HIGH COURT OF LESOTHO
MASAKALE 1 st RESPONDENT
FUNERAL SERVICES 2nd RESPONDENT
NATIONAL INSURANCE GROUP 3rd RESPONDENT
OFFICER COMMANDING (LITHOTENG
ATTORNEY GENERAL 5th RESPONDENT
by the Honourable Mr Justice WCM Maqutu on the 22nd day of September
15th September, 1999, Mr Putsoane for applicant appeared before me to
move an ex parte application which was as follows:
respondent show cause why
2nd respondent shall not be interdicted and restrained from
releasing to the 1st respondent or her agents the body of the late
Naleli Masakale pending the hearing and finalisation of this
applicant shall not be declared the rightful person charged with the
duty of burying the said Naleli Masakale as per the deceased's
instructions and wishes.
1st respondent shall not be ordered to release to the applicant the
personal clothing of the deceased.
3rd respondent shall not be directed to release to the applicant
monies which were assigned for burial of the late Naleli
4th respondent shall not be ordered to release to the applicant the
van of the deceased which is in his custody for burial
1st respondent shall not be ordered to pay costs herein only in the
event of opposition.
Honourable court shall not grant applicant further and/or
prayers 1 and 2(a) operate with immediate effct as an interim order.
applicants founding affidavit and the supporting affidavit of Mphoto
Makhalanyane will be utilized in support thereof.
made the following order:
nisi issued returnable on the 21st September 1999 calling upon
respondent to show cause why the interim order shall not be
2(a) is to operate as an interim interdict restraining second
respondent and her agents from releasing to first respondent
agents the body of the late Naleli Masakale pending the finalisation
of this application.
21st September 1999, the application was opposed and the court was
addressed briefly. Consequently it was postponed to the
September, 1999, to enable replying affidavits to be filed and to
hear viva voce evidence if necessary.
applicant was available. Applicants witness Chief Mphoto Makhalanyane
was not present. As the matter was urgent, the court
before applicants cross-examination could be concluded, the court
stopped proceedings heard argument and made the following
"I am satisfied applicant is a liar, the letter that he
purported to come from deceased is suspect. As applications to bury
are usually a prelude to a claim on the deceased estate, I will not
decide the merits of the succession dispute. I dismiss this
application. It is ordered that deceased be buried by other members
of the Masakale family in consultation with the deceased's
is in prison. Applicant is to pay costs."
MY REASONS FOR JUDGMENT
alleged the deceased Naledi Masakale, whose body he was claiming the
right to bury, had come to him on the 16th August,
1999. He said he
had made "some written instructions pertaining to his burial
because he has a fear that first respondent
(his wife) and her mother
and brother are preparing to kill him". Applicant, who is
deceased's elder brother, asked to be
showed those instructions.
This, the deceased did and then they went to Chief Mphoto
Makhalanyane and told him about the deceased's
chief read "the said instructions and stamped them". The
chief was asked by the deceased to "retain
the said written
instructions and produce them after his death which he
be caused by first respondent, her mother and her brother".
28th August, 1999, applicant learned that his late brother Naledi
Masakale had been killed by deceased's own wife (the first
respondent), her mother and her brother by stabbing him with knives
and a tomahawk. Consequently first respondent was in the female
prison charged with murdering her husband.
charge sheet, that disclosed first respondents alleged crime, was
annexed. Applicant says he then went to the female prison
in order to
comply with the deceased's instructions in order to ask first
respondents clothing and vehicle but she refused. The
subsequently taken by the third respondent who said he would keep it
until it is released by court order. It now appears
Commanding (Lithoteng Police) the fourth respondent is the one who
took it for safe keeping not third respondent. In
applicant wants deceased's personal clothing, monies assigned for
burial and deceased's vehicle.
