CIV/APN/267/2001 IN THE HIGH COURT OF LESOTHOIn the matter between:-
TSEBO RALEBITSO APPLICANT
TLEBERE BATERE 1st RESPONDENT
KEBITSAMANG NTANYELE 2nd RESPONDENT
MORTUARY 3rd RESPONDENT
Delivered by the Honourable Mr Justice S.N. Peete on the
22nd August, 2001
On the 12th July 2001 her Ladyship Hlajoane
A.J. granted a Rule Nisi couched in the following terms:-
"1. That the Rules pertaining to he periods and
modes of service be dispensed with on account of urgency.
2. That Rule Nisi be issued and returnable on the date
and time to be determined by this Honourable Court calling upon the
to show cause (if any) why:-
The 1st and 2nd respondents shall
not be interdicted and restrained fromburying the body of the
late SEKHOTHALI RALEBITSO pending theoutcome of this
Applicant shall not be declared the rightful person to
bury the deceased, SEKHOTHALI RALEBITSO.
The 3rd Respondent shall not be interdicted
and restrained from releasing the body of the late SEKHOTHALI
RALEBITSO to anybody including
1st and 2nd
respondents pending he outcome of this application.
The applicant shall not be allowed to bury the body of
the lateSEKHOTHALI RALEBITSO at the time and place of his own
3. That prayers 1 and 2 (a) and (c) operate with
immediate effect as interim court order."
Return date was the 18th July 2001.
Thus when the matter was ultimately argued before me the
respondents had filed their answering papers in opposition. In his
affidavit, the applicant states that he is a male mosotho
adult of Ha Ramosoeu, Ha Shoepane in the district of Maseru.
In brief he claims that the deceased Sekhothali is his
daughter-in-law in that she was the lawful wife of Gerard Ralebitso,
of late Tsebo Augustinus Ralebitso and Clementina Tankiso
Ralebitso. He alleges that Augustinus and Clementina married civilly
the 18th July 1956, and that Gerard Ralebitso was born
in 1961 from this marriage; he goes on to allege that Clementina then
matrimonial home to cohabit with one Thabo Ntanyelo
taking the young Gerard along with her. From
then onwards Gerard was raised by the Ntanyelo family.
It is common cause that on the 15th August, 1984 when
Clementina and Thabo Ntanyelo married, Gerard must have been a mature
man because the receipt "bewys"
for Gerard's bohali to
Sekhothali (deceased) is dated 1982.
This court has not been shown that prior to their
marriage there had been any bohali paid for Clementina. Thabo and
cohabited. It is quite clear therefore that when
Clementina and Thabo got married in 1984, Gerard was already an
adult. The question
is whose child was he?
The court ordered that viva voce be led on this specific
issue in terms of Rule 8 (14). It was the contention of the
Gerald was born and raised in the Ntanyelo family
and that his bohali cattle were even paid for by the Ntanyelo in
1982. It could
not be established with certainty as to when
Augustinus passed away. The evidence of the applicant is to the
effect that after Augustinus
Ralebitso and Clementina (born Seleke)
wedded in 1956, two children were born but they unfortunately passed
away. Gerard was then
born in 1961 at Ha Kori. Clementina then
disappeared with Gerard. He says Augustinus was still alive. As it
came out from Moanakuena
Kori, Clementina is reported to have said
"ke ilo bereka banna ba tsoheloang" (I am going to look for
men who can have
a penile erection.) When she came back she was
cohabiting with one Thabo Ntanyelo of Ha Metsing.
He says that Gerard who was then working in Gauteng once
came to him asking him to welcome him back into the Ralebitso family
that a feast was later made and a
cow slaughtered to welcome Gerard and his wife
Sekhothali back into Ralebitso family. He told the court that Gerard
died some time
in 1994/95 and was buried by the Ralebitso family at
Lithabaneng where he had built his homestead.
Under cross examination he maintained that when welcomed
back into the Ralebitso family, Gerard was already married to
though he did not know when - He says that he never knew
that Sekhothali had once had a child who passed away at Morija
Sekhothali, he says, died on 26th June 1998
He told the court that the 2nd respondent is
the father of Sekhothali; and that when she was very ill, her father
agreed to nurse her and did so until she passed
away in June 2001.
He admitted that after Sekhothali's death, the 2nd
respondent refused to release her body and clothing, and that he
forcibly took away her clothing after finding that her body already
been conveyed to Motsekuoa Mortuary.
