HIGH COURT OF LESOTHO
FRANCIS RAMAHLOLI Applicant
by the Hon. Mr. Justice W.C.M. Maqutu, Acting Judge on the 23rd day
an application for an order in the following terms:
Court shall not dispense with the forms and service provided for in
the Rules on account of urgency.
deceased corpse shall not be exhumed from Boinyatso Khubetsoana and
be buried at Ha Motloheloa Maseru.
and/or alternative relief.
3rd December, 1993 a rule nisi was issued returnable on 13th
application of Matima Francis Ramahloli which was filed on the 25th
November, 1993 concerned a body of a human being who died
on the 16th
August, 1993 and was buried on the 21st August, 1993 at Boinyatso
applicant according to his own affidavit is the father of the
deceased Palesa Victoria from his first marriage. Applicant had
according to his affidavit three wives.
Sootho Ramahloli, is the applicant's son from his second marriage.
Respondent and Applicant's brother Jacob Ramanloli
are said to have
body to the mortuary immediately after death, All this, of course,
happened in the applicant's absence as applicant later
puzzling thing is that on the 24th August, 1993 applicant made an
announcement over the radio that the burial of his daughter
take place at Ha Motloheloa, Maseru. When this announcement was made,
the deceased was already buried. We are not told when
the applicant's announcement the funeral was supposed to take place.
The copy of the announcement which was to have
been annexed and
marked "MR1" was not filed of record.
mystery does not end there. The District Administrator is alleged to
have written a letter marked "MR2" dated 2nd
directing that the body of Palesa which was in the mortuary should
only be released to Jacob Ramahloli. This cannot
be correct because
Palesa was still alive on the 2nd August, 1993. Applicant in his
affidavit alleges that this letter was written
on the 2nd September,
says he was surprised when the same District Administrator wrote
annexure "MR4" which
that the deceased body ought to have been released to Tebello Sootho
Ramahloli and not Jacob Ramahloli. The value of these
were written more than 10 days after deceased's burial is not obvious
to the court. But, then it soon becomes clear
that applicant's facts
are mixed up when he avers that:
"Subsequently deceased was buried on the 21-08-93 ..."
shows that applicant in his affidavit had no sequence of events
because he would not have used the term "subsequently"
place of "previously'. If this confusion was the only one, it
could be easily reconciled with what had occurred. Applicant's
mistakes become incorrigible simply because he has annexed an
exchange of letters that occurred ten days after the deceased's
burial, and this correspondence gave the impression that deceased was
still alive. Days after deceased's burial, applicant claims
he made a
radio announcement specifying where deceased was to be buried.
applicant claims the burial of deceased took place at Boinyatso
Khubetsoana contrary to his
and instructions. He avers that he is "the only one to determine
as to where the deceased should be buried by virtue
of being her
father." Applicant does disclose facts and information to
persuade a reasonable man to come to his aid.
says he directed Jacob that the deceased should be buried at He
Motloheloa and no where else. When did applicant give
directions? Applicant does not say. Was Jacob bound to obey these
is said about the family of Ramahloli as a whole (which by Basotho
Custom has a duty to bury the deceased). In the family
applicant has a customary right to give orders to his son Sootho
Ramahloli (the respondent) which his son is morally
obliged to obey.
The family of Ramahloli has a duty to see that Respondent follows
applicant's orders. Applicant is not expected
to give Jacob direction
on the matter of burial (which directions rightfully ought to be
given to Sootho who by custom stood in
the place of applicant). The
family looked to Respondent who was in the shoes of applicant because
applicant could not participate
in the funeral arrangements.
not bound nor was he expected to obey applicant's orders. Jacob was
there as an independent senior member of the family
who could make
his own mind on matters concerning burial.
applicant's position worse, no-where does he allege or even suggest
that he ever said when the deceased was to be buried.
To the court
the date of burial was one of the essentials of the funeral. There
was no point in announcing on the radio on the
24th August, 1993 that
deceased would be buried at Ha Motloheloa without saying when.
"MR1" is not the copy of the radio announcement. It is a
Notification of Death which has not been translated
into English. The
Court, however knows Sesotho, On the face of "MR1"
applicant went before the Chief of Ha Motloheloa
on the 24th August,
1994 to report the death of the deceased. Why this death was reported
at Ha Motloheloa when the deceased had
died at Roma, Ha Maama has not
been disclosed. By this time applicant ought to have known that his
daughter had been buried three
days before that date,
who by his own admission was not
in Lesotho has annexed Jacob Ramahloli's affidavit which does not say
much save to associate. Jacob with whatever applicant
said as if
incorporated in Jacob's affidavit. How can Jacob associate himself
with hearsay. He is the one who is obliged to give
evidence by affidavit. Yet he does not do so. All applicant has said
about Jacob, which Jacob probably associates himself
with is that
applicant "directed Jacob that deceased should be buried at Ha
Motloheloa and no where else," Jacob does
not say whether he
told the family about applicant's direction and if at all he
encountered any problems. He does not tell the
court why deceased was
not buried at Ha Motloheloa.
