HIGH COURT OF LESOTHO
NCHANYANA 1st Respondent
FUNERAL SERVICE 2nd Respondent
Applicant : Mr. K. Kulundu
Respondent : Mr. E. Putsoane
by the Honourable Mr. Justice T. Monapathi on the 28th day of January
Applicant and the Second Respondent (Funeral House) were parties in
CIV/APN/579/2002 whose order (the first Order) was confirmed
been granted unopposed on the 24th December 2002 by brother Mofolo J.
In this application the
therein who is the present First Respondent sought an order as
the periods and modes of service prescribed by the rules they
dispense with on account of the urgency hereof.
the rule nisi issue returnable on the date and time to be determined
by this Honourable Court calling upon the Respondents
herein to show
cause if any why:
Second Respondent shall not be interdicted and restrained from
releasing the body of the late Sankoe Simon Nchanyana pending
hearing and the finalization of this application.
the Applicant shall not be declared the rightful person charged
with the duty of burying the body of the late Sankoe Simon
Nchanyana at the time and place of her choice.
the Respondent shall not be ordered to release to the Applicant the
Nedbank, Standard Bank and Teba Cash Book of the late
Nchanyana together with his passports.
the Respondent shall not be ordered to pay costs herein.
the Applicant should not be granted further and/or alternative
That prayers 1 and 2(a) operate with immediate effect as an Interim
application, it is common cause, ended unopposed and was confirmed on
the 24th December 2002. It is on record that the parties
relatives ended up discussing the ways or the manner in which the
burial would be proceeded with. It was around the 27th December
This did not come to fruition in that the Deceased was not buried.
present application, which is opposed, the following orders are
with the rules of court pertaining to the periods and modes of
service of process owing to the urgency of this
Varying an order of this Honourable Court to read to the Second
Responded is directed to give the body of the deceased Sankoe
Nchanyana to Applicant.
costs of this application only in the event of opposition.
Applicant further and/or alternative relief this Honourable Court
may deem fit.
prayer 1 operate with immediate effect as an Interim Order."
centre of the dispute once again is the burial of Sankoe Simon
Nchanyana the deceased, the First Respondent's husband in
matter. Deceased died on or about the 6th day of December 2002.
application was not opposed, that is why I recall that the
application or rule ended being confirmed or the final order
being made on the 24th of December. And then we have it on record as
said before that the parties and relatives ended up discussing
way or the manner in which the burial of the Deceased could be
proceeded with around the date of the 27th December 2002. Although
one annexure to this proceedings a family meeting is recorded to have
taken place, it does not appear nor is it recorded the
participated therein. I am however satisfied that he must have been
in the arrangements. This he did not outrightly deny.
against the background of that first application that we spoke about,
it appeared that at the time when the application was
filed some of
the monies in the bank books, referred to in the first application,
had already been withdrawn. There has also been
reference from the
bar by Mr. Putsoane that there ought to be included, as having been
interfered with, funds that were deposited
at Central Bank.
about the monies allegedly interfered with. These monies were
obviously not claimed before this Court in the present application,
that is, besides the bank books in the previous application. I
clarify this to say that before this Court in this application before
me, there is nothing about the claim for the funds, except that it is
being said that the return or refund of those funds is being
somewhere in the Magistrate's Court at a very initial stage. I am not
told that there is any substantial progress so far.
present application is tried against the background that now after
the order of the 24th December 2002 in her favour, the First
Respondent, the wife of the Deceased, was not able to bury the
Deceased. That is why now this Applicant, the father of the Deceased,
is seeking to be charged with the duty to
Deceased. He concedes that ordinarily the wife of the Deceased would
be the one charged with primary duty to bury the Deceased.
Applicant, as the father of the Deceased, has the secondary duty to
bury the Deceased. He says he seeks for an order to
bury the Deceased
as shown in page 3 of the present application.
ground upon which the Applicant seeks this order to be varied is the
fact that he had not been served with the papers. And he
terms of Rule 45 of the High Court rules this entitled him to come to
this Court and make an application of this type because
he says it is
a mistake or that the judgment was a result of a mistake because as a
matter of fact that he was not served. Mr.
