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.

4. 
   That the body of the said MASUPING
   JUSTINA
   NKAKALA (born MOTJOKA) be
   examined for the purpose of
   determining
   the cause of death.

   
   

5. 
   That the First Respondent be ordered to
   release
   forthwith all insurance policies
   of the deceased to the
   Applicant.

   
   

6. 
   That the Second Respondent be ordered to
   release
   forthwith to the Applicant all
   items fully shown in annexure
   "STN11"
   attached to the Founding Affidavit.

   
   

7. 
   That the Respondents be ordered to pay
   costs of this
   application.

   
   

8. 
   That prayer 1 (a) be made immediate
   order.

   
   

9. 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:-

1. 
   That the applicant herein is the older
   brother of
   the deceased's husband.

   
   

2. 
   That the husband of the deceased is also
   late.

   
   

3. 
   That there was no child of their marriage
   which was
   in accordance with civil rites
   and was solemnised on 4th October
   1986.

   
   

4. 
   That the applicant herein, being the
   elder brother
   of the deceased's husband,
   is the head of the family and the
   heir.

   
   

5. 
   1st Respondent is the biological father
   of the
   deceased.

   
   

6. 
   2nd Respondent is the biological brother
   of the
   deceased.

   
   

7. 
   The deceased died on 20th January 1999
   and she was
   only burried on 7th March
   1999.

   
   

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

4

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

11 certainly is very disrespectful of the applicant to

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