IN THE HIGH COURT OF LESOTHO In the
'MAKATISO RAMAISA Applicant
RAMOENO RAMAISA 1st Respondent
TSEBO 'MABOKANG (alias RAMAISA) 2nd Respondent
CHIEF SEBILI HLAJOANE 3rd Respondent
AGRICULTURAL DEVELOPMENT BANK 4th Respondent
LESOTHO FUNERAL SERVICES, HLOTSE 5th Respondent
OFFICER COMMANDING POLICE - MAPOTENG 6th Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the21st day of January, 1993
On 5th January, 1993 the applicant sought and obtained arule nisi returnable on 15 January, 1993.
The main purport of the rule nisi was to restrain
the 1st and 2nd respondents from burying the corpse of one OFNIEL
LEFU RAMAISA pending finalisation on the return
date of the issues
involved. The applicant further sought assistance from this Court to
restrain the said respondents from interfering
with her preparations
for the burial of the deceased Ofniel Lefu Ramaisa.
The general principle governing the right to bury is
production of proof that the party who seeks to bury the
body of the deceased is an heir to the deceased.
In her founding papers the applicant avers that she
married the deceased by civil rites on 12th August, 1987. As proof of
she has submitted a photocopy of her marriage
certificate marked "A" the original of which this Court has
seen. She averred
further that the deceased's death on 25th December
1992 terminated the marriage which had subsisted till then between
The applicant indicated in her papers that she took
refuge at her maiden home in February 1992 after the deceased had
in response to her demurring at his infidelity.
In terms of a photo-copy of a marriage certificate (the
original of which I did not see) attached to the 2nd respondent's
appears that the deceased and her contracted a civil
marriage on 29th August, 1992. Before this marriage the 2nd
under the name Getrude T. Seeiso. The status of
the respective contractors of this marriage before it was entered
into is shown as
bachelor and spinster aged 31 and 24 years
respectively. It is also indicated that this marriage was per the
parental consent. See Annexure "MR 1"
at page 32 of the compiled record.
With regard to Annexure "A" at page 11 of the
record the respective parties' ages are reflected as 25 and 22 years
respective parties' status is reflected as bachelor and
spinster. The contractors' marriage was even then per their
Clearly if the same person i.e. the deceased in Annexure
"A" is the same person reflected in the latter photocopy of
marriage certificate "MR 1" he could not have been a
bachelor when he contracted the marriage with 2nd respondent in
It puzzles me that without any annulment by a competent
Court of the marriage in Annexure "A" contracted in 1987
could have purported to enter into another marriage in
1992. The law is simple with regard to a problem of this nature: no
marriage can validly be contracted during the subsistence of
another civil marriage validly contracted beforehand.
While in fact it is perfectly legitimate to dispose of a
civil application brought ex parte by giving a ruling one way
or the other after hearing arguments where as in this case a point of
law was raised on behalf of the
1st and 2nd respondents; the Court
nevertheless decided, in the interests of justice to
reserve such ruling until it had heard the entire
application as this matter involves the status of the main disputants
i.e. the applicant
and the 2nd respondent vis-a-vis "their"
Much emphasis was laid on behalf of 1st and 2nd
respondents in the preliminary argument and repeated in the
application proper, on
the fact that "The application being one
for final relief a Court is entitled to assume the correctness of
averments by an applicant
which are admitted or not challenged by
respondent and the correctness of the version of the respondent".
See C. of A (CIV)
No.33 of 1992 (unreported) by Ackermann JA at page
3. In response the applicant's counsel submitted that the disputed
are not of such a nature that they cannot be settled
and that if the court thinks they are genuine it is at large to refer
to viva voce evidence.
I have had regard to important authorities referred to
on behalf of the respondents. These are (1) B H T Water Treatment(Pty) Ltd vs Leslie and Another; (2) C. of A. (CIV) No.8
of 1986 Mahata & 2 Others vs Mahata(unreported). (3)Ex-parte L (Also known as A) where it was laid down that
"Evidence of cohabitation and repute, even when
allied to evidence of a ceremony of marriage, merely creates a
the parties are validly married, it will be
displaced only by clear contrary evidence".
