CIV/APN/298/86

IN THE HIGH COURT OF LESOTHO
In the
Application of :

MARTHA MAMAKARA LEPELESANA Applicant

V

TAOA LEPELESANA 1st Respondent

EMMANUEL MALEFO LEPELESANA 2nd Respondent

LEPELESANA LEPELESANA 3rd Respondent

JOSEPH PEISO LEPELESANA 4th Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
3rd day of October. 1986.

The applicant herein moved the court for a Rule Nisi
calling upon the Respondents to show cause on a date to be determined
why:

"(1)(a) The Respondents should not be restrained
from proceeding with the burial of the applicant's husband on 20th
September,
1986 as previously arranged by them. That the applicant
has a right to determine the place where her late husband can be
buried;

(b) The Respondents should be restrained
from saying
and/or using abusive language
to the applicant in regard to the
burial
of the applicant's husband;

(c) The Respondents should not be restrained
from
causing any trouble during the funeral
of the applicant's late
husband.

(d) The authorities of Queen Elizabeth 11
Hospital
should not bo ordered to release
to the applicant her late
husband's death
certificate;

/(e)

-2-

(e) Granting such further and/or alternative
relief
as the Honourable Court may

deem fit.

(f) The Respondents should not be ordered
to pay the
costs of this application
jointly;

(2) That prayers (b) (c) and (d) and prayer (a) to
the extent that it restrains the

Respondents from proceeding with the burial of the
deceased should operate as an immediate interdict until the
finalisation of this
application."

On 16th September 1986 I granted the application as
prayed and on 17th September, 1986 the rule was duly served on the
Respondents,
2nd and 4th Respondents intimated their intention to
oppose confirmation of the rule. The founding, answering and replying
affidavits
were filed by the applicant, the two Respondents and the
applicant respectively.

It may be mentioned that in addition supplimentary
affidavits were filed by the parties but these were subsequently
withdrawn and
rightly so, in my opinion, because the Rules of this
court permit only three sets of affidavits to be filed unless, of
course, the
court has ordered otherwise. It is also significant to
mention that after reading the affidavits it became clear to me that
there
were a number of disputed issues, in this matter, that could
not be decided on affidavit papers. Wherefor, I pointed out to the
legal
representatives of the parties that it might be necessary to
order viva voce evidence to be led. In order to save time it
was agreed by both counsels that the parties should proceed straight
away to call witnesses.
I accordingly ordered viva voce
evidence to be adduced even before hearing arguments.

/At the

-3-

At the commencement of the hearing, the Court was
informed that the applicant was withdrawing the application against
the 1st and
the 3rd Respondents who had not opposed confirmation of
the rule. The hearing therefore proceeded against only the 2nd and
the 4th
Respondents.

It is common cause from the affidavits and the evidence
adduced before me that on 12th September, 1986 a certain Ramokotjo
Vincent
Lepelesana passed away at Queen Elizabeth 11 Hospital in
Maseru. During his life time Ramokotjo got married to a certain woman
by
the name of Lorah. The marriage was later dissolved by this Court.
He then got married to the present applicant by civil rites. A
marriage certificate was handed in as Exh.A. The marriage was never
dissolved and there were four minor children born of that marriage
-
three boys and one girl.

According to the applicant she was therefore, the sole
widow of the late Ramokotjo Vincent Lepelesana. However, following
the death
of her husband the Respondents held a family meeting at
which a decision was taken without her consultation, that the
deceased should
be buried on 20th September, 1986 in the yard of his
matrimonial home. When she tried to point out that it was the
deceased's wish
that he should be buried at a mission grave yard the
Respondents became abusive and told her that she did not have a say
in the matter.
They in fact told her that she was never lawfully
married to the deceased for at the time she purportedly got married
to him by civil
rites the deceased was already married according to
Sesotho law and custom to the mother of the 4th Respondent who

/was

-4-

was, therefore, the deceased's customary heir. She was
told to hand over the deceased's bank books and threatened with
expulsion
from the family of Lepelesana. The 4th Respondent had in
fact instructed the authorities at Queen Elizabeth 11 hospital not to
release
the deceased's death certificate to her.

