CIV\APN\5\93
IN THE HIGH COURT OF LESOTHO
In the Application of:
'MAKATISO RAMAISA Applicant
vs
RAMOENO RAMAISA 1st Respondent
TSEBO 'MABOKANG (alias RAMAISA) 2nd Respondent
CHIEF SEBILI HLAJOANE 3rd Respondent
AGRICULTURAL DEVELOPMENT BANK 4th Respondent
LESOTHO FUNERAL SERVICES, HLOTSE 5th Respondent
OFFICER COMMANDING POLICE - MAPOTENG 6th Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 21st day of January, 1993
On 5th January, 1993 the applicant sought and obtained a rule nisi returnable on 15 January, 1993.
The main purport of the rule nisi was to restrain the 1st and 2nd respondents from burying the corpse of one OFNIEL LEFU RAMAISA pending finalisation on the return date of the issues involved. The applicant further sought assistance from this Court to restrain the said respondents from interfering with her preparations for the burial of the deceased Ofniel Lefu Ramaisa.
The general principle governing the right to bury is
2
production of proof that the party who seeks to bury the body of the deceased is an heir to the deceased.
In her founding papers the applicant avers that she married the deceased by civil rites on 12th August, 1987. As proof of this averment she has submitted a photocopy of her marriage certificate marked "A" the original of which this Court has seen. She averred further that the deceased's death on 25th December 1992 terminated the marriage which had subsisted till then between the parties mentioned therein.
The applicant indicated in her papers that she took refuge at her maiden home in February 1992 after the deceased had assaulted her in response to her demurring at his infidelity.
In terms of a photo-copy of a marriage certificate (the original of which I did not see) attached to the 2nd respondent's papers it appears that the deceased and her contracted a civil marriage on 29th August, 1992. Before this marriage the 2nd respondent survived under the name Getrude T. Seeiso. The status of the respective contractors of this marriage before it was entered into is shown as bachelor and spinster aged 31 and 24 years respectively. It is also indicated that this marriage was per the respective parties' parental consent. See Annexure "MR 1" at page 32 of the compiled record.
3
With regard to Annexure "A" at page 11 of the record the respective parties' ages are reflected as 25 and 22 years and the respective parties' status is reflected as bachelor and spinster. The contractors' marriage was even then per their respective parents' consent.
Clearly if the same person i.e. the deceased in Annexure "A" is the same person reflected in the latter photocopy of the marriage certificate "MR 1" he could not have been a bachelor when he contracted the marriage with 2nd respondent in August 1992.
It puzzles me that without any annulment by a competent Court of the marriage in Annexure "A" contracted in 1987 the deceased
could have purported to enter into another marriage in 1992. The law is simple with regard to a problem of this nature: no civil marriage can validly be contracted during the subsistence of another civil marriage validly contracted beforehand.
While in fact it is perfectly legitimate to dispose of a civil application brought ex parte by giving a ruling one way or the other after hearing arguments where as in this case a point of law was raised on behalf of the 1st and 2nd respondents; the Court nevertheless
decided, in the interests of justice to
4
reserve such ruling until it had heard the entire application as this matter involves the status of the main disputants i.e. the applicant and the 2nd respondent vis-a-vis "their" deceased husband.
Much emphasis was laid on behalf of 1st and 2nd respondents in the preliminary argument and repeated in the application proper, on the fact that "The application being one for final relief a Court is entitled to assume the correctness of averments by an applicant which are admitted or not challenged by respondent and the correctness of the version of the respondent". See C. of A (CIV) No.33 of 1992 (unreported) by Ackermann JA at page 3. In response the applicant's counsel submitted that the disputed points raised are not of such a nature that they cannot be settled and that if the court thinks they are genuine it is at large to refer the application to viva voce evidence.
I have had regard to important authorities referred to on behalf of the respondents. These are (1) B H T Water Treatment (Pty) Ltd vs Leslie and Another; (2) C. of A. (CIV) No.8 of 1986 Mahata & 2 Others vs Mahata(unreported). (3) Ex-parte L (Also known as A) where it was laid down that
"Evidence of cohabitation and repute, even when allied to evidence of a ceremony of marriage, merely creates a presumption that the parties are validly married, it will be displaced only by clear contrary evidence".
