IN THE HIGH COURT OF LESOTHO In the matter
GEORGINA LEBONA 1st APPLICANT
MALEBANYE LEBONA 2nd APPLICANT
TAELE PHAKISO LEBONA 1st RESPONDENT
MAPHAHLOANE LEBONA 2nd RESPONDENT
NEO LEBONA 3rd RESPONDENTLESOTHO FUNERAL SERVICES
(MOHALE'S HOEK) 4th RESPONDENT
Delivered by the Honourable Mr Justice WCM Maqutu on the
14th day of February, 2000
Judgment was given on the 1st February, 2000,
and I said written reasons will be given later.
On the 20th January, 2000, an ex parte
application was brought before this Honourable Court on an urgent
basis. This court granted a rule nisi
in terms of which respondents
were to show cause on the 25th January 2000 at an
At about 11 a.m. on the 25th January, 2000,
applicants asked for confirmation of the
2 rule nisi. This the court did, after satisfying
itself that respondents had been served.
At about 3 p.m. the respondents appeared before court
and asked for the rescission of the Order making the rule absolute.
was that the Order was granted by mistake which
applicant ought to have noticed had applicant read his own papers and
the court order
It became clear to the court that it had granted the
final order without realising that the time for the appearance of
was not specified. Prayer (e) of the rule actually
ordered respondents "to file opposing affidavits on the 25th
January, 2000 and the matter would be heard on the 27th
January, 2000. The respondents had also duly filed their opposing
affidavits on the 25th January 2000 thereby complying with
Prayer (e) of the rule. I was advised that applicants had refused to
accept respondents' opposing
papers, despite the fact that
respondents had acted in terms of the court Orders contained in the
This court has the power in terms of Rule 45(1)(a) of
the High Court Rules to rescind mero motu or upon application of any
party "an order or judgment erroneously granted in the
absence of any party affected thereby". This confirmation of the
rule had been made in the absence of the respondents. Furthermore the
order had been clearly granted erroneously. Therefore the court
no option but to rescind its final Order. It further ordered that the
matter be heard on the 27th January 2000 in terms of the
Prayer (e) of the rule.
The real applicant was the first applicant. Her son was
the second applicant, although he was not claiming anything for
applicant is the widow of the late Jarefanteng Clement
Lebona who had just died. The crux of this application was the
the right to bury the body of first applicant's husband.
She was claiming against the first three respondents (who are members
the Lebona family) the following:
That they should be restrained from claiming the body
of her husband(Jarefanteng Clement Lebona) for burial.
That first applicant be declared the sole heiress of
her said husband with the duty to bury him.
That third respondent release the banking accounts and
insurance documents of her late husband to second applicant.
On the 27th January and the 28th
January, 2000, the parties took a long time trying to neogtiate a
settlement. They eventually came before court and told the court
they could not agree on where the deceased should be buried. I felt
the parties should try to negotiate again and with greater
seriousness as I felt the burial of the deceased should not be
allowed to be a bone of contention in the family. In giving the
an opportunity to reconcile and unite over the burial of the
deceased, I made the following Order:
"Matter postponed to 31st January 2000
at 2.30 p.m. Both counsel are directed to bring the parties together
and explain the case of Mafereka v Mafereka 1993-1994
LLR 445 to
them. If they cannot agree a list of reasons should be supplied
together with full heads of argument."
On the 31st January, 2000, I waited for
litigants but they did not appear before the court until a little
before 4 p.m. when the court was supposed
to close at 4.30 p.m. They
said there was no agreement. They had neither filed in court the
reasons for disagreement and heads of
argument. The matter was
postponed to the 1st February 2000 at 2.30 p.m. with the
direction that full heads of argument should be prepared.
On the 1st February, 2000, the matter was heard. Both
parties had filed heads of
argument. Applicant had filed a Notice in terms of Rule
37(2) on the 27th January, 2000, in which she put issues
for determination as follows:
1. Whether 1st applicant was a widow of the deceased
does or does not have a prior duty to bury the deceased.
