1

CIV/APN/178/99

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEPEKOIA
MATELA APPLICANT

and

LISEMA
SIMON MOLISE 1st RESPONDENT

THE
COMMISSIONER OF POLICE 2nd RESPONDENT

M K M
BURIAL SOCIETY 3rdRESPONDENT

THE
ATTORNEY - GENERAL 4th RESPONDENT

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 11th day of May
1999

Mr.
Putsoane who appeared for the Applicant submitted that the burial
arrangements of Makuena Eusebia Shale (of various other names)
(the
deceased) whose funeral arrangements as to the manner, the place and
others are disputed now, would have Co be governed under
common law.
That is under the principles of the common law in chat he who is the
heir reserves the right of making such arrangements
for burial. And
indeed in his founding affidavit the Applicant had this to say in
order to capture the mood

2

of the
argument that would follow :

"12

The first Respondent is not entitled to bury my wife since I have not
allowed him to do so. Whatever right I have must be excluded
from me
by a written registered will given the nature of my marriage to my
wife". (My underlining)

Counsel
went on to say that the marriage of the deceased to the Applicant (on
the 3rd April 1986) had not been dissolved at the
time of the
deceased's death (on the 23rd April 1999). This appeared to be common
cause. That furthermore the right to bury the
deceased had remained
undisturbed. He further submitted that the First Respondent had no
right to bury the deceased despite that
the Respondent had been
empowered by Order of Court to bury the deceased. The Order referred
to above was that of my brother Maqutu
J of the 21st April 1999 in
CIV/APN/165/99.

Applicant's
Counsel submitted further that the fact of the purported marriage of
the deceased to the First Respondent's brother
(of the 24th June
1992) could not confer any rights to anyone else except the Applicant
who remained lawfully wedded to the deceased
until her death. Much
less effective (to diminish Applicant's rights) would be the alleged
written instructions by the deceased
in favour of the First
Respondent. The specific written instructions were annexed to the
opposing affidavit and marked "LLM5".

It had
become common cause that the deceased had gone into a form

3

of a
marriage with the First Respondent's brother. This was supported, in
the proceedings, by an agreement (dated the 28th June
1997) for
payment of twenty head of cattle, between the deceased's father and
the First Respondent's mother. The awkwardness of
the agreement added
some flavour to the background and circumstances. In that regard it
was to be observed that the payment of
bohali came five years after
the civil marriage which took place on the 24thJune 1992. This was
one of the attacks by the Applicant.

Coming
back to the deceased's written instructions, one has to say that it
was noteworthy that Mr. Putsoane accepted the instructions
as being
authentic all the same. That they were genuine as to their source and
contents. But Counsel nevertheless moved for a declaration
that the
instructions be regarded as invalid and unenforceable in law. It was
important to record the factual backcloth as stated
in paragraph 8.4,
of the opposing affidavit. It was that the deceased:

"................during her lifetime but when she had already
taken the serious illness, the late Manapo Molise, gave me written

instructions which were duly placed before the Chief of the area of
Makeneng Mafeteng. It is also significant that she personally
signed
these instructions, a written significance which is in pari materia
to her signature in her passport a fair copy hereof
is annexed and
marked "LLM5"."

If, as it
happened, there was no longer any dispute about the authenticity of
the writing then what remained to be the main reason
for decision
would be

4

and would
revolve around the issue which the Applicant raised in the replying
affidavit at paragraph 9.4 to say:

"9.4 ........................................moreover my right
to bury my wife is a common law right which can be removed
by a valid
will and not some written instructions as in the case under customary
marriage."

It had to
be seen whether only a valid will and no other form of writing can
confer rights to arrange a burial. And whether it necessarily
had to
be under customary law that one derives a right and duty to bury
under written instructions.

I have
already noted and accepted as it was common cause, the existence of
the marriage of the deceased to this Applicant. That
marriage was
being attacked for the reasons that the deceased was under age at the
time of the deceased marriage. This was sought
to be supported by the
alleged date of birth of the deceased (11-5-1966) as shown in her
passport "LLM 3". She needed
parental consent to contract a
valid marriage. I found no good reasons to declare that marriage to
have been void at the time of
the death of the deceased. It was
firstly because I accepted the submission by Mr. Putsoane that only
the parents and the bride
or the bridegroom would be entitled to
petition the Court and find fault with the marriage such as this one.
The marriage could
therefore only be voidable. Even if I noted or
accepted that the deceased could have been under age it was not for
the Respondents
to ask for that declaration. I also took sentiments
from that Court of Appeal as expressed in the case of

5

MASUPHA v
'MOTALAC (1985-89) 58 which indicated that the attitude of one of the
married couple was paramount where an attack, that
one of them was
under age at the time of the marriage, was being made, and where
particularly (as in that case) the age of the
bride was concerned.