The Respondents denied to have used any abusive language
towards the applicant or demanded the deceased's bank books from the
applicant
and threatened her with expulsion from the family of
Lepelesane, They however conceded that at the time the applicant got
married
by civil rites to the deceased, the latter was already
customarily married to the 4th Respondent's mother who was,
therefore, the
senior widow of the deceased. Consequently the 4th
Respondent was the deceased's customary heir who had a final say
about when and
where the remains of his father were to be put to
rest.

There can be no doubt therefore, that there is here a
dispute about whose wishes should prevail regarding the burial of the
deceased
- the wishes of the applicant or

that of the 4th Respondent. It seems to me the decision
in the matter pivots on whether or not the mother of the

4th Respondent was legally married by the deceased and
the 4th Respondent, therefore his legitimate son. In

this regard D.W.3, Martha 'Makhosi Lepelesana (nee
Tsotsotso) told the court that in 1948 she was working

at a shop in Cape Town when she fell in love with the
deceased Remokotjo Vincent Lepelesana. They then lived as husband
and wife
and on 13th March, 1950 the 4th Respondent was born out of
that union. The deceased then wrote home and reported the birth of
the
4th Respondent

/to his

-5-

to his mother (P.W.1). P.W.1 quickly replied advising
that the names of the 4th Respondent were Joseph Lebohang Pelso
Lepelesena.

Shortly, thereafter, D.W.3 received a letter from her
maiden home in Ficksburg informing her that her own mother was
seriously ill.
With the agreement of the deceased she and the 4th
Respondent who was still suckling to Ficksburg. The deceased later
came to see
them in Ficksburg. After he had returned to Cape Town.
D.W.3 was told by her parents that the deceased

had paid as bohali some money which amounted to eight
(8) head of cattle. Later on, the deceased wrote her a letter in
which he advised
her that his parents would come to Ficksburg. P.W.1
subsequently came to Ficksburg end. D.W.3 was again informed by her
parents that
she (P.W.1) had paid money which amounted to three (3)
head of cattle as bohali. On her request the 4th Respondent was
released to
P.W.1 who returned to Lesotho with him. After this the
deceased sent her (D.W.3) some money with which to return to him in
Cape Town.
She did return to Cape Town and join the deceased who
fathered her second child Moeketsi. Moeketsi is now living with her
in Ficksburg
although he had previously been staying with the
dececaed in Lesotho.

After Moeketsi was born, D.W.3 came to Lesotho with the
deceased who was on leave. It was during that time that she received
another
letter from Ficksburg advising that her mother had again
taken seriously ill. She and the deceased rushed to Ficksburg. When
his
leave expired the deceased returned to his place of work in Cape
Town

/but she

-6-

but she remained in Ficksburg nursing her own mother.
She never returned to the deceased who, however, once told her that
he was intending
to get married to another woman by the name of
Lorah. As the deceased and the 4th Respondent had no one to wash and
cook for them
she approved of the marriage. She did not however, know
of the. marriage between the deceased and the applicant who used to
work
as a sales lady in the deceased's shop.

D.W.1 who is the second Respondent and the younger
brother of the deceased testified that he was told by P.W.1 about the
marriage
of the deceased to D.W.3 end he himself had no personal
knowledge of the matter. According to him at the time D.W.3 and the
deceased
came to Lesotho on leave they were with the 4th Respondent.
He mentioned nothing about another child called Moeketsi. He did,
however,
concede that it was his mother, P.W.1 who brought the 4th
Respondent to her home. Both D.W.1 and D.W.2, Joseph Lebohang Peiso
Lepelesana,
who is the 4th Respondent, testified that the deceased
was fond of the 4th Respondent, treated him as his son and even paid
bohali
for his marriage.

In her evidence, P.W.1 Mataoa Lepelesana, testified that
she was the mother of the deceased Ramokotjo Vincent Lepelesana who
succeeded
her first born child,. Taoa Lepelesana. She denied that
D.W.3 was married to the. deceased and therefore her daughter-in-law.

According to P.W.1 before he got married to Lorah the
deceased had Informed her that he had fathered a child of D.W.3 who
originally
came from Picksburg but was, at the time, .working in Cape
Town... The deceased informed her that according to the law of South
Africa
he had to

/maintain

-7-

maintain that child until it attained the age of 20
years, He was, however, unable to do so while the child was living in
South Africa.