And whether 1st respondent has such a duty in law.
Whether any recognition at all has to be given to "LMA"
to the opposing affidavit of 1st respondent. (LMA was a
letter that according to first respondent) was from deceased
authorising him to bury deceased.
Whether this application should not be granted purely
on the determination of the above issues.
There was no dispute that both parties as relatives of
deceased had a right and duty to bury the deceased. What was in issue
had the right to prevail, in the event of a dispute. It is
the heir who by law has the main duty to bury the deceased.
It became clear that since the 27th January,
2000, first applicant stuck to their view that she should bury her
deceased husband at the place of her choice Boinyatso
Mapeleng in the
district of Maseru. The respondents on their side insisted on bury
deceased at Nkhukhu Thaba Tsoeu in the district
of Mohale's Hoek.
Neither side was prepared to yield.
Second applicant was really not a party in that he was
not asking for anything for himself, nor was he claiming any title to
respect of the right or main duty to bury his father. He was
merely verifying the contents of first applicant's affidavit in the
I confirm the contents contained in 1st
applicants affidavit to be correct. I have been always a party to the
meetings held between applicant herein and the Lebona family.
3 I pray that she be granted prayers as set out in the
Notice of Motion."
In the case of Apaphia Mabona v Khiba Mabona
CIV/APN/280/86 (un reported) following the case of Khatala v Khatala
1963-66 HCTLR 97
Molai J said:
"The question whether the deceased's marriage had
been concluded according to Sesotho law and custom or by civil rites
This is because all deceased estates of the Basotho have
to be administered by Basotho law and custom unless it is shown to
of the Master of the High Court that they have
abandoned the African mode of life and adopted a European way of
life. Since nothing
has been said about the European mode of life by
any of the litigants, the Administration of Estates Proclamation 1935
and the received
Roman-Dutch law have no application. Every issue
will be viewed from the vantage point of Basotho law and custom.
It is generally accepted that the Laws of Lerotholi
(brief as they are) are regarded as by most people in Lesotho as a
of Basotho custom. Consequently they are the first
point of reference in dealing with their custom. Consequently where
they are not
followed, reasons must be given.
There are four issues on which this matter revolved.
(a) Whether first applicant was the sole heir of
deceased with principal duty to bury the deceased.
Whether deceased had left instructions as to burial.
Whether the heir should consider the rights of others
with a duty to bury.
How far should the living go before they are deemed to
be showing disrespect to the deceased.
will deal with these issues a seriatim.
Whether in this case the widow is sole heir
The Laws of Lerotholi I at Section 11 provide:-
The heir in Basutoland shall be the first male child of
the first married wife...
there is no male issue in any house the senior widow shall be
Clearly as there was a son in first applicant's marriage
with deceased, applicant is not the heir. Her son Malebanye is. She
only be the "sole heir" if she had no son. In the
received Roman Dutch law (which does not apply in this case) she
not be the sole heiress in intestacy as she has a son.
Furthermore first applicant has no locus standi to come
before this court and claim she is the sole heiress with the
and duty to bury deceased because there is Malebanye
Lebona who is her son and is "a Mosotho male adult". See
2 of first applicant's founding affidavit. In the case of
Apaphia Mabona v Khiba Mabona CIV/APN/280/86 Molai J dealing with a
"The widow's wishes prevail where she is the
heiress and not where the deceased has died leaving an heir. It is
trite law that
in Lesotho the eldest son of the deceased person is
his heir.... The applicant must of necessity fail in her prayer that
the deceased's body be exhumed and be buried in a place
of her choice."
