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CIV/APN/313/93
IN THE HIGH COURT OF LESOTHO
In the matter of :
'MAMOHLAKOLA MOSALA Applicant
and
LEFU MOSALA 1st Respondent
THE EMPLOYMENT BUREAU OF AFRICA
LTD 2nd Respondent
'MANKHETHELENG MOSALA 3rd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 16th day of August. 1993.
On 23rd July, 1993 the applicant herein obtained ex-parte a rule nisi calling upon the Respondents to show cause on 29th July, 193 why, inter alia, the 1st Respondent shall not be interdicted from burying the body of Samuel Mosala, the applicant shall not be declared the rightful person to bury the deceased Samuel Mosala and the 1st Respondent shall not be directed to release to the applicant her household property.
Confirmation of the rule is opposed. Affidavits have
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been duly filed.
In as far as it is relevant, the facts disclosed by the Applicant's affidavits are that in 1986 she and the deceased, Samuel Mosala, concluded a customary law marriage and ten herd of cattle were paid as bohail. She attached a written agreement (annexure A) as proof of the payment of bohali of the said marriage between the Applicant and the deceased. Two boys, who are still minors, were born.
In June, 1993 the deceased and the Applicant had a quarrel as a result of which the latter ngalaed and returned to her maiden home. Shortly after the Applicant had returned to her maiden home, her husband who was working on the mines of the Republic of South Africa passed away in June 1993.
In the contention of the applicant, she is the only wife of the late Samuel Mosala and therefore, the rightful person to decide where, when and how his remains will be put to rest. Consequently the applicant prays for the rule nisi as aforesaid.
The Respondents' affidavits were deposed to by the 1st and the 3rd Respondents who averred that on 8th June, 1969
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the deceased got married to the 3rd Respondent by civil marriage. A copy of the marriage certificate (annexure L.M.I) was attached as proof thereof. Five (5) children two girls and 3 boys, were born of the marriage. In 1987 the deceased and the 3rd respondent quarrelled and the latter had to leave the matrimonial home and live at the home of the 1st Respondent, her father-in-law.
The Respondents denied, therefore, that the deceased could have lawfully got married to the Applicant in 1986 during the subsistence of his civil marriage which was never resolved. That being so, the applicant cannot be heard to say she is the lawful wife of, and the rightful person to decide how, the deceased is to be buried.
At the commencement of the hearing of this matter, the following points were raised in limine on behalf of the applicant:
"(a) This matter has not been properly set down for hearing on this 11th August, 1993, in as much as there is neither a notice of anticipation nor that of set down.
Annexure "L.M.I" "L.M.2" and "L.M.3" are inadmissible hearsay and should be struck off as such."
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Point (a) above has already been decided on 11th August, 1993 when I held that where the court itself has set a case down for hearing on 16th August, 1993, as this court did on 9th August, 1993, neither of the parties was empowered to change that date unilaterally. The court sets down cases for hearing and the parties have to accommodate themselves to the dates decided upon by the court, not vise versa. There was no need, therefore, to raise this point in limine at the hearing of this application.
It will be seen from paragraph 5 of the Applicant's Replying Affidavit that the ground upon which she challenges the admissibility of annexure L.M.I, L.M.2 and L.M.3 is that they have not been certified true copies of the originals thereof. However, a proper reading of annexure L.M.1 will show that the document has been certified a true copy of the original by the Marriage Officer. Annexure L.M.2 and L.M.3 are the originals and not copies. The ground upon which their admissibility is challenged viz. that they have not been certified true copies of the original does not therefore, make sense.
In the result, I would dismiss with costs the points raised in limine.
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Turning now to the merits of the application, I am satisfied that the Respondents have, on a balance of probabilities, proved that on 8th June, 1969 the deceased and the 3rd Respondent entered into a contract of marriage by civil rites. There is no suggestion that the marriage was ever resolved. That being so, it stands to reason that when in 1986 the deceased and the Applicant puported to marry each other according to Sesotho Customary Law, the purported marriage was null and void ab initio. The applicant cannot, therefore, properly claim to be the lawful wife of the late Samuel Mosala.
It is significant that in her own mouth the applicant avers that two boys were born of the union between her and the deceased. If she were to be believed, it is clear that when he died in June, 1993, the deceased left two male issues who are his heirs in order of their seniority. As I see it, the applicant does not claim the right to bury the deceased as the guardian of the deceased's sons and therefore his heirs. She is making the claim in her own right.
The legal position, as I see it is that where a man dies leaving no male issue who is the heir then his widow should be afforded the right to decide how the remains of
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her late husband should be put to rest. Even if it could be held that the applicant was the lawful wife of the deceased, Samuel Mosala, she would not, in my view, be the proper person to bring, in her own right, these proceedings before the court.
As regards the order directing the 1st Respondent to release, to the applicant, household property he had admittedly removed from the house where the deceased was living with the applicant, I am of the view that in the circumstances of this case, the applicant must first prove her right to the property vis-a-vis the deceased.
In the result, I would discharge the rule nisi granted on 23rd July, 1993 with costs to the Respondents.
B. K. MOLAI
JUDGE
16th August, 1993.
For Applicant : Mr. Mosito
For Respondent: Mr. Phoofolo.