5
While on the one hand heeding the words of Schutz P, as he then was, repeatedly uttered during arguments by counsel to warn of the danger of trying to adapt the facts of one case to those of another, I am in the instant case unable to entertain the view that clear contrary evidence exists to displace evidence of a marriage contracted between the deceased and the applicant. Being keenly mindful of the fact that what is involved in this application hinges on an important matter of status I have given consideration to and derived fortification in my approach to the problem from B H T Water Treatment (Pty) Ltd vs. Leslie and Another 1993(1) SA 47 that
"........the court should look at the substance rather than at the form of the relief sought......"
The dispute as to the deceased's mark i.e. "X" serving as his signature as it appears to be different in either copy of marriage certificates according to 2nd respondent at p 26 par 5.2 cannot be incapable of resolution inasmuch as the deceased is said to have been illiterate it would be idle to expect let alone require his "X" mark to be regular or consistent.
Indeed it is reprehensible that the applicant's papers show a distressing amount of remissness in their drafting. An important averment that she and deceased were childless has been omitted and the Court is urged to infer from the facts that the
6
marriage was childless. In law inferences are to be drawn where direct evidence is inexistent not where it is available but nonetheless is not adduced. However consistently with what marks counsel as a dutiful officer of the Court Mr. Pheko for the 1st and 2nd respondents has placed this evidence before Court. The Court is thus obliged to have regard to it. I do however acknowledge that in urgent applications where evidence is to be put together under pressing circumstances omissions can occur,
Mr. Pheko advanced a very compelling argument basing himself on Khatala vs Khatala 1963-66 HCTLR 97 by Schreiner P that even though the parties were married by civil rites and in community of property the fact that they led a customary way of life was sufficient to let the estate be administered in accordance with Basotho Customary Law the effect of which was to vest it in the customary heir notwithstanding that the widow was still alive.
Mr. Mohau sought strenuously to show that the applicant and the deceased had abandoned customary lifestyle and adopted a European way of life. It is agreed however and has been stated in various books of authority including Mr. Maqutu's Contemporary Family Law of Lesotho that the test applied in order to determine so called way of life is not satisfactory.
Indeed in commenting on Khatala Mr. Maqutu at page 171 of
7
his works highlights the unsavoury consequences emanating from the principle of duality on which Khatala was decided as follows
: -
"If this woman had divorced her husband she would have received half the joint estate, Africans marry by civil or Christian rites for many reasons, without having any intention of abandoning the African way of life. It seems a departure from equitable principles of justice that the 'way of life' test gives the heir everything and there is no division of estates in respect of widows, while if the marriage ends in a divorce the divorcee gets her. half of the joint estate".
It is somewhat puzzling and smacks of lack of even-handedness for the 1st respondent to say at page 23 paragraph 9
"At the very least if my late son was not married to 2nd Respondent I would be the deceased's heir as he did not have a male
issue in accordance with Sesotho law and custom. This would be the position even if he was married to Applicant as his estate is to devolve in accordance with custom as he had not abandoned the customary way of life prior to his death".
The point I distil from this averment is that the 1st respondent would be the deceased's heir if the deceased married the applicant but would not be so if the deceased married the 2nd respondent.
It is common cause that at the time of his death the deceased was living together as man and wife with the 2nd respondent. Suppose the two were validly married and suppose a
8
male issue was born seven or eight months after the deceased's death showing the deceased is the father and suppose 1st respondent as the deceased's father has in fact inherited the deceased's estate, would it not have prejudiced the deceased's blood son when he eventually gets to be born after the 1st respondent has inherited the property that otherwise should equitably devolve on the deceased's yet to be born son? This is merely to illustrate and confirm Mr. Maqutu's criticism of Khatala's case.