It is
important what the attitude of the married people was. This was the
view I adopted in the case of MOTSOMI vs NKUATSANA AND
OTHERS
CIV/APN/82/98. Therein I had to call the bride and bridegroom and
find out what their attitude was about their marriage
(if it was
proved that the bride was under age). The investigation by this Court
revealed that they were in favour of maintaining
that marriage of
theirs and were deeply in love with each other. I was persuaded that
it would be against public policy to annul
the marriage in the
circumstances. In the instant matter I accepted that it was for the
bride or bridegroom or the parents only
to seek to annul the
marriage. In any event and furthermore there was this problem of the
deceased being unable to say anything
because she was now dead. It
could perhaps be proved that she was under age. It was however
unseasonable when the question was
being raised after the death of
the deceased. In any event any Court would have been inclined to
refuse to exercise its discretion
in favour a declaration that the
marriage had been void because of the minority of the deceased when
the marriage was contracted.

This
Court accepted that the marriage between deceased and the Applicant
subsisted until the death of the deceased because it was
not
dissolved. I dealt with an insignificant aspect as follows. On the
facts I accept the strong probability that the deceased
must have
been separated

6

from her
husband for a long time. I was inclined therefore to believe that
where she was and where she stayed because they were
now estranged I
have found that on probabilities. It was difficult for me to accept
that her husband had belatedly come to know
and only knew that the
deceased was dead because she was on transfer in Qacha's Nek . The
probabilities indicate there was a considerable
amount of
disinterestedness because the couple was estranged. The Applicant
said he knew that his wife was transferred because
she was a
policewoman but we were still husband and wife in a state of blissful
wedlock. I am saying that the probability is more
to the contrary.
The truth was that the deceased stayed where she was one reason being
that they were then estranged.

The Court
further accepted that there was another marriage contracted by the
deceased to the First Respondent's brother. It was
that marriage
which was about cattle being paid for "bohali" in annexure
"LLM1" and that marriage which Mr.
Nthethe's client spoke
about as being a valid marriage. That marriage not be valid while the
deceased's marriage with Applicant
still subsisted. The contrary
would mean that the deceased was married to two men at the same time.
Polyandry is not allowed in
terms of the laws of Lesotho. (See
MASUPHA VS MASUPHA 1977 LLR 54). I noted that in the latter marriage
there were those strange
or unusual things. Foremost was the bohali
cattle were paid in while the previous marriage still subsisted and
this was much against
Sesotho maxim that:-"Likhomo li ntšoa
ka tse ling, likhomo tsa bohali lia ntšana." It means
that if there
was any bohali cattle to be paid they should have been
paid to the family of the Applicant. And this could have been validly
done
only if the Applicant's marriage to the deceased had been
dissolved. And therefore the

7

deceased's
parents ought not to receive the bohali twice in the circumstances.

There
were many points raised which did not address the real issue of the
deceased's competency to have issued instructions as to
her burial.
All these things or alleged impediments included the submission by
Mr. Putsoane that because the marriage was a common
law one as
against the customary law one the deceased's estate was a common law
estate. This is not necessarily so (See KHATALA
vs KHATALA 1963-66
HTLR 97) In regard to the submission Mr. Putsoane contended that this
marriage between the deceased and the
Applicant was a common law
marriage and the deceased was therefore disabled from making any
instruction for her burial that would
deprive the husband (as heir)
of the right to bury.

There was
this other submission by Mr. Putsoane that the deceased could not
make written instructions except by way of a will. There
was this
other argument about a party having not abandoned Sesotho custom or
having adopted a European mode of life. Related to
the previous one
was this other aspect about these instructions by the deceased being
not having been a will and further as being
invalid for not having
been registered in terms of a law concerning registration of wills in
this country. And finally was the
other aspect about the deceased's
estate not being liable to be administered in terms of Administration
of Estates Proclamation
(Supra) I considered that those points were
not necessary for my decision in the light of the overwhelming weight
of what I considered
to be the real issue.

This
Court said that the law was clear in that the general principle

8

was that
the heir reserves the right to bury unless there are written
instructions. Grotius, inl, 1.2.1. 46 said:

"A man's body is so far his own that he may defend it. may allow
some portion to be removed under proper safeguards and may
give
reasonable directions as to its burial". (My underlining)

The case
of ABRAHAMS v ABRAHAMS & ANOTHER LLR 1991 -96(1) was relevant in
a majority of respects in having reviewed the law
on the right and
duty of burial of the deceased in a situation where there were rival
heirs in Basotho customary law. I had not
read it when I delivered my
ex­tempore judgment. The impression given by First Respondent's
Counsel was as if there was a debate
in the case over authenticity of
written instructions. I noted a statement at page 4 of the judgment
which was probably obiter
where Maqutu J said:

" If deceased has given directions as to burial, this problem
that we have would not be there because the deceased's wishes
would
be binding on its executors, and his heirs and beneficiaries".

The above
dictum by Maqutu J recognises the existence of the executors heirs
and beneficiaries all whose expectations the deceased
can circumvent,
put conditions and bind by specific instructions as to his burial. He
or she can even say: "Oh! Mr. So and
So you are my heir but I do
not give you the right to bury me. I give the rights of my burial to
B".