According to P.W.1 the child was brought to her home at
Ha Ramatlalla by the deceased himself. That child was the 4th
Respondent whose
names were written on a piece o± paper as Jeremiah
Lebohang Tsoteotso. She brought up the 4th Respondent until he
reached the school
going age. The deceased then took him to Alwynskop
where he was living with his wife Lorah.

P.W.1 later learned that the 4th Respondent was re-named
Joseph Peiso Lepelesana. She denied ever sending those names to the
deceased
when the 4th Respondent was born in Cape Town. Nor had she
ever gone to Ficksburg and met D.W.3's parents whom she did not even
know.
She conceded however that when the 4th Respondent got married
to his first wife the deceased did pay bohali although she personally
did not know how many cattle.

After the dissolution of the marriage between Lorah and
the deceased, the latter got married to the applicant according to
Sesotho
law and custom. The marriage was subsequently solemnized
according to civil rites. At the time of his death, the deceased had
therefore,
only the applicant as his wife.

P.W.2, Taoe Lepeleaane, told the court that in 1950 he
and the deceased were respectively working at Sea Point and Salt
River in Cape
Town when his father instructed him to go to the
deceased and inform him that the parents of a girl he (deceased)
wanted to marry
had agreed. He

/accordingly

-8-

accordingly went to the house where the deceased was
living at Salt River. He found the deceased with D,W.3 who was
pregnant.

After the deceased had left for work D.W.3 told him that
his brother (deceased) had made her pregnant and as a result she had
lost
her job. When the deceased returned home from work P.W.2
confronted him about what D.W.3 had reported to him (P.W.2). The
deceased
conceded to have impregnated D.W.3 and told P.W.2 that he
was in danger of being sued for seduction and maintenance in
accordance
with the laws of South Africa. He asked him not to
disclose the matter to their parents and he (p.w.2) agreed.

Shortly after he had returned to his place of work P.W.2
received a message that D.W.3 had given birth to a baby. He went to
the hospital
and found that D.W.3 had a baby boy. That baby was the
4th Respondent who clearly resembled the deceased. He was satisfied
that the
4th Respondent had been fathered by the deceased.

Before D.W.3 could be discharged from the hospital her
brother arrived saying he had brought the names of the child. The 4th
Respondent
was given the names of Jeremiah Lebohang Tsotsotso. When
he asked him what he was proposing to do about D.W.3 and the child
the deceased
told him (P,W.2) that he would return them to Ficksburg.

Shortly thereafter, P.W.2 left Cape Town and went to
work in Johannesburg. When he later came to Lesotho he was surprised
to find
the 4th Respondent staying at Ha Ramatlalla with P.W.1 who
explained that the child had

/been

-9-

been brought to her home by the deceased.

It was only when the 4th Respondent was already 16 years
old and attending school at Villa Maria that P.W.2 found that he had
been
renamed Joseph Peiso Lepelesana. The deceased's explanation was
that he had. difficulties in registering the 4th Respondent at school
under the names he had from South Africa. P.W.2 denied therefore that
D.W.3 was ever lawfully married to the deceased and the 4th
Respondent was his legitimate child.

According to P.W.2 he was once invited by D.W.3 to go to
Ficksburg where her parents wanted to have a chat with him. When he
came
to them D.W.3's parents asked him when the 4th Respondent would
be returned to them. He suggested that D.W.3 should come to Lesotho
with him and discuss the matter with the deceased. D.W.3 had however
difficulty with her travelling documents and could not cross
into
Lesotho.

According to him when the 4th Respondent got married,
P.W.2 was sent to Ficksburg by the deceased to inform the family of
Tsotsotso.
He was given an amount of £30 which he paid as bohali to
the parents of the wife of the 4th Respondent. He confirmed the
evidence
of P.W.1 that after the dissolution of his marriage with
Lorah the deceased got married to the applicant who was his only wife
at
the time of his death.

P.W.3, Martha Mamakara Lepelesana who is the present
applicant testified that she knew nothing about the marriage between
D.W.3 and
the deceased. She got married to the deceased after he and
Lorah had divorced. They first got

/married

-10-

married according to Sesotho Law and custom in 1973. On
5th September, 1979 their marriage was solemnized

according to civil rites. At the time the deceased
passed away she was her only wife.

P.W.3 conceded that at the time she got married to the
deceased the 4th Respondent was already staying with him. The
deceased explained
to her that the 4th Respondent's home was in
Picksburg and he (deceased) was just bringing him up. Deceased never
disclosed to her
that he bad fathered the 4th Respondent who was,
therefore, his child.

