CIV/APN/315/04
IN THE HIGH COURT OF LESOTHO
LIOPELO SEEISO APPLICANT
vs
MANTELA SEEISO 1st RESPONDENT
MATLOU SEEISO 2nd RESPONDENT
THE D.S. MAFETENG 3rd RESPONDENT
ATTORNEY GENERAL 4th RESPONDENT
MOSENKI SEEISO 5th RESPONDENT
JUDGMENT
Delivered by the Honourable Mr Justice T. Nomngcongo on the 4th August 2004
The applicant herein has approached court urgently for prayers in the following terms:
That the applicant be declared the rightful person to determine and arrange the burial of the body of the late TOKA SEEISO.
That the 1st and 2nd Respondents be interdicted and restrained from interfering in any manner whatsoever in the burial arrangements of the late TOKA SEEISO by the Applicant.
That the 1st and 2nd Respondents be ordered to produce and to release the South African Version of the Death Certificate and accompanying
documents of the late TOKA SEEISO to the Applicant.
That the 1st and 2nd Respondents or anyone acting on their authority be restrained and interdicted from burying the remains of the late TOKA SEEISO.
That the 3rd Respondent be ordered to issue out the Lesotho Version of the Death Certificate of the late TOKA SEEISO and
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to release same to the Applicant.
That the 1st and 2nd Respondents be ordered to pay costs of this application.
Applicant shall not be granted such further and/or alternative relief this Honourable court shall deem fit.
On the 21st July the matter came before my Brother Mofolo J. Apparently the respondents had already been served with the papers and he ordered that answering affidavits and replying affidavits be filed by the 26th July and that the matter be heard on the 30th. This was duly done and both parties appeared before me on the 30th July. When they did so it appeared that together with her reply, the applicant had now also filed a supporting affidavit by the mother of the deceased. This of course had taken the respondents by surprise as they could not be in a position to answer the
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affidavit. The respondents naturally sought to have it struck out. This would normally have been granted by the court. However the matter is an urgent one, involving as it does, the laying to rest of a deceased person. I therefore exercised my discretion in terms of Rule 59 to condone this improper step and allowed the filing of the affidavit. In doing so, I also allowed the respondents to file answering affidavits in opposition to the last mentioned affidavit. The applicant was also free to reply if she so wished. I considered that it was important for all available evidence to be placed before me and not to allow technicalities to prevent me from deciding an urgent matter. Wasted cost were awarded to the respondents.
The central issue before me is whether the applicant or the 2nd respondent were married to the deceased in order to determine who has the right and duty of burial of the deceased, Toka Seeiso.
The applicant by way of proof of her alleged marriage to the late Toka
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annexes a document marked Annexure MS1. It purports to be an agreement between one 'Malineo Thebane and Toka Seeiso about the marriage between Liopelo Thebane and the late Toka Seeiso, the consideration being eight head of cattle. Malineo Thebane's witnesses are in terms of the document, Thabo Thebane and 'Matsokolo Thebane and the "witnesses" for Toka Seeiso are Koali M.T. Seeiso (That is how it is literally put in the document). The document is in the hand, apparently that of one Thabane Thebane. It is unsigned; at least by none of the purported witnesses. It bears the date-stamp of the Chief of Ha Tsilonyane Tsoaing Ha Toloane. The date appearing there is the 30th April 2000.
None of the persons who appeared on this document has filed any affidavit. No reason has been advanced for this omission. No doubt then this document is and will remain hearsay. This is the more so because the respondents challenge the validity of this document and in response advance their own document which they claim is evidence of 2nd
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respondent's marriage to the deceased. That document in contrast to MS 1 has purportedly been signed by its witnesses as well as date-stamped by the Chief of Letaheng. One of the witnesses, Mosenki Seeiso, a paternal uncle of the deceased has filed an affidavit in which he claims that he actually negotiated "bohali" for the marriage of the 2nd respondent.
The 1st respondent is the wife of deceased's father's paternal uncle's widowed wife. She says she only got to know the deceased after the deceased's death; she had never been introduced to the family. She knows and narrates in detail how the 2nd respondent got to get married to deceased and that prior to the marriage, the latter had an illegitimate child who was adopted by the deceased. They eloped in 1991 and bohali was paid on 17th February 2000. Out of this marriage a child was born and it was given a family name that of deceased's grand-mother 'Mamosae.
In reply to 1st respondent's pointed challenge that applicant does not even
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say when she was married, all applicant can say about this is that it should be taken to be the date that appears on the date stamp-the 30th April. What can be so difficult about saying when one was married. That is an important date in a person's life which cannot be so easily forgotten. I get the impression that the applicant is being evasive and not taking the court into her confidence. Regarding her non-introduction to the family she retorts that it was not her responsibility to introduce herself and that it is not the business of the 1st respondent whether she was so introduced or not. It may well not be her responsibility, but then she does not answer whether she was in fact so introduced or not. If she was, she would have said so. We must be forgiven then to conclude that she was not. A very significant point indeed. In any case it would have been quite unusual for a newly-wed not to be introduced to members of the family. To further go on and say that a paternal uncle's wife meddles in the affairs of his nephew's affairs is to take a very sinister view of relations among Basotho people. The paternal aunts and paternal uncles are the most valued and closest
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members of the family especially when it comes to matrimonial and burial matters. This brings me to the belated affidavit of the deceased's mother in support of the applicant. She says of 1st respondent and Mosenki that they had no right at all in the affairs of her family save as distant relatives. This again is a perverted view of Basotho family relations. Aunt's and uncles can never be regarded as distant relatives. Her assertion in this regard leaves the impression that she has herself distanced herself from the core of the family.
Matoka Seeiso says she knew 2nd respondent as once, deceased's girl-friend until they parted; she does not remember when. In answer to this 1st Respondent and Mosenki say she cannot be heard to say so as she had formally accepted her into the family by slaughtering a sheep - what is known as "Koae" in Sesotho. She has not replied to this, neither has she replied to the fact that the child of the said marriage was given the name of her own mother-in-law to her own knowledge. I conclude that her
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evidence is suspect and I cannot rely on it.
Thus we are left with the unsupported say-so of the applicant, the court having rejected "MS 1" as hearsay. The applicant has failed to make out a case on a balance of probabilities that she is deceased's wife and thus entitled to bury him. I dismiss the application with costs.
T. NOMNGCONGO
JUDGE
For Applicant : Mr T. Fosa
For Respondents : Ms Tau
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