HIGH COURT OF LESOTHO
Application of :
MOTLOHA 1st Respondent
MOTLOHA 2nd Respondent
MORTUARY 3rd Respondent
GENERAL 4th Respondent
by the Hon. Mr. Justice M.L. Lehohla on the 21st day of May, 1993
the return date of a rule obtained ex parte on 14-5-93 wherein the
applicant sought (1) a rule nisi calling the respondents
cause why :
1st and 2nd respondents shall not be interdicted and restrained from
removing from the Mortuary for burial and burying the
1st and 2nd respondents shall not be interdicted from interfering in
any manner with the funeral arrangements and burial of
'Mammone Motloha by the applicant,
3rd respondent shall not be interdicted from releasing the body to
1st and 2nd respondents or their agents pending 2 finalisation
1st and 2nd respondents shall not pay the costs of this application.
nisi was granted in terms of prayers 1(a) (b) and (c).
application is opposed and the first two respondents have filed their
opposing affidavits including that of the headman Chieftainess
'Matebello Mohapi. The applicant has not filed any replying
attorneys the Court learned that the applicant though aware that this
case is going on left for his place of work in the
Republic of South
Africa, and thus failed to submit any replying affidavits. The
attempt by Mr. Kali to have this application postponed
to enable the
applicant to file hie replying papers was ruled against by the Court
and in any case opposed by the other side. The
reason the Court
refused the application for postponement was that this is an urgent
application involving the final and important
need to lay the
deceased's remains to rest. It should be brought home 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
in the funeral parlours prevents them from decomposing. The
callousness incidental to this attitude and sheer lack
of respect for
the dead cannot move this Court to condone postponements sought under
colour of going to canvass further evidence
necessary to support
one's case, (See CIV\APN\187\87 Lethunya and Another vs Thejane and
Another (unreported) at 3. See also CIV\APN\163\91
Senatsi and Another (unreported). Both applications are referred to
at p.199 of Mr. W.C.M. Maqutu's Contemporary Family
Law of Lesotho.
then to the charge: in his affidavit the applicant has averred that
his daughter 'Masechaba Mokhothu merely was seduced
by the 2nd
respondent whereupon 'Mammone Motloha was born. He goes further to
say that before the deceased was born 'Masechaba
had eloped with the
asserts that there was no lawful marriage contracted between
'Masechaba and 2nd respondent.
that he demanded six head of cattle from the 1st respondent i.e. the
mother of the 2nd respondent. These cattle were demanded
applicant as compensation for abduction or elopement.
applicant avers that the 1st respondent agreed but failed to return
'Masechaba as well as pay the six head of
Only two head of cattle were, according to the applicant, brought by
the 2nd respondent's grandfather one Lekhooa Motloha
acting on behalf
of the 1st respondent to the applicant.
for the applicant outlined in argument the three requirements which
have to be satisfied for there to be marriage in accordance
Sesotho Custom governing the subject.
set out in the Laws of Lerotholi under section 34(1) as follows :
"(a) there 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 as to the marriage
and as to
the amount of bohali.
is payment of part or all of the bohali. Provided that if the man
dies before the woman goes to his parents' house the bohali
returned and the marriage shall be null and void".
taking the view that the requirement under (a) has been satisfied
i.e. agreement to the marriage between the parties Mr. Kali
that the other requirements under (b) and (c) above have not been
satisfied and that because when anyone of the conditions
above is not
satisfied there can be no marriage, he sought to persuade the Court
to this view.
for the first two respondents naturally sought to make a capital out
of the fact that the evidence deposed to by the respondents
been gainsaid as no replying affidavits were submitted by the
accordingly pointed out that the averments to the effect that there
was agreement to the marriage by both the 1st respondents'
that of the applicant in 1984 was not denied. See Paragraph 8 of the
1st respondent's opposing affidavit. It was further
contended that in
several instances where respondents sought to put the applicant to
the proof thereof the latter failed to live
up to the occasion by
reason of absence of any replying affidavit.
view in the light of the fact that the applicant averred that there
was no valid marriage between 'Masechaba and the 2nd respondent
the 1st and 2nd respondents say there was, it cannot be common cause
that there was or there wasn't any such marriage.
have to determine this issue by finding if either of the parties has
discharged the onus cast on them.
for the first two respondents submitted that 'Masechaba and the 2nd
respondent lived together since their marriage in 1984
January when 'Masechaba fled. He
the Court to view the length of the stay together by these parties as
strengthening the existence of marriage between them.
