HIGH COURT OF LESOTHO
TOKELO NKAKALA APPLICANT
MOTJOKA 1ST RESPONDENT
MOTJOKA 2ND RESPONDENT
by the Honourable Mrs. Justice K.J. Guni on the 8th day of April 1999
an application for an order of court in the following terms:-
Rule Nisi be issued and returnable on the date to be determined by
this Honourable Court calling upon Respondent to show
cause if any
Rules pertaining to period and mode of service shall not be
despensed with on the ground of urgency;
the Applicant SELLO TOKELO NKAKALA be declared a rightful person to
bury the body of MASUPING JUSTINA NKAKALA (born MOTJOKA).
the body of MASUPING JUSTINA NKAKALA (born MOTJOKA) be exhumed on
production of the Certificate of the Principal Secretary
the body of the said MASUPING JUSTINA NKAKALA (born MOTJOKA) be
examined for the purpose of determining the cause of death.
the First Respondent be ordered to release forthwith all insurance
policies of the deceased to the Applicant.
the Second Respondent be ordered to release forthwith to the
Applicant all items fully shown in annexure "STN11"
attached to the Founding Affidavit.
the Respondents be ordered to pay costs of this application.
prayer 1 (a) be made immediate order.
the Applicant be granted such
and/or alternative relief."
matter was heard, the parties pointed out that there are points which
are in the common cause and for which no determination
the applicant herein is the older brother of the deceased's husband.
the husband of the deceased is also late.
there was no child of their marriage which was in accordance with
civil rites and was solemnised on 4th October 1986.
the applicant herein, being the elder brother of the deceased's
husband, is the head of the family and the heir.
Respondent is the biological father of the deceased.
Respondent is the biological brother of the deceased.
deceased died on 20th January 1999 and she was only burried on 7th
appears from the facts of this case, the problem is not with regard
to the question of who has a right to bury the deceased
consequently who is her heir. The applicant's position as heir and
the person who
right to bury the deceased, is undisputed. At the time the deceased
became very ill and needed someone to help her, there
was none to
assist her. The deceased's own blood brother, 2nd respondent herein
requested applicant to release her into his custody
so that he takes
care of nursing her back to health. Applicant by his conduct
demonstrated that he does not care about the deceased
well-being in her lifetime. Applicant did not take the deceased into
his home nor provided someone to nurse her at her
own home during her
time of need. Applicant did not even have a courtesy to responde to
2nd respondent's request for release into
his care and custody the
deceased who was in need of help and nursing care. 2nd respondent
waited in vain for response from applicant.
Realising that there was
no response, 2nd respondent took his sister, deceased into his own
home for the purpose of providing her
with private nursing. Applicant
after becoming aware that 2nd respondent has taken and removed
'MASUPING JUSTINA NKAKALA from her
home was still not concerned.
Applicant was still the head of Nkakala family but he did not bother
to enquire after MASUPING's
health. He did not demand
respondent must return her and/or stop assisting her in anyway. Could
it be presumed that this applicant was not concerned
health or wellbeing because he did not consider himself obliged in
anyway to take care of her? Applicant is that
type of heir that comes
into being only when there are benefits. He does not regard himself
as heir that inherits benefits as well"
position of the heir under Sesotho customary law is exactly the same
as under the received law (Roman Dutch Law) see Duties
of Heir -
Contemporary Family Law of Lesotho by W.C.M. MAQUTU Page 185. The
applicant's brother - deceased's husband had duties
towards his wife. The applicant should have inherited those duties
and obligations. By his conduct of total neglect
of the sister-in-law
MASUPING applicant failed in his duties to care for her. Does his
failure to carry out his duties have the
effects of depriving him of
his birth right to inherit? It certainly does not if he could still
find any legacy lying around.
