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CIV/APN/228/2000

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

'MASUPING
GERARDINA TAU APPLICANT

and

'MATHABOTAU
1ST RESPONDENT

M K M
MORTUARY 2ND RESPONDENT

For the
Applicant : Mr. K. N. Lesutu For the First Respondent: Mr. K. T.
Khauoe

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 28th day of June
2000

This
dispute is over the burial of one MASUKULU PASCALIS TAU. The deceased
was said to have died on the 3rd June 2000. It was only on the 23rd
June 2000 that the Applicant's Counsel moved this Court ex parte and
obtained an interim interdict against the burial scheduled for the
following day.

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The
Applicant said the deceased was her husband. It transpired and indeed
it was common cause that the deceased was also married to the First
Respondent. That is why the dispute concerned the declarations that
the Applicant be declared the only lawful wife of the deceased, that
the Applicant be declared the lawful heir to the estate of the
deceased and that the First Respondent be ordered to bring back to
this Applicant a savings book, passport, death certificate of the
deceased and the mortuary document to the Applicant. In addition that
the First Respondent be ordered hand over the gun of the deceased to
police before the funeral took place. And that fifthly the Applicant
be allowed to bury the deceased at the place and time of the
Applicant's own choice. And last but not least that the Second
Respondent shall be restrained from releasing the body of the
deceased to nobody except by due process of law pending the outcome
of the application. I noted that there had not been a prayer that the
First Respondent be interdicted from burying the deceased. I thought
this would be implied in prayer (e).

At the
time that Mr. Lesutu for the Applicant came to apply for the interim
order I anticipated that the application was going to be a
problematic one. This was indicated in the most obvious way when one
had regard to the time when the Applicant first knew of the death of
the deceased that is, on the third of June this year. I had
questioned Mr. Lesutu very closely about the aspect of when his
client began to learn that the matter was unresolvable and she had to
resort to the Courts. This was in the light of what the Applicant had
said in paragraph 10 of her founding affidavit namely:

"Then
I approached the First Respondent to arrange the funeral together but
she was very unco-operative. She then said she is burying her husband
we will talk after the funeral.

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I have
learned from other relatives that the burial will be on the 24^th

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June
2000."

It was
clear on the surface there had been a considerable delay to have
launched the application considering that the burial was less than
one full day when Counsel appeared before me. Inclined as the Courts
are to investigate this sensitive question of the rights of burial of
deceased persons I felt with hindsight that I had been unduly
sympathetic to have given the order. Later events proved this. The
application however turned out to be an interesting one.

The
application was interesting even more by reason of the concessions
that were made by Applicant's Counsel. The first concession was that
the Applicant had always regarded the First Respondent as another
wife of the deceased. And that she would not challenge the First
Respondent's marriage which had come first, as against the impression
originally given in argument that the deceased had "merely
seduced or impregnated the First Respondent." That customary
marriage of the First Respondent was evidenced by annexure "MT1"
certifying payment of four cattle for bohali. Once Applicant's
Counsel accepted that probabilities favoured the existence of the
marriage the question was inevitably why the Applicant was before the
Court with her application. Furthermore when the civil marriage
between the deceased and the Applicant which came three (3) years
later was registered or entered into it had been preceded by the
customary one between the deceased and the First Respondent which was
already in existence. It therefore meant that the marriage of the
deceased and the Applicant was not a good marriage in terms of
section 29(1) of the Marriage Act of 1974. It was null and void ab
initio.

The other
interesting issue was the point raised by the Applicant. It was about
a letter dated the 27th May 1986. In that letter it was sought by
Rantahli Seetane (for the bride) and Thabo Tau (for bridegroom) to
dissolve that customary marriage between the First Respondent and the
deceased. This was even more

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interesting
when the letter was read with the fact that the deceased and First
Respondent had in addition to the customary marriage entered into a
civil marriage albeit ten (10) years later. And then it brought a
serious question as to what these people were doing in purporting to
"privately" dissolve the customary marriage. They virtually
"closed themselves in a hut" in an attempt to dissolve the
marriage. The question that I put to the Applicant's Counsel was
where they would have had any legal powers to cancel the agreement of
marriage which had been previously reached. In seeking to dissolve
the marriage they said:

"This is to certify that............we have agreed to cancel our
previous agreement of marriage which we had entered into previously.
Thabo Tau agrees to release to Rantahli Seetane his children because
he and his son have failed to marry or to pay. Children will remain
those of Rantahli exclusively. Thabo Tau and his son remain having
released themselves. Balance of cattle should not be paid. Witness:
Motsoela Seetane "Chief" Thabo Kopano."

