CIV/APN/17/90

CIV/APN/18/90

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

THABANG
RAMOKONE ................... Applicant

and

RAMAROBANE
RAMOKONE ............... 1st Respondent

MOJELA
RAMOKONE ................. 2nd Respondent

CHRISTIAN
RAMOKONE ................ 3rd Respondent

JAMES
RAMOKONE .................... Applicant

and

THABAMG
MORETELE DAEMANE.......... Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 6th day of February, 1990.

On 25th
January, 1990 the applicant, in CIV/APN/17/90, Thabang Ramokone,
appeared before Lehohla J. and obtained (ex-parte) an interim
Order
whereby the Respondents were, inter alia, restrained from disrupting
'Malebaleho Ramokone's funeral which he was arranging
for the 31st
January, 1990. However, on the following day, 26th January, 1990, the
applicant in CIV/APN/18/90, who is the 3rd Respondent
in
CIV/APN/17/90 also appeared before Kheola J. and obtained (ex-parte)
another interim Order whereby the Respondent, who is the
Applicant in
CIV/APN/17/90, was restrained from burying

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the
corpse of 'Malebaleho Ramokone and empowering him to bury the
deceased. On 29th January, 1990 and by consent of the parties
Lehohla
J. ordered that the applications be consolidated. Although no notices
of intention to oppose were filed in both applications
answering
affidavits were filed by the Respondents in CIV/APN/17/90 and the
applicant in CIV/APN/17/90 also filed a Replying Affidavit.

In as far
as it is relevant the facts that emerge from the affidavits are that
'Malebaleho Ramokone was lawfully married to her
husband who
pre-deceased her. On 12 January, 1990 'Malebaleho Ramokone herself
passed away., No male issue was born of the marriage
between
'Malebaleho Ramokone and her late husband. It is, therefore, common
cause that the deceased and her late husband died leaving
no male
heir.

According
to the averment of the Applicant in CIV/APN/17/90 supported by that
of his mother, 'Mathabang Ramokone, the latter who
is admittedly the
daughter of the deceased, was never married to any man. The applicant
was, therefore, brought up in the home
of the deceased and her late
husband who had always regarded him as their child and heir. The
Respondents in CIV/APN/17/90 had
never associated themselves with the
affairs of the family of the deceased and her late husband. Indeed,
they did not even attended
the funeral of the deceased's husband
consequently, the Applicant in CIV/APN/17/90 moved the court for
confirmation of the order
obtained against the Respondentson 25th
January, 1990.

The
Respondents concede that the Applicant in CIV/APN/17/90 is the son of
'Mathabang who is one of the daughters of the deceased.
They further
concede that the applicant in CIV/APN/17/90 was brought up by the
deceased and her late husband. They aver that the

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applicant's
mother, 'Mathabang, was married to one Mohanoe Daemane. In support of
this averment one Libitla Sekome deposed to an
affidavit in which he
averred that he used to be the right handman of the headman in their
village. He knew that the applicant's
mother was married to a certain
Mohanoe who was, therefore the applicant's father. 'Mamahlelebe
Daemane also diposed to an affidavit
in which she averred that she
was the widow of one Lebusa Daemane, the elder brother of Mohanoe.
She knew that applicant's mother
was married because when she arrived
in the family of Daemane she ('Mamahlelebe) personally perfomed the
necessary ritual ceremonies
for a newly married woman. The applicant
was given the name of Moretele by Daemane's Family and in 1981
applicant slaughtered a
beast for his late father, Mohanoe.

It is
trite law that in this country there are two types or marriage viz.
civil rite marriage and customary law marriage. A civil
rite marriage
is proved by production of a marriage certificate whilst for a
customary law marriage one has to prove the essentials
laid down
under S.34(1) of Part II of the Laws of Lerotholi. In their
affidavits both Libitla Sekome and 'Mamahlelebe Daemane have

conveniently avoided to prove either the civil rite marriage or the
customary law marriage between the applicant's mother and Mohanoe

Daemane. The onus of proof vested squarely on their shoulders on the
well known principle that he who avers bears the onus of proof.
They
have failed to dis­charge that onus. I am not, therefore,
convinced that the applicant's mother was lawfully married to
Mohanoe
Daemane.

It is
significant that in his affidavit the first Respondent has deposed
that he is married to one of the deceased's daughters.
He is

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therefore,
the deceased's son in law and not her heir. In his affidavit the 3rd
Respondent who is the applicant in CIV/APN/18/90
has deposed that he
is the younger brother of the 1st Respondent. Although he avers that
by the decision of the family of Ramokone
he was appointed the heir
in the deceased's house, a fact denied by the applicant in
CIV/APN/17/90, the 3rd Respondent has neither
called any member of
Ramokone family who took part in the alleged family council nor
produced any, document in support of his averment-For
that reason I
find his averment unconvincing. The 2nd Respondent made no attempt
whatsoever to justify his opposition to confirmation
of the interim
order granted to the applicant in CIV/APN/17/90.

By and
large, none of the Respondents in CIV/APN/17/90 has, on a
preponderance of probabilities satisfied me that he has a better

right than the applicant to bury the deceased. That being so,it
necessarily follows that the interim order obtained by the applicant,

in CIV/APN/18,96O who is the third Respondent in CIV/APN/17/90 cannot
be allowed to stand. Even if I were wrong and it is held
that he is
not the deceased's heir it seems to me that in the absence of the
rightful heir the applicant in CIV/APN/17/90 is a
better person to be
allowed to bury the deceased.

In the
result, I would confirm the interim order in CIV/APN/17/90 and
discharge it in CIV/APN/18/90 with costs.

B.K.
MOLAI

JUDGE

6th
February, 1990.

For
Applicant : Mr. Klass

For
Respondent : Mr. Pitso.