Reverend Setente Letsatsi, the Roman Catholic priest at
St Rodrique was called to give evidence and later made to produce a
Register from which he wrote out a hand-written certificate
to confirm that Gerard Tefelo Ralebitso was born on 27/3/67 and
on 15th May 1962 by Father Alexander La Fois in
the presence of Clementina Ralebitso and one Ignatius as parents and
Raphael Setipe as sponsor.
The Reverend admitted that he mistakenly wrote down the
name "Augustinus" when in fact "Ignatius" was
in the Baptismal Register. [It was agreed that the Church
Baptismal Register is not a public document and cannot be handed in
prove the date of birth of Gerard. - See Hoffman - Law of Evidence
4th Ed. page 151]. While it cannot prove the date of
birth, the evidential worth of this register is to show that
presented Gerard for baptismal on 15th
Next called was chieftainess Mashoaepane Shoaepane who
told the court that she remembered the marriage ceremony between
and Clementina in 1956 and that Gerard was born to their
marriage in 1961 (same year as her own daughter Mamello). She says
Gerard was born long before Clementina deserted and came back
with another man Lefa Mpalipali and that she later cohabited with
Ntanyelo. All these were, in my opinion, illicit affairs.
She says that Gerard then already a mature man once came
to her informing her that he wished to go back to the Ralebitso
says a welcoming ceremony was held by the Ralebitso
family and a cow slaughtered at the feast at which Gerard made a
"I am now old - Khomo boela haeno," and
everyone clapped hands welcoming Gerard and his wife into the
The Ntanyelos were absent.
She says that on the occasion when Clementina returned
from her desertion Augustinus took her to task, but Clementina said
itse ke ilo sebetsa, ...he title ke berekile monna!"
Augustinus said 'Wo, you said I am too old!" Clemetina
again and came back with Thabo Ntanyelo.
She insisted that Gerard was born before Clementina
deserted and when she cohabited Thabo Ntanyelo, Augustinus Ralebitso
alive and they only wedded in 1984 after Augustinus had
Moana-kuena Kori, the chief of Ha Kori gave evidence
stating that he knew Augustinus and Clementina who got married in
1956. He says
the couple had three children two of whom passed away.
He says that Gerard was born and survived.
He told the court that Clementina then left Augustinus
claiming that Augustinus "...is too old and can no longer have
- it just brushes! .." "It was better to go and
hunt for a man with a firm penis (molamu)". He says he never met
He told the court that he knew when Gerard made a
ceremony where the Ralebitso family had been called to welcome him
into their family.
Gerald was already a married man. He categorically
denied that Gerard was not born when Clementina deserted from her
For the respondents Tlebere Batere gave evidence. He
told the court that Sekhothali was his daughter and that she had
Ntanyelo in 1982 customarily, and indeed what
purported to be a bewys for bohali cattle was shown to the court. In
it Gerard was
marrying as a son of Thabo Ntanyelo and was marrying
Sekhothali Batere. He further went to say that in all seven head of
paid by the Ntanyelo family towards the chobeliso and
bohali. He says Gerard was buried by the
Ntanyelos at Lithabaneng Ha Shoaepane and that he was
even asked to speak as a "mokhotsi". He goes further to say
Gerard died the Ntanyelos poured soil as the family of the
deceased. The Ralebitso family were not there.
She says when Sekhothali was ill she informed the
Ntanyelo family as his in-laws; he never informed Ralebitso's about
In this case, the onus is upon the applicant to show on
a balance of probabilities that Gerard was born before his mother
deserted Augustinus. Most of the witnesses in this case
were illiterate or semi-literate and could not recall important
example, when did Augustinus die? When did Clementina
desert? We have mutually destructive stories on the important issue
paternity. One has therefore to look at the facts
objectively in this inquiry. For example, when Clementina and Thabo
in 1984, where was Gerard? How old was he? The
answer is clear and simple: Gerard was already a nature man whose
bohali had been
paid for in 1982! When was he born? There is no clear
proof because Clementina has since died, and the baptismal register
helpful in this regard; but I am of the view that even though
not a public document, and not admissible as evidence as to prove the
date of birth of Gerard, this register shows that in 15th
May 1962 a child Gerard Ralebitso was baptised by Father La Fois OMI
and Clementina was present using a Ralebitso surname. I have
reason to doubt the authenticity or genuineness of the priest's
entries. Even if Gerard was born during the time when his mother
illicitly cohabited Thabo Ntanyelo, he could not be a Ntanyelo
because Clementina and Thabo then were not yet married. I could
assume that Clementina's marriage to Augustinus subsisted
still even when Clementina deserted
Augustinus who was still alive but probably "impotent".
