CIV\APN\222\93
IN THE HIGH COURT OF LESOTHO
In the Application of :
SECHABA MOKHOTHU Applicant
v
'MALEBUSA MOTLOHA 1st Respondent
LEBDSA MOTLOHA 2nd Respondent
GOVERNMENT MORTUARY 3rd Respondent
ATTORNEY GENERAL 4th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 21st day of May, 1993
Today is the return date of a rule obtained ex parte on 14-5-93 wherein the applicant sought (1) a rule nisi calling the respondents to show cause why :
The 1st and 2nd respondents shall not be interdicted and restrained from removing from the Mortuary for burial and burying the deceased 'Mammone Motloha.
The 1st and 2nd respondents shall not be interdicted from interfering in any manner with the funeral arrangements and burial of the late 'Mammone Motloha by the applicant,
The 3rd respondent shall not be interdicted from releasing the body to 1st and 2nd respondents or their agents pending 2 finalisation of this application,
The 1st and 2nd respondents shall not pay the costs of this application.
.................................
The rule nisi was granted in terms of prayers 1(a) (b) and (c).
This 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 affidavits.
From his 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
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refrigeration 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 Mokoatle vs Senatsi and Another (unreported). Both applications are referred to at p.199 of Mr. W.C.M. Maqutu's Contemporary Family Law of Lesotho.
Returning 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 2nd respondent.
He asserts that there was no lawful marriage contracted between 'Masechaba and 2nd respondent.
He states that he demanded six head of cattle from the 1st respondent i.e. the mother of the 2nd respondent. These cattle were demanded by the applicant as compensation for abduction or elopement.
The applicant avers that the 1st respondent agreed but failed to return 'Masechaba as well as pay the six head of
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cattle. 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.
Mr. Kali for the applicant outlined in argument the three requirements which have to be satisfied for there to be marriage in accordance with Sesotho Custom governing the subject.
These are set out in the Laws of Lerotholi under section 34(1) as follows :
"(a) there is agreement between the parties to the marriage;
there 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.
There 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 shall be returned and the marriage shall be null and void".
While taking the view that the requirement under (a) has been satisfied i.e. agreement to the marriage between the parties Mr. Kali contended 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.
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Mr. Fosa for the first two respondents naturally sought to make a capital out of the fact that the evidence deposed to by the respondents has not been gainsaid as no replying affidavits were submitted by the applicant.
He accordingly pointed out that the averments to the effect that there was agreement to the marriage by both the 1st respondents' family and 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.
In my view in the light of the fact that the applicant averred that there was no valid marriage between 'Masechaba and the 2nd respondent while the 1st and 2nd respondents say there was, it cannot be common cause that there was or there wasn't any such marriage.
I would have to determine this issue by finding if either of the parties has discharged the onus cast on them.
Mr. Fosa for the first two respondents submitted that 'Masechaba and the 2nd respondent lived together since their marriage in 1984 till 1993 January when 'Masechaba fled. He
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invited 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 but consent constitutes marriage".
It is further contended by the 1st respondent that the child who could possibly have been conceived in 1984 as a result of the seduction of 'Masechaba by the 2nd respondent could not be 'Mammone Motloha born only in May 1991 but 'Majobo Motloha born as early and as close to 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 born during 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"........"
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Mr. Kali 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 "bohali".
The respondents' contention is flawed in the respect that they seek to read payment for "bohali" into part-payment for abduction.
It is strange that there is no document bearing the chief's stamp to show that there ever was marriage to which the respective families of the "bride and groom" agreed. On this alone it cannot be said that the respondents discharged the onus. Thus averments by Ramonate 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.
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Mr. Fosa further submitted that the 2nd respondent did make an attempt to fetch his wife from her maiden home where she had fled.
The Court 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" from January, February, March to April if indeed he wishes the Court to believe that he sincerely regarded 'Masechaba as his wife. Furthermore there 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.
In fact what the 2nd respondent avers in connection with what one gratuitously regards as his attempt to fetch his "wife" is 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 South 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".
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One sees from the above that the question of 'Masechaba's return to the "matrimonial" home was but a side issue suddenly remembered when the question of the child's ill health was reported to the 2nd respondent.
From his signature I can see that the 2nd respondent has a good handwriting. There can be no reason why he made no attempt to write 'Masechaba's people or the applicant if the question of the latter's long absences from home was a major hindrance to the 2nd respondent's attempts to fetch the applicant's daughter from her maiden home.
In my view the 2nd respondent is only making a convenience of the child's death to raise the issue of 'Masechaba's presence at the applicant's home.
It was 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 marriage.
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The rule in (a) and (b) is confirmed with 75% costs.
JUDGE
21st May, 1993
For Applicant : Mr. Kali
For 1st and 2nd Respondents : Mr. Fosa
