IN THE HIGH COURT OF LESOTHO In the Application
BENEDICT LEHLOKA PHAFOLI Applicant
'MAMATSELISO MAASA (born Phafoli) 1st Respondent
'MATRABISI THABISI 2nd Respondent
BISHOP MOHLALISI 3rd Respondent
SUPERINTENDENT, QUEEN ELIZABETH HOSPITAL.. 4th
Delivered by the Hon. Mr. Justice B.K. Molai on the
28th day of May. 1993.
On 14th May, 1993 the applicant herein filed with the
Registrar of the High Court an urgent ex-parte application in which
the court for a rule nisi calling upon the respondents to
show cause, if any, why:
"(a) The applicant shall not be declared the sole
person, with the advice of members of his family vested with the
right to dispose
of and/or to determine the burial of the deceased
Veronica 'Mapaseka Phafoli presently in the possession or custody of
(b) First Respondent shall not be interdicted from
the said corpse at Loretto Mission or any where else and
why the third respondent shall not be similarly interdicted from
the burial to take place at Loretto Mission,
First Respondent shall notbe ordered forthwith
todeliver the said corpse tothe fourth Respondent atQueen
Elizabeth II hospitalmortuary at Maseru pendingthe outcome
Fourth Respondent shall notbe ordered to keep and
notto part with the custody ofthe said corpse pending
thefinal end and determinationof this application.
The said corpse shall not bereleased to the
applicantfor burial at Matelile HaPhafoli in due course.
First Respondent shall notdeliver up to the
applicantall the articles end goods,belonging to the
lateVeronica Mapaseka Phafoliwhich are in her possession.
The applicant further moved the court that prayers (b)
(c) and (d) above operate as interim orders, with immediate effect,
he be granted further and/or alternative relief as this
court deems fit.
The application was on the same day, 14th May, 1993
placed before my brother Kheola J. who granted the rule nisi and
fixed the return
day as the 24th May, 1993. The
rule together with the application papers were, on the
same day, 14th May, 1993, apparently served upon the Respondents. On
1993, Mr. Phoofolo, on behalf of the 1st, 2nd and 3rd
Respondents, appeared before my brother Cullinan C.J. and intimated
intention to oppose confirmation of the rule and
anticipate the return day, presumably in terms of the provisions of
of rule 8 of the High Court Rules 1980.
There is no indication that the 4th Respondent intimated
intention to oppose confirmation of the rule. It may, therefore, be
assumed that the 4th Respondent is prepared to abide by
whatever decision will be arrived at by the court.
Be that as it may, this matter was, on 15th May, 1993,
assigned to me for hearing on the 17th May, 1993. Affidavits were
by the parties.
In as far as it is relevant, the facts disclosed by
affidavits are that Ntele Phafoli, now deceased, had two male issues
Phafoli and Bulara Phafoli, both now deceased. Montlha
Phafoli had a son by the name of Motsoafa Phafoli who is still alive.
The late Bulara Phafoli had two sons and two daughters.
The two sons of Bulara were Ntsie Phafoli and
Setha Phafoli by order of their seniority. Ntsie Phafoli
had no children and is now deceased. Setha Phafoli is also now
The two daughters were the 1st respondent, who is now
married to the family of Mabusa, and Veronica Mapaseka Phafoli who
Religious Order and became a nun. However, in 1989/90 she
decided to leave the religious order and returned home in the family
Phafoli. She never got married and on 3rd May, 1993, she passed
away, still single.
It would appear that, regard being had to the fact that
at the time of her death the deceased, Veronica 'Mapaseka Phafoli,
the Religious Order, returned to her family of Phafoli and
was still single, there is no real dispute that had he not
her Setha Phafoli would have been the rightful person to
decide where and when her remains are be put to rest.
The salient question that now arises for the
determination of the court is whether or not, following the death of
Setha Phafoli, the
applicant is the rightful person to have the last
say as to where and when the remains of Veronica 'Mapaseka Phafoli
are to be put
to rest. This, in my view, pivots on whether or not the
applicant is the heir of Setha Phafoli.
According to the applicant, Setha Phafoli was lawfully
married to Stephania Pharoe and their marriage was
blessed with two children viz. a girl by the name of Potso who had
since got married
and the applicant himself. By virtue of his being
the only surviving male issue in the house of Setha Phafoli, the
that he is not only the legitimate son but also
the heir of Setha Phafoli and as such the rightful person to decide
when and where
the deceased, Veronica Mapaseka Phafoli, is to be
buried. This is, however, denied by the 1st and the 2nd Respondents
whom Setha Phafoli and Stephania Pharoe, who were
admittedly the biological parents of the applicant, were never
to each other. Assuming the correctness of their
denial that his biological parents were legally married to each other
contend that the applicant is not a legitimate son
and heir of Setha Phafoli. On the contrary, he is an illegitimate
child of Stephania
Pharoe and cannot, therefore, be the rightful
person to have the last say as to where and when the remains of the
Mapaseka Phafoli, are to be put to rest.
