HIGH COURT OF LESOTHO
LEHLOKA PHAFOLI Applicant
MAASA (born Phafoli) 1st Respondent
THABISI 2nd Respondent
MOHLALISI 3rd Respondent
QUEEN ELIZABETH HOSPITAL 4th Respondent
by the Hon. Mr. Justice B.K. Molai on the 28th day of May. 1993.
May, 1993 the applicant herein filed with the Registrar of the High
Court an urgent ex-parte application in which be moved
the court for
a rule nisi calling upon the respondents to show cause, if any, why:
"(a) The applicant shall not be declared the sole person, with
the advice of members of his family vested with the right to
of and/or to determine the burial of the deceased Veronica 'Mapaseka
Phafoli presently in the possession or custody of
Respondent shall not be interdicted from burying
the said corpse at Loretto Mission or any where else and why the
third respondent shall not be similarly interdicted from allowing
burial to take place at Loretto Mission,
Respondent shall not be ordered forthwith to deliver the said corpse
to the fourth Respondent at Queen Elizabeth II hospital
Maseru pending the outcome of this application.
Respondent shall not be ordered to keep and not to part with the
custody of the said corpse pending the final end and determination
of this application.
said corpse shall not be released to the applicant for burial at
Matelile Ha Phafoli in due course.
Respondent shall not deliver up to the applicant all the articles
end goods, belonging to the late Veronica Mapaseka Phafoli
in her possession.
applicant further moved the court that prayers (b) (c) and (d) above
operate as interim orders, with immediate effect, and that
granted further and/or alternative relief as this court deems fit.
application was on the same day, 14th May, 1993 placed before my
brother Kheola J. who granted the rule nisi and fixed the return
as the 24th May, 1993. The
together with the application papers were, on the same day, 14th May,
1993, apparently served upon the Respondents. On 15th
May, 1993, Mr.
Phoofolo, on behalf of the 1st, 2nd and 3rd Respondents, appeared
before my brother Cullinan C.J. and intimated
intention to oppose confirmation of the rule and anticipate the
return day, presumably in terms of the provisions
of subrule (18) of
rule 8 of the High Court Rules 1980.
no indication that the 4th Respondent intimated intention to oppose
confirmation of the rule. It may, therefore, be safely
the 4th Respondent is prepared to abide by whatever decision will be
arrived at by the court.
as it may, this matter was, on 15th May, 1993, assigned to me for
hearing on the 17th May, 1993. Affidavits were duly filed
In as far
as it is relevant, the facts disclosed by affidavits are that Ntele
Phafoli, now deceased, had two male issues viz. Montlha
Bulara Phafoli, both now deceased. Montlha Phafoli had a son by the
name of Motsoafa Phafoli who is still alive.
Bulara Phafoli had two sons and two daughters. The two sons of Bulara
were Ntsie Phafoli and
Phafoli by order of their seniority. Ntsie Phafoli had no children
and is now deceased. Setha Phafoli is also now deceased.
daughters were the 1st respondent, who is now married to the family
of Mabusa, and Veronica Mapaseka Phafoli who joined
a Religious Order
and became a nun. However, in 1989/90 she decided to leave the
religious order and returned home in the family
of Phafoli. She never
got married and on 3rd May, 1993, she passed away, still single.
appear that, regard being had to the fact that at the time of her
death the deceased, Veronica 'Mapaseka Phafoli, had left
Religious Order, returned to her family of Phafoli and was still
single, there is no real dispute that had he not predeceased
Setha Phafoli would have been the rightful person to decide where and
when her remains are be put to rest.
salient question that now arises for the determination of the court
is whether or not, following the death of Setha Phafoli,
applicant is the rightful person to have the last say as to where and
when the remains of Veronica 'Mapaseka Phafoli are to
be put to rest.
This, in my view, pivots on whether or not the applicant is the heir
of Setha Phafoli.
to the applicant, Setha Phafoli was lawfully
to Stephania Pharoe and their marriage was blessed with two children
viz. a girl by the name of Potso who had since got
married and the
applicant himself. By virtue of his being the only surviving male
issue in the house of Setha Phafoli, the applicant
contends that he
is not only the legitimate son but also the heir of Setha Phafoli and
as such the rightful person to decide when
and where the deceased,
Veronica Mapaseka Phafoli, is to be buried. This is, however, denied
by the 1st and the 2nd Respondents
according to whom Setha Phafoli
and Stephania Pharoe, who were admittedly the biological parents of
the applicant, were never legally
married to each other. Assuming the
correctness of their denial that his biological parents were legally
married to each other
the Respondents contend that the applicant is
not a legitimate son and heir of Setha Phafoli. On the contrary, he
is an illegitimate
child of Stephania Pharoe and cannot, therefore,
be the rightful person to have the last say as to where and when the
the deceased, Veronica Mapaseka Phafoli, are to be put to
was, in my view, clearly a dispute of fact as to whether or not the
applicant was the legitimate son end, therefore, the heir
Phafoli i.e. whilst the applicant contended that he was the only
legitimate son and, therefore, the heir of Setha Phafoli,
the 1st and
the 2nd Respondents said he was not. Such a dispute could not,
opinion, be satisfactorily resolved on the contradictory evidence
contained in the affidavit papers. There was, therefore,
the need to
adduce viva voce evidence. It was accordingly ordered that the
parties should adduced viva voce evidence to establish
or otherwise of the applicant.
