CIV/APN/76/85
IN THE HIGH' COURT OF LESOTHO
In the matter of :
MONAHENG MATKIBELI Applicant
and
TUME CHABALALA Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 25th day of March, 1985.
On 19th March, 1985, the applicant filed with the Registrar of this Court an ex-parte application in which he moved the Court for a rule nisi calling upon the respondent to show cause why he shall not be
"interdicted from burying the corpse of one 'Masechaba Mathibeli contrary to her wishes.
directed to release forthwith the corpse of the said 'Masecbaba Mathibeli to the applicant in order that the said 'Masechaba Mathibeli is buried in accordance with her wishes.
Respondent shall be directed to pay the costs of this application.
Granding the applicant such further and or alternative relief as this Honourable Court may deem fit.
That Rule 1(a) and (b) operate with immediate effect."
I granted the rule in terms of prayers 1(a) to (c) only and fixed the return date as 25th March, 1985. The respondent opposed confirmation of the rule.
Shortly the facts disclosed by the affidavits were that in 1962, the respondent got married to the deceased, 'Mantepe Ramothello alias 'Masochaba Mathiboli, according to the Sesotho Law and Custom and 13 cattle were paid towards the bohali. The fact of the marriage was confirmed by
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Mahlomola Ramothello the head of the family of Ramothello, at Khanyane Ha Moliboea in the district of Leribe, who also attached to his supporting affidavit a letter written by the chief of Khanyane to the effect that the respondent's family and no other family paid the bohali cattle towards the said marriage.
According to the respondent and Mahlomola Ramothello, in 1966 the deceased desserted while the respondent was at work in the mines in the Republic of South Africa. A search for her proved unsuccessful until in March, 1985 when it was learned that the deceased had been living with the applicant at Lithabeneng Ha Keiso in the district of Maseru and had passed away.
The applicant's case was that in 1969 he too got married to the deceased according to the Sesotho Law and Custom. The marriage was
subsequently solemnised in church in Welkom in the Republic of South Africa in 1973. He attached a copy of the certificate of their civil marriage.
In support of the contention that he was lawfully married to the deceased, the applicant filed the affidavit of 'Mamalimatle Ramothello who diposed that she was the mother of the deceased and knew that after their Sesotho marriage, the respondent and the deceased lived together as husband and wife for one year and then divorced, It was then that the applicant and the deceased got married by Sesotho custom and civil rites.
As has been pointed out the evidence of 'Mamalimatle that respondent and the deceased had divorced was denied by respondent supported by Manlomola, the head of the family of Ramothello, who averred that the deceased had merely desserted. 'Mamalimatle could not even annex a Court decision in proof of her bold allegation that the respondent and the deceased had divorced. I am unable to accept her evidence. On the contrary I accept the evidence of the respondent, the person who got married to the deceased, supported by Mahlomola, the head of the family of Ramothello, that the Sesotho marriage between
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respondent and the deceased was never dissolved. It follows, therefore, that when the applicant purported to marry her, by Civil rites the deceased was still lawfully married to the respondent according to Sesotho Law and Custom.
It is trite law that the system of polyandry whereby a woman gets married to two or more husbands is unknown in our society - Masupha v. Masupha 1977 L.L.R. 54. The purported marriage between the applicant and the deceased while the latter's marriage to the respondent was still subsisting was, therefore, a nulity.
It was not disputed that the deceased died at St. Joseph's hospital, Roma on 5th March, 1985. The applicant then kept the body at Homes Trust mortuary, in Maseru. On the 15th of March, 1985, he collected the body from the mortuary and conveyed it to Lithabaneng in preparation for the burial on the 16th March, 1985. However, the respondent with the assistance of the police, stopped the burial and caused the corpse to be returned to the mortuary from where he intends collecting it for burial at Nqechane, the parties matrimonial home. The applicant supported by 'Mamalimatle resists this and says it was the wish of the deceased during her life time that she should be buried at Lithabaneng. This, according to the applicant and 'Mamalimatle, can be gathered from the fact that the deceased and the applicant have a house and other assets at Lithabaneng where they have lived for a period of 16 years.
It is significant to note that the deceased has left no will directing where she wished to be buried after her death. What the applicant and 'Mamalimatle say was the wish of the deceased during her life time seems to me hearsay and inadmissible evidence. Moreover in the absence of any testamentary will the fact that the deceased and the applicant who was clearly not her lawful husband have a house and other assets at Lithabaneng is,in my view, not a conclusive evidence that the deceased wished to be buried at Lithabaneng and not at her marital home which is Nqechane.
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As pointed out earlier, at the time the applicant and the deceased purported to get married to each other, the latter was still married to the respondent. The applicant could not, therefore, be lawfully married to the deceased during the subsistance of her marriage to the respondent who was and still is, in law, the sole heir to her estate. As Munick, C.J. once put it in Tseola and Another v. Maqutu & Another 1976 (2) S.A. 418 at page 424 H.
" ...... Public policy and the sense of what is
right dictates that, in a dispute of this nature, the widow's wishes where she is an heir should prevail, and that it is her duty and her right to bury the deceased where she pleases."
I entirely agree with this view. Although in the present case it is the widower, and not the widow who claims the body of the deceased, the salient point is that he is the heir to the estate of the deceased and the principle equally applies.
In the circumstances the view that I take in this matter is that the rule ought to be discharged and I accordingly order as follows:
The rule nisi is discharged.
The application is dismissed.
The applicant is to pay the costs of this application.
Respondent is directed to bury the deceased.
B.K. MOLAI,
25th March, 1985.
For Applicant : Mr. Ramodibeli
For Respondent : Mr. Maqutu.
