HIGH COURT OF LESOTHO
matter of :
MOSALA 1st Respondent
EMPLOYMENT BUREAU OF AFRICA
MOSALA 3rd Respondent
by the Hon. Mr. Justice B.K. Molai on the 16th day of August. 1993.
July, 1993 the applicant herein obtained ex-parte a rule nisi calling
upon the Respondents to show cause on 29th July, 193
why, inter alia,
the 1st Respondent shall not be interdicted from burying the body of
Samuel Mosala, the applicant shall not be
declared the rightful
person to bury the deceased Samuel Mosala and the 1st Respondent
shall not be directed to release to the
applicant her household
of the rule is opposed. Affidavits have
In as far
as it is relevant, the facts disclosed by the Applicant's affidavits
are that in 1986 she and the deceased, Samuel Mosala,
customary law marriage and ten herd of cattle were paid as bohail.
She attached a written agreement (annexure A) as
proof of the payment
of bohali of the said marriage between the Applicant and the
deceased. Two boys, who are still minors, were
1993 the deceased and the Applicant had a quarrel as a result of
which the latter ngalaed and returned to her maiden home.
after the Applicant had returned to her maiden home, her husband who
was working on the mines of the Republic of South
Africa passed away
in June 1993.
contention of the applicant, she is the only wife of the late Samuel
Mosala and therefore, the rightful person to decide
where, when and
how his remains will be put to rest. Consequently the applicant prays
for the rule nisi as aforesaid.
Respondents' affidavits were deposed to by the 1st and the 3rd
Respondents who averred that on 8th June, 1969
deceased got married to the 3rd Respondent by civil marriage. A copy
of the marriage certificate (annexure L.M.I) was attached
thereof. Five (5) children two girls and 3 boys, were born of the
marriage. In 1987 the deceased and the 3rd respondent
the latter had to leave the matrimonial home and live at the home of
the 1st Respondent, her father-in-law.
Respondents denied, therefore, that the deceased could have lawfully
got married to the Applicant in 1986 during the subsistence
civil marriage which was never resolved. That being so, the applicant
cannot be heard to say she is the lawful wife of,
and the rightful
person to decide how, the deceased is to be buried.
commencement of the hearing of this matter, the following points were
raised in limine on behalf of the applicant:
"(a) This matter has not been properly set down for hearing on
this 11th August, 1993, in as much as there is neither a notice
anticipation nor that of set down.
"L.M.I" "L.M.2" and "L.M.3" are
inadmissible hearsay and should be struck off as such."
above has already been decided on 11th August, 1993 when I
held that where the court itself has set a case down for hearing on
16th August, 1993, as this court did on
9th August, 1993, neither of
the parties was empowered to change that date unilaterally. The court
sets down cases for hearing
and the parties have to accommodate
themselves to the dates decided upon by the court, not vise versa.
There was no need, therefore,
to raise this point in limine at the
hearing of this application.
be seen from paragraph 5 of the Applicant's Replying Affidavit that
the ground upon which she challenges the admissibility
L.M.I, L.M.2 and L.M.3 is that they have not been certified true
copies of the originals thereof. However, a proper
annexure L.M.1 will show that the document has been certified a true
copy of the original by the Marriage Officer. Annexure
L.M.3 are the originals and not copies. The ground upon which their
admissibility is challenged viz. that they have not
true copies of the original does not therefore, make sense.
result, I would dismiss with costs the points raised in limine.
now to the merits of the application, I am satisfied that the
Respondents have, on a balance of probabilities, proved that
June, 1969 the deceased and the 3rd Respondent entered into a
contract of marriage by civil rites. There is no suggestion
marriage was ever resolved. That being so, it stands to reason that
when in 1986 the deceased and the Applicant puported
to marry each
other according to Sesotho Customary Law, the purported marriage was
null and void ab initio. The applicant cannot,
claim to be the lawful wife of the late Samuel Mosala.
significant that in her own mouth the applicant avers that two boys
were born of the union between her and the deceased. If
she were to
be believed, it is clear that when he died in June, 1993, the
deceased left two male issues who are his heirs in order
seniority. As I see it, the applicant does not claim the right to
bury the deceased as the guardian of the deceased's
therefore his heirs. She is making the claim in her own right.
position, as I see it is that where a man dies leaving no male issue
who is the heir then his widow should be afforded
the right to decide
how the remains of
husband should be put to rest. Even if it could be held that the
applicant was the lawful wife of the deceased, Samuel
would not, in my view, be the proper person to bring, in her own
right, these proceedings before the court.
regards the order directing the 1st Respondent to release, to the
applicant, household property he had admittedly removed from
house where the deceased was living with the applicant, I am of the
view that in the circumstances of this case, the applicant
prove her right to the property vis-a-vis the deceased.
result, I would discharge the rule nisi granted on 23rd July, 1993
with costs to the Respondents.
Applicant : Mr. Mosito
Respondent: Mr. Phoofolo.
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