CIV/T/647/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of:

SAMUEL
MAKHETHE MAFAESA Applicant

and

KATISO
MAKHETLA .................... 1st Respondent

DISTRICT
SECRETARY,MASERU .......... 2nd Respondent

MINISTRY
OF HEALTH ............... 3rd Respondent

ATTORNEY
GENERAL................... 4th Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr, Justice B.K. Molai on the 18th day of June, 1990.

These are
reasons for which on 15th June, 1990 I discharged the Rule Nisi which
the applicant herein had, on 7th June, 1990, obtained,
against the
Respondents, in the following terms:

"1.
That a rule nisi do hereby issue calling upon Respondents to show
cause, if any, on a date to be determined by this Honourable
court
why:-

1. First
   Respondent and/or any member of Makhetla's family shall not be
   inter­dicted forthwith from burying the corpse of 'Matsie

   Mafaesa (alias Makhetla);

   
   

2. Third
   Respondent and/or officers subor­dinate to him shall not be
   directed to

   
   

3. release
   the corpse of 'Matsie Mafaesa (alias Makhetla) to Applicant being
   the father of the deceased;

   
   

4. Respondent
   shall not be directed to pay the costs hereof;

   
   

5. Granting
   applicant such further and/or alternative relief.

   
   

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2. That
   rule 1(a) operates with immediate effect as temporary interdict."

   
   

On 12th
June, 1990 the first Respondent had intimated intention to oppose
confirmation of the rule. The second, third and fourth
respondents
had not filed any notice of intention to oppose and it could,
therefore, be assumed that they were prepared to abide
by whatever
decision would be arrived at by the court.

It was
common cause from the affidavits filed by either parties that a
certain Motlatsi Makhetla, an elder brother of the first
Respondent,
had abducted 'Matsie Mafaesa, the daughter of the applicant. It was
not clear from the papers in what year the abduction
had taken place.
Whilst the applicant claimed, it was in 1964, the 1st Respondent said
it was in 1962.

It was,
however, further common cause that Motlatsi and 'Matsie had
subsequently lived together as husband and wife. In 1977 Motlatsi

passed away. On 19th May, 1990 'Matsie also passed away. They were
survived by two daughters aged between 19 and 12 years i.e.
they had
no male issue who could be the heir to decide where and when the
remains of 'Matsie would be put to rest.

In his
affidavits the first respondent averred that. following the abduction
of 'Matsie, his family had paid eleven (11) cattle
as "bohali"
to the applicant's family. The late 'Matsie had. therefore, been
lawfully married to the family of Makhetla
in accordance with Sesotho
law and custom. That being so, the family of Makhetla and

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not the
Applicant had the right to bury the body of the late 'Matsie.

That was,
however, denied by the Applicant accor­ding to whom the Makhetla
family had paid only six (6) cattle as compensation
for the abduction
of 'Matsie, No cattle had been paid as "bohali". 'Matsie
had, therefore, not been lawfully married
to Makhetla family
according to Sesotho Law and Custom or at all. As her father, the
Applicant and not the first Respondent or
the family of Makhetla was
'Matsie's heir who had the last word as to where and when her body
would be burried.

It would
appear that following her death the body of 'Matsie was placed at the
mortuary of the third Respondent pending its burial.
A dispute then
arose as to who between the applicant and the first Respondent,
representing the family of Makhetla had the right
to bury the body of
the deceased. In an attempt to resolve the dispute the parties were
called before the office of the second
Respondent who decided the
dispute in favour of the first Respondent or the family of Makhetla.
The appli­cant was unhappy
with the decision, hence the present
application.

As I saw
it, the decision in this application pivoted around whether or not
the deceased, 'Matsie, had lawfully been married to
the family of the
first Respondent. Whilst the first Respondent contended that the
deceased had been lawfully married to the family
of Makhetla, in
accordance with the Sesotho

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law and
custom, the applicant said she had not. The first Respondent had,
therefore, to prove the existence of a lawful marriage
between the
deceased and Motlatsi, on the well known principle of he who averred
bore the onus of proof.

