HIGH COURT OF LESOTHO
TLALANYANE 1st Respondent
BURIAL SOCIETY 2nd Respondent
OF POLICE 3rd Respondent
OF HEALTH 4th Respondent
by the Hon. Mrs Justice A. M. Hlajoane on 20th December,
already given an ex temporae judgment in the matter in favour of the
Applicant and had promised that reasons would follow.
These now are
an application for Declaratory Order whereby the Applicant in a
nutshell is asking this Court to declare her as the right
burry the deceased None Tlalanyane and restraining first Respondent
from interfering with her in the burial arrangements.
asked for was framed in the following terms:-
- Dispensation with Rules of Court on account of urgency.
- Declaring presence of 1st Respondent and his mother in the funeral
arrangements as unlawful and a nuisance.
- Restraining 1st Respondent and interdicting him from keeping
mortuary documents and temporary passport permit for deceased, but
ordering him to release them and the corpse of the deceased to
- Restraining 1st Respondent and interdicting him from interfering
with the Applicant at her matrimonial homes at Ha Seoli and
- 1st Respondent to be restrained and interdicted from making any
threats towards Applicant and her children and not make any attempts
to prevent them from entering the two places after the burial.
- That 2nd Respondent to work with Applicant and no one else in the
- That 3r Respondent be ordered to assist in the peace keeping.
Forth Respondent be restrained and interdicted from with anyone in
relation to matter relating to deceased None Tlalanyane.
founding papers Applicant describes herself as the wife and widow of
the deceased None Tlalanyane. They were married in 1980
customary marriage, and three children were born out of that
marriage. As proof of such an agreement of bohali, she had attached
certified copy of the agreement, Annexure "A", and a
family's letter to the Chief Annexure "B". She has shown
that first Respondent is the son to her husband's sister one
'Masenuku Tlalanyane, who incidentally has filed a supporting
to first Respondent's answering affidavit.
has shown that Annexure "A" was written in 1980 whilst
Annexure "B" was written after her husband's
death. On the
reading of the Annexure "A" it becomes clear that some
money was paid for abduction of the Applicant and
that payment was
only for abduction not yet bohali. The agreement though not elegantly
drafted, talks about abduction and bohali.
The message conveyed there
is that there was going to be payment for abduction and bohali
separately, meaning there was some agreement
of some sort.
agreement showed that only one head of cattle was paid and there was
a promise to pay the balance at the end of the month. Sebastian
Poulter in his book - 'Family Law and Litigation in Basotho Society',
at plO3 cited the case of Qhobela v Qhobela
Huggard CJ had declared that, "it is sufficient if only one head
of cattle is paid, so long, of course, as there is an
pay the balance."
Respondent in his answering affidavit at paragraph 5 showed that
Applicant lived with the deceased and bore a child 'Masello.
been confirmed by Annexure "E" to the Replying affidavit, a
letter from members of Tlalanyane to confirm that
Applicant was in
fact married into their family as wife to the deceased None
Respondent has not deposed to the truthfulness of the contents of his
affidavit. It has not been shown in his affidavit under
oath that he
knows the facts to be true and correct. On this argument, Applicant
has referred to the case of Buthelezi v Poorter
and Others 1974 (4)
S.A. 831 at 836.
during argument that I had to ask counsel as to when first Respondent
was born. The response revealed that he was born in
that when negotiations for abduction or bohali were made in 1980, he
was only four years old. That might have been the
reason why in his
affidavit he could not say under oath that the facts deposed to were
true and correct. But with the Applicant
one Serame Tlalanyane
deposed to a supporting affidavit to Applicant's founding papers to
say he knew the Applicant as the only
wife to the deceased None
Tlalanyane. First Respondent has not even denied that he was an
illegitimate child in the Tlalanyane
family as his mother is
unmarried. I would not say more on first Respondent's mother as she
is not a party to this proceedings.
rightly pointed out by Applicant's Counsel, in our law, the rights of
a customary law widow supersedes those of an appointed
customary law heir. See Rafiri vs Raflri. Applicant has been
supported by the senior members of her deceased husband's
why I gave judgment in her favour. I therefore ordered that:-
- Applicant be declared the rightful person to burry the deceased
None Tlalanyane as the wife to the deceased.
- That first Respondent release all the documents to the Applicant to
facilitate burial arrangements of the deceased None Tlalanyane.
- Applicant not to be interfered with at her matrimonial homes both
at Roma and at Ha Seoli.
- That first Respondent should desist from interfering with Applicant
and her children and stop threatening them in anyway at their
- That 2" Respondent must work with Applicant in preparation for
the burial of the deceased.
- That 3rd Respondent to assist in peace making during the funeral
and to be told of the date of the burial.
- That 4 Respondent work with the Applicant as the wife of the
deceased None Tlalanyane.
is thus confirmed with costs.
Applicant: Mr Falatsi
Respondent: Mr Nthontho
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