While on the one hand heeding the words of Schutz P, as
he then was, repeatedly uttered during arguments by counsel to warn
danger of trying to adapt the facts of one case to those of
another, I am in the instant case unable to entertain the view that
contrary evidence exists to displace evidence of a marriage
contracted between the deceased and the applicant. Being keenly
of the fact that what is involved in this application hinges
on an important matter of status I have given consideration to and
fortification in my approach to the problem from B H T
Water Treatment (Pty) Ltd vs. Leslie and Another 1993(1) SA 47
" the court should look at the
substance rather than at the form of therelief
The dispute as to the deceased's mark i.e. "X"
serving as his signature as it appears to be different in either copy
marriage certificates according to 2nd respondent at p 26 par 5.2
cannot be incapable of resolution inasmuch as the deceased is said
have been illiterate it would be idle to expect let alone require his
"X" mark to be regular or consistent.
Indeed it is reprehensible that the applicant's papers
show a distressing amount of remissness in their drafting. An
that she and deceased were childless has been
omitted and the Court is urged to infer from the facts that the
marriage was childless. In law inferences are to be
drawn where direct evidence is inexistent not where it is available
is not adduced. However consistently with what marks
counsel as a dutiful officer of the Court Mr. Pheko for the
1st and 2nd respondents has placed this evidence before Court. The
Court is thus obliged to have regard to it. I do however
that in urgent applications where evidence is to be put together
under pressing circumstances omissions can occur,
Mr. Pheko advanced a very compelling argument basing
himself on Khatala vs Khatala 1963-66 HCTLR 97 by Schreiner P
that even though the parties were married by civil rites and in
community of property the fact that
they led a customary way of life
was sufficient to let the estate be administered in accordance with
Basotho Customary Law the effect
of which was to vest it in the
customary heir notwithstanding that the widow was still alive.
Mr. Mohau sought strenuously to show that the
applicant and the deceased had abandoned customary lifestyle and
adopted a European way of life.
It is agreed however and has been
stated in various books of authority including Mr. Maqutu'sContemporary Family Law of Lesotho that the test applied in
order to determine so called way of life is not satisfactory.
Indeed in commenting on Khatala Mr. Maqutu at
page 171 of
his works highlights the unsavoury consequences
emanating from the principle of duality on which Khatala was
decided as follows
"If this woman had divorced her husband she would
have received half the joint estate, Africans marry by civil or
for many reasons, without having any intention of
abandoning the African way of life. It seems a departure from
of justice that the 'way of life' test gives the
heir everything and there is no division of estates in respect of
if the marriage ends in a divorce the divorcee gets
her. half of the joint estate".
It is somewhat puzzling and smacks of lack of
even-handedness for the 1st respondent to say at page 23 paragraph 9
"At the very least if my late son was not married
to 2nd Respondent I would be the deceased's heir as he did not have a
issue in accordance with Sesotho law and custom. This would be
the position even if he was married to Applicant as his estate is
devolve in accordance with custom as he had not abandoned the
customary way of life prior to his death".
The point I distil from this averment is that the 1st
respondent would be the deceased's heir if the deceased married the
but would not be so if the deceased married the 2nd
It is common cause that at the time of his death the
deceased was living together as man and wife with the 2nd respondent.
the two were validly married and suppose a
male issue was born seven or eight months after the
deceased's death showing the deceased is the father and suppose 1st
as the deceased's father has in fact inherited the
deceased's estate, would it not have prejudiced the deceased's blood
he eventually gets to be born after the 1st respondent has
inherited the property that otherwise should equitably devolve on the
deceased's yet to be born son? This is merely to illustrate and
confirm Mr. Maqutu's criticism of Khatala's case.
Mr. Pheko's attack on the applicant's further
lack of explicitness as to the order prayed is valid that the
applicant does not say what the Court
should do with regard to the
2nd applicant's marriage in the event that it is found to be invalid.