Replying Affidavit applicant does not really advance his case
further. He only says he is the head of the family and nothing
be done without him. "A family without a head is no family"
-applicant says. I have already said in Basotho custom
the son takes
over when the father is not there. Applicant cannot be heard to say
he as head of the family was not there if his
son who has a customary
duty to represent him was there. There is a saying that "morena
he a ete". Translated, it means
is never absent. This implies that business (in Basotho custom) is
never held up by the absence of an individual, however,
may be. Those who are present automatically take his place and do
whatever has to be done. Therefore, because Respondent
(the son of
applicant) was there, and applicant is deemed to have taken the
decision that Respondent took as to burial.
light of what has been said about, this court holds that none of the
applicant's rights were taken away. If Jacob had enlightened
court about how he carried applicant's directions, the court might
have some evidence to enable it to hold otherwise. Even
would not necessarily have helped applicant in the matter. The reason
for saying so is that Sootho, the Respondent (as
the son of
applicant) was entitled to say applicant should have communicated his
wishes to the family through respondent. In other
words applicant was
bound by custom to give directions to his son, the respondent, not to
any one else. Respondent is obliged to
carry out those instructions
unless there are good reasons for not doing so.
(in his replying affidavit) denied he
a chance to decide where his deceased daughter ought to be buried and
that he did not use this opportunity. His papers
do not (as already
stated) disclose that he made his wishes known to the family, not
even Jacob has given evidence to that effect.
in desperation replied "In fact, the deceased during her
life-time was of the view that she should be buried at Ha
end no where else.". It is trite law that applicant ought to
have said this in the founding affidavit because the
this controversy depended on this allegation. Wishes of deceased as
to burial cannot be disregarded. Applicant is
not allowed to make his
case in his replying affidavit, he must make it in the founding
affidavit. It is not only because applicant
should not take
Respondent by surprise, but rather because, the applicant discloses
such facts first time in the Replying Affidavit
they are regarded
possibly as an after thought. A woman of thirty five years of age
(who met a sudden and violent death in which
she sustained injuries
on the head) could hardly have been expected to be thinking of death
and places of her burial.
not comment in detail on the certificate of the Principal Secretary
for Health which merely conditionally allows exhumation
certain conditions. It does not advance applicant's case at all. The
stringent conditions put clearly show that this
exhumation is on the
face of things a health hazard. Nevertheless my reading of the letter
gives me the impression that if precautions
were taken, exhumation
could still take place. The matter remained and had always been
urgent. This letter of itself did not make
the matter any less urgent
nor does it imply exhumation after four months was not a health
without hearing respondent and referring to Respondent's Answering
Affidavits, I would have dismissed applicant's application.
respondent has shown that in whatever he was doing he was supported
by some members of the family. He has annexed affidavits
effect. According to Respondent, the deceased was buried on the 4th
September, 1993 end not the 21st August, 1993 as applicant
Respondent has annexed fax messages sent to applicant. He denies all
applicant ever gave directions as to burial. He says respondent was
given a chance to give directions as to deceased's burial
applicant did not do so.
mother has given an affidavit 1n support of Respondent. In it she
states that applicant who failed to attend or participate
funeral, was present in Lesotho on the 17th September, 1993. She is
puzzled that this urgent applicant was not brought at
that time. She
adds that she had been living with the children of the first wife
'Mateboho, She concludes by saying deceased was
buried at the family
yard where her other sister Teboho is buried. 'Makhotso Ramahloli's
affidavit mentions the participation of
the family in the decision to
bury. She also says applicant was not often at funerals and in fact
never attended 'Mateboho's funeral.
'Mateboho is applicant's first
wife. She confirms what other had said to the effect that the body of
the deceased was in an advanced
state of decomposition and had
There are questions of principles involved here;-(a) Rights of
relatives as to burial.
for the dead.
public interest in the burial of the deceased.
question has already been answered against applicant. The reason
being that applicant is deemed by Basotho custom to have
in the funeral arrangements through his son the respondent. He is
barred from now asserting that he did not participate
in the burial
arrangements. He did so by representation. Both counsel agree that
this case having regard to the way of life of
the parties is governed
by Basotho custom,
second question was answered by Lehohla J. in Sechaba Mokhothu v.