applicant called four (4) witnesses to testify that his biological
parents, Setha and Stephania, were lawfully married to each
the only surviving son of Setha, he was, therefore, not only his
legitimate son but olso his heir. No witnesses were
Respondents according to whom the evidence adduced by his own
witnesses had failed to establish that the applicant's
parents were lawfully married to each other and he was, therefore,
the legitimate son and the heir of Setha.
had, therefore, only the evidence adduced on behalf of the applicant
to rely upon, for the decision on whether or not
he was the
legitimate son and the heir of Setha Phafoli.
briefly, the evidence of P.W.1, Nkosana Faro, was to the effect that
he lived at T.Y in the district of Berea here in Lesotho.
married to the sister of one Makalaka Pharoe of Matatiele in the
was, therefore, his brother-in-law. Towards the beginning of 1961 or
the end of 1960, P.W.1received a message from his brother-in-law,
Makalaka Pharoe, requesting him to contact the Phafoli people who
allegedly wanted to marry his daughter, Stephania Pharoe. He
consequently proceeded to Mafeteng where he met Ntsie Phafoli and his
younger brother, Setha Phafoli. He and Ntsie negotiated,
the marriage of Setha and Stephania. They agreed to the marriage and
the quantum of the "bohali" cattle totalling
15 in number.
As they were in a hurry to get married to each other, it was agreed
that Setha and Stephania could go to church and
have their marriage
solemnized. The bohali would be paid in due course.
to him, P.W.1saw to it that the marriage of Setha and Stephania was
solemnized at Sebetia Roman Catholic Church. The priest
officiated at the marriage ceremony was a certain Fr Rodrique Cote.
Later in 1971 Setha and Stephania had their child, the
applicant, baptized at Sebitia Roman Catholic Church and P.W.1himself
acted as the applicant's God father. As proof thereof,
exhibit "A", a baptismal certificate issued on behalf of
say I find the story of P.W.1 that he, as the representative of the
girl's parents, had to go to the
of the boy to negotiate the marriage of Setha and Stephania rather
strange. Indeed, P.W.1 himself eventually conceded that,
Sesotho custom, the normal practice would have been for his
brother-in-law to advise the parents of the boy who wanted
married to his daughter to go to P.W.1as his representative and
negotiate the marriage.
as it may, it is significant to bear in mind that P.W.1testified that
it was in 1960/61 when Setha and Stephania got married
to each other.
That being so, one would expect that following her marriage to Setha
Phafoli, Stephania Pharoe ceased to use her
maiden surname and
assumed that of Phafoli. However, according to Exh "A" when
the applicant was baptized in 1971, his
mother, Stephania, was still
referred to by her maiden surname of Pharoe,
view, Exhibit "A" did not assist the applicant as proof
that his biological parents, viz. Setha and Stephania, had
married each other in, 1960/61. On the contrary, it strengthened the
case of the 1st and the 2nd Respondents that Setha
and Stephania were
never legally married to each other in 1960/61 as alleged by P.W.1. A
convincing proof that Setha and Stephania
were legally married by
Christian rites would have been a production of a marriage
certificate by P.W.1who claimed
were and he was the person who saw to it that their marriage was
solemnized in church. He, however, failed to do so,
'Malimpho Ts'ola, told the court that Setha Phafoli was her nephew.
She was not present when Setha and Stephania solemnized
marriage at Sebitia. However, following their marriage, Setha
brought, to the witness's home, his wife, Stephania, to give
her first born child. Since both parents of Setha had already passed
away, P.W.2 and her husband had to welcome Stephania
daughter-in-law by giving her "Koae" (a sheep slaughtered
for a newly married woman who, according to custom, would
not accept food at the family of her husband).
the correctness of her evidence that she was not present when they
allegedly married to each other at Sebitia, it is obvious
has no personal knowledge about the existence or otherwise of a legal
marriage between Setha and Stephania. Even if
it were true that P.W.2
and her husband gave "Koae" to Stephania, that in itself,
is, in my opinion, no conclusive proof
of her legal marriage to
setha, be it by Christian or Sesotho customary rites. In my finding
the testimony of P.W.2 is of no assistance
to this court.
evidence, P.W.4, Stephania told the court that
Che daughter of Makalaka Pharoe of Matatiele in the Republic of South
Africa, In 1958 she was a school teacher at a certain
school in the
district of Mafeteng when she fell in love with Setha Phafoli. In
1960 she was teaching at Sebitia school in the
district of Berea when
she and Setha decided to get married to each other. She and Setha
were aged 25 and 24, respectively. They
went to a priest at Sebitia
Roman Catholic Church to have their marriage solemnized in church but
all in vain because of the objection
raised by her father who,
according to the priest, had said the family of Phafoli had paid him
only two cattle and if the marriage
were to be solemnized in church
no further cattle would be paid as bohali. For that reason her
marriage to Setha was only "blessed"
and could not be
solemnized by the priest. P.W.4 assured the court that there was no
marriage certificate issued as proof of her
civil marriage to Setha.