Putsoane on the other hand
says that the absence of service makes no difference because
Applicant was aware of the court order
according to Mr. Putsoane, on the 20th December 2002, at that time
when the Applicant says he went to claim for the body
of his son, he
knew that there was an interdicting order because he was prevented by
that order from getting the corpse. Applicant
concedes that at the
time when the order was to be confirmed around the 24th December, he
knew that there was an order in Court.
There was a claim in Court in
which he was being cited. Mr. Putsoane goes to the extent of saying
Applicant was with Chief Theko
at Court and he was
that order was to be confirmed and he then indicated that he is not
opposing. Well, as it were, he consented to order being
he was not opposing.
Kulundu replied that Applicant may have known about the two orders.
But the situation is that still he had not been served with
papers and that had been irregular. Applicant was just warned about
that order which continued to be secured as a result of
And he says it does not matter that he knew all about the order it
was secured through a mistake . This was the mistake
of not having
been served as Applicant should have been served.
Kulundu went further to submit that on the authority of this case of
Maqalika Leballo vs Thabiso Leballo & Ano. 1993-94
LLR-LB 275 at
282 per Cullinan CJ this Court has got power to vary the order that
it made by mistake. It is that order I must remind
that was made by
my brother Mofolo J. I did not hear that there was any opposition to
counter Mr. Kulundu's suggestion that he
was, on the basis of the
authority of the case quoted, entitled to have such an order set
aside, even if Applicant may have known
about it. Nor was I appraised
of any cases that would, on principle, go against the case of
Maqalika Leballo (supra) and the other
two cases that Mr Kulundu has
mentioned namely Anlaby v Pretorius (1880) 20cch 764, Sterk v Kustner
1959(2) SA 495. My
would be that, on the basis of this submission, I would agree to vary
the order made by Mofolo J.
remains is an investigation as to whether it is a good reason that
the First Respondent says she have not been able to bury
Deceased because she had been prevented by the conduct of the
Applicant. Briefly she says the Applicant is responsible for
the funds in the bank books referred to in the applications. And she
says that on a balance of probabilities it should
be found to be so
because at least one of bank books, Lesotho Bank book and/or Teba
Cash Book were handed to the Respondent by
this Applicant. The
Applicant is suspected of having withdrawn the funds therefrom. The
Bank books as shown in annexures attached
to the proceedings show nil
balances in the bank accounts. I have also observed that Mr. Putsoane
speaks about some other account
with the Central Bank.
Kulundu went about to deny also that such funds could have ben taken
out by the Applicant. He also went to the extent of saying
evidence put forward in support of the allegation to this allegation
or rather that the evidence put in that regard consists
overall view of this matter is that it is one of great difficulty.
is that, although I, on my part, strongly suspect that the person who
took out the funds is the person who had possession
of the books
including Applicant, I cannot conclude and need not conclude that it
is so for the following reasons.
This is a
matter that would be investigated, only if it was an issue, a really
issue. But it is not. It is not because the Respondent
claiming those funds now. It therefore becomes a peripheral thing
because she don't claim for the funds. If I had to pursue
it or even
order for further evidence, as I have the power, the question would
be how would I be pursuing the matter when the matter
correctly before Court. The reason being that there is no claim for
was a counter-claim herein for those funds allegedly being claimed at
the magistrate's court then I would be able to pursue
investigation. I would even order that the banks be cited. I would
even order that a bank official to bring withdrawal papers
affidavits to show as to who it was that withdrew the funds from the
accounts. There is therefore no good reason why I
should, in the
present circumstances, pursue the matter.
remains is that I have serious suspicion that somebody who has had
possession of the books must have taken out the funds.
It is a strong
suspicion and my suspicion centres around at the Applicant. The other
Court will investigate the matter. It should therefore not
now. It is however undisputed that following the order of Mofolo J.
the books had been handed over to the First Respondent
and if it was
discovered that there were no funds in the books then I should have
been informed by way of a claim against the Applicant.
all it remains not a good defence that the Deceased has not been
buried. The Deceased must be buried. I agreed that there
public policy considerations that Mr. Kulundu has spoken about,
having conceded that the Applicant is only a secondary
the duty to bury the Deceased. So that I again associate myself with
the policy grounds as shown in the two cases
cited by Mr. Kulundu.