There was, in my view, clearly a dispute of fact as to
whether or not the applicant was the legitimate son end, therefore,
of Setha Phafoli i.e. whilst the applicant contended that he
was the only legitimate son and, therefore, the heir of Setha
the 1st and the 2nd Respondents said he was not. Such a
dispute could not,
in my opinion, be satisfactorily resolved on the
contradictory evidence contained in the affidavit papers. There was,
need to adduce viva voce evidence. It was
accordingly ordered that the parties should adduced viva voce
evidence to establish the legitimacy or otherwise of the applicant.
The applicant called four (4) witnesses to testify that
his biological parents, Setha and Stephania, were lawfully married to
other. As the only surviving son of Setha, he was, therefore,
not only his legitimate son but olso his heir. No witnesses were
by Respondents according to whom the evidence adduced by his
own witnesses had failed to establish that the applicant's biological
parents were lawfully married to each other and he was, therefore,
the legitimate son and the heir of Setha.
The court had, therefore, only the evidence adduced on
behalf of the applicant to rely upon, for the decision on whether or
was the legitimate son and the heir of Setha Phafoli.
Very briefly, the evidence of P.W.1, Nkosana Faro, was
to the effect that he lived at T.Y in the district of Berea here in
He was' married to the sister of one Makalaka Pharoe of
Matatiele in the R.S.A. Makalaka
Pharoe, was, therefore, his brother-in-law. Towards the
beginning of 1961 or the end of 1960, P.W.1received a message from
Makalaka Pharoe, requesting him to contact the
Phafoli people who allegedly wanted to marry his daughter, Stephania
Pharoe. He consequently
proceeded to Mafeteng where he met Ntsie
Phafoli and his younger brother, Setha Phafoli. He and Ntsie
negotiated, as parents, the
marriage of Setha and Stephania. They
agreed to the marriage and the quantum of the "bohali"
cattle totalling 15 in number.
As they were in a hurry to get married
to each other, it was agreed that Setha and Stephania could go to
church and have their marriage
solemnized. The bohali would be paid
in due course.
According to him, P.W.1saw to it that the marriage of
Setha and Stephania was solemnized at Sebetia Roman Catholic Church.
who officiated at the marriage ceremony was a certain Fr
Rodrique Cote. Later in 1971 Setha and Stephania had their child, the
applicant, baptized at Sebitia Roman Catholic Church and
P.W.1himself acted as the applicant's God father. As proof thereof,
exhibit "A", a baptismal certificate issued on
behalf of the applicant.
I must say I find the story of P.W.1 that he, as the
representative of the girl's parents, had to go to the
parents of the boy to negotiate the marriage of Setha
and Stephania rather strange. Indeed, P.W.1 himself eventually
according to Sesotho custom, the normal practice would
have been for his brother-in-law to advise the parents of the boy who
to get married to his daughter to go to P.W.1as his
representative and negotiate the marriage.
Be that as it may, it is significant to bear in mind
that P.W.1testified that it was in 1960/61 when Setha and Stephania
to each other. That being so, one would expect that
following her marriage to Setha Phafoli, Stephania Pharoe ceased to
use her maiden
surname and assumed that of Phafoli. However,
according to Exh "A" when the applicant was baptized in
1971, his mother,
Stephania, was still referred to by her maiden
surname of Pharoe,
In my view, Exhibit "A" did not assist the
applicant as proof that his biological parents, viz. Setha and
legally married each other in, 1960/61. On the
contrary, it strengthened the case of the 1st and the 2nd Respondents
that Setha and
Stephania were never legally married to each other in
1960/61 as alleged by P.W.1. A convincing proof that Setha and
legally married by Christian rites would have been a
production of a marriage certificate by P.W.1who claimed
that they were and he was the person who saw to it that
their marriage was solemnized in church. He, however, failed to do
P.W.2. 'Malimpho Ts'ola, told the court that Setha
Phafoli was her nephew. She was not present when Setha and Stephania
their marriage at Sebitia. However, following their
marriage, Setha brought, to the witness's home, his wife, Stephania,
birth to her first born child. Since both parents of Setha
had already passed away, P.W.2 and her husband had to welcome
as a daughter-in-law by giving her "Koae" (a
sheep slaughtered for a newly married woman who, according to custom,
otherwise not accept food at the family of her husband).
Assuming the correctness of her evidence that she was
not present when they allegedly married to each other at Sebitia, it
that P.W.2 has no personal knowledge about the existence
or otherwise of a legal marriage between Setha and Stephania. Even if
were true that P.W.2 and her husband gave "Koae" to
Stephania, that in itself, is, in my opinion, no conclusive proof of
her legal marriage to setha, be it by Christian or Sesotho customary
rites. In my finding the testimony of P.W.2 is of no assistance
In her evidence, P.W.4, Stephania told the court that
she was Che daughter of Makalaka Pharoe of Matatiele in
the Republic of South Africa, In 1958 she was a school teacher at a
school in the district of Mafeteng when she fell in love with
Setha Phafoli. In 1960 she was teaching at Sebitia school in the
of Berea when she and Setha decided to get married to each
other. She and Setha were aged 25 and 24, respectively. They went to
priest at Sebitia Roman Catholic Church to have their marriage
solemnized in church but all in vain because of the objection raised
by her father who, according to the priest, had said the family of
Phafoli had paid him only two cattle and if the marriage were
solemnized in church no further cattle would be paid as bohali. For
that reason her marriage to Setha was only "blessed"
could not be solemnized by the priest. P.W.4 assured the court that
there was no marriage certificate issued as proof of her
marriage to Setha. The evidence of P.W.2 that P.W.4 came to her home
to give birth to her first child is denied by the latter.