Mphoto Makhalanyane in his supporting affidavit says the late Naleli
Masakale accompanied by applicant gave him a letter with
burial instructions because his wife "the first respondent and
her mother and brother were behaving in a strange
manner and that he
thought they will kill him very soon". Chief Mphoto Makhalanyane
duly stamped that letter with his official
stamp as confirmation.
respondents answering affidavit there is a long list of points in
limine which could not possibly come from first respondent.
points are really argument from first respondents attorney. A lot of
them should not be part of an affidavit. I was not particularly
bothered with minor technicalities such as failure to translate the
letter from deceased because the matter was in my view very
respondent challenges all the allegations of applicant because she
believes they are not correct. She "vehemently denies
every allegation contained therein...applicant is put to the proof
thereof". She says her late husband could not
death. First respondent drew attention to the fact that the Chief's
rubber-stamp is dated the 16th September, 1999,
not the 16th August,
1999 as the applicant and his chief allege. First respondent denies
the alleged deceased's letter which is
the basis of applicants claim
was ever discussed at the prison.
respondent says applicant broke into her business cafe and removed
the stock in trade, a fact he did not disclose. That is
why he asked
the police to take the vehicle in question into their custody to
prevent applicant from laying his hands on it. Applicant
disclosed why (before taking action) he waited until the 15th
September, 1999, when deceased had in fact died on the 28th
1999. Applicant and Chief Matala are not telling the truth "the
so-called deceased's instructions are an afterthought".
says she is awaiting trial as a result of her late husband's death,
whose heiress she is. Her husband died as a result
of a fight that
occurred between her brother and her late husband. First respondent
says the applicant is engaged in a maneuvre
of dispossessing her
taking advantage of the situation through "purported written
instructions" of the deceased.
respondent says on the day in question she found her late husband
together with applicant imbibing liquor with two women.
One of the
women "the one with whom my husband had close intimacy with
started insulting me as I talked to my husband. This
ended up with my
husband fighting me. It was in the presence of applicant". After
people had stopped the fight, her deceased
husband drove off leaving
her there. Tseliso Masakale (a relative of her husband) took her home
in a motor vehicle. When she got
home, her husband expelled from the
marital home, and would not listen to his relative Tseliso Masakale.
Later first respondent,
her mother and her brother went with her "to
attend to our problem with my husband, and my husband and my brother
ultimately ended in my husband's death".
applicant says first respondent does not deny her husband's signature
on the letter. Applicant says "it would be
illogical for first
respondent to be arrested and given a charge of murder if she did not
kill her husband. There was no obligation
on the deceased to inform
first respondent that first respondent wishes to kill her. Applicant
says first respondent refused to
release deceased's clothing and the
vehicle. The fact that the prison officer only heard when she
the insurance booklet and the vehicle does not mean he did not speak
of deceased's clothes.
said he denies taking all stock from the deceased's shop, this is
hearsay as first respondent was in prison. Dealing with
Moluoane's affidavit who claimed he saw applicant take the stock in
trade, applicant said this is all lies as Moitsupeli
Moluoane is the
brother of first respondent. Applicant says he is surprised
Moitsupeli Moluoane was not arrested along with first
Applicant then said as first respondent has killed her husband that
automatically disqualifies her to be her late husband's
Applicant concluded by saying he wants nothing for himself he only
wants to bury his late brother. If he had know deceased
had a burial
policy, he would have claimed it from first respondent.
the letter from the deceased, applicant said he confirmed what Chief
Mphoto Makhalanyane had said in his original supporting
the effect that the deceased signed his letter of instructions for
burial in his presence.
replying affidavit was accompanied by another supporting affidavit
from Chief Mphoto Makhalanyane. In it he claimed his
reflected the 9th months by mistake instead of 8th month. The rubber
stamp should have had 16/8/99 not 16/9/99 as
it in fact did. This was
a mistake, the rubber stamp changed itself. The deceased had signed
the letter in his presence and that
of applicant. He added his
signature and rubber stamp as chief.
was then cross-examined by first respondents counsel. Applicant
admitted deceased lived under another chief and had been
undeveloped site by that chief. Applicant stated he was surprised
when deceased issued written instructions as to
burial when deceased
had been living peacefully with his wife. He (applicant) came to know
all was not well, when he was invited
to intrvene by first
respondent. When applicant got to them he found his brother the
deceased dead. This was on the 27th August,
had been with him before the chief on the 16th August, 1999.
Applicant had not done anything about the threats deceased
were being made against him because deceased's mother-in-law was not
there. Applicant was not aware this was a police matter.
whether he drew the attention of the police to the deceased's written
statement and why he had delayed in bringing
applicant hesitated. Eventually he said, he tried to approach the
police, but the police would not accept him,
because the police did
not wish to co-operate. It was at this stage that I decided there was
no point in continuing the cross-examination.