Firstly, is the case of Lebohang Sello v 'Mamotlatsi Semamola and
others CIV/APN/319/96 (Unreported) and
secondly this Court of Appeal
case of 'Manthabiseng Ntoane and Others v 'Mabatho Rafiri C of A
(CIV) No42/2000 where Ramodibedi
J states the following at page 9
"Each case must be decided on its own merits and the Court must
not be bound by any flexible Rules when determining the question
to who has the right to bury. It is true that the heir must always be
given first preference whenever it is just to do so but
well be cases where the heir himself is unsuited to bury example
where he had not lived with the deceased for very inordinate
there is this allegation that the First Respondent may have not lived
with the Deceased for a long time I was not called
to decide on the
satisfied that the Applicant correctly believes that the First
Respondent had such a right to bury the Deceased but it is proved
that she is unable to do so. I am satisfied that all the
circumstances of this case indicates that this First Respondent now
being unable to discharge the duty. And evidently it could be
that she is out of funds and she could even be that it is the result
of the conduct of that Applicant. And I strongly suspect that
Applicant may be responsible for having taken the funds.
Putsoane spoke of the need for this Applicant to have come with clean
hands. This is short of saying that I do not have to possess
sufficient evidence to prove that Applicant has done wrong. I did not
agree. If not the Court would stand out having to investigate
and every issue that arises which is not strictly relevant. It should
have been relevant if the funds were claimed. But as
they were claimed at the Magistrate Court and the question is whether
those funds be available in order that the
Deceased be buried. In the
ordinary run of things it will be a month or so before the Magistrate
is able to give judgment. That
is why it becomes clear now that it
was unwise that those funds were not claimed together with the
opposition that was put out
clients in the present case.
I do not
agree that Ramodibedi J's dictum in that case of 'Mabatho Rafiri
(supra) is good defence to the failure by Respondent to
counter-claim. The dictum is at page 11 of that judgment where the
learned judge says:
"Courts should be astute to ensure that litigants do not seek
their intervention in burial applications to determine disputes
inheritance to estates."
is different because Mofolo J had already ordered that the items in
prayer 2(c) of the first application be produced and
delivered by the
Applicant. Then why separate things when a judge had already ordered
that books be given over to the First Respondent?
Why should the
funds not be claimed in the same way. Before Mofolo J the books were
duly claimed, why cannot the funds be claimed
before this Court? It
is not a good defence therefore to say claim for inheritance to
estates was being avoided. It was not. The
claim should have followed
on the order that the learned Judge had already made on the 24th
December 2002 then if it was discovered
that the funds were taken out
why was the issue not properly followed before me. So that, finally,
all the indications are that
if we are to rely upon expected recovery
of the funds for the purpose of burying the Deceased, this Deceased
will end up not buried.
That is if we are going expectantly follow
what the Magistrate will end up deciding which is hopelessly
remark that the question or the principle behind duty of right burial
of deceased people is not well understood. The important
that people and families have a duty to bury the deceased as against
people having a right to do so. It is a matter
of duty. The question
being "Who is it that is charged with duty if the other fails"?
So that is the real issue in the
Applicant's case is that. If A fails
in his duty to bury B, C must necessarily be seized at the duty. If
not any of the deceased's
relatives and the family will bury. And if
not the chief and the villagers. That is how this must work in this
case. So that all
in all, I decide that, in the circumstance of this
case application succeeds. I make no order as to costs.
that I must impress is that I had to do my level best to make this
contestants to settle this matter amicably. A suggestion
Court that parties must settle should not be taken lightly although
is not binding. Litigation is costly and stressful.
This can often be
avoided. That parties must seek as much as possible to settle
disputes outside Court should always be taken seriously.
suggested that the Applicant could kill or offer a cow for burial and
that the First Respondent must put in a coffin. At
that time it was
not expected that there were problems like these. All agreed that
settlement. And if settlement is not arrived at the Court as it is
its duty will be bound to make a final decision. On
will always appear that Courts fights such as the present were
unnecessary. Surely a matter such as this should,
after all, have
been settled amicably.
made this order with the understanding that First Respondent had a
primary duty to bury the Deceased but there were some
problems that I
loathed to dwell on. All I was interested in is that the deceased
must be buried peacefully as soon as possible
so that his soul will
truly rest in peace.
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