to P.W.4, her first child was born at Phororong. However, P.W.4
conceded that she went to the home of P.W.2 to give birth
second child i.e. not the first born child. She, however, denied that
on that occasion P.W.2 gave her "Koali". According
when she went to the home of P.W.2 she had long been given "Koae"
by the Phafoli family. There was, therefore,
no need for P.W.7 to
give her "Koae".
In my view, P.W.4 has given a lie to the evidence of
P.W.1that he knew for certainty that the marriage of Setha and
solemnized at Sebitia Roman Catholic Church. That being
so, there is no doubt in my mind that Setha and Stephania never
a civil marriage. The question that remains for the
determination of the court is whether or not they were ever married
to each other
according to Sesotho Law and Custom. In this regard,
P.W.3, Motsoafa Phafoli told the court that he learned from Ntsie
elder brother of Setha Phafoli that he and P.W.1had
negotiated the marriage between Setha and Stephania. An agreement was
as to the marriage and the quantum of "bohali"
cattle. Thereafter two "bohali" cattle were paid by Ntsie
to the relatives of Stephania in Matatiele.
It is significant to bear in mind that Ntsie Phafoli is
now deceased and, therefore, not available to give evidence before
What he is alleged to have said to P.W.3 regarding the
negotiations of the marriage between Setha and Stephania seems to me
within the category of hearsay and, therefore, inadmissible
evidence. However, P.W.1did give evidence to the effect that he and
Phafoli negotiated the marriage between Setha and Stephania,
when an agreement was concluded that the children could get married
to each other and the quantum of bohali cattle would be 15 herd of
cattle. According to
P.W.1 no bohali cattle were paid. There is no evidence
to gainsay P.W.1's version regarding Che agreement of those who stood
in loco parentis that the children could get married to each
other and the quantum of bohali cattle would be 15 herd of cattle. In
I find no good reason why the unchallenged evidence
of P.W.1should be disbelieved in that regard.
Be that as it may, P.W.3 went further to tell the court
that in 1984 he himself paid 6 bohali cattle to Stephanie's brothers
however, not called as witnesses in this trial. The 6
bohali cattle were in the form of money to the tune of M960. However,
what the monetary value of each of the 6 bohali cattle was
P.W.3 said he was positive that two of them were valued at M150 each,
one was valued at M160 whilst three were valued at M100 each. That
being so, it is clear that P.W.3 paid only M760 and he could not
been testifying to the truth when he told the court that he paid M960
as 6 bohali cattle to the brother of Stephanie.
I must say, I carefully observed all the witnesses as
they testified before this court. P.W.3 was in his answers to the
that were put to him mostly evasive. He did not impress me
as a witness of the truth and I consider it unsafe to rely on his
unless where it has been corroborated by a more reliable
witness. I am not
prepared, therefore, to accept as the truth his evidence
that in 1984 he paid to the brothers of Stephania 6 bohali cattle
the marriage of Setha and Stephania.
It is perhaps worth mentioning, at this juncture, that
P.W.4 told the court that in 1968 she found that Setha Phafoli who
living with P.W.3 at a place called Setibing had concluded a
civil marriage at Nazareth Roman Catholic Church with another woman
by the name of Morongoe. That was confirmed by P.W.3.
If it were true that Setha and Stephania had legally
married to each other according to Sesotho Custom I find it highly
that the former could have concluded a civil marriage with
another woman viz. Morongoe during the subsistence of his customary
with Stephania for the simple reason that a Sesotho
Customary Law marriage is regarded as valid marriage in this country.
The onus to prove that his biological parents viz. Setha
and Stephania, were legally married to each other and he was,
the legitimate son and heir of Setha Phafoli vested
squarely on the shoulders of the applicant on the well known
principle that he
who avers bears the onus of proof. In my finding
the applicant has not, on a preponderance of probabilities,
Assuming the correctness of my finding, it stands to
reason that the answer to the question I have earlier posted viz.
not the applicant is the ligitimate son and the heir of
Setha Phafoli must be in the negative.
It is now trite law that the rightful persn to have the
last say as to where and when the remains of a deceased person are to
to rest is the deceased's heir. Having found that he has, on a
balance of probabilities, failed to prove that he is the legitimate
son and therefore, the heir of Setha Phafoli who, had he not
predeceased the late Veronica 'Mapaseka Phafoli, would have
been the rightful person to decide on how her remains were
to be put to rest, it must be accepted that the applicant had no locu
standi to bring these proceedings before the court.
In the result, I have no alternative but to come to the
conclusion that this application ought not to succeed. The rule is
discharged with costs to the Respondents.
JUDGE 28th May, 1993.
For Applicant : Mr. Tsotsi For Respondent: Mr. Phoofolo.
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