CIV/APN/280/86
IN THE HIGH COURT OF
LESOTHO

In the Application of :

APHAFIA KELIBONE MABONA Applicant

and

KHIBA MABONA Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 25th
day of September, 1986.

The applicant herein has moved the court for an urgent
order calling upon the Respondent to show cause (if any) why:

"1. (a) The Respondent shall not be ordered to
desist from burying the corpse of Joseph Tsepo Mabona, alternatively
if the corpse
has already been buried it shall not be exhumed and
buried at the applicant's matrimonial home;

(b) The Respondent shall not be arrested and
detained
suspectus de fuga by Mafeteng
Police pending the
finalisation of this

application.

(c) The applicant shall not be allowed to take
the
corpse of Joseph Tsepo Mabona and put

same in the mortuary, pending the outcome hereof;

4. 
   The Mafeteng Police shall not be given
   authority to
   execute this process on the
   Respondent;

   
   

5. 
   The Respondent shall not be ordered to
   pay costs
   hereof.

   
   

6. 
   The applicant shall not be given such
   further and
   alternative relief.

   
   

2. That prayers 1(a), (b) and (d) operate as an interim
order with immediate effect."

2/ The application

-2-

The application was brought to me at 11.00 p.m. on 6th
September, 1986 and I was informed that the corpse had probably been
buried
during the day. For this reason I took the view that there was
no longer any urgency to res­train the applicant from burying
the
corpse. Wherefor, I granted the order in terms of prayer 1 and not
prayer 2 of the notice of motion. According to the return
of service
on 7th September, 1986, the order was served upon the Respondent who
intimated his intention to oppose confirmation of
the order and duly
filed the answering affidavit. Replying affidavit was also filed by
the applicant.

Briefly the facts disclosed by the affidavits are that
Joseph Ts'epo Mabona got married to his first wife. Out of that
marriage the
Respondent was born. The wife, however, passed away.

According to her, in 1985 the applicant got married to
Joseph Tsepo Mabona by civil rites. Copy of the marriage certificate
was annexed.
Respondent disputed the validity of that marriage and
contended that after the death of his late mother his father, Joseph
Tsepo
Mabona, got married to a certain Alice Mabona according to
Sesotho law and custom. At the time the purported marriage between
the
applicant and his father, Joseph Tsepo Mabona, was concluded, the
latter was still married to Alice Mabona and could not, therefore,
have entered into a lawful civil marriage with the applicant. For
that reason Alice Mabona and not the applicant was the wife of
Joseph
Tsepo Mabona. Applicant hotly disputed the allegation and said there
is no such person as Alice Mabona.

Although Respondent mentioned that Alice Mabona was
married according to Sesotho law and custom he did not disclose that
the requirements
of a customary marriage were satisfied in accordance
with the provisions of S.34 of Part II of the Laws of Lerotholi, nor
has Alice
Mabona filed an affidavit to support the Respondent's
allegation that she was lawfully married to Joseph Tsepo Mabona.

3/ In my view

-3-

In my view the onus vested with the Respondent to prove
that Alice Mabona (if such person exists ) was married to Joseph
Tsepo Mabona
and the marriage rtill subsisted at the time the latter
purported to conclude a civil marriage with the Applicant. He has not
satisfactorily
discharged that onus. On the other hand applicant has
annexed a copy of her marriage certificate with Joseph Tsepo Mabona.
That.
being so, I am prepared to accept that, on the evidence, the
applicant was lawfully married to Joseph Tsepo Mabona.

It is common cause that on 12th August, 1986, Joseph
Tsepo Mabona passed away whilst still working at the mines in the
Republic of
South Africa and arrangements were made by the mine
authorities, to bring the corpse to Lesotho. The Respondent, who
lives in the
Republic of South Africa, received the corpse and on 5th
September, 1986 transported It to the deceased's place of birth and
not
his matrimonial home, for burial without the consultation/consent
of the applicant. In the mean time the applicant was making
arrangements
to have the corpse buried at the deceased's matrimonial
home. When she found out that Respondent had conveyed the corpse for
burial
at the deceased's place of birth the applicant approached this
court for an urgent order as aforesaid.,

It is not disputed from the evidence disclosed by the
affidavits that the Respondent is the eldest son of the deceased,
Joseph Tsepo
Mabona and, therefore, his heir. On the face of the
evidence I have accepted, it is clear that the applicant was civilly
married
to Joseph Tsepo Mabona and is, therefore, his widow.

The present dispute is clearly between the deceased's
heir and widow regarding the place where the deceased's body is to be
buried.
The salient question is who has a final say in a dispute of
this nature, the widow or the heir? In Mathibell v.
Chabalala (Civ/APN/76/85) p.4, this court quoted with
approval the decision in Tseola and Another v. Maqutu and
Another 1976(2) S.A. 418 at p. 424H where Munick, C.J. had this
to say on the issue:

4/ "

-4-

".. Public policy and the sense of what

is right dictates that, in a dispute of this nature the
widow's wishes where she is an heir should prevail, and
that it is her duty and her right to bury the deceased where she
pleases."

(My underlining)

I have underscored the words "where she is an heir"
in the above cited passage to indicate my view that the widow's
wishes
prevail where she is an heiress and not where the deceased has
died leaving an heir. It is trite law that in Lesotho the eldest son
of a deceased person is his heir. The question of whether the
deceased's marriage had been concluded according to Sesotho law and
custom or civil rites plays no part in it i.e. it does not affect the
position ofthe eldest son as the deceased's heir.

In the present case the Respondent is the eldest son of
the late Joseph Tsepo Mabona and, therefore, his heir. There is no
way the
applicant, who is deceased's widow, can be regarded as the
heiress during the life time of the Respondent. The question I have
earlier
posted viz. whether the heir or the widow has a final say in
a dispute, of this nature must obviously be answered in favour of the
heir who is the respondent in this case.

That should be enough to dispose of this matter for if
the Respondent has a final word as to where the body of his father,
Joseph
Tsepo Mabona, is to be buried the applicant must of necessity
fail in her prayer that the body should be exhumed and reburied at
a
place of her choice.

In the light of what has been said it is obvious that
the order made on 6th September, 1986 ought to be discharged and it
is accordingly
ordered. This being a family dispute, the order that I
make is that each party will bear his/her own costs.

B.K. MOLAI

JUDGE
25th September, 1986.

For Applicant : Mr. Z. Mda,
For Respondent :
Mr. Nthethe.