The
question that arose was where the deceased and the First Applicant
were when the marriage agreement was being gone about being
"cancelled."

What then
bordered on the dangerous was that a gentleman called Motsoela
Seetane who was allegedly a witness when the above agreement was
purportedly cancelled denied having been a witness nor that he knew
about this agreement nor that he was present nor that he signed. I
asked Counsel to allow me to get an unsworn statement from the
gentleman. Counsel agreed. This resulted in the said total denial.
The question would therefore be where did Applicant get this kind of
letter. Why do people give such a misleading impression that there
was a surreptitious exercise to dissolve a marriage? Shouldn't a
dissolution of a marriage be a public act?

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The
second disconcerting aspect in the purported cancellation of the
marriage between the deceased and the First Respondent was the
absence of any reference to the attitude of the deceased and the
Respondent. This type of omission was referred to in the case of
MASUPHA v 'MOTA LAC (1985-89) 58 albeit about joinder and locus
standi. This would sharply bring into question the decision of
parents who decide to question marriage in the absence of the bride
and the bridegroom, when their marriage was being so questioned or in
the instant case when it was purported to be dissolved. See also my
judgment in MOTSOMI MOTSOMI v TSEPA NKUATSANA AND FIVE OTHERS
CIV/APN/82/98, 18th December 1998.

This
problem of dispute of rights of burial concerning multiple marriages
keeps cropping up. Instead of receding it appears to be on the
increase. Husbands who contract these marriages do not care about the
legal position. Lo and behold! what happens after their deaths. I do
not know why legislature cannot intervene in its own wisdom to
attempt to solve this problem. Just in relation to this question of
disputed burials. One may digress to say the following.

That the
present position appears to be rigid and legalistic which is
undesirable. It is the most equitable and sympathetic approach that
is desirable. It would be as follows. That the person to bury the
deceased should be the person with whom the deceased was most
attached to and who ended his last days with the deceased. This is
the person who the deceased probably loved more than others judging
from the total circumstances. It is the person whom the deceased
would have loved to see burying him. It is this person who most
probably gave the deceased peace, calm and comfort. It is the person
who should be given the rights of burial. This should be so
regardless of whether it was the lawful wife or the first lawful wife
as against others. Unfortunately this is not the law.

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In other
jurisdictions one would have to inquire as to the person who last
lived with the deceased. And that in probability is the person the
deceased loved best. It is the person whom he would have liked to
have been buried by. The issue of whether the marriage is a lawful
one and who would have prior right to the estate causes problems if
it continues to be an approach adopted in isolation and against other
approaches. But it is the law of this country. It is just that
lawyers cause confusion by adopting arguments which may be
fundamentally sound or logical. When they fail they are re-worked
although they are not the law of the country. Sometimes it is a
problem of evidence or proof. The legal position remains nevertheless
clear that it is the male heir who has the right of burial. In the
event of minority or absence of the male heir the senior wife of the
deceased will have those rights.

In the
end I would have recommended to the legislature to have a law that
looks at the total circumstances. It should not exclude the
consideration that consultation of the family cannot be ignored in
our country as things are as they are. A classical situation, for its
pathos, that this Court has come across was three (3) years ago in
the case of MASSA v MASSA CIV/APN/5/97 dated 14th January 1997. A man
had left his wife and lived with another for about twenty (20) years
or more. It was a peaceful family life and a good homestead was
established. The family lived in calm and peace. After deceased's
death the former wife and eldest son of the first family surfaced.
There was a dispute about the deceased's burial. The larger family
supported the eldest son. The decision was that the son was the
rightful person to bury the deceased. The decision was not a pleasant
one to make. That is why I expressed those sentiments which I have
just observed in the judgment. But the decision was in terms of the
law of this country.

In the
present situation it appeared that the first and lawful wife of the

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deceased
was the First Respondent. That is the finding that I made and a
declaration that I would make includes that she would be entitled to
benefits and rights as if or similar to the prayers which the
Applicant has sought and which would flow. The deceased's marriage to
the Applicant appeared to be null and void following the
interpretation of the law.

I was not
addressed on the question of the Applicant's and deceased child a boy
called Suping. The Respondent's response to the statement that there
was this boy, was merely an answer that the contents of the statement
were noted. Respondent said however that she did not have any
knowledge thereof and could not admit the same and "put the
Applicant to the proof thereof." I need not comment further than
that except to remark that it would have been interesting to
investigate whether the marriage of the Applicant was putative or
not. See THOKA v HOOHLO 1978 LLR 375.

