CIV/APN/115/99 IN THE HIGH COURT OF LESOTHO
In the matter between:-
SELLO TOKELO NKAKALA APPLICANT
and
SEHLAHLA MOTJOKA 1ST RESPONDENT
TS'ITISO MOTJOKA 2ND RESPONDENT
JUDGMENT
Delivered by the Honourable Mrs. Justice K.J. Guni on the 8th day of April 1999
This is an application for an order of court in the following terms:-
"1. That Rule Nisi be issued and returnable on the date to be determined by this Honourable Court calling upon Respondent to show cause if any why;
(a) The Rules pertaining to period and mode of service shall not be despensed with on the ground of urgency;
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2. That the Applicant SELLO TOKELO NKAKALA be declared a rightful person to bury the body of MASUPING JUSTINA NKAKALA (born MOTJOKA).
3 . That the body of MASUPING JUSTINA NKAKALA (born MOTJOKA) be exhumed on production of the Certificate of the Principal Secretary of Health.
That the body of the said MASUPINGJUSTINA NKAKALA (born MOTJOKA) beexamined for the purpose of determiningthe cause of death.
That the First Respondent be ordered torelease forthwith all insurance policiesof the deceased to the Applicant.
That the Second Respondent be ordered torelease forthwith to the Applicant allitems fully shown in annexure "STN11"attached to the Founding Affidavit.
That the Respondents be ordered to paycosts of this application.
That prayer 1 (a) be made immediateorder.
That the Applicant be granted such
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further and/or alternative relief."
When the matter was heard, the parties pointed out that there are points which are in the common cause and for which no determination is required. These were:-
That the applicant herein is the olderbrother of the deceased's husband.
That the husband of the deceased is alsolate.
That there was no child of their marriagewhich was in accordance with civil ritesand was solemnised on 4th October 1986.
That the applicant herein, being theelder brother of the deceased's husband,is the head of the family and the heir.
1st Respondent is the biological fatherof the deceased.
2nd Respondent is the biological brotherof the deceased.
The deceased died on 20th January 1999and she was only burried on 7th March1999.
As it appears from the facts of this case, the problem is not with regard to the question of who has a right to bury the deceased and consequently who is her heir. The applicant's position as heir and the person who
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has a right to bury the deceased, is undisputed. At the time the deceased became very ill and needed someone to help her, there was none to assist her. The deceased's own blood brother, 2nd respondent herein requested applicant to release her into his custody so that he takes care of nursing her back to health. Applicant by his conduct demonstrated that he does not care about the deceased nor her well-being in her lifetime. Applicant did not take the deceased into his home nor provided someone to nurse her at her own home during her time of need. Applicant did not even have a courtesy to responde to 2nd respondent's request for release into his care and custody the deceased who was in need of help and nursing care. 2nd respondent waited in vain for response from applicant. Realising that there was no response, 2nd respondent took his sister, deceased into his own home for the purpose of providing her with private nursing. Applicant after becoming aware that 2nd respondent has taken and removed 'MASUPING JUSTINA NKAKALA from her home was still not concerned. Applicant was still the head of Nkakala family but he did not bother to enquire after MASUPING's health. He did not demand
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that 2nd respondent must return her and/or stop assisting her in anyway. Could it be presumed that this applicant was not concerned with MASUPING's health or wellbeing because he did not consider himself obliged in anyway to take care of her? Applicant is that type of heir that comes into being only when there are benefits. He does not regard himself as heir that inherits benefits as well" as obligations.
The position of the heir under Sesotho customary law is exactly the same as under the received law (Roman Dutch Law) see Duties of Heir - Contemporary Family Law of Lesotho by W.C.M. MAQUTU Page 185. The applicant's brother - deceased's husband had duties and obligations towards his wife. The applicant should have inherited those duties and obligations. By his conduct of total neglect of the sister-in-law MASUPING applicant failed in his duties to care for her. Does his failure to carry out his duties have the effects of depriving him of his birth right to inherit? It certainly does not if he could still find any legacy lying around.
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Immediately when 'MASUPING died, the applicant's own brother - NKAKALA who was according to this applicant authorised by the applicant and his family to take control of the deceased' s funds at TEBA - was informed that very same day 20th January 1999. The reading of the papers filed in support of the application gives the impression that the applicant wants the inheritance in particular the money saved by the deceased and her late husband in their lifetime, but in order to get the property he must be seen to care for the deceased.
