IN THE HIGH COURT OF LESOTHO
In the matter of :
MONAHENG MATKIBELI Applicant
TUME CHABALALA Respondent
Delivered by the Hon. Mr. Justice B.K. Molaion
the 25th day of March, 1985.
On 19th March, 1985, the applicant filed with the
Registrar of this Court an ex-parte application in which he
moved the Court for a rule nisi calling upon the respondent
to show cause why he shall not be
"(a) interdicted from burying the corpse of one
Mathibeli contrary to her wishes.
directed to release forthwith the corpseof the said
'Masecbaba Mathibeli to theapplicant in order that the said
'MasechabaMathibeli is buried in accordance with herwishes.
Respondent shall be directed to pay thecosts of
2. Granding the applicant such further and or
alternative relief as this Honourable Court may deem fit.
3. That Rule 1(a) and (b) operate with immediate
I granted the rule in terms of prayers 1(a) to (c) only
and fixed the return date as 25th March, 1985. The respondent
of the rule.
Shortly the facts disclosed by the affidavits were that
in 1962, the respondent got married to the deceased, 'Mantepe
'Masochaba Mathiboli, according to the Sesotho Law
and Custom and 13 cattle were paid towards the bohali. The fact of
was confirmed by
2/ Mahlomola Ramothello ...
Mahlomola Ramothello the head of the family of
Ramothello, at Khanyane Ha Moliboea in the district of Leribe, who
also attached to
his supporting affidavit a letter written by the
chief of Khanyane to the effect that the respondent's family and no
paid the bohali cattle towards the said marriage.
According to the respondent and Mahlomola Ramothello, in
1966 the deceased desserted while the respondent was at work in the
in the Republic of South Africa. A search for her proved
unsuccessful until in March, 1985 when it was learned that the
had been living with the applicant at Lithabeneng Ha Keiso
in the district of Maseru and had passed away.
The applicant's case was that in 1969 he too got married
to the deceased according to the Sesotho Law and Custom. The
subsequently solemnised in church in Welkom in the
Republic of South Africa in 1973. He attached a copy of the
certificate of their
In support of the contention that he was lawfully
married to the deceased, the applicant filed the affidavit of
who diposed that she was the mother of the
deceased and knew that after their Sesotho marriage, the respondent
and the deceased lived
together as husband and wife for one year and
then divorced, It was then that the applicant and the deceased got
married by Sesotho
custom and civil rites.
As has been pointed out the evidence of 'Mamalimatle
that respondent and the deceased had divorced was denied by
by Manlomola, the head of the family of
Ramothello, who averred that the deceased had merely desserted.
'Mamalimatle could not even
annex a Court decision in proof of her
bold allegation that the respondent and the deceased had divorced. I
am unable to accept
her evidence. On the contrary I accept the
evidence of the respondent, the person who got married to the
deceased, supported by
Mahlomola, the head of the family of
Ramothello, that the Sesotho marriage between
3/ the respondent
respondent and the deceased was never dissolved. It
follows, therefore, that when the applicant purported to marry her,
rites the deceased was still lawfully married to the
respondent according to Sesotho Law and Custom.
It is trite law that the system of polyandry whereby a
woman gets married to two or more husbands is unknown in our society
- Masupha v. Masupha 1977 L.L.R. 54. The purported marriage
between the applicant and the deceased while the latter's marriage to
the respondent was still subsisting
was, therefore, a nulity.
It was not disputed that the deceased died at St.
Joseph's hospital, Roma on 5th March, 1985. The applicant then kept
the body at
Homes Trust mortuary, in Maseru. On the 15th of March,
1985, he collected the body from the mortuary and conveyed it to
in preparation for the burial on the 16th March, 1985.
However, the respondent with the assistance of the police, stopped
and caused the corpse to be returned to the mortuary from
where he intends collecting it for burial at Nqechane, the parties
home. The applicant supported by 'Mamalimatle resists
this and says it was the wish of the deceased during her life time
should be buried at Lithabaneng. This, according to the
applicant and 'Mamalimatle, can be gathered from the fact that the
and the applicant have a house and other assets at
Lithabaneng where they have lived for a period of 16 years.
It is significant to note that the deceased has left no
will directing where she wished to be buried after her death. What
and 'Mamalimatle say was the wish of the deceased
during her life time seems to me hearsay and inadmissible
in the absence of any testamentary will the fact
that the deceased and the applicant who was clearly not her lawful
a house and other assets at Lithabaneng is,in my view,
not a conclusive evidence that the deceased wished to be buried at
and not at her marital home which is Nqechane.
4/ As pointed out earlier
As pointed out earlier, at the time the applicant and
the deceased purported to get married to each other, the latter was
to the respondent. The applicant could not, therefore,
be lawfully married to the deceased during the subsistance of her
to the respondent who was and still is, in law, the sole
heir to her estate. As Munick, C.J. once put it in Tseola and Another
Maqutu & Another 1976 (2) S.A. 418 at page 424 H.
" Public policy and the sense of what
right dictates that, in a dispute of this nature, the
widow's wishes where she is an heir should prevail, and that it is
and her right to bury the deceased where she pleases."
I entirely agree with this view. Although in the
present case it is the widower, and not the widow who claims the body
of the deceased,
the salient point is that he is the heir to the
estate of the deceased and the principle equally applies.
In the circumstances the view that I take in this matter
is that the rule ought to be discharged and I accordingly order
The rule nisi is discharged.
The application is dismissed.
The applicant is to pay the costs of thisapplication.
Respondent is directed to bury the deceased.
25th March, 1985.
For Applicant : Mr. Ramodibeli For Respondent
: Mr. Maqutu.
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