(b) Whether deceased left instructions as to
It is a historical fact that in Basotho society literacy
is a recent development. Indeed at least twenty per cent (20%) may
be illiterate. Consequently the deceased used to distribute his
property verbally. In the early part of the twentieth century as
literacy began to spread it was recognised that the deceased might
leave written instruction as to how his property should be allocated
to his descendants after death. Ven when this happened, the Basotho
had not adopted the practice of making wills into their customs.
is not surprising because even today no marriage certificates are
issued when the Basotho marry, but that does not bar the writing
some transactions during the marriage process. It is therefore not
surprising that Section 14(1) on allocation of property during
"If a man...dies leaving written instructions
regarding the allotment of property, his wishes must be carried out,
heir according to Basotho custom has not been deprived
of the greater part of his father's estate."
It follows in my view that the deceased need not make a
will concerning his burial. All he might do is to leave written
A letter to this effect might suffice.
First respondent at paragraph 6 of his answering
affidavit says deceased had left "written instructions which
inter alia relate
to the disposal and or burial of his corpse. Fair
copy of the said instructions is hereto annexed and marked "LMA".
In her replying affidavit first applicant at paragraph 4
"I have been advised by my counsel and verily
believe same to
be true and correct that the contents of paragraph 6 are
hearsay. Thus I am unable to respond thereto issuably "LMA"
hearsay. It is not a will."
All I can say is that the advice given by first
applicant's counsel was an oversimplification of the legal
position, in the light
of what had been said above. At paragraph 5 of
her replying affidavit first applicant glibly dismissed as an "abuse
process" the statement from first respondent that at a
meeting of the family (at which first applicant was present) it was
that the deceased wished to be buried at Thaba-Tsoeu. It was a
mistake for first applicant to do so; the reason being that even if
the instructions of the deceased had been given verbally, if this
could be proved by credible evidence, effect would have to be given
to the deceased's wishes.
It seems first applicant considered the deceased's
wishes to be irrelevant merely because she had not made a will. First
does not challenge the fact that this fact of deceased's
wishes was drawn to her attention together with deceased's written
Her view was that despite what deceased might have said
authorising the first respondent and others to bury him, "they
have no right, whatsoever to bury my husband as long as I
live"see paragraph 7 of her replying affidavit. I have
said even if she was the heiress (which she is not) she was
bound to respect the deceased's wishes.
(c) Whether heir has to consider rights of others
While I agree that in matters of burial, it is the males
who by custom have to dig the grave, symbolically put soil in the
to seniority in the family tree, I do not agree with
first respondent's assertion that women are entirely excluded. They
cut hair and wear mourning cloth as well. They have to be
consulted and to make
9 their views known and considered in the decision
making as to place and time of burial.
The fact that the widow as the chief mourner who has to
wear mourning cloth for up to a year (when others only wear it for a
is particularly important. Her concurrence has to be sought,
although she does not have to prevail if she is not the heir in the
event of a dispute. Even so, as much as possible an attempt is made
to reach a consensus in family matters.
The heir as head of the family ultimately makes a ruling
for the benefit of all where opposing views cannot be reconciled. It
be noted that any dispute among the deceased's family was
supposed to be "referred for arbitration) to the brothers of the
and any other persons whose right it is under Basotho custom
to be consulted. If no agreement is arrived at by such persons, or if
either party wishes to contest their decision, the dispute shall be
taken to the appropriate court by the dissatisfied party"
of Lerotholi I Section 14(4). The family might over-rule the heir,
but the heir or any dissatisfied party might seek redress
appropriate court. Every family is expected to do its utmost to
settle its disputes equitably in matters of succession. It
therefore not very helpful for first applicant to say in paragraph 3
of her replying affidavit:-
"Thus, the issue like who deserted, and the kind of
marriage adopted by the parties becomes irrelevant. I reiterate that
a right over the corpse of the late Clement by virtue of being
his widow and only widow."
In the case of Matsotang Mafereka v Tjomelane Mafereka &
Ors 1991-1996 LLR 445 this court at page 451 faced with a similar
from a widow who was the heiress said:
"In African society most rights are collective not
individual. The sacred aspect
10 of burial is collective. It seems to me the widow
was wrongly advised."