'Malebusa Matloha and Ors. CIV/APN.222/93 (unreported) as
"This is an urgent application involving the final and important
need to lay the deceased's remains to rest. It should be
to litigants that this court will always view with disfavour any
attitude that litigation involving disposal of dead
bodies should be
conducted at leisure with the unwholesome assurance that such bodies
need not be laid to rest within reasonable
time because refrigeration
in the funeral parlours prevents them from discomposing."
case the body had discomposed even before
question is answered by Cuilinen C.J. in Chemane Mokoatle v, Senatsi
Senatsi and Another. CIV/APN/163/91 (unreported)
where he said:-
"There is also a question of public policy ...... I consider the
application an unhappy one, bordering on the morbid, if not
in places, and contrary to a custom common to all mankind .,. namely
respect for dead."
Court finds it difficult to understand how a loving father can allow
the decomposed body of his daughter to be dug out in that
state in order to move it through the city of Maseru to Ha Motloheloa
which is twenty kilometres away for re-burial.
this be to use it as a pawn in the matrimonial battle between
Applicant, and Respondent's mother? According to the papers,
matrimonial action began on the 4th August and ended on the 17th
September, 1993 with the order that applicant should return
Respondent's mother whom he was neglecting. See Respondent' "MR1".
Incidentally applicant was always in court when
this case was heard,
but during the period between the 4th August and the 17th September,
1993 during which the deceased died and
applicant could not get leave to attend to the funeral of this
daughter that he now wants to be exhumed and be buried at
a places of
his choice. I think, I agree with Cullinan C.J that this court ought
to protect the dead and their dignity from being
used as a pawn by
the living see Chemane Mokoatie v. Senatsi Senatsi and Another
to me where the exhumation of deceased body is asked for in a
reasonably short time, there would be no grounds to fear,
be a danger to public health. It seems precautions to prevent a
danger to public health could be taken as the Principal
Health directed. That being the case, I would not follow Khumalo v.
Khumalo & Others 1984(4) S.A. 229 where a
South African court
held it has no power to order an exhumation even if a burial
proceeded contrary to a court order. In circumstances
such as this
one when the body of deceased had decomposed even before burial, the
court ought to refuse to order exhumation four
months after burial.
conclusion, I return to Cullinan C.J. remarks in Mokoatle v. Senatsi
where he says we should never
sight "a custom which is common to all mankind ...namely respect
for the dead". I, therefore, partially borrow from
in Tseola v. Maautu 1976(2) S.A. 418 at 424 H the following words:
"I am of the view that public policy and a sense of what is
right, in a dispute of this nature dictates that,"
deceased should be allowed to rest where she is presently buried at
Boinyatso Khubetsoana where her sister Teboho is buried,
days in the world and the manner she met her death make it imperative
that her ultimate resting place remain undisturbed.
public interest of the traditional Basotho Community in the proper
burial of the deceased is declared Section 30 of the Laws
Lerotholi II which
"Every male adult residing in the village in which death may
occur or, if there is no male persons in such village, such adult
male person as may be ordered by the chief, sub-chief or headman,
shall assist in digging the grave for the burial of the deceased
person. Any male person failing or refusing to assist when ordered to
do so shall be liable on conviction to a fine not exceeding
the court concludes that the right and duty
the deceased is shared by the family and the heir with the community
as a whole. The family gets preference out of compassion,
relationship with the deceased. That does not mean the family or the
heir can absolutely do as they please in matter
of burial. The public
authorities have an interest too. Section 30 of the Laws of Lerotholi
II is still in force and has not been
repealed. The penalty £3.00
was added under delegated legislation powers given to the Paramount
Chief under the Native Administration
Proclamation 61 of 1938.
our Roman Dutch Common Law, the public authorities represented by the
magistracy have a duty to bury. See Voet X. 7.7 who
says it is not
only the duty of the heirs to bury (but that of the magistracy as
well) to see that the deceased is buried if heirs
fail to bury
deceased. In Basotho custom, it is the chief's duty (who stands for
the magistracy) to see that the deceased is buried.
Even if the
family is there, burial is regarded as the legal and moral duty of
is obliged to take into account this declaration of Basotho custom as
made in Section 30 of
of Lerotholi II on this point. This exhumation would in the courts
view not only offend the sensibilities of right thinking
violate the rights of community, A decomposed body ought not to be
carried through the village of Boinyatso, Khubetsoana
fouling the air
of the city of Maseru as well and putting public health at risk.
(even if precautions could have been taken to
protect public health)
except for exceptional reasons. Certainly not to please one man whose
sole purpose is to assert his personal
supremacy over others. The
deceased deserves respect as well.
seriously considered whether it should not be addressed on whether or
not attorney and client costs should not be ordered.
There is a
feeling that such applications which are not made out of a genuine
concern for the dead are becoming too numerous. The
itself. Nevertheless let it be a warning that application such as
this one, which show no respect for the dead,
but are made out of
spite, selfish or other improper motives should be discouraged.
Nisi is discharged and this application is
Applicant : Mr. Phoofolo
Respondent: Miss Ramafole
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