It is
trite law that the essentials of a Sesotho Customary Law marriage are
that there must be

1. an
   agreement between the parties to the marriage.

   
   

2. an
   agreement between the parents of the parties or between those who
   stand in loco parentis to the parties as to the marriage
   and the
   quantum of "bohali" and

   
   
   
   

   3. payment
      of part or all the "bohali" (vide S.34(1) of Part II of
      the

      
      
   
   

Laws of Lerotholi).

The
answering affidavit was deposed to by the first Respondent who
averred that, following the abduction of 'Matsie by Motlatsi,
the
Makhetla family had initially paid seven (7) and later four (4)
cattle to the family of the Applicant as "bohali"
towards
her marriage. Altogether eleven (11) cattle, had, therefore, been
paid as "bohali". There were written documents
as proof
thereof. The documents had, however, been kept in the custody of
Motlatsi and subsequently his wife, 'Matsie, both of
whom had, as
stated earlier, passed away and could not, therefore, be able to
depose to supporting affidavits.

However,
as proof that Applicant's daughter, 'Matsie, had been lawfully
married to the, family of Makhetla, the deponent averred
that when
she first arrived

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in the
family of Makhetla she was given the name of"'Matsie" by
the Makhetla family. Her first child with Motlatsi was
born in 1965
and named "Tsie" by the family of Makhetla. When that child
passed away in 1967 it was burried at the home
of its father,
Motlatsi, by the Makhetla family.

Furthermore
deponent averred that when, in 1977, Motlatsi passed away, 'Matsie,
was made to put on the : mourning cloth by the Makhetla
family. When
the time to remove the mourning cloth came, the Makhetla family
brought 'Matsie to the applicant together with a "Lehare"

beast with which the latter performed the rituals according to
Sesotho Law and Custom. The applicant never raised any objection
to
all these events because he knew that his daughter, 'Matsie, had in
fact been legally married to the family of Makhetla.

As it has
already been stated earlier,in his affidavits the applicant denied
that following the ab­duction of the deceased,
'Matsie, eleven
(11) cattle had been paid by the family of Makhetla. He averred that
only six (6) cattle had been paid as compensation
for the ab­duction,
and not the "bohali", of 'Matsie.

The
applicant conceded, however, that when she arrived at the family of
Makhetla following her abduction by the late Motlatsi his
daughter,
the deceased, was given the name of 'Matsie"; her first child
with Motlatsi was named "Tsie" by the family
of Makhetla:
when it subsequently passed away, the child was burried at the home
of its natural father, Motlatsi, by the Makhetla

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family.
According to the applicant, the reason why he did not object to all
that was because he hoped that the Makhetla family would
eventually
pay "bohali" towards the marriage of his daughter, 'Matsie.

Assuming
the correctness of the avernments that Motlatsi and 'Matsie eloped
and lived together as husband and wife until they had,at
least, three
(3) children it must be accepted that they had agreed to marry each
other. Again, if the applicant hoped, as he wished
this court to
believe, that following the elopment of his daughter 'Matsie, with
Motlatsi, the family of Makhetla would pay him
the "bohali"
cattle, it was reasonable to infer that he and the Makhetla family
had agreed on the marriage of their children
and the quantum of
"bohali" cattle. It seemed to me, therefore, that the first
and the second requirements of a Sesotho
Customary Law Marriage had,
on a balance of probabilities, been satisfied.

Indeed,
Applicant further conceded that following the death of Motlatsi in
1977 the deceased, 'Matsie, did put on the mourning cloth
and in due
course the Makhetla family brought her to him together with the
"Lehare" beast which he used to perform the
Sesotho rituals
for the removal of the mourning cloth. According to the Applicant his
daughter, 'Matsie, had to put on the mourning
cloth for fear that a
bad luck might befall her if she did not do so after Motlatsi and she
had lived together as husband and wife
for many years.

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I was not
pursuaded. According to Sesotho law and custom a woman does not wear
a mourning cloth following the death of a man to
whom she is not
legally married. On the contrary, it is only if she did that she may
entertain fears that a bad luck will befall
her.

