CIV/APN/488/2007 CIV/APN/476/2007
IN THE HIGH COURT OF LESOTHO
In the matter between:
MAPOKHOMANE PESHOANE MASOABI 1st Applicant
'MALITHEBE MASOABI 2nd Applicant
'MAHLAOLI MASOABI 3rd Applicant
and
'MAMATSELISO MASOABI Respondent
JUDGMENT
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 12th October, 2007.
When this matter first came before me, the present Applicants were Respondents and the Respondent the Applicant in CIV/APN/476/07. Instead of 'Malithebe as 2nd Respondent we had Lesotho Funeral Services as the 3rd Respondent. The founding papers showed that Applicant was the wife to the late Hlaoli Masoabi having been married by civil rites and in community of property on 2nd February 1980.
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Copy of their marriage certificate attached. First Respondent Mapokhomane being younger brother to deceased Hlaoli and second Respondent
deceased's mother.
The dispute in that case concerned where the deceased Hlaoli Masoabi was to be buried between his home at Ha Ntjabane and his parents' home at Ha Mosoeunyane in the Berea district. Mr Tlapane appeared for the Applicant and when he so appeared before me to move his application on the 25th September, 2007, the papers had already been served on the Respondents on 21st September, 2007. Rule was granted by consent of both parties.
On the return date, the 28th September, 2007 the rule was confirmed by consent of both parties. Mr Seotsanyane appeared for the Respondents but did not appear in person, he was sending his messages by Applicant's Counsel.
On the 2nd October, 2007, the present application was filed which has left out Lesotho Funeral Services but instead having 2nd Respondent in its place. It appeared that it was the 2nd Applicant who in fact brought the application as she is the one who deposed to the founding affidavit. The rest filed supporting affidavits. This was an application for rescission of judgment granted by consent in CIV/APN/476/2007,
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allowing the deceased's wife, the Respondent in this case, to bury her husband at their home at Ha Ntjabane.
The application was opposed and both the answering and replying papers were duly filed. The Respondent also filed heads of argument. On the date of arguing the matter, the 12th October, 2007, second Applicant sought to file an application for joinder in terms of Rule 12 (1) of the High Court Rules 1980. Section 12 (1) reads thus:-"
(1) Any person entitled to join as a Plaintiff or liable to be joined as a Defendant in any action, may on notice to all parties, at any stage in the proceedings before judgment, apply to Court for leave to intervene as a Plaintiff or a Defendant. The Court may, on such application, make any order, including any order as to costs which it thinks fit and may, in granting such order, give such directions as to further pleadings or other procedure in the action as it thinks fit."
My reading of this section is that such an application can only be made at any stage before judgment. In casu judgment has already been given and it was by consent of both parties. Again the parties in the rescission application are no longer the same as those in the original application, CIV/APN/476/07. 'Malithebe as the second Applicant was never a party in the first application. The Respondent has thus rightly challenged her locus standi. Second Applicant has no locus
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standi as she was not a party in the application against which rescission is being sought, see BNP v Attorney - General 1997 - 98 LLR 75 at 81. Again 2nd Applicant being the daughter to the Respondent and the deceased Hlaoli has no locus standi to bring an application unassisted by her guardian. The legal capacity of Married Persons Act 9 of 2006 would not apply to her as the act only affect couples who are legally married.
This application for rescission was again challenged by the Respondent for non-compliance with Rule 8(4) of the High Court Rules. The application was filed on the 2nd October, 2007 and heard same day for an interim order staying execution. The Respondent showed that this Court and the Court of Appeal have always in their numerous decisions deplored this kind of practice. He has cited the recent decision on this, in the case of Tjatji v Sunshine Motors & 2 Others C of A No.ll of 2007.
The thrust of 2nd Applicant's case is premised on annexures "B" and "C" attached to her founding papers. Annexure "B" is supposed to be a document from TEBA purporting to nominate 2nd Applicant as beneficiary to deceased's monies from his employer.
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As though filled in for convenience or something, the form has not been filled in in full. There are so many gaps. It does not even bear a date stamp from the employer. There is no employee's signature, it has been left blank. The person's marital status is divorced and one would have expected to get an order of Court attached confirming that status, but there was none. It is even reflected on the document that one Merrian Masiane is the capturer but we were not told who that Meriam is in relation to TEBA.
Annexure "C" is supposed to be deceased's wishes regarding where his body should be laid to rest after his death. The document is typed and only signed by the deceased alone. The Respondent in his answering affidavit has attached annexure "MM1" from deceased's passport in an effort to challenge the deceased's purported signature on annexure "C" as deceased's wishes.
The signatures are totally different by mere looking at them without necessarily being an expert in handwriting. There is even no supporting affidavit of the person who typed the document. The two documents are therefore suspicious pieces of annexures.
In support of his argument the Respondent has cited the case of Masakale v Masakale and Others 1999 - 2001 LLR 732 where the Court decided that a document purported to have been written and
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signed by the deceased is a testamentary document which ought "to have been signed by deceased before two witnesses who should have seen the deceased sign on it. In that case Mafereka v Mafereka and Others was cited where it was stated that "the Court deplored the habit of making bodies of the deceased persons pawns for the living." It is unfortunate to find that of late the duty to bury is now being used as a means of determining rights of succession or inheritance.
I have therefore come to the conclusion that the application for joinder under Rule 12 (1) cannot succeed as such an intervention can only be entertained before judgment, and since judgment had already been granted the application fails.
On the question of locus standi, 2nd Applicant has no locus standi as she was not a party to the proceedings in CTV7APN/476/07. She had no right to have the order in CIV/APN/476/07 rescinded at her instance. She could not even claim to be the heir nor the person vested with the right to bury her deceased's father when her mother is still alive and were never divorced with the deceased. She lacked authority to depose to the founding affidavit for Masoabi family.
The application was also fatal for non-compliance with Rule. 8 (4) of the High Court Rules as was heard same day it was filed.
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The application for rescission therefore fails, it is dismissed with costs. The Respondent is thus declared as the rightful person to bury the deceased Hlaoli Masoabi at Ha Ntjabane, Berea.
M. HLAJOANE
JUDGE
For Applicants: Mr Maieane
For Respondent: Mr Tlapane