Applicant was clearly
lying in what he was saying and his demeanour left in no doubt that
applicant was lying. There were other
significant facts that made it
pointless to continue. Therefore I asked to be addressed on the
papers as they stood and the evidence
adduced from applicant through
cross-examination. Thereafter I dismissed applicants application.
surrounding facts were the following:
the founding affidavits of applicant and his chief, nowhere had they
alleged they saw the deceased sign the said instructions
burial. They only said so in the replying affidavits.
instructions as to burial are a testamentary document, which should
be signed before two witnesses who also must sign in the
deceased. In this case the chief allegedly just placed his rubber
stamp and signed next to deceased's alleged signature.
attempt to supplement founding affidavits in replying affidavits on
a crucial fact is not permissible and applicant and the
asked for leave of court to supplement their founding affidavit. It
came as a surprise when they stated in their
that they saw the deceased sign the said letter with burial
instructions. This was improper because as Caney
J on Bayat &
Ora. Hansa & Another, 1955(3) SA 547 CD, "applicant for
relief must (save in exceptional circumstances)
make his case and
produce all evidence to use in support of it, in his affidavits
filed with the notice of motion .. .and is
not permitted to
supplement it in his replying affidavits (the purpose of which is to
reply to averments made by respondent in
his answering affidavits),
still less make a new case in his replying affidavits".
paragraph 16 of his replying affidavit, applicant had said "The
police are not, in my humble submission, so stupid or malicious".
But under cross-examination when asked why he did not show
police, the deceased letter immediately after the death of deceased,
applicant hesitated and said he tried but the police would
did not answer or deal with first respondents averment that
applicant and deceased were imbibing liquor together in
of two women, one of whom started insulting first respondent. During
this process deceased began to fight first respondent
presence of applicant. This was a material allegation which
applicant was obliged to deal with because the following day
deceased was killed.
under cross-examination does not elaborate but admits he met first
respondent the day before deceased died. He claims
complained about deceased for the first time. The following day he
found deceased dead when he tried to deal
with applicants complaint.
It is significant that he still evaded first respondents averment
that he was there when deceased
began assaulting her the day before
does not say why the police kept the deceased's vehicle and said
they would only release it if ordered by the court
to do so.
first respondent tells us that she asked the police to keep the said
vehicle in their custody to protect it from applicant.
The deceased had died 14 days before this application was brought.
The letter from deceased only surfaced after applicant had
get the vehicle of deceased from first respondent together with
deceased's clothing. It was never shown to the police
It also became one of the issues that applicant wanted first
respondent (who is the sole heiress of her husband by Basotho
custom) should lose her right to inherit.
for these very reasons that I found that there was no way applicant
could succeed especially when he was clearly being untruthful.
in the past said the practice of using bodies of deceased persons as
pawns in legal battles for succession is a bad practice.
I have in
the past given priority to burial without finally disposing of the
issue of inheritance. In this particular case first
merely a suspect. Whether in the end she murdered her husband, is an
issue that will be heard after a full trial.
I have therefore been
obliged to treat first respondent as a suspect as the laws of this
country oblige me to.
Putsoane argued that the deceased's signature was not challenged. All
evidence before me in the affidavits leave no reasonable
person in no
challenged. In the founding affidavits applicant and his witness did
not say they saw the deceased sign. It is trite law
stand or fall by their founding affidavits. Indeed the onus on proof
is on applicant to prove that was the deceased's
belated attempt to claim the deceased was seen signing the letter
could not succeed.
generally accepted that when a person is deceased it is not unlikely
that all sorts of accusations and claims will be made
deceased. Since deceased is not there to speak for himself, courts
have to scrutinise whatever the deceased is alleged
to have said or
done with care. Faced with a similar situation Fagan JA in Borcherds
v Naidoo 1955(3) SA 78 page 79 BF said:
"Here one party to the alleged transaction is dead. The court
must scrutinise with caution the evidence given by, and led
of the surviving party.. .the other party to the suit is not in a
position to answer."
words apply to this case because applicant wants the first respondent
to be disqualified as heiress, and as a brother of deceased
entitled to be heir by Basotho custom, as deceased has no sons.
being no more there he might be alleged to have said or done anything
to further the interests of the living, Indeed forgeries
hence the crime of forgery. When first respondent said she does not
believe that deceased
letter on which applicant relies (because he could not have
prophesied his death). First respondent really means it is
or a false document. In the founding papers first respondent was
supposed to answer the allegation that neither applicant
chief alleged they saw deceased sign the papers. That should have
ended the matter, but I felt I should allow the matter
ventillated further by allowing some viva voce evidence, the
expectation being that this might assist the applicant. Unfortunately
for applicant he left the court in no doubt that he is a liar. He had
also left the chief behind although he knew that the matter
proceed and be finalised.
attempt by Mr Putsoane to assert that the onus proof was on the first
respondent to show that the deceased did not sign the
The reason being that it was not a properly executed document. "The
rule of our law is that the burden of proving
the invalidity of a
formally regular will lies upon the person who asserts the
invalidity"—See Lewin v Lewin 1949(4)
SA 241 at page 276.
