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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
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of the argument that would follow :
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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
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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
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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
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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
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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
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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
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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".
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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
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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:
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"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
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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