CIV/APN/274/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MAINE
MOKOLOKOLO Applicant

MOOROSI
PITA MOKOLOKOLO 1st Respondent

DISTRICT
SECRETARY 2nd Respondent

JUDGMENT

Delivered
by the honourable Acting Chief Justice Mr. Justice J.L. Kheola on the
4th day of September, 1986.

On the
1st day of September, 1986 the applicant brought an urgent
application in which he sought a Rule Nisi to be issued calling
upon
the respondents to show cause why:

"1. (a) First Respondent shall not be restrained from stopping
applicant from burying the body of applicant's father the late
Sello
Alexander Mokolokolo at Ha Ratsiu Teyate-yaneng in the district of
Berea.

(b) First Respondent shall not be interdicted from burying the body
of the late Sello Alexander Mokolokolo.

(c) Second Respondent shall not be ordered to allow Applicant to have
the body of the late Sello Alexander Mokolokolo which is
at
Teyate-yaneng Government Hospital Mortuary for burial.

(d) Why First Respondent shall not be directed to pay costs of this
application.

2. That the Rule operate as an Interim Interdict pending the the
finalisation of this application."

2

I granted
the rule and made it returnable on the 3rd September, 1986. Only the
1st respondent opposed the confirma­tion of the
rule on the
ground that the applicant's mother was not legally married to the
late Sello Alexander Mokolokolo.

Most of
the facts disclosed by the affidavits are common cause. They are that
on the 5th August, 1986 Sello Alexander Mokolokolo
(hereinafter
referred to as the deceased) died at his home at ha Ratsiu,
Teyateyaneng in the district of Berea. Before he went
to live at Ha
Ratsiu the deceased lived at Qeme ha Pita where most of his family
are still living. He left Qeme in 1949. The deceased's
father is the
half-brother of the father of the 1st respondent. The first wife of
the deceased was the late Alice who passed away
in 1985. She had no
male issue.

It is
common cause that the deceased and the mother of the applicant had
been living together as man and wife for well over forty
years, and
that the applicant was fathered by the deceased. That during the
lifetime of the deceased no one ever challenged the
validity of his
marriage to the applicant's mother ('Maseitebatso), in fact, one of
the applicant's sisters was brought up by the
1st respondent. The
applicant had made arrangements to bury the body of deceased on the
16th August, 1986 but the 1st respondent
went to the Government
mortuary where the body was kept and informed the autho­rities
concerned that the body should not be
released to the appli­cant
because ha (1st respondent) has a better title or right to it than
the applicant. The 2nd respondent
then decided that he would not
release the body to anybody unless he was served with a court order.

It seems
to me that the decision of the 2nd respondent was rather unfair to
the applicant. His records clearly showed the name

3

of a
person who had brought the corpse to the mortuary. The 2nd respondent
was keeping the corpse on behalf of that person. He should
have told
the 1st respondent that unless he (1st respondent) served him with a
court order within a specified period, he would
release the corpse to
the person who had brought it to the mortuary. His decision forced
the applicant to incur the expenses of
bringing this application to
Court and yet it was the 1st respondent who had to incur such
expenses. The first respondent did not
take any action for about two
weeks after stopping the 2nd respondent from releasing the corpse to
the applicant. This inaction
on his part tends to show that he did
not have genuine interest in the corpse and did not care much how
long it remained in the
mortuary.

I now
turn to the main issue in this application, viz. the validity of the
marriage between the deceased and 'Maseitebatso, On the
return day I
decided that I would hear viva voce to resolve the issue. The
applicant's evidence was that he took the dead body
to the mortuary
and that his sister, Seitebatso,signed for it at the mortuary. He
testified that his mother is a mental patient
at Mohlomi Mental
Hospital though she has lucid intervals. His will and that of his
mother is that the deceased should be buried
at his (deceased's) home
at ha Ratsiu.

'Maletsika
Pita deposed that the father of the deceased was one Liau Mokolokolo
who is the half-brother of her late husband Nyefolo
Christopher and
1st respondent's father Lekhotso Mokolokolo. She was present in 1945
when the deceased married 'Masoitebatso. She
was sent with the late
Clement Pita and 'Masechaba Pita to go to Makeneng and handed over
the "bohali" cattle for 'Maseitebatso.
They gave the
parents of 'Maseitebatso an amount of £45 which was computed as
15 head of cattle as each beast was valued

4

at £3.
She said that it was in 1952 or 1953 when they paid the "bohali"
cattle. She denied that it was not Sesotho
custom that women should
be assigned such duties. Her evidence was that when they gave the
"bohali" cattle to the parents
of 'Maseitebatso it was
never disclosed to them that 'Maseitebatso was previously married to
another man. When the deceased abducted
'Maseitebatso in 1945 or 1946
her late husband, Christopher was still alive, and went.'; to
negotiate with the parents of 'Maseitebatso.
However no "bohali"
cattle were paid until 1952 or 1953 after the death of her husband.

The
second witness was one Halekhetheloe Nketsi. He is the brother of
'Maseitebatso. He remebers that his sister was abducted by
a man
named Rapase and she never went there again. After that she was
abducted by the deceased but he does not know how many cattle
were
paid as "bohali" because at the relevant time he was living
at the cattle post and came home once in a year.

The first
respondent deposed that he was 25 years old when the deceased started
cohabiting with 'Maseitebatso in 1954. He, however,
admits that
Seitebatso was born in 1948. He knows very well that no "bohali"
was paid.

Teboho
Ponya is an old man of SO years of age. His evidence was that the
deceased and 'Maseitebatso lived as man and wife and that
their
children were regarded as legitimate. He does not know

anything
about the "bohali" for 'Maseitebatso but he admits that it
paid could have been without his knowledge because
in the case of
Alice been he had assigned to take the "bohali" cattle to
her parent's home. On that occasion he was accompanied
by a lady
named Maria.

5

The 1st
respondent hopelessly failed to prove on a balance of probabilities
that the deceased was not legally married to the mother
of the
applicant. The evidence shows that the 1st respondent was about 12
years old when the marriage took place and that he could
not have
known that any "bohali" was paid. 'Maletsika Pita gave me
the impression that she was a truthful witness and
knew what she was
talking about. Her evidence was challenged on the ground that women
are never assigned to take "bohali"
cattle to the home of
the girl. The 1st respondent's own witness Teboho Ponya said that
when he drove the "bohali" cattle
to the home of deceased's
first wife's parents he was accompanied by a woman,

I come to
the conclusion that a valid marriage has been proved and that
according to Sesotho law and custom the applicant is the
heir. His
mother has also expressed her wish that the deceased should be buried
as his home at ha Ratsiu. The law has been stated
in a number of
cases as to who shall be entitled to bury the body where the deceased
has not expressed his wishes as to his burial.
The deceased's heirs
should decide where the deceased ought to be buried (Tsepo Motlohi v.
Eliza Lenono and another, CIV/APN/20S/79,
Human v. Human and others,
1975 (2) S.A. 251 ., Saiid v. Schatz and another, 1972 (1) S.A. 491
and Tseola and another v. Maqutu
and another, 1976 (2) S.A. 418).

In the
present case the deceased did not express his wish as to where he
should be laid to rest, so the wishes of the heir and the
widow must
prevail.

The rule
was confirmed with costs.

J.L.
KHEOLA

ACTING
CHIEF JUSTICE.

21st
October, 1986.