By a formally regular will I understand on the facts of Lewin v
Lewin, a will that was signed uncontestably
by the deceased before
witnesses, but which is challenged on other legal grounds, such as
mental infirmity etc.
was pre-maturely claiming in his replying affidavit that first
respondent had murdered the deceased therefore she lost
to benefit from the deceased's estate. As I have already said
applicant is still a suspect. Applicant did not even
killing, he only bases himself on the fact that first respondent is
charged with murder. In Nell v Nell & Another
a wife had murdered a husband, she was held to have lost the capacity
to benefit under her late husband estate because
she had been
convicted of murder. She was not a suspect as first respondent is.
The deceased in this case has to be buried, we
cannot wait for first
respondents trial. First respondent denies killing her husband and
there is prima facie evidence that she
did save the fact that the
police have charged her with his murder.
granted the rule nisi I was conscious of first respondents problem
because she was in prison charged with the death of her
burial is the subject of litigation. In Caldwell v Erasmus NO &
Another 1952(4) SA 43 an indigent father was
in prison awaiting trial
on a charge of murdering his son. He made an application for his
maintenance and that of his daughter,
and for special diet in prison
paid out of his deceased son's estate and that his defence be funded
out of his deceased son's estate.
It was argued that applicant was a
mere suspect and that his innocence should be presumed. Blackwell J
at page 44 observed that:-
"If it should transpire that the accused is guilty of murdering
his son, he would be held in law indignus and unworthy to
The Roman Dutch law would appear to go even further and hold that
even if the heir had "any hand in the death of
though it be only by neglect", he would be indignus. It is
however not necessary to decide this point at this
above matter, the application failed on its own facts, not because
the court was being called upon to deal with the issue
Khasipe for the first respondent said first respondent was not
claiming the right to bury the deceased as she is in prison. She
claiming the right to be consulted as applicant and other members of
the family were already doing. I later found out that there
minor children of the deceased and first respondent who by law are
entitled to be supported out of the deceased's estate.
never referred to these children, they did not seem important. What
he emphasised was deceased's motor vehicle and clothing.
I failed to
see what he was going to do with the deceased's clothing at this
stage, although he might use the deceased's motor
vehicle to run
errands in preparing for burial.
application stood and fell by its own papers. No court properly
directed could grant applicants application. Applicants
dishonesty and lies before the court, obliged the court to decide
that ventiallating the matter further by hearing more
could not advance the matter further was a waste of time. After all
this matter was urgent and the deceased's burial
been delayed for too
long. I avoided deciding the question of the merits and concentrated
exclusively on burial once I was satisfied
that applicants letter
purported to be from the deceased was suspect. I could not decide the
merits of the criminal case that is
no direct authority on questions of burial where one of the parties
who claim the right to bury is charged with the murder
deceased. The duty to bury where deceased has left no instruction
devolves on the heir. Unfortunately the duty to bury is
now used as a
means of determining rights of
A deplorable practice which courts have to deal with as best as they
can. The balance of convenience and respect for
the dead more often
coming into play. Sometimes the court is obliged to deal with the
question of burial without finally determining
the actual dispute
over succession. In Matsotang Mafereka v Tjomela Mafereka & Ors.
1991-1993 LLR 445 at pages 453 to 456 this
court deplored the habit
of making bodies of the deceased persons pawns for the living. Where
there was insistence that the body
of the deceased be exhumed, it
refused to order the exhumation of the body that had started
decomposing. The court express the
view that in custom the duty to
bury is shared, although the heir should prevail where there is a
It was on
this premise that I ordered that the other members of the Masakale
family in consultation with the first respondent (the
wife) who was in prison should bury the deceased. I also directed
that applicant should pay the costs of this application.
applicant : Mr N Putsoane.
respondents : Mr Khasipe
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