Although
the applicant averred that the family of Makhetla had not paid
"bohali" cattle for the marriage of the deceased,'Matsie,

the first Respondent averred that the "bohali" cattle had,
in fact, been paid. He was, in that regard, corroborated by
Motsamai
Chakache who deposed to an affidavit in support of the answering
affida­vit. In his supporting affidavit Motsamai
averred that
following the elopement of 'Matsie and Motlatsi, he and a certain
Solomon Tjekesane were detailed by the family of
Makhetla to go to,
and meet, the applicant's family in connection with the marriage of
'Matsie. They did meet the applicant who
was in the company of
'Mualle Mafaesa and Kopano Mafaesa. After some dis­cussions, the
applicant's party decided that "to
com­plete the head"
the Makhetla family would have to pay eleven (11) cattle because
prior to her elopement with Motlatsi,
'Matsie had already had an
Illegitimate child not fathered by the former.

In my
view, if "bohali" cattle had not been paid for the marriage
of 'Matsie, the applicant would never have accepted
the family of
Makhetla and the "Lehare" beast which he admittedly used to
perform the Sesotho rituals for the removal
of the mourning cloth.
But he did. That, in my finding, was a clear indication that

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the first
Respondent and Motsamai were testifying to the truth when, in their
affidavits, averred that "bohali"

cattle
had been paid towards the marriage of the deceased, 'Matsie. In his
denial that "bohali" cattle had been paid,

the
applicant was not being honest with the court. As­suming the
correctness of my finding it was reasonable to infer that the
third
requirement of a Sesotho Customary Law Marriage had also been
satisfied.

That
being so, the answer to the question I have earlier posted viz.
whether or not the deceased, 'Matsie, had been legally married
to the
family of the first Respondent had to be in the affirmative.
Consequently I found that the deceased no longer belonged to
the
family of the Applicant but that of the Makhetla who had, therefore,
the right to bury her corpse.

It had
been contended that as there was a dispute on whether or not a valid
marriage existed between Motlatsi and 'Matsie the issue
should be
reverted to viva voce evidence. It is to be remembered, however, that
this court was approached on the basis of urgency.
The deceased
passed away on 19th May, 1990. Her corpse had since been lying in the
mortuary waiting to be burried whilst at the
same time the relatives
were mourning with the resultant expenses according to our custom.
If, on the papers before it, the court
could come to a fair decision
and avoid prolonging the matter more than it was necessary, viva voce
evidence should not be lightly
reverted to. On a preponderance of
probabilities I was satisfied that the first Respondent had
dischar-charged the onus that vested
on him viz. that there

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existed a
valid marriage between Motlatsi and 'Matsie. I was not, therefore,
prepared to agree with the con­tention that the
question whether
or not Motlatsi and 'Matsie had been legally married to each other
should be reverted to viva voce evidence.

It was
further argued that even if it could be held that a lawful marriage
existed between Motlatsi and 'Matsie and the applicant
had,
therefore, no right to bury the body of the deceased, 'Matsie, the
first Respondent had, himself, failed to show that he was
the
deceased's heir and, therefore the rightful person to bury her body.

Well, one
thing clear to me was that the Makhetla family, and not the
Applicant, had the right to bury the body of the deceased,
'Matsie,
by virtue of her being lawfully married to that family. Nobody in the
family of Makhetla claimed that he had a better
right than the first
Respondent to bury the deceased, 'Matsie, who admittedly died living
no male issue as her heir. Until some
body from the Makhetla family
could approach this court and successfully claim a better right than
the first Respondent, I found
no good reasons why the first
Respondent should not be allowed to decide how the remains of the
deceased should be put to rest.

In the
result, I discharged the Rule Nisi that had been granted on the 7th
June, 1990 and allowed the first Respondent or the Makhetla
family to
bury the body of

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the
deceased, 'Matsie, forthwith.

B.K.
MOLAI

JUDGE.

18th
June, 1990.

For
Applicant : Mr. Pheko

For
Respondent : Mr. Putsoane.