The fact that Sekhothali used the Ntanyelo surname is neither here
there because it is common cause that Gerard was raised in the
Ntanyelo's family after his man - hunting mother deserted along
him. A passport - like a baptismal certificate - cannot establish the
In the circumstances of this case, I come to the
conclusion that Gerard was born in 1961 to Clementina when she was
still living and
married to Tsebo Augustinus Ralebitso; and that
Gerard's mother deserted the matrimonial home and that Gerard lived
and was raised
by the Ntanyelo family. Even if born after desertion
took place, Gerard was Augustinus' son under the maxim "pater
nuptiae demonstrant"(a child born during the existence
of a valid married is legitimate). A valid civil marriage subsists
(a) it is set aside by order of a competent court, (b) death of
one of the spouses. It was for the respondents to allege and show
that when Thabo Ntanyelo married Clementina in 1984, Augustinus
Ralebitso had since died.
Coming to the issue of Gerard's birth, I am of the
opinion that the "ancient document rule" applies.
'Wille's Principles of South African Law (1991)
p.210-211 where it is noted that only the mother of the child and her
allowed to rebut the presumption and that the presumption
cannot be challenged by a third party.
In the case of Nolan vs Povall & Others - 1953 (2)
SA 202, the "ancient document
rule" was discussed as an exception to the hearsay
rule quoting Scobble - Law of Evidence p.36-
"Documents thirty years old and produced from
proper custody, and otherwise free from suspicion, prove themselves,
that is to
say there is a presumption in favour of their validity and
no evidence of their execution need be given although the attesting
is alive and in court."
The Baptismal register proves, not the date of birth of
Gerard, but that Gerard Ralebitso was amongst the children who were
by Father La Fois at St. Rodrique on the 5.5.1962. As usual,
the priest was not interested in the accuracy of the dates of birth
but in the baptismal of the child presented at the altar. I do not
imagine that Clementina Ralebitso would fabricate the name of
I hold therefore the Baptismal register produced before
this court, is an "ancient document", as it over thirty
and admissible to prove the fact of Gerard's baptismal in
May 1962 - and not his birth and that Clementina still used the
What has presented greatest difficulty is the legal
status of Gerard's marriage to Sekhothali in 1982. If, as I have
belonged to the Ralebitso family, could the Ntanyelos
validly negotiate bohali as "Gerard's parents?" Section 34
the Laws of Lerotholi reads:-
"A marriage by Basuto custom in Basutoland shall be
deemed to be completed when
there is agreement between the parties to the marriage,
there is agreement between the parents of the parties
or between thosewho stand "in loco parentis" to the
parties and as to the amount ofbohali,
there is payment of part or all of the bohali."
Poulter in his book Family Law and Litigation in the
Basotho Society (1976) pages 83 and 142-4 discusses the problem. In
the Ntanyelos could not stand "in loco parentis"
to the Ralebitso from whom Clementina had unceremoniously deserted. I
therefore hold that the Ntanyelos were not competent to negotiate the
bohali and marriage between Gerard and Sekhothali. This brings
the invitable conclusion that no valid customary existed between
Gerard Ralebitso and Sekhothali.
It is therefore ordered that the body of Sekhothali be
buried in accordance with the wishes of the First Respondent only.
that the Second Respondent has no right whatsoever in the
Rule Nisi under prayer 2 (a) is consequently partly
discharged and partly confirmed. Prayed (b) is discharged. The third
is ordered to release the body of Sekhothali to the first
respondent and Prayer (d) is discharged.
S.N. PEETE JUDGE
For Applicant : Mr Fosa For
Respondents : Legal Aid
completely versed in and familiar with the facts of this
case. The efficiency of a prosecutor, despite any apprehensiveness or
felt by the accused, is in no way a hallmark of prejudice,
impartiality or unfairness. The onus is on the accused in the matter.
In all the circumstances, I cannot see that any apprehension on his
part, in his position, that the prosecutors are prejudiced against
him and that thereby he will not receive a fair trial, is objectively
a reasonable one, and the application is accordingly dismissed.
Delivered This 21st Day of August, 2001.
B.P. CULLINAN ACTING JUDGE
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