The
application was an unfortunate one. It included a situation where
after the application was anticipated on a Sunday the parties and
relatives went about waiting and roaming about for a hearing as
promised. They waited in vain. The judge was also kept waiting. A
logistical problem was described as unavailability of a Registrar. It
prevented the application from being heard. These people who waited
as said above included two ladies who were later present in Court,
two other ladies, an elderly gentlemen and a gentleman from the
deceased's work place in the mines of South Africa. The latter had
been sent by his and the deceased's employer and colleagues of the
deceased to bring financial assistance and take back reports about
the funeral. He had to go back disappointed because the funeral did
not take place on Saturday (the 25th June 2000) as a result of the
burdensome interdict.

It was
again unfortunate and quite embarrassing that the deceased's corpse

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was
allowed to be removed from the mortuary to the deceased's village
where he would be buried. It was from there that the corpse had (as I
suspected) to be taken back after service of the interim court order.
It was because of Applicant's Counsel's failure to have hastened to
serve the Second Respondent. These are unpleasant incidents in the
ill-starred court order. These can undoubtedly be laid at the door of
Applicant and the attitude of her legal adviser.

I have
thought seriously about the award of costs of this application. What
I considered included Mr. Khauoe's submission that those costs should
be awarded against the First Respondent on Attorney and Client scale
thus inclining to punish the First Respondent. Costs are in the
discretion of the Court. The Court looks at the conduct of litigants
and their Counsel and circumstances immediately surrounding the
prosecution or defence of the dispute in Court. It is true that the
award of costs which are exemplary is not restricted to dishonest,
improper and fraudulent conduct. Other unreasonable actions would
call for such award against a defaulting party. In cases where an
application was brought where an applicant was held to have known
that the application would not succeed costs were awarded on an
Attorney and client scale (EX PARTE CONTROLLED INVESTMENT PTY LTD
1948(2) 339(T). Situations like these often flow from bad legal
advice. In this case my attitude was also influenced by the following
observations.

In
speaking about the conduct or attitude of the litigant (Applicant)
one cannot ignore the standard of the community in which she lives.
This is however to be done with caution for fear of misdirection and
undue disturbance of policy principles. I would look at the Applicant
and Respondent who are ordinary Basotho womenfolk. These are people
or one of them against whom I was indirectly told to expect and exact
high standards of attitude and discretion when they had to rely on
legal advise of trained legal professionals. How far can this

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expectation
from them go when they ought to be guided by these lawyers? It could
mean that there is punishment for receiving bad legal advice. Most of
the times it is.

The last
consideration is that this thing of disputes or fights over burial
rights in our courts seems to be here to stay. It will take a long
time. It seems to be part of our modem society in which no one seems
immune. One would reasonably expect that one day and not far one or
one's next- of- kin will be involved in such a fight over a corpse.
It can fairly be said to be the way our people live. It is a way of
thinking. It is unwise to be unduly judgmental over this situation
which seems to be of sociological origin. Neither can one say it is
bad but it is nevertheless disagreeable to some extent. If there is a
way the tendency has to be discouraged. And the legislature in its
wisdom would be invited to be involved in an exercise that others
would call a kind of social engineering. Laws for change can be used
to change people's attitudes. If parliament would intervene the
disputes will be lessened. As courts we accept that we will still
have this kind of litigation on our unavoidable menu list of disputes
in which we have no choice. It can only be comforting to our people
that we remain in readiness to entertain this kind of disputes in the
same way as others to the extent that they do not become abuse of
court process.

It cannot
however be encouragement for litigants to come later on Fridays and
Saturdays to apply for interdicts against burials. There will be
punitive costs against both litigants and their lawyers and against
the latter these will be bom personally (de bonis propris). This
should be heeded. In the background are always factors of involved
preparations, publicity and an expectation that deceased will be
given their respect and dignity of early burials. See CHEMANE
MOKOATLE v SENATSI SENATSI CIV/APN/163/91, Cullinan CJ (unreported)
In some

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religions
the dignity and respect to a deceased person is the burial itself not
these abundant foods and beverages and other expensive preparations
and trappings which are now order of the day.

In the
end the application was dismissed with costs on the ordinary scale.

T.
MONAPATHI

JUDGE

28th June
2000