There is no prayer that it be
declared null and void and that it be
expunged from the Marriage Registry records. However it so happens
that in paragraph 1(n) of
the Notice of Motion the applicant has
asked for further and or alternative relief. I may just add that it
is of vital importance
that prayers in civil process should be spelt
out with explicitness.
I have read the affidavits in these proceedings and have
formed a firm opinion that the 1st respondent and his wife cannot be
to have been candid in averring that they knew nothing of their
son's marriage to the applicant or saying it never took
place. In fact theirs verges on the comical in
suggesting that the applicant was introduced to 1st respondent by the
as the deceased's mistress in October 1992. So soon
even after their son's marriage to the 2nd respondent in August!
I noticed though that the original of Annexure "A"
is mutilated and necessitated application of masking tape to put it
with the result that some portion is missing while the other
is folded by the masking tape. However I was able to see in the
fold of the original that banns of the marriage between the
applicant and the deceased were announced. Thus it is most improbable
that the 1st respondent and his wife could not have known of the
marriage between their son and the applicant when an effort was
to make the fact of their impending marriage known to the general
public who are not related to the bride-to-be and groom. This
shows an attempt to deliberately mislead the Court.
It appears though that the tragic death of their son
which on papers is said to somehow be ascribable to the applicant
is more in the nature of rumour and speculation, coupled
with the fact that according to the applicant the deceased had
her, hence her flight from the common house, might
naturally have affected their emotions and consequently made them
feel a deep
sense of grievance towards the
The fact however that they decided to tell obvious lies
on a matter so notorious as the deceased's marriage to applicant
difficult to know where they would stop at. Thus the Court
is entitled to draw an adverse inference against their conduct,
that they set their minds on misleading the Court. For this
reason I am persuaded to accept the applicant's version that she and
her deceased husband led a European mode of life.
In Zuma vs Zuma CIV\APN\60\88 (unreported) it is
laid down and has become trite that where a husband dies leaving no
male heir, the wishes of his
widow as to how, when and where to bury
the deceased must be given preference.
The same is the order that this Court grants the
applicant in the instant application. The purported marriage between
and the 2nd respondent is declared null and void and
records of its Registration should be removed from the Marriage
in the office of Deeds Registrar. The point raisedin limine is dismissed.
The interim Court Order is confirmed subject to the
following amendments and variations.
The 1st and 2nd respondents and
or their agents are restrained and interdicted from
burying the corpse of Ofniel Lefu Ramaisa without the applicant's
consultation with her.
the 1st and 2nd respondents and
or their agents are restrained and interdicted from
disposing of the corpse of Ofniel Lefu Ramaisa without the
and consultation with her.
The 1st and 2nd respondents areinterdicted and
restrained frominterfering in any mannerwhatsoever
with the applicant'sreturn to her house situate at Ha'Matau,
Mapoteng in the districtof Berea.
The 1st and 2nd respondents andor their agents are
restrainedand interdicted from interferingin any manner
whatsoever withapplicant's preparations for theburial of the
corpse of OfnielLefu Ramaisa.
the applicant is allowed to burythe corpse of
Ofniel Lefu Ramaisaat a place and date of herchoice,
The 5th respondent is restrainedfrom releasing
the corpse ofOfniel Lefu Ramaisa to 1st and2nd
respondents and\or theiragents but to the applicantand\or
her agents subject tonecessary fees due to the
5threspondent being paid orarrangements to that
(h) (i) (j) are confirmed.
(k) The 3rd and 6th respondents are enjoined to ensure
that there is
compliance with orders in (c) (d) and (e).
(1) Each party to bear its own costs.
The Court decided to make the above order in (1)
costs because it is keenly aware that this case involves
the applicant and the 1st respondent who have lost a very close
in sad circumstances, therefore who should avoid
souring their relations even further while their memory of the
differently and better,
JUDGE 21st January, 1993
For Applicant : Mr. Mohau For Respondents: Mr. Pheko
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law