In classical Roman law burial was recognised to have
some religious significance. See B Nicholas Roman Law(1962) at page
236 to 237
who says the deceased "ensured that there would be
someone on whom the duty of maintaining the family sacra would
In the custom of the Basotho the obligation to bury
(though it is one of the duties of the heir) is not always part and
the deceased estate. This moral and religious duty is
shared with other members of the family who has no rights to inherit
deceased. Even in Roman law Zuletta in Part II Commentary
to the Institutes of Gains (1953) at page 83 says:
"It is doubtful how far obligations owed to or by
the deceased originally descended along with his corporeal property;
of keeping the family worship (sacra) emphatically did
descend, but it may be that purely patrimonial obligations were not
the hereditas, though there is evidence that they were
attached to it by the Twelve Tables."
The cult of the family (sacra) which surrounds burial
appears to have been tied together with succession because it could
expenditure. If that is so then in Lesotho it became a
patrimonial obligation of the heir for the same reasons as it did in
Roman law although it need not have been. In Basotho custom
where the cult of the family manifests itself in the extended family
structure, it is all the more important to respect and accommodate
the rights of others who are obliged by custom to bury the deceased
and to participate in the burial of the deceased for no gain except
except honouring the dead in the family tradition. It has become
unsettling practice to use burials as skirmishes in battles that are
later fought over the estates of deceased persons.
(d) Respect for the dead
The use of the deceased and their burial as pawns to
gain access to assets of deceased estates in a developing succession
has led to the insistence of this court that there should be
respect for the dead. This principle was first expressed in Chemane
Mokoatle v Senatsi Senatsi & Ano. CIV/APN/163/91 where the greed
of litigants who were fighting over the corpse of the deceased
Cullinan CJ to say:
"This is a question of public policy...I consider
this application an unhappy one, bordering on the morbid, if not
places, and contrary to a custom, common to all
mankind...namely respect for the dead."
There has been over the years a growing need that "this
court ought to protect the dead and their dignity from being used as
a pawn by the living".See Ramahloli v Ramahloli
CIV/APN/479/93 (unreported). The court in considering the merits of
of this nature now find themselves increasingly
compelled to consider the deceased when the living used the
deceased's corpse as
a means of proving they are heirs to the
property of the deceased. This practice has become so bad in Lesotho
that virtually every
week there are cases in which the right to bury
the deceased is in issue. Behind these applications are greed or
revenge on the deceased
or the family that gave some offence or
failed to give enough bohali or lobola for the marriage of the
deceased. Our custom in terms
of which marriage is not an event but a
process promotes these disputes because there is often uncertainty on
whether a Basotho customary
marriage can be deemed to have taken
place and when.
In an emotionally charged burial case of a woman T
Metsing v S Nkao & Ors. CIV/APN/328/99 (unreported) Peete J found
of marriage was equivocal. He avoided making a finding
on the issue of marriage in order to enable one of the
12 litigants who was in possession of the deceased's
body to bury it. He added:-
"In view of the acutely contradicting versions
regarding the existence of the marriage, the order which this court
make will not finally determine whether or not there is a
marriage. ...this is a sad case in which the most important document
agreement has been lost by both sides and it is quite
clear that witnesses for one or both sides were not telling the
In short, the court allowed the deceased to be buried
while permitting the litigants to ventillate their grievance some
under appropriate conditions. By so doing the deceased
corpse ceased to be a pawn for the living.
On the 1st February 2000 after hearing Mrs Majeng Mpopo
I therefore made the following order: -
Rule discharged. There is no order as to costs. First
applicant has no locus standi to sue. Second applicant who is the
heir is not
claiming anything save to support his mother's averments
as to facts. As deceased left an uncontested letter containing
as to place of burial, deceased is to be buried at
Thaba-Tsoeu in the Mohale's Hoek district.
WCM MAQUTU JUDGE
For applicants : Mrs S Majeng-Mpopo
For respondents : Mr GG Nthethe
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