family
bohali cattle towards the said marriage.
to the respondent and Mahlomola Ramothello, in 1966 the deceased
desserted while the respondent was at work in the mines
Republic of South Africa. A search for her proved unsuccessful until
in March, 1985 when it was learned that the deceased
had been living
with the applicant at Lithabeneng Ha Keiso in the district of Maseru
and had passed away.
applicant's case was that in 1969 he too got married to the deceased
according to the Sesotho Law and Custom. The marriage was
subsequently solemnised in church in Welkom in the Republic of South
Africa in 1973. He attached a copy of the certificate of their
support of the contention that he was lawfully married to the
deceased, the applicant filed the affidavit of 'Mamalimatle
who diposed that she was the mother of the deceased and
knew that after their Sesotho marriage, the respondent and the
lived together as husband and wife for one year and then
divorced, It was then that the applicant and the deceased got married
by Sesotho custom and civil rites.
been pointed out the evidence of 'Mamalimatle that respondent and the
deceased had divorced was denied by respondent supported
Manlomola, the head of the family of Ramothello, who averred that the
deceased had merely desserted. 'Mamalimatle could not
even annex a
Court decision in proof of her bold allegation that the respondent
and the deceased had divorced. I am unable to accept
her evidence. On
the contrary I accept the evidence of the respondent, the person who
got married to the deceased, supported by
Mahlomola, the head of the
family of Ramothello, that the Sesotho marriage between
and the deceased was never dissolved. It follows, therefore, that
when the applicant purported to marry her, by Civil
deceased was still lawfully married to the respondent according to
Sesotho Law and Custom.
trite law that the system of polyandry whereby a woman gets married
to two or more husbands is unknown in our society - Masupha
Masupha 1977 L.L.R. 54. The purported marriage between the applicant
and the deceased while the latter's marriage to the respondent
still subsisting was, therefore, a nulity.
not disputed that the deceased died at St. Joseph's hospital, Roma on
5th March, 1985. The applicant then kept the body at
mortuary, in Maseru. On the 15th of March, 1985, he collected the
body from the mortuary and conveyed it to Lithabaneng
for the burial on the 16th March, 1985. However, the respondent with
the assistance of the police, stopped the burial
and caused the
corpse to be returned to the mortuary from where he intends
collecting it for burial at Nqechane, the parties matrimonial
The applicant supported by 'Mamalimatle resists this and says it was
the wish of the deceased during her life time that she
buried at Lithabaneng. This, according to the applicant and
'Mamalimatle, can be gathered from the fact that the deceased
applicant have a house and other assets at Lithabaneng where they
have lived for a period of 16 years.
significant to note that the deceased has left no will directing
where she wished to be buried after her death. What the applicant
'Mamalimatle say was the wish of the deceased during her life time
seems to me hearsay and inadmissible evidence. Moreover
absence of any testamentary will the fact that the deceased and the
applicant who was clearly not her lawful husband have
a house and
other assets at Lithabaneng is,in my view, not a conclusive evidence
that the deceased wished to be buried at Lithabaneng
and not at her
marital home which is Nqechane.
pointed out earlier, at the time the applicant and the deceased
purported to get married to each other, the latter was still
to the respondent. The applicant could not, therefore, be lawfully
married to the deceased during the subsistance of her
marriage to the
respondent who was and still is, in law, the sole heir to her estate.
As Munick, C.J. once put it in Tseola and
Another v. Maqutu &
Another 1976 (2) S.A. 418 at page 424 H.
" ...... Public policy and the sense of what is
right dictates that, in a dispute of this nature, the widow's wishes
where she is an heir should prevail, and that it is her duty
right to bury the deceased where she pleases."
entirely agree with this view. Although in the present case it is the
widower, and not the widow who claims the body of the deceased,
salient point is that he is the heir to the estate of the deceased
and the principle equally applies.
circumstances the view that I take in this matter is that the rule
ought to be discharged and I accordingly order as
rule nisi is discharged.
application is dismissed.
applicant is to pay the costs of this application.
is directed to bury the deceased.
Applicant : Mr. Ramodibeli
Respondent : Mr. Maqutu.
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