The evidence of P.W.2 that P.W.4 came to her home to give birth to
her first child is denied by the latter.
According to P.W.4, her
first child was born at Phororong. However, P.W.4 conceded that she
went to the home of P.W.2 to give birth
to her second child i.e. not
the first born child. She, however, denied that on that occasion
P.W.2 gave her "Koali".
According to P.W.4 when she went to
the home of P.W.2 she had long been given "Koae" by the
Phafoli family. There was,
therefore, no need for P.W.7 to give her
view, P.W.4 has given a lie to the evidence of P.W.1that he knew for
certainty that the marriage of Setha and Stephania was
Sebitia Roman Catholic Church. That being so, there is no doubt in my
mind that Setha and Stephania never concluded
a civil marriage. The
question that remains for the determination of the court is whether
or not they were ever married to each
other according to Sesotho Law
and Custom. In this regard, P.W.3, Motsoafa Phafoli told the court
that he learned from Ntsie Phafoli
the elder brother of Setha Phafoli
that he and P.W.1had negotiated the marriage between Setha and
Stephania. An agreement was reached
as to the marriage and the
quantum of "bohali" cattle. Thereafter two "bohali"
cattle were paid by Ntsie Phafoli
to the relatives of Stephania in
significant to bear in mind that Ntsie Phafoli is now deceased and,
therefore, not available to give evidence before this
court. What he
is alleged to have said to P.W.3 regarding the negotiations of the
marriage between Setha and Stephania seems to
me to fall within the
category of hearsay and, therefore, inadmissible evidence. However,
P.W.1did give evidence to the effect
that he and Ntsie Phafoli
negotiated the marriage between Setha and Stephania, when an
agreement was concluded that the children
could get married to each
other and the quantum of bohali cattle would be 15 herd of cattle.
bohali cattle were paid. There is no evidence to gainsay P.W.1's
version regarding Che agreement of those who stood in
that the children could get married to each other and the quantum of
bohali cattle would be 15 herd of cattle. In
the circumstances I find
no good reason why the unchallenged evidence of P.W.1should be
disbelieved in that regard.
as it may, P.W.3 went further to tell the court that in 1984 he
himself paid 6 bohali cattle to Stephanie's brothers who
however, not called as witnesses in this trial. The 6 bohali cattle
were in the form of money to the tune of M960. However,
the monetary value of each of the 6 bohali cattle was P.W.3 said he
was positive that two of them were valued at M150
each, one was
valued at M160 whilst three were valued at M100 each. That being so,
it is clear that P.W.3 paid only M760 and he
could not have been
testifying to the truth when he told the court that he paid M960 as 6
bohali cattle to the brother of Stephanie.
say, I carefully observed all the witnesses as they testified before
this court. P.W.3 was in his answers to the questions
that were put
to him mostly evasive. He did not impress me as a witness of the
truth and I consider it unsafe to rely on his evidence
it has been corroborated by a more reliable witness. I am not
therefore, to accept as the truth his evidence that in 1984 he paid
to the brothers of Stephania 6 bohali cattle towards
the marriage of
Setha and Stephania.
perhaps worth mentioning, at this juncture, that P.W.4 told the court
that in 1968 she found that Setha Phafoli who was then
P.W.3 at a place called Setibing had concluded a civil marriage at
Nazareth Roman Catholic Church with another woman
by the name of
Morongoe. That was confirmed by P.W.3.
were true that Setha and Stephania had legally married to each other
according to Sesotho Custom I find it highly improbable
former could have concluded a civil marriage with another woman viz.
Morongoe during the subsistence of his customary
Stephania for the simple reason that a Sesotho Customary Law marriage
is regarded as valid marriage in this country.
to prove that his biological parents viz. Setha and Stephania, were
legally married to each other and he was, therefore,
son and heir of Setha Phafoli vested squarely on the shoulders of the
applicant on the well known principle that
he who avers bears the
onus of proof. In my finding the applicant has not, on a
preponderance of probabilities, satisfictorily
discharged that onus.
the correctness of my finding, it stands to reason that the answer to
the question I have earlier posted viz. whether or
not the applicant
is the ligitimate son and the heir of Setha Phafoli must be in the
It is now
trite law that the rightful persn to have the last say as to where
and when the remains of a deceased person are to be
put to rest is
the deceased's heir. Having found that he has, on a balance of
probabilities, failed to prove that he is the legitimate
therefore, the heir of Setha Phafoli who, had he not predeceased the
late Veronica 'Mapaseka Phafoli, would have admittedly
rightful person to decide on how her remains were to be put to rest,
it must be accepted that the applicant had no locu
standi to bring
these proceedings before the court.
result, I have no alternative but to come to the conclusion that this
application ought not to succeed. The rule is accordingly
with costs to the Respondents.
Applicant : Mr. Tsotsi
Respondent: Mr. Phoofolo.
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