when 'MASUPING died, the applicant's own brother - NKAKALA who was
according to this applicant authorised by the applicant
family to take control of the deceased' s funds at TEBA - was
informed that very same day 20th January 1999. The reading
papers filed in support of the application gives the impression that
the applicant wants the inheritance in particular the
money saved by
the deceased and her late husband in their lifetime, but in order to
get the property he must be seen to care for
applicant's conduct and his whole attitude towards the deceased
speaks louder than his words. Applicant and 2nd respondent were
working in the Republic of South Africa during the period covering
the illness and death of the deceased. As a result of their
while they were at work in the Republic of South Africa, they
appointed other people here in Lesotho to act for and on
behalf. As I have mentioned earlier on the applicant's younger
brother -NKAKALA was appointed and authorised by applicant
family to act in his behalf. The 2nd respondent' s
acted on her husband's behalf. I do not accept that in some other
instances for example, when the applicant's younger brother
informed of the death of the deceased, the applicant and his family
should not be held to have been properly informed. By 20th
1999 this applicant's young brother had in his possession all the
documents he needed to secure payment to him of all
the funds saved
by the deceased and her late husband at TEBA and other financial
institutions. The fact that the physical transfer
of the said funds
could not be completed before 24th February 1999 cannot be a valid
excuse for their failure to make arrangements
for the burial of the
as 24th January 1999, (Annexure B - attached to the Opposing
Affidavit refers) the applicant made a promise to send someone
discuss and arrange with respondents the burial of the deceased. This
promise was never fulfilled. The deceased was still waiting
placed at her last resting place at MANGWANE FUNERAL SERVICE
mortuary. As time went on without any sign from the deceased's
relatives that they want to
from the mortuary for burial, the mortuary itself by its personnel
appealed to the relatives of the deceased to come and
body for burial. There was no response from any relative. It is not
denied that the applicant and his relatives ignored
Another attempt was made by the funeral service to appeal once again
to the relatives of the deceased to come and
collect her body for
burial. As shown in Annexure "D" - attached to the Opposing
Affidavit the radio announcement made
by the funeral service was to
the effect that the body of 'MASUPING NKAKALA had badly decomposed.
The people responsible were called
to come and fetch her because the
funeral service was on the verge of going to ask the District
Administration to arrange for a
pauper's burial for her. The appeal
was made on the national radio by one N. HLONGWANE the proprietor of
Mangwane Funeral Service.
It was at
this moment that the 2nd respondent's wife acting on behalf of her
husband approached the registrar of this court to ask
to obtain authority and/or permission (as shown in
"E") to proceed to bury 'MASUPING's - badly decomposed
body. The applicant and his family ignored all those appeals.
clear that they were not interested in the proper burial of the
deceased. By ignoring the appeals by the funeral service
to come and
collect the body of the deceased they clearly abdicated their
responsibility to bury the deceased.
district secretary arranges pauper funerals on its own behalf. It
does not act on behalf of rightful heirs and the people with
to bury the deceased. The applicant having ignored those appeals
cannot be heard to say that the respondents were wrong
to bury the
deceased who waited to be placed at her final resting place well over
It is the
tradition of the Basotho to bury their dead within a short time of
their death. The practice was said by Lehohla J. in
(unreported) to be "a wholesome one and indeed a vestige of
antiquity". The deceased's body laid in the
mortuary from 21
January 1999 to 7th March 1999. This was totally against that well
established practice. At
it was buried it was said to be in an advanced state of
decomposition. It is now a fourth month since she died. If the
was badly decomposed at the time of burial it must ccertainly be
completely decomposed after removal from the mortuary and
burried for about a month now. Exhumation of the body will not
definitely serve the intended purpose. Having refrained from
attending to deceased during her illness applicant cannot be heard to
claim that he wants to determine the cause of her death.
application to exhume the body which was buried after appeals that it
was now badly decomposed is a very unhappy one. It is,
to use the
words of Honourable C. J. Cullinan (as he then was) in CIV/APN/163/91
(unreported) contrary to custom which
to all mankind.....namely respect for the dead". Applicant did
not want to take care of the deceased in her lifetime.
not cooperate with those who wanted to take care of her during the
deceased's time of need when she was sick and
alone. Applicant was
unwilling and not prepared to make arrangements for the burial of the
certainly is very disrespectful of the applicant to now seek to
disturb the late 'MASUPING from her last resting place.
application is dismissed with costs.
Applicant: Mr. Khauoe
Respondents: Mr. Matooane
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