The applicant's conduct and his whole attitude towards the deceased speaks louder than his words. Applicant and 2nd respondent were working in the Republic of South Africa during the period covering the illness and death of the deceased. As a result of their absence while they were at work in the Republic of South Africa, they appointed other people here in Lesotho to act for and on their behalf. As I have mentioned earlier on the applicant's younger brother -NKAKALA was appointed and authorised by applicant and his family to act in his behalf. The 2nd respondent' s
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wife acted on her husband's behalf. I do not accept that in some other instances for example, when the applicant's younger brother was informed of the death of the deceased, the applicant and his family should not be held to have been properly informed. By 20th February 1999 this applicant's young brother had in his possession all the documents he needed to secure payment to him of all the funds saved by the deceased and her late husband at TEBA and other financial institutions. The fact that the physical transfer of the said funds could not be completed before 24th February 1999 cannot be a valid excuse for their failure to make arrangements for the burial of the deceased.
As early as 24th January 1999, (Annexure B - attached to the Opposing Affidavit refers) the applicant made a promise to send someone to discuss and arrange with respondents the burial of the deceased. This promise was never fulfilled. The deceased was still waiting to be placed at her last resting place at MANGWANE FUNERAL SERVICE mortuary. As time went on without any sign from the deceased's relatives that they want to
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Lake her from the mortuary for burial, the mortuary itself by its personnel appealed to the relatives of the deceased to come and collect her body for burial. There was no response from any relative. It is not denied that the applicant and his relatives ignored those appeals. Another attempt was made by the funeral service to appeal once again to the relatives of the deceased to come and collect her body for burial. As shown in Annexure "D" - attached to the Opposing Affidavit the radio announcement made by the funeral service was to the effect that the body of 'MASUPING NKAKALA had badly decomposed. The people responsible were called to come and fetch her because the funeral service was on the verge of going to ask the District Administration to arrange for a pauper's burial for her. The appeal was made on the national radio by one N. HLONGWANE the proprietor of Mangwane Funeral Service.
It was at this moment that the 2nd respondent's wife acting on behalf of her husband approached the registrar of this court to ask for assistance to obtain authority and/or permission (as shown in
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Annexure "E") to proceed to bury 'MASUPING's - badly decomposed body. The applicant and his family ignored all those appeals. It is clear that they were not interested in the proper burial of the deceased. By ignoring the appeals by the funeral service to come and collect the body of the deceased they clearly abdicated their responsibility to bury the deceased.
The district secretary arranges pauper funerals on its own behalf. It does not act on behalf of rightful heirs and the people with a right to bury the deceased. The applicant having ignored those appeals cannot be heard to say that the respondents were wrong to bury the deceased who waited to be placed at her final resting place well over a month.
It is the tradition of the Basotho to bury their dead within a short time of their death. The practice was said by Lehohla J. in CIV/APN/178/87 (unreported) to be "a wholesome one and indeed a vestige of antiquity". The deceased's body laid in the mortuary from 21 January 1999 to 7th March 1999. This was totally against that well established practice. At
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the time it was buried it was said to be in an advanced state of decomposition. It is now a fourth month since she died. If the body was badly decomposed at the time of burial it must ccertainly be completely decomposed after removal from the mortuary and being burried for about a month now. Exhumation of the body will not definitely serve the intended purpose. Having refrained from attending to deceased during her illness applicant cannot be heard to claim that he wants to determine the cause of her death.
This application to exhume the body which was buried after appeals that it was now badly decomposed is a very unhappy one. It is, to use the words of Honourable C. J. Cullinan (as he then was) in CIV/APN/163/91 (unreported) contrary to custom which
is common to all mankind namely respect for the
dead". Applicant did not want to take care of the deceased in her lifetime. Applicant did not cooperate with those who wanted to take care of her during the deceased's time of need when she was sick and alone. Applicant was unwilling and not prepared to make arrangements for the burial of the deceased. It
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now seek to disturb the late 'MASUPING from her last resting place.
The application is dismissed with costs.
K.J. GUNI JUDGE
8th April 1999
For Applicant: Mr. Khauoe For Respondents: Mr. Matooane