Mr. Pheko's attack on the applicant's further lack of explicitness as to the order prayed is valid that the applicant does not say what the Court should do with regard to the 2nd applicant's marriage in the event that it is found to be invalid. There is no prayer that it be declared null and void and that it be expunged from the Marriage Registry records. However it so happens that in paragraph 1(n) of the Notice of Motion the applicant has asked for further and or alternative relief. I may just add that it is of vital importance that prayers in civil process should be spelt out with explicitness.
I have read the affidavits in these proceedings and have formed a firm opinion that the 1st respondent and his wife cannot be said to have been candid in averring that they knew nothing of their son's marriage to the applicant or saying it never took
9
place. In fact theirs verges on the comical in suggesting that the applicant was introduced to 1st respondent by the latter's wife as the deceased's mistress in October 1992. So soon even after their son's marriage to the 2nd respondent in August!
I noticed though that the original of Annexure "A" is mutilated and necessitated application of masking tape to put it together with the result that some portion is missing while the other is folded by the masking tape. However I was able to see in the creased fold of the original that banns of the marriage between the applicant and the deceased were announced. Thus it is most improbable that the 1st respondent and his wife could not have known of the marriage between their son and the applicant when an effort was made to make the fact of their impending marriage known to the general public who are not related to the bride-to-be and groom. This clearly shows an attempt to deliberately mislead the Court.
It appears though that the tragic death of their son which on papers is said to somehow be ascribable to the applicant though this is more in the nature of rumour and speculation, coupled with the fact that according to the applicant the deceased had assaulted her, hence her flight from the common house, might naturally have affected their emotions and consequently made them feel a deep sense of grievance towards the
10
applicant.
The fact however that they decided to tell obvious lies on a matter so notorious as the deceased's marriage to applicant makes it difficult to know where they would stop at. Thus the Court is entitled to draw an adverse inference against their conduct, namely that they set their minds on misleading the Court. For this reason I am persuaded to accept the applicant's version that she and her deceased husband led a European mode of life.
In Zuma vs Zuma CIV\APN\60\88 (unreported) it is laid down and has become trite that where a husband dies leaving no male heir, the wishes of his widow as to how, when and where to bury the deceased must be given preference.
The same is the order that this Court grants the applicant in the instant application. The purported marriage between the deceased and the 2nd respondent is declared null and void and records of its Registration should be removed from the Marriage Registry Records in the office of Deeds Registrar. The point raised in limine is dismissed.
The interim Court Order is confirmed subject to the following amendments and variations.
11
The 1st and 2nd respondents and or their agents are restrained and interdicted from burying the corpse of Ofniel Lefu Ramaisa without the applicant's consent and consultation with her.
the 1st and 2nd respondents and or their agents are restrained and interdicted from disposing of the corpse of Ofniel Lefu Ramaisa
without the applicant's consent and consultation with her.
The 1st and 2nd respondents are interdicted and restrained from interfering in any manner whatsoever with the applicant's return to her house situate at Ha 'Matau, Mapoteng in the district of Berea.
The 1st and 2nd respondents and or their agents are restrained and interdicted from interfering in any manner whatsoever with
applicant's preparations for the burial of the corpse of Ofniel Lefu Ramaisa.
the applicant is allowed to bury the corpse of Ofniel Lefu Ramaisa at a place and date of her choice,
The 5th respondent is restrained from releasing the corpse of Ofniel Lefu Ramaisa to 1st and 2nd respondents and\or their agents but to the applicant and\or her agents subject to necessary fees due to the 5th respondent being paid or arrangements to that effect being made.
(h) (i) (j) are confirmed.
The 3rd and 6th respondents are enjoined to ensure that there is
12
compliance with orders in (c) (d) and (e).
Each party to bear its own costs.
The Court decided to make the above order in (1) regarding costs because it is keenly aware that this case involves the applicant and the 1st respondent who have lost a very close family member in sad circumstances, therefore who should avoid souring their relations even further while their memory of the deceased deserves differently and better,
JUDGE
21st January, 1993
For Applicant : Mr. Mohau
For Respondents: Mr. Pheko
