CIV/APN/143/05

IN THE HIGH COURT OF LESOTHO

MONOPONE RAMATABOE Applicant

And MAPULANE RAMATABOE Respondent

JUDGMENT

Delivered by the Honourable Mr Justice W.C.M. Maqutu on the 20th May, 2005

The dispute is a simple one, it is the duty right and to bury the deceased. What is clear is that the deceased had two women in his life with whom he had conjugal or probably marital relations. Each one of them claims to be rightful wife - to the exclusion of the other - with the sole right to bury the deceased.

This matter was brought as an urgent application with conflicting averments. The court could not on the papers determine who was telling the truth. It was an urgent matter because had been in the mortuary for 60 days –

unburied because of this dispute. Consequently the court was obliged to hear viva voce evidence to resolve the dispute between the two women. Behind applicant was Mohau Mompe who claimed the deceased's cody for the Mompe family - dispute the fact that deceased had used th e Ramatabooe surname in his life time.

The issue of who has a right to bury the deceased was settled for our jurisdiction by Molai J in Mabona v Mabona 1985 -90 LLR 80. He held that the duty to bury is that of the heir. In other words the two widows are disputing who is the heiress with a duty and the right to bury the deceased. There are no other litigants consequently the court will confine itself to their status alone. Their right to the deceased's estate depends on whether they are lawfully married to him or not.

Applicant has brought this application claiming to be married to the deceased by Basotho custom. She has mentioned the people who went to marry her were Mosiuoa Mompe and Mohau Mompe. Mosiuoa Mompe is the father of Mohau Mohape. He is now dead. Mohau Mompe came and gave evidence. He said he only became aware of the marriage of applicant when deceased took her to his home with two children. - The youngest of

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whom was about five years old. If that child was born in 1993, that was around 1998 or later than that. So it is clear that there is nobody living, who knows of this marriage of applicant as its inception. Mohau Mompe became aware of the marriage when the applicant and children were taken to Mazenod or some such place where he lived. This is itself would be nothing unusual. What is certainly strange is that Mohau Mompe does not corroborate the evidence of applicant on the issue of marriage.

There is no evidence that any formalities of Sesotho custom were followed. There is no proof of people who were there when the marriage took place. There was no koae (sheep) slaughtered for applicant. She did not even elope with deceased, they just lived together for a short time then the deceased left her, coming to visit her occasionally, that is her evidence. There is no even a suggestion that any cattle were handed in marriage.

The witness who later who gave evidence about bohali (lobola) cattle five cattle is Manthati Fiorina Mompe. She tells us that she went with Mosiuoa to go and arrange the marriage with the mother of applicant, and of course Mosiuoa Mompe who is dead. The applicant does not say Manthati Mompewas among those people. This Manthati claims to know when and

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how deceased was born, that was in 1943. At that time she was not even married. Her maiden home is in Berea far away from the Mompe's. She lied shamelessly.

There is nothing that shows that applicant was married. She has used her maiden surname even her children used the same maiden surname. To this day it is still the case. What happened is that towards the last days the deceased went and lived with her and the deceased not long thereafter was hospitalized at Queen Elizabeth II hospital where he died. Basically that is all the basis of the claim.

Then we come to first respondent. First respondent seems to have brought some evidence, but some of it is challengeable - in her case there is a document that an agreement of marriage that was made - which counsel for applicant challenges. At places the date rubber stamp has been filed by hand. In it are several names of people who are said to have been present. One of them was Ramataboe Ramataboe who was supposed to be called but counsel for applicant said that was not necessary. Both counsel agreed he should not be called. Ramataboe one of those witnesses who made affidavits and says the respondent was married.

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In his affidavit Ramataboe Ramataboe says further that Mohau Mompe who a nuisance to the Ramataboe family. The reason is that the mother of the deceased once lived with a certain Charlie Mompe. Ramataboe Ramataboe is too young to know details. But what he is aware of is this Mohau Mompe has been there, and that Mohau Mompe claims deceased belongs to the Mompe family - and this creates confusion in the deceased's affairs. -Well, it seems that the mother of the deceased once lived for a time with Charlie Mompe and probably had eloped with him. During that period deceased was fathered by Charlie Mompe. As commonly happens in such cases, a portion of cattle might have been given. Founding a marriage or hoping that there would be a marriage is common. Many of such marriages abort.