But such a view
would, if entertained, undermine the fundamental principle with
regard to such matters that "not cohabitation
further contended by the 1st respondent that the child who could
possibly have been conceived in 1984 as a result of the seduction
'Masechaba by the 2nd respondent could not be 'Mammone Motloha born
only in May 1991 but 'Majobo Motloha born as early and as
1984 as 24th August, 1985. Whatever merits are entailed in this
argument it is bedevilled by the fact that it pays no
regard to the
fact that if in fact no marriage took place between the 2nd
respondent and 'Masechaba whichever of the children were
the purported wedlock would according to custom belong to their
mother's maiden home and ranking with their mother
as her siblings.
In paragraph 11 the 1st respondent says :
"Applicant's categorical statement that his daughter's marriage
is not valid is without a base and is denied because he admits
receipt of three head of cattle and at the same time puts his
compensation at six head of cattle. By simple arithmetic if the three
admitted cattle did not reduce the (compensation) debt to three
cattle then they must have been admitted as "Lobola"........"
submitted that the 3 head of cattle referred to above were in respect
of abduction and not "bohali" for there
had not been any
agreement on the point. There is merit in the submission that the
condition that there has to be agreement as
to the amount of "bohali"
cannot be satisfied by mathematical hypothesis that because so many
cattle were paid then they
must have been paid in respect of
respondents' contention is flawed in the respect that they seek to
read payment for "bohali" into part-payment for
strange that there is no document bearing the chief's stamp to show
that there ever was marriage to which the respective families
"bride and groom" agreed. On this alone it cannot be said
that the respondents discharged the onus. Thus averments
Motloha (which are not common cause) that the amount of "Bohali"
was agreed at ten head of cattle remain
mere allegations without
proof. The same would go for the averment of the chief, that it was
common knowledge that 'Masechaba was
married to the 2nd respondent.
This does not take the matter out of the category that people tend
"wrongly" to believe
that when two people of marriageable
ages and opposite sexes live together their cohabitation constitutes
marriage. Such cohabitation
merely creates a belief that there is
marriage between those people in my view.
further submitted that the 2nd respondent did make an attempt to
fetch his wife from her maiden home where she had fled.
was told that the deceased died at her mother's maiden home where her
mother had fled in January 1993. The attempt to
fetch 'Masechaba from
her maiden home was effected only on 2nd May, 1993. One wonders what
was the attitude of 'Masechaba's "husband"
February, March to April if indeed he wishes the Court to believe
that he sincerely regarded 'Masechaba as his wife.
is no attempt by the 2nd respondent to put the Court in light as to
the source of his "wife's" flight
from her "marital"
home to her maiden home.
what the 2nd respondent avers in connection with what one
gratuitously regards as his attempt to fetch his "wife"
confined to and goes no further than the following at paragraph 3 of
his opposing affidavit :
"I wish to draw the attention of this Court to the fact that on
Sunday the 2nd May, 1993 I met Applicant on his way back to
Africa and he informed me that my child was seriously ill whereupon I
told him that I had always wanted to meet him over
the issue of my
wife's presence at his home. As he was in a hurry we agreed that we
should both meet on 30th May, 1993. The next
day i.e. 3rd May, 1993
my child died".
from the above that the question of 'Masechaba's return to the
"matrimonial" home was but a side issue suddenly
when the question of the child's ill health was reported to the 2nd
signature I can see that the 2nd respondent has a good handwriting.
There can be no reason why he made no attempt to write
people or the applicant if the question of the latter's long absences
from home was a major hindrance to the 2nd respondent's
fetch the applicant's daughter from her maiden home.
view the 2nd respondent is only making a convenience of the child's
death to raise the issue of 'Masechaba's presence at the
contended that the applicant made no effort throughout the period
1984 till 1993 to sue for the alleged abduction or the
release of his
daughter from the 1st and 2nd respondents' home. But it is common
these days to see unmarried couples living together
as if married. In
any case failure by the applicant to do any of the things mentioned
does not convert what is not marriage into
in (a) and (b) is confirmed with 75% costs.
Applicant : Mr. Kali
and 2nd Respondents : Mr. Fosa
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