HIGH COURT OF LESOTHO
PESHOANE MASOABI 1st Applicant
MASOABI 2nd Applicant
MASOABI 3rd Applicant
by the Hon. Mrs Justice A. M. Hlajoane on 12th October, 2007.
matter first came before me, the present Applicants were Respondents
and the Respondent the Applicant in CIV/APN/476/07.
'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
their marriage certificate attached. First Respondent Mapokhomane
being younger brother to deceased Hlaoli and second Respondent
dispute in that case concerned where the deceased Hlaoli Masoabi was
to be buried between his home at Ha Ntjabane and his parents'
Ha Mosoeunyane in the Berea district. Mr Tlapane appeared for the
Applicant and when he so appeared before me to move his
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.
return date, the 28th September, 2007 the rule was confirmed by
consent of both parties. Mr Seotsanyane appeared for the
but did not appear in person, he was sending his messages by
2nd October, 2007, the present application was filed which has left
out Lesotho Funeral Services but instead having 2nd Respondent
place. It appeared that it was the 2nd Applicant who in fact brought
the application as she is the one who deposed to the
affidavit. The rest filed supporting affidavits. This was an
application for rescission of judgment granted by consent
the deceased's wife, the Respondent in this case, to bury her husband
at their home at Ha Ntjabane.
application was opposed and both the answering and replying papers
were duly filed. The Respondent also filed heads of argument.
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,
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
reading of this section is that such an application can only be made
at any stage before judgment. In casu judgment has already
and it was by consent of both parties. Again the parties in the
rescission application are no longer the same as those
original application, CIV/APN/476/07. 'Malithebe as the second
Applicant was never a party in the first application. The
has thus rightly challenged her locus standi. Second Applicant has no
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
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.
application for rescission was again challenged by the Respondent for
non-compliance with Rule 8(4) of the High Court Rules.
application was filed on the 2nd October, 2007 and heard same day for
an interim order staying execution. The Respondent showed
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.
thrust of 2nd Applicant's case is premised on annexures "B"
and "C" attached to her founding papers. Annexure
is supposed to be a document from TEBA purporting to nominate 2nd
Applicant as beneficiary to deceased's monies from
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
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.
"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"
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
supporting affidavit of the person who typed the document. The two
documents are therefore suspicious pieces of annexures.
support of his argument the Respondent has cited the case of Masakale
v Masakale and Others 1999 - 2001 LLR 732 where the Court
that a document purported to have been written and
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.
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.
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.
application was also fatal for non-compliance with Rule. 8 (4) of the
High Court Rules as was heard same day it was filed.
application for rescission therefore fails, it is dismissed with
costs. The Respondent is thus declared as the rightful person
the deceased Hlaoli Masoabi at Ha Ntjabane, Berea.
Applicants: Mr Maieane
Respondent: Mr Tlapane
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