[N THE
HIGH COURT OF LESOTHO

In the
matter of:

REX

V

JAN
NDONDOZELA

Review
Case No 202/2004 CR 1763/2004

Review
Order No 20/2004 In Maseru District

REVIEW
ORDER 11th OCTOBER, 2004

This
matter came to me on review.

The
accused was charged with contravening section 87(1) of the Land Act
No 17 of 1979 in that:

"The said accused did unlawfully occupy land without proper
authority"

In the
charge sheet the word "wrongfully" has been crossed out.

1

The
accused pleaded guilty and was according to his plea found guilty as
charged. The Magistrate then sentenced the accused to M5000.00
or 5
years imprisonment the whole sentence was suspended for two years.
The fact of the case were summarised as follows:

"Evidence would show that on 3/01/04 accused went to the chief
and asked him to bury his relative.

The Chief refused on the ground that the deceased was not staying in
his place.

Accused left and came back with chief Matsoso with deceased and
buried him regardless of the fact that the chief had refused.

Accused had no authority to use or occupy that land.

It is only the Maseru City Council that can authorize the allocation
of land."

The
record shows that the accused accepted these facts.

The first
problem in this case is that the name of the chief and the area where
the accused was asking to bury the deceased is not
mentioned. It is
also not clear what is meant by the term "the deceased was not
staying in his place."

The
second problem is that the authority of that chief to permit or
refuse to allow a burial is not disclosed. If it is the Maseru
City
Council that is the land allocation authority, then I do not
understand how the chief whose name is not disclosed features.
It was
in my view necessary to state where exactly the land that is alleged
to have been invaded is.

2

The other
important issue is whether burial and land allocation are same thing.
Has the accused buried deceased at a cemetery? This
is also not
disclosed. If chief Matsoso authorized the burial wrongfully and
unlawfully why has chief Matsoso not charged.

If chief
Matsoso invaded the other chief's jurisdiction and allocated accused
a burial site, then he is the principal offender.
If he is the Senior
Chief where a subordinate chief has refused to allow a burial, then
no offence is committed.

The
administration of cemeteries and burials in the Maseru City is an
issue that should have been clearly stated if the offence
was
committed in the Maseru City. But as I have stated this was not
disclosed. The other question that bothers me is what does
the
unnamed chief has to do with this burial site, if this is a Maseru
City Council responsibility.

In
Basotho Society, all burials are the sacred duty of those who have a
duty to bury the deceased see Matsotang Mafereka V Tjomela
Mafereka &
two others 1991 -96 LLR 445 at page 450. It is the duty of the
authorities to facilitate the burial of the deceased.
Voet X1.7.7
says the heirs of the deceased have a duty to bury the deceased:

"If no one has been so named, it affects the legitimate children
or blood relations, each in order of succession. If they
are also
wanting, it is the duty of the magistracy to take care that the
deceased is buried out of his own money or property. Nay
indeed
anybody... however a complete stranger, so that dead bodies may not
He unburied..."

3

In
Basotho custom as summarised by the Laws of Lerotholi II section 30:

"Every man residing in the village in which death may occur
or... such adult as may be ordered by the chief, headman,
sub-headman,
shall assist in digging the grave for the burial of the
deceased person."

In
Ramahloli VRamahloli CIV/APN/479/93 (unreported) this court said:

"From this the court concludes that the right and duty to bury
the deceased is shared by the family, the heir and the community...

In Basotho Custom, it is the chiefs duty (who stands for the
magistracy) to see that the deceased is buried. Even if the family
is
there, burial is regarded as the legal and moral duty of the
community."

The
family has precedence because burial is closely linked with the law
of succession and has a close relationship with the deceased.
The way
this accused did not get the assistance and co-operation from this
unnamed chief strikes me as violating what Cullinan
CJ in Mokoatle V
Senatsi & another C1V/APN/163/91 (unreported), called "a
custom which is common to all mankind namely,
respect for the dead."
The chief (if he really was the proper authority) failed in his duty
to see deceased people are decently
buried.

To claim
the deceased did not live in the village violates the custom that
deceased should be buried near his relatives so that
the deceased's
grave can be well tended and looked after. Voet XI.7.1 shows that the
Dutch share with Basotho Custom the treatment
of graves as sacred and
states.

"A place is hallowed in which a dead body either of a free human
being or a slave, or the main portion of it, to wit the head
has been
laid."

4

For the
above reasons:

I quashed
both conviction and sentence of the accused and found him not guilty.

W.C.M.MAQUTU

JUDGE OF
THE HIGH COURT

Copy:
Chief Magistrate

The Magistrate - Maseru

Director of Public Prosecutions

O/C Police - Maseru

O/C Prisons – Maseru

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