9

So that
once it was accepted that the deceased instructions are authentic,
much as it has been accepted in this Court, and that
the deceased
wrote an authentic set of instructions; if it is said furthermore
that it was not done under pressure, and if it was
not demonstrated
that he or she was insane and he or she was a mature adult this,
Court must give effect to the wishes of such
a person. This appears
to have been the law all along as suggested in ABRAHAM'S case without
derogating from but confirming the
general rule. Again Maqutu J (at
page 5) in speaking about the case of APAPHIA MABONA (therein fully
cited) said: "..........
The deceased had left no written
instructions as to burial". I remembered that in MARINAKHOE vs
MPAKANYANE CIV/APN/65/97,
Lehohla J in dealing with a problem, where
deceased had left specific instructions for division of her property
resolved at page
9 about the deceased's written instruction:

"............ But that aspect of the matter has been adequately
taken care of by the deceased 'Marefuoe's death had repentance
and
wish. All I need do is to ensure that it is respected."

My belief
was that the Court in ABRAHAM'S case would have taken notice of the
wishes of the deceased if circumstances were such
as what we have
now. And a few other cases there must have been obiter like what we
have in ABRAHAM'S case (supra) by Maqutu J
in that it was noted that
in respect of property and in respect of burial the wish of the
"testatator" have always been
recognized in terms of the
Laws of Lerotholi. In terms of the Laws of Lerotholi it is recognised
that a person can bequeath his
property provided the heir is not
deprived of a major share. That argument referred

10

to about
property cannot be used with respect to a corpse or burial because as
can easily be concluded a corpse is not property
strictly speaking.
For guidance see "property" as defined in section 2 of
Administration of Estates Proclamation (supra)
and "Estate"
as "The property, whether movable or immovable, of a person,
partnership or company." Claasen's
DICTIONARY OF LEGAL WORDS AND
PHRASES.

We have
had cases with painful conclusions in the High Court. One of them was
this Court's case of MASSA v MASSA & ANOTHER (CIV/APN/5/97,
14
January 1997. It was a case where the deceased a well known man had
lived with a second wife for close to twenty years at Lower
Seoli in
Maseru. He had divorced his first wife and had left a male heir with
the first wife. That gentleman, the heir, came to
this Court and
claimed the body of the deceased, his father. This deceased must have
most likely not wished to be buried by this
son of his. The
probability is that he wished to be buried by this wife with whom he
had happily lived and not by his first son.
One could not imagine the
opposite due to deceased's estrangement from his first wife. But the
Court had to decide that that applicant,
the son of the deceased must
take the corpse and bury it in Mafeteng. And the deceased was no
longer staying at Mafeteng. He had
established a good household at Ha
Seoli. Just because he had not left instructions this Court was bound
to give over the corpse
(for burial) to the first son, the heir of
that deceased person. So that as long as it is clear that there is
authentic and unambiguous
instructions by a deceased person the Court
will give effect to the instructions as against the heir's right.
That is why I said
in MASSA'S case:

11

"Speaking for a progressive view, this situation where the law
has to invariably learn in favour of the heir sometimes brings
out
bizarre effects".

This
Court will decide and recognise the wishes contained in the
instructions. The instruction need not be written. See MABULU v
THYS
AND ANOTHER 1993(4) SA 701 (SEC) Where Zietsman JP was
contradistinguishing cases where heirs rights were preferred said at

page 702 I-J:

"A contrary conclusion was however reached in the case of
SEKELENI v SEKELENI AND ANOTHER 1982(2) SA 176 (T). In this case

Lombard J held that effect should be given to the wishes of the
deceased even if such wishes were expressed verbally and were not

repeated in a formal will or other document."

To me,
this test of whether one has abandoned customary way of life or
adopted a European mode of life is not significant nor whether
the
deceased was a man or woman working under common law or customary
law. What is important is that the instructions left by the
deceased
as to his or her burial must be clear. See MABULU'S case (supra) They
need not be written as long as they are clear instructions.

So that
(adding to above) a problem of whether a document or instructions
conform with what is contained in the wills law, or things
such as
whether there must be two or a number of witnesses and, whether there
must be a chief or a senior chief or a village headman
shown in the

12

document
and, whether the deceased himself signed or attached his thumb print
are all important if they show that the document is
authentic. And
they are not all necessary.

Of course
if a man leaves unwritten instructions as long as it is clear that he
has told all those whom it may concern how he or
she wishes is to be
buried and as long as this can be proved in Court the Court will
order that his wishes be given effect.

It seems
this was the case where the deceased's instructions cannot be
assailed on any ground. Furthermore the order I made was
that the
First Respondent shall bury the deceased's body and the application
was dismissed with costs.

T.
MONAPATHI

JUDGE

11th May
1999

For the
Applicant : Mr. N. Putsoane

For the
First Respondent: Mr. G. Nthethe