It is trite law that for a valid Sesotho customary
marriage, three requirements must be satisfied, viz, the agreement of
the parties
to the marriage, the agreement of the parents or those
who stand in loco parentis to the parties as to the marriage
and the bohali and the actual payment of the bohali or part thereof.
See S. 34(1) of Part 11 of the Laws of Lerotholi. In the
instant case there is the evidence of D.W.3 that she lived with the
deceased as husband and wife in Cape Town. Out of that
union the 4th
Respondent was born. This was confirmed by P.W.2. There warn also the
unchallenged evidence of

D.W.3 that the deceased had been going with her to her
maiden home in Ficksburg.

In my view the deceased would not have gone with D.W.3
to her maiden home unless the latter was his girl friend with whom he
had agreed
to enter into a marriage contract. It seems reasonable
therefore to infer from this that the deceased and D.W.3 had agreed
to marry
each other. That granted, it must be accepted that on the
evidence, the first requirement of a valid Sesotho

/customary

-11-
customary marriage has been satisfied.

The evidence of D.W.3 that P.W.1 went to Ficksburg to
negotiate with her (D.W.3's) parents the question of the marriage
between herself
and the deceased and that 3 head of cattle were paid
as bohali is, however, denied by P.W.1. At any rate D.W.3 herself
conceded that
she had no personal knowledge that P.W.1 entered into
marriage negotiations with her (D.W.3's) parents and in fact paid the
3 head
of cattle as bohali.

What D.W.3 was told by her parents has clearly no
evidential value for the simple reason that it is inadmissible
hearsay evidence.
Indeed, in reply to a question from the bench as
to how it came that when she went to seek an agreement for the
marriage between
the parties P.W.1 already carried with her the money
for the bohali upon which there was apparently no agreement as yet
D.W.3 conceded
that she was wrong and the truth of the matter was
that she had been told that the money for the bohali had been brought
by P.W.2
at a later occasion. That was however denied by P.W.2.

Apart from being inadmissible evidence, the story of
D.W.3 that she was told by her parents that the deceased himself had
paid some
money amounting to 8 head of cattle as bohali is highly
improbable for at that time the parents of the deceased had not yet
met with
the parents of D.W.3 to reach any agreement regarding the
marriage of their children and the quantum of bohali. In the absence
of
any such agreement by the parents of either side the deceased
could not have started paying on his own the cattle for bohali.

/In my

-12-

In my view, for a valid Sesotho customary marriage,

all the requirements referred to under the provisions of
S. 34(1) of Part 11 of the Laws of Lerotholi must be
satisfied. The second requirement has, on a balance of probabilities,
not been satisfied. I come to the conclusion, therefore,
that on the
evidence no valid Sesotho customary marriage has been proved between
the deceased and D.W.3. That being so, the 4th Respondent
cannot be
regarded as the deceased's legitimate child and therefore his
customary law heir, notwithstanding the fact that he had
fathered
him.

In the result I come to the conclusion that the first
woman to whom the deceased was lawfully married was Lorah. It is not
disputed
that after the dissolution of their marriage the deceased
civilly got married to the present applicant who was his only lawful
wife
at the time of his death. As has been indicated earlier, the
deceased had no children with Lorah. The children born out of the
marriage
between the deceased and the applicant have however not yet
attained the age of majority. There are many decisions indicating
that
where a spouse dies leaving no heir who has reached the age of
majority public policy and the sense of what is right dictates that
the wishes of the remaining spouse should prevail and that it is
his/her duty and right to bury the deceased where he//she pleases
-
Tseola and Another v Maqutu and Another 1976(2) S.A. 418 c.
424H; Mathibeli v Chabalala CIV/APN/76/85 (unreported) Mabona v
Mabona CIV/APN/280/86 (unreported).

From the foregoing it is obvious that the view that

/I take

-13-

I take is that in the instant case the wishes of the
applicant regarding the time and the place where the remains of the
deceased
should be put to rest must prevail. I would therefore,
confirm the order of 16th September, 1986. This being a family
dispute I would
make no order as to costs.

J U D G E.
3rd October, 1986.

For Applicant : Mr. Mphalane
For Respondent : Mr.
Seotaanyena.