In Sesotho custom - if a portion of cattle is given, even if it one, a m arriage can be established. But then if a person starts first by abducting a woman he has first to pay six head of cattle for damages. If parents both sides are desperate to have a marriage (which is often the case) - those cattle or a portion of those cattle are "lent" to the family of the young man to found a marriage. The problem we have is that if that marriage does not stabilize the parents of the woman can say there never was a marriage because those

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cattle the husband was "lent" were seduction cattle or abduction. In such circumstances I can be argued that since the wife's family took back their cattle, there is no marriage. The reason being that there can be no customary marriage without giving bohali or lobola cattle. The alternative -but equally valid argument - is that at the time of the marriage agreement there were cattle, although they were borrowed. So we have a problem in this country because of these marriages. They qualify to be marriages because there was an agreement.

A child from such a marriage can say he is legitimate. But the problem is that a customary marriage can be dissolved without a court order by agreement between parties. This is done by returning bohali or lobola cattle and children to the man's family. In marriages that were preceded by abduction, the cattle given for abduction, once claimed back as damages -there are no lobola or bohali cattle any more. A child from such a situation can claim to be legitimate, because there was an agreement of marriage. The other complication is that there is no formal dissolution of the marriage agreement. The bohali debt can be paid even after many years. We know that in Basotho custom there are so many debts of marriage which are

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sometimes cancelled by intermarriage, so the deceased might have been told that his father might have married his mother although not perfectly.

Both Mohau Mompe and first respondent knew each other perfectly. In fact the deceased and first respondent buried the mother of Mohau Mompe. Both Mohau Mompe and first respondent told the court they did not have any marriage relationship. Later under cross-examination first respondent said he was obliged to say she did not know Mohau Mompe because Mohau Mompe also said he does not know her. What is clear beyond any shadow of doubt is that first respondent Pulane Ramataboe knew that Mohau Mompe is the close blood cousin of her husband. By the same token Mohau Mompe knew fully well that Respondent Pulane was the wife of the deceased - in short he also deliberately lied to the court.

The fact which can not be disputed which ended being common cause is that of the MKM Burial Policy which was entered into on the 25th of February 2002. In it is shown clearly the spouse of the deceased is Pulane Ramataboe born of the 15th June 1946. the child of the deceased is Lebohang Ramataboe and one of the deceased dependants was 'Mamohau Mompe (the mother of Mohau Mompe). This Mamohau Mompe was buried

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by the deceased in terms of this MKM Burial Policy and this was done with the participation of her son Mohau Mompe.

Now let's come to the law. Anyway all evidence shows that Pulane Ramatabooe the first respondent is the wife of the deceased even the evidence that was later conceded by counsel for applicant.

In the case of Mabona v Mabona 1985 - 1990 LLR at page 81 Molai J dealing with Basotho custom said:

"In Mathibeli v Chabalala CIV/APN/76/85 page 4, this court quoted with approval the decision of Tseola v Maqutu 1976 (2) SA 418 at page 424 J which Murinek CJ had this to say on the issue:

"...Public policy and a sense of what is right dictates that, in a dispute of this nature, the widow's wishes where she is an heir should prevail, and that it is her duty and her right to bury the deceased where she pleases."

Now I have to decide who has to bury. According to the case of Tseola v Maqutu 1976 (2) SA 418, the person who has a right to bury the deceased is his heir. Now, this case is in many ways similar to that of Tseola v Maqutu. In that case family supported woman who was not properly married. But the law that was applied was Roman - Dutch law. The court held that where there are heirs who compete one of them is the wife, the one who

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should bury is the wife because the man said he would abandon his family and live with this woman for better for worse. Mohau Mompe may be a blood brother or cousin but that is not the issue here. The issue is burial and the wife in this case, is a closer relative than the Mompe family. This is the law. Therefore, without any hesitation the person entitled to bury the deceased in a case of this kind unless the deceased has made a written will is the wife. So this is the order that I will make. I therefore that:

1. MKM Burial Society is directed to hand over to Pulane Ramataboe the wife of the deceased the body of the deceased to bury it wherever she pleases.

2. The applicant is directed to pay costs of this application. The court will adjourn.

W.C.M MAQUTU

JUDGE

For applicant : Mr Molapo

For respondent : Mr Lesuthu

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