IN THE HIGH COURT OF LESOTHO In the
Application of :
SECHABA MOKHOTHU Applicant
'MALEBUSA MOTLOHA 1st Respondent
LEBDSA MOTLOHA 2nd Respondent
GOVERNMENT MORTUARY 3rd Respondent
ATTORNEY GENERAL 4th Respondent
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
21st day of May, 1993
Today is the return date of a rule obtained ex parte on
14-5-93 wherein the applicant sought (1) a rule nisi calling the
to show cause why :
The 1st and 2nd respondents shall not beinterdicted
and restrained from removing fromthe Mortuary for burial and
burying thedeceased 'Mammone Motloha.
The 1st and 2nd respondents shall not beinterdicted
from interfering in any mannerwith the funeral arrangements and
burial ofthe late 'Mammone Motloha by the applicant,
The 3rd respondent shall not be interdictedfrom
releasing the body to 1st and 2ndrespondents or their
2 finalisation of this application,
(d) The 1st and 2nd respondents shall not pay thecosts
of this application.
The rule nisi was granted in terms of prayers 1(a) (b)
This application is opposed and the first two
respondents have filed their opposing affidavits including that of
the headman Chieftainess
'Matebello Mohapi. The applicant has not
filed any replying affidavits.
From his attorneys the Court learned that the applicant
though aware that this case is going on left for his place of work in
Republic of South Africa, and thus failed to submit any replying
affidavits. The attempt by Mr. Kali to have this application
to enable the applicant to file hie replying papers was
ruled against by the Court and in any case opposed by the other side.
reason the Court refused the application for postponement was
that this is an urgent application involving the final and important
need to lay the deceased's remains to rest. It should be brought home
to litigants that this Court will always view with disfavour
attitude that litigation involving disposal of dead bodies should be
conducted at leisure with the unwholesome assurance that
need not be laid to rest within reasonable time because
refrigeration in the funeral parlours prevents them from
decomposing. The callousness incidental to this attitude and sheer
respect for the dead cannot move this Court to condone
postponements sought under colour of going to canvass further
to support one's case, (See CIV\APN\187\87Lethunya and Another vs Thejane and Another (unreported) at 3.
See also CIV\APN\163\91 Mokoatle vs Senatsi and Another
(unreported). Both applications are referred to at p.199 of Mr.
W.C.M. Maqutu's Contemporary Family Law of Lesotho.
Returning then to the charge: in his affidavit the
applicant has averred that his daughter 'Masechaba Mokhothu merely
by the 2nd respondent whereupon 'Mammone Motloha was
born. He goes further to say that before the deceased was born
eloped with the 2nd respondent.
He asserts that there was no lawful marriage contracted
between 'Masechaba and 2nd respondent.
He states that he demanded six head of cattle from the
1st respondent i.e. the mother of the 2nd respondent. These cattle
by the applicant as compensation for abduction or
The applicant avers that the 1st respondent agreed but
failed to return 'Masechaba as well as pay the six head of
cattle. Only two head of cattle were, according to the
applicant, brought by the 2nd respondent's grandfather one Lekhooa
acting on behalf of the 1st respondent to the applicant.
Mr. Kali for the applicant outlined in argument
the three requirements which have to be satisfied for there to be
marriage in accordance with
Sesotho Custom governing the subject.
These are set out in the Laws of Lerotholi under
section 34(1) as follows :
(a) there is agreement between the parties to the
there is agreement between the parents of theparties
or between those who stand in locoparentis to
the parties as to the marriageand as to the amount of bohali.
There is payment of part or all of thebohali.
Provided that if the man dies beforethe woman goes to his
parents' house thebohali shall be returned and the
marriageshall be null and void".
While taking the view that the requirement under (a) has
been satisfied i.e. agreement to the marriage between the parties Mr.
Kali contended that the other requirements under (b) and (c)
above have not been satisfied and that because when anyone of the
above is not satisfied there can be no marriage, he sought
to persuade the Court to this view.
Mr. Fosa for the first two respondents naturally
sought to make a capital out of the fact that the evidence deposed
to by the respondents
has not been gainsaid as no replying
affidavits were submitted by the applicant.
He accordingly pointed out that the averments to the
effect that there was agreement to the marriage by both the 1st
family and that of the applicant in 1984 was not denied.
See Paragraph 8 of the 1st respondent's opposing affidavit. It was
contended that in several instances where respondents sought
to put the applicant to the proof thereof the latter failed to live
up to the occasion by reason of absence of any replying affidavit.
In my view in the light of the fact that the applicant
averred that there was no valid marriage between 'Masechaba and the
while the 1st and 2nd respondents say there was, it
cannot be common cause that there was or there wasn't any such
I would have to determine this issue by finding if
either of the parties has discharged the onus cast on them.
Mr. Fosa for the first two respondents submitted
that 'Masechaba and the 2nd respondent lived together since their
marriage in 1984 till
1993 January when 'Masechaba fled. He
invited the Court to view the length of the stay
together by these parties as strengthening the existence of marriage
But such a view would, if entertained, undermine the
fundamental principle with regard to such matters that "not
but consent constitutes marriage".
It is further contended by the 1st respondent that the
child who could possibly have been conceived in 1984 as a result of
of 'Masechaba by the 2nd respondent could not be
'Mammone Motloha born only in May 1991 but 'Majobo Motloha born as
early and as
close to 1984 as 24th August, 1985. Whatever merits are
entailed in this argument it is bedevilled by the fact that it pays
to the fact that if in fact no marriage took place between
the 2nd respondent and 'Masechaba whichever of the children were born
during the purported wedlock would according to custom belong to
their mother's maiden home and ranking with their mother as her
In paragraph 11 the 1st respondent says :
"Applicant's categorical statement that his
daughter'smarriage is not valid is without a base and is
deniedbecause he admits receipt of three head of cattle andat
the same time puts his compensation at six head ofcattle. By
simple arithmetic if the three admittedcattle did not reduce the
(compensation) debt to threecattle then they must have been
admitted as"Lobola" "
Mr. Kali submitted that the 3 head of cattle
referred to above were in respect of abduction and not "bohali"
for there had not been
any agreement on the point. There is merit in
the submission that the condition that there has to be agreement as
to the amount of
"bohali" cannot be satisfied by
mathematical hypothesis that because so many cattle were paid then
they must have been
paid in respect of "bohali".
The respondents' contention is flawed in the respect
that they seek to read payment for "bohali" into
part-payment for abduction.
It is strange that there is no document bearing the
chief's stamp to show that there ever was marriage to which the
of the "bride and groom" agreed. On
this alone it cannot be said that the respondents discharged theonus. Thus averments by Ramonate Motloha (which are not common
cause) that the amount of "Bohali" was agreed at ten head
cattle remain mere allegations without proof. The same would go
for the averment of the chief, that it was common knowledge that
'Masechaba was married to the 2nd respondent. This does not take the
matter out of the category that people tend "wrongly"
believe that when two people of marriageable ages and opposite sexes
live together their cohabitation constitutes marriage. Such
cohabitation merely creates a belief that there is marriage between
those people in my view.
Mr. Fosa further submitted that the 2nd
respondent did make an attempt to fetch his wife from her maiden
home where she had
The Court was told that the deceased died at her
mother's maiden home where her mother had fled in January 1993. The
attempt to fetch
'Masechaba from her maiden home was effected only on
2nd May, 1993. One wonders what was the attitude of 'Masechaba's
from January, February, March to April if indeed
he wishes the Court to believe that he sincerely regarded 'Masechaba
as his wife.
Furthermore there is no attempt by the 2nd respondent to
put the Court in light as to the source of his "wife's"
from her "marital" home to her maiden home.
In fact what the 2nd respondent avers in connection with
what one gratuitously regards as his attempt to fetch his "wife"
is confined to and goes no further than the following at paragraph 3
of his opposing affidavit :
"I wish to draw the attention of this Court to the
fact that on Sunday the 2nd May, 1993 I met Applicant on his way back
Africa and he informed me that my child was seriously ill
whereupon I told him that I had always wanted to meet him over the
of my wife's presence at his home. As he was in a hurry we
agreed that we should both meet on 30th May, 1993. The next day i.e.
May, 1993 my child died".
One sees from the above that the question of
'Masechaba's return to the "matrimonial" home was but a
side issue suddenly
remembered when the question of the child's ill
health was reported to the 2nd respondent.
From his signature I can see that the 2nd respondent has
a good handwriting. There can be no reason why he made no attempt to
'Masechaba's people or the applicant if the question of the
latter's long absences from home was a major hindrance to the 2nd
attempts to fetch the applicant's daughter from her
In my view the 2nd respondent is only making a
convenience of the child's death to raise the issue of 'Masechaba's
the applicant's home.
It was contended that the applicant made no effort
throughout the period 1984 till 1993 to sue for the alleged abduction
or the release
of his daughter from the 1st and 2nd respondents'
home. But it is common these days to see unmarried couples living
together as if
married. In any case failure by the applicant to do
any of the things mentioned does not convert what is not marriage
The rule in (a) and (b) is confirmed with 75% costs.
JUDGE 21st May, 1993
Applicant : Mr. Kali
1st and